R v Monks - [2019] SASCFC 47

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v MONKS
[2019] SASCFC 47
Judgment of The Court of Criminal Appeal
(The Honourable Justice Peek, The Honourable Justice Parker and The Honourable Justice Doyle)
9 May 2019
CRIMINAL LAW - SENTENCE - RELEVANT FACTORS - NATURE AND CIRCUMSTANCES OF OFFENDER - SUBSTANCE ABUSE
Appeal against sentence for one count of causing a bushfire with reckless indifference contrary to s 85B(1)(b) of the Criminal Law Consolidation Act 1935 (SA). The appellant was sentenced to imprisonment for three years, seven months and two weeks, with a non-parole period of two years and five months.
The appellant contends that (1) the sentence is manifestly excessive, in particular because the sentencing judge gave no, or inadequate, weight to that the appellant was experiencing a psychotic condition at the time of committing the offence; and (2) that the non-parole period is manifestly excessive.
Held per Doyle J (Peek and Parker JJ agreeing):
1.       Consideration of the stages at which, and ways in which, the mental condition of an offender informs the sentencing process.
2.       No error has been identified in the sentencing judge’s approach arising out of either the drug-induced intoxication or psychosis affecting the appellant at the time of his offending, or the appellant’s underlying history of substance abuse and mental health issues.
3.       The sentence is not manifestly excessive.
4.       The non-parole period is not manifestly excessive. It has not been established that the sentencing judge failed to have adequate regard to the factors personal to the appellant in fixing a non-parole period.
5.       The appeal be dismissed.
Criminal Law Consolidation Act 1935 (SA) s 85B; Sentencing Act 2017 (SA) s 11(1)(f), referred to.
R v Monks [2011] VSC 626; R v Wiskich [2000] SASC 64; R v Hronopoulos [2017] SASCFC 143; R v Verdins (2007) 16 VR 269; Pederson v Western Australia [2010] WASCA 175; Director of Public Prosecutions v Weidlich [2008] VSCA 203; R v Williams [2018] SASCFC 14; R v Lane (1990) 53 SASR 480; R v Redenbach (1991) 52 A Crim R 95; Butler v The State of Western Australia [2010] WASCA 104; R v Robazzini [2010] VSCA 8; Director of Public Prosecutions v Arvanitidis (2008) 202 A Crim R 300; R v Martin (2007) 20 VR 14; Damiani v The State of Western Australia (2006) 165 A Crim R 358; R v Bui [2018] SASCFC 19; R v Proom (2003) 85 SASR 120; R v Spiero (1979) 22 SASR 543; R v Henry (1999) 46 NSWLR 346; Bugmy v The Queen (2013) 249 CLR 571; Muldrock v The Queen (2011) 244 CLR 120; Mason-Stuart v The Queen (1993) 61 SASR 204; R v White [2009] SASC 239; R v Engert (1995) 84 A Crim R 67; R v Sewell (1981) 29 SASR 12; Green v The Queen [2011] VSCA 31; R v Tsiaras [1996] 1 VR 398; Director of Public Prosecutions v O’Neill (2017) 47 VR 395; Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1; Melham v The Queen [2011] NSWCCA 121; Iskandar v The Queen [2013] NSWCCA 235; Weininger v The Queen (2003) 212 CLR 629; R v Dupuy [2008] VSCA 63; R v Flentjar [2013] SASCFC 11; House v The King (1936) 55 CLR 499; Hili v The Queen (2010) 242 CLR 520; R v Morse (1979) 23 SASR 98; Dinsdale v The Queen (2000) 202 CLR 321; R v Creed (1985) 37 SASR 566, considered.

R v MONKS
[2019] SASCFC 47
Court of Criminal Appeal: Peek, Parker and Doyle JJ

PEEK J: I would dismiss the appeal. I agree with the reasons of Doyle J.
PARKER J: I would dismiss the appeal. I agree with the reasons of Doyle J.
DOYLE J: The appellant pleaded guilty to one count of causing a bushfire[1] with reckless indifference in contravention of s 85B(1)(b) of the Criminal Law Consolidation Act 1935 (SA). The maximum penalty for this offence is 20 years imprisonment.
[1] A “bushfire” is defined in s 85B(2) to mean a fire that burns, or threatens to burn, out of control causing damage to vegetation (whether or not other property is also damaged or threatened).
Having commenced with a notional starting point of six years imprisonment, the sentencing judge reduced this by approximately 40 per cent on account of the appellant’s early plea of guilty. His Honour imposed a sentence of three years, seven months and two weeks imprisonment, and fixed a non-parole period of two years and five months.
In this appeal against sentence, the appellant complains:
1.that the sentence is manifestly excessive, in particular by reason of the sentencing judge giving no, or inadequate, weight to the psychiatrist’s view that the appellant was suffering from a psychotic condition at the time of lighting the fire; and
2.that the non-parole period is manifestly excessive.
The circumstances of the offending
The appellant was charged with lighting a fire with reckless indifference as to whether his conduct caused a bushfire, rather than with the intention of causing a bushfire.
As to the more detailed circumstances of the appellant’s offending, he was sentenced on the basis of an agreed factual summary prepared by the prosecution, together with some additional information and material provided during the course of sentencing submissions.
The bushfire occurred on a rural property at Bool Lagoon, in a relatively remote area in the south-east of South Australia. The appellant lit the fire at around 8.00 am on Sunday, 1 April 2018. He did so using a cigarette lighter, and by setting fire to seven separate areas of knee-high grass. The only information as to the conditions at the time of the fire was that it was a still day with no breeze.
The fire damaged some 300,000 square metres of paddocks, and 1.5 kilometres of fencing (to the value of about $9,000). There were no livestock or cattle in the paddocks that were damaged, although there were cattle in adjoining paddocks that might have been at risk were it not for the prompt action of the owner of the property and the local CFS. There was no evidence or other information to suggest that there was any residence or other building within the immediate vicinity of the area affected by the fire.
The owner was at his residence on the property on the morning of the fire. He smelt smoke, and at about the same time was informed by a neighbour of a fire in the northern section of his property. After notifying the CFS, the owner joined the CFS volunteers in successfully fighting and extinguishing the fire.
The appellant was found in possession of a cigarette lighter in the area of the fire. He told those present that he had been abducted, held against his will and tortured. He said he had escaped and run out of town, and that he had lit the fires to attract attention and keep the people who were chasing him away. A police officer subsequently arrived and arrested the appellant.
When later interviewed, the appellant elaborated that two men had come to his house in Victoria and told him to drive with them to Naracoorte. He said that he stayed with them in Naracoorte for several days before fleeing, and running approximately 20 kilometres along the Riddoch Highway. He then entered a paddock where four men, dressed in black, followed him, repeatedly loading and unloading their guns. The men communicated by making clicking sounds and using multi-coloured flashlights. He said that their pursuit of him continued throughout the night. In the morning there were 11 people standing in a straight line directly in front of him, and chasing him through the paddock. He could not outrun them so he started lighting fires between himself and these people. He admitted lighting three fires. He said that these people disappeared from the scene about 15 to 20 minutes before he was arrested.
By the time of sentencing, the appellant accepted that the above explanation for his offending was the product of a methylamphetamine-induced hallucination, rather than having any foundation in fact. As explained below, the suggestion of the appellant being affected by either acute methylamphetamine intoxication or a methylamphetamine-induced psychosis was supported by a report provided by a forensic psychiatrist, Dr Raeside.
The appellant’s personal circumstances
At the time of the offending, the appellant was 30 years of age. As the sentencing judge pithily observed, the appellant had a dysfunctional and chaotic upbringing, which gave him little chance in life.
The appellant’s parents had significant mental health issues, and did not provide him with any meaningful support. He had a large number of half and step-siblings, perhaps as many as 14 or 15 in total. He was raised by his maternal grandmother and various uncles, although this essentially involved him being “passed around” within his extended family, without any stability in his upbringing. He was subjected to physical and sexual abuse by members of his extended family. The only positive influence in his upbringing was that of his grandmother.
The appellant began abusing alcohol and other drugs from a very young age, and as a means of escaping from the matters outlined above. In particular, he commenced drinking alcohol when as young as nine or 10 years of age. He also commenced taking various illicit drugs, including amphetamines and heroin, as a young teenager and continued taking them throughout his teenage and adult years. There were periods of time when he attempted to address his alcohol and drug abuse. However, when his grandmother died in 2007, this “destroyed” him and he “hit the drugs and alcohol even harder”. He became a “drifter, a couch-surfer and … didn’t know what to do.”
The appellant has had a few significant relationships. The first was with his primary school girlfriend, who gave birth to their first child (who was stillborn) when he was 12 years of age and she was 13 years of age, and their second child about three years later. He had two further children with another partner about three and five years later respectively. He has not seen his children for over a decade.
Despite the difficulties confronting him, and not having had any significant secondary schooling, the appellant did manage to obtain some intermittent employment of a manual labour type.
The appellant has a criminal record that includes offences of burglary, theft and false imprisonment committed between about 2005 and 2011. His prior offending culminated in an offence of manslaughter by excessive self-defence for which he received a period of eight years imprisonment in 2011.
That last offence involved the appellant striking one of his uncles with a tomahawk in response to a drunken assault of him by his uncle. The sentencing judge in that matter, Curtain J, accepted that the appellant believed that it was necessary to strike his uncle in self-defence and that this belief was informed by his experience of family violence. However, Curtain J also held that the appellant’s action in striking the deceased was nonetheless disproportionate to the threat his uncle in fact posed and that, by reason of his plea, the appellant had accepted that he had no reasonable grounds for his belief in the necessity of his conduct. In considering the appellant’s mental condition at the time of that earlier offending, Curtain J said:[2]
I accept the submission that you have suffered family violence and that consequently you have been diagnosed as having personality traits consistent with borderline personality disorder, post-traumatic stress disorder, depression and poly substance dependence, the latter said to be a coping mechanism, and I accept that there is a nexus between these conditions, the family violence and your offending such that the principles of Verdins as recently stated in R v Charles are here applicable so as to reduce your moral culpability for the offending to a degree and give effect to a moderation in the weight otherwise to be accorded considerations of general and specific deterrence. I accept that when faced with your uncle in a rage and punching you, the violence you suffered over the years and its sequelae affected your ability to exercise appropriate judgment or to make calm and rational choices, but so, too, would have your state of intoxication and the cannabis, which, despite your denials to the police, you instructed your counsel you had consumed earlier that day. I appreciate that your excessive drug and alcohol consumption is regarded by Mr Newton as a consequence of your abuse and, in that way, may be encompassed by the principles of Verdins, but on this day, prior to the intervention of the police, you and your uncle were on sufficiently good terms to be drinking together without incident. Indeed, you told the police you were having a good night and you were seen to drink about half a bottle of bourbon while he was at the police station, perhaps in anticipation of his demeanour upon his return, but you would have known that alcohol increased the likelihood of conflict between the two of you and it cannot be denied that your intoxication must have contributed to your disinhibitions and affected your judgment on this night.
[2] R v Monks [2011] VSC 626 at [33] (Curtain J).
The appellant committed the present offending only about six months after his release from prison in respect of this earlier offending. At the time of his present offending he was living in Geelong with a new partner, who continues to support him. He had not found employment, and indeed had fallen back into methylamphetamine use.
In considering the appellant’s mental health at the time of the present offending, Dr Raeside reported that the appellant described himself as having been “up and down” throughout his life, and having experienced periods of depression and anxiety. He added that these mental health problems were not helped by the appellant having taken crystal methylamphetamine (ice) on two or three occasions since his release from prison, as a result of which the appellant said that “I lost my mind and I couldn’t talk” and “ended up in hospital, and I can’t really recall what happened. I just remember waking up in ICU.” Dr Raeside reported the appellant as saying that he used ice again at the time of the current offending, resulting in him thinking that “people were trying to chase me and kill me”.
The appellant explained to Dr Raeside that he had travelled to Naracoorte to visit some family members, but also with a view to obtaining some ice. After taking some ice, he said he recalled seeing people in black clothes and “freaked out”. He described starting to run from these people and attempting to run back to Victoria. He gave an account, in terms similar to that set out earlier in these reasons, of ending up in a paddock and then lighting some fires to create a wall of fire between him and the people chasing him, and to give him time to get away.
Dr Raeside said that this account suggested the appellant was experiencing marked paranoid delusional beliefs and visual hallucinations. He explained that visual hallucinations were most commonly associated with organic conditions such as drug psychosis, rather than mental illnesses such as schizophrenia. Consistently with this, the appellant had not reported any subsequent or ongoing hallucinations.
Dr Raeside diagnosed the appellant as having an underlying antisocial personality disorder, with a history of conduct disorder in his childhood. He explained that the antisocial personality disorder represented a lifelong history of difficulties with relationships, unlawful behaviour, impulsivity and anger, and a failure to sustain consistent work. It involved a personality style often associated with a history of childhood abuse and neglect, and poor educational and social opportunities and attainments. Dr Raeside also noted that the appellant had a history of significant substance abuse, including alcohol, marijuana, amphetamines and opiates; and that more recently crystal methamphetamine appeared to have been problematic for the appellant, causing him quite severe adverse effects.
Dr Raeside was not able to identify any current mental illness on the part of the appellant. While the appellant reported some previous treatment with antipsychotic and antidepressant medication, Dr Raeside considered that his difficulties and treatment “most likely related to past substance abuse without any clear evidence of prior mental illness.”
Dr Raeside concluded:
In my view [the appellant] was psychotic at the time of the alleged offending, but this appears to be due to either acute amphetamine intoxication, or possibly an amphetamine-induced psychosis, depending on the actual timeframe … There is no indication of suffering a psychotic illness such as Schizophrenia or a manic episode. Any disturbance in his reasoning about the wrongfulness of his actions would have been influenced by the amphetamines rather than any mental illness.
Dr Raeside did not recommend any psychiatric treatment for the appellant. However, he said that the appellant clearly needed assistance in addressing his ongoing substance abuse consequent upon his early life trauma; and the consequential risk that once back in the community, and subjected to stress, he will return to his usual response of self-medicating with alcohol and drugs.
The appellant reported that since his offending (hence in the six months or so he had been on remand prior to sentencing) he had detoxed, and now recognised the “bad effect” the ice had on him and that he wanted to stay away from it.
The sentencing remarks
In sentencing the appellant, the sentencing judge summarised the circumstances of the offending. Having mentioned the appellant’s reference to running away from some people who were chasing him, and having lit the fires to attract attention and discourage pursuit, his Honour said:
You now concede that you were suffering from methylamphetamine-induced hallucinations which led you to believe that you were being chased and that you were trying to create a wall of fire to protect yourself from your non-existent pursuers. Your judgment was plainly compromised by the methylamphetamine at all relevant times and your subjective culpability is lower than it otherwise might have been, however, there is no suggestion that you did not know what you were doing or that you did not know that it was wrong to do it.
The sentencing judge then turned to the appellant’s personal circumstances. He mentioned his dysfunctional and chaotic upbringing; the physical and sexual abuse he had suffered; his abuse of alcohol and drugs from a very young age as a means of escape; his (albeit limited) employment history; his relapse into methylamphetamine use in the period leading up to his offending; his mental health issues and diagnosis of a longstanding antisocial personality disorder; and his criminal record. The sentencing judge concluded as follows:
You have now been on remand for some six months and you say that you have detoxified while you have been in custody. You have a partner and she supports you. However, and these considerations notwithstanding, your record and your relapse into methylamphetamine after your most recent release from prison before you committed your current crime means that one cannot have any real confidence that you will now rehabilitate yourself.
You are to know that I have taken everything which has been said and written about you on your behalf into account and that I have given each aspect of it the significance I think it deserves. The prosecution does not contend that you should not be given the maximum reduction for your plea.
You will be sentenced to imprisonment for three years, seven months and two weeks. Were it not for your plea of guilty I would have imposed a sentence of six years. I fix a nonparole period of two years and five months. Both the sentence and the nonparole period will commence on 1 April 2018.
Relevance of mental impairment to the sentencing process

The appellant was sentenced on the basis that he was suffering from methylamphetamine-induced hallucinations at the time of his offending. Further, this methylamphetamine use occurred against a background of a history of substance abuse and mental health issues experienced by the appellant. The appellant’s mental condition was thus an important, and relatively complex, aspect of the sentencing process. However, before addressing the appellant’s particular circumstances in more detail, it is appropriate to commence by outlining some of the general principles governing the potential relevance of an offender’s mental condition to the sentencing process.
Both at common law, and under s 11(1)(f) of the Sentencing Act 2017 (SA), the mental condition of an offender is a relevant consideration in the sentencing process.[3] Indeed, the fact that an offender was suffering from some form of mental impairment or disorder at the time of the offending may be relevant to the sentencing process at various stages and in various ways, depending upon the nature of the condition and the circumstances of the case more generally.
[3] R v Wiskich [2000] SASC 64 at [22] (Martin J, Prior and Williams JJ agreeing); R v Hronopoulos [2017] SASCFC 143 at [23] (Stanley J, Blue and Hinton JJ agreeing), [69] (Hinton J, Blue J agreeing).
A relevant mental condition may involve an intellectual disability, or it may involve some form of mental illness or disorder. Insofar as it involves some form of mental illness or disorder, it need not be attributable to a recognised psychiatric condition. What matters in any given case is not the label to be applied to the condition, but whether and to what extent the condition can be shown to have impaired the offender’s mental functioning at the time of the offending.[4] Further, the condition or impairment need not be permanent or long-standing; it may be temporary in nature. Indeed, while it raises some different considerations, the impairment may be the product of intoxication by reason of alcohol or drugs, either in isolation or in combination with some underlying mental illness or disorder.
[4] R v Verdins (2007) 16 VR 269 at [12] (Maxwell P, Buchanan and Vincent JJA).
In determining the relevance of the impairment of an offender’s mental functioning in a particular case it will be necessary to consider matters including (i) the nature and severity of the impairment; (ii) the extent to which the impairment was operating on the offender’s mental functioning at the time of the offending and hence can be said to have influenced or caused the offender to commit the offence and/or to have affected the offender’s capacity to appreciate the wrongfulness and gravity of the offending; (iii) whether the impairment was the product of an underlying mental illness or disability, self-induced intoxication, or some combination of such factors; (iv) if the product of self-induced intoxication, whether it reflected an addiction, and if so the circumstances of that addiction; and (v) the ability of the offender to reduce or overcome the significance of any underlying condition or addiction, and the steps taken or able to be taken by the offender in that regard.
The stages at which, and ways in which, the impairment informs the sentencing process will depend upon what falls from the consideration of each of the above, but may be summarised as follows.
Moral culpability
First, the existence of some form of mental impairment may affect the offender’s degree of moral culpability for their offending, as opposed to their legal responsibility for that offending. It may do so in several ways. It may do so, for example, by impairing the offender’s ability to exercise appropriate judgment, to maintain self-control and resist impulsive behaviour, to think and reason clearly, and to make calm and rational choices. It may influence or cause the offender to act in a disinhibited or aggressive manner. It may obscure the offender’s intent to commit the offence, or negate any suggestion of deliberation or premeditation. It may impair the offender’s ability to appreciate the wrongfulness, gravity and implications of their offending.[5]
[5] R v Verdins (2007) 16 VR 269 at [26] (Maxwell P, Buchanan and Vincent JJA).
Assuming a ‘realistic connection’ or ‘causal link’ between the impairment and the offending, such that the impairment is more than merely part of the background to the offending, this may reduce the offender’s moral culpability or blameworthiness for their offending in one or more of the ways set out above. Where this is so, it may reduce the need for denunciation and punishment in the sentence to be imposed, and hence also the length or severity of the sentence necessary to arrive at a punishment that is proportionate, or ‘just in all the circumstances’.[6] As the Court explained in Director of Public Prosecutions v Weidlich:[7]
Generally, the measure of culpability of an offender under the criminal law rests upon the extent to which the individual can be seen to be personally responsible for both the prohibited acts and their consequences. Little thought is required to appreciate that the greater the level of insight and understanding possessed by him or her concerning the act and its potential harm, the higher becomes the level of culpability for then deliberately engaging in the conduct involved. The Court in R v Tsiaras [1996] 1 VR 398 and R v Verdins (2007) 16 VR 269 … recognised that sometimes as a consequence of the contribution made to the commission of an offence by a mental disorder from which a perpetrator was suffering at the time, it would be unjust to attribute to the offender a full measure of personal responsibility.
[6] R v Verdins (2007) 16 VR 269 at [32] (Maxwell P, Buchanan and Vincent JJA); Pederson v Western Australia [2010] WASCA 175 at [50] (Bus JA, McLure P and Mazza J agreeing).
[7] Director of Public Prosecutions v Weidlich [2008] VSCA 203 at [17] (Vincent and Weinberg JJA and Mandie AJA).
On the other hand, if the impairment was the product of self-induced intoxication, then it will not generally lessen the offender’s moral culpability for their offending, and indeed may be an aggravating factor.[8] It seems that the reason for this lies in the notion that the offender’s culpability or blameworthiness exists in their decision to consume the intoxicating alcohol or drug, or at least that by reason of the impairment being self-induced the offender is morally responsible for his or her condition.[9] This is particularly so where the offender had, or ought to have had, some appreciation or foresight (whether through experience or the application of common sense) of the risk of engaging in inappropriate or criminal conduct while intoxicated.[10]
[8] R v Williams [2018] SASCFC 14 at [47]-[50] (Hinton J, Blue and Stanley JJ agreeing); R v Lane (1990) 53 SASR 480 at 484-488 (Matheson J, Jacobs ACJ and Mullighan J agreeing).
[9] R v Redenbach (1991) 52 A Crim R 95 at 99 (Young CJ, Brooking and Marks JJ); Pederson v Western Australia [2010] WASCA 175 at [50] (Bus JA, McLure P and Mazza J agreeing).
[10] R v Williams [2018] SASCFC 14 at [55] (Hinton J, Blue and Stanley JJ agreeing), citing Bourke v The Queen (2010) 199 A Crim R 38 at [28] (McClellan CJ at CL, Price and Hulme JJ agreeing); Butler v The State of Western Australia [2010] WASCA 104 at [60]-[62] (Owen JA, Pullin JA agreeing); R vMartin (2007) 20 VR 14 at [30], [53] (Maxwell P, Nettle and Redlich JJA).
In exceptional cases of self-induced intoxication, there may some scope for a reduction in the offender’s moral culpability. That may be so in cases where the offender had no reason to foresee a risk of engaging in inappropriate or criminal conduct while intoxicated, or where there is some other circumstance that wholly or partly excuses the consumption of alcohol or drugs.[11]
[11] Damiani v The State of Western Australia (2006) 165 A Crim R 358 at [41] (McLure JA, Roberts-Smith and Pullin JJA agreeing).
In the context of this last matter, if the consumption of alcohol or drugs was the product of addiction, this may be relevant. While addiction of itself is not usually considered mitigatory (as reducing the offender’s moral culpability),[12] it may be where the addiction is one that the offender fell into when very young, or in circumstances that were otherwise outside of his or her control or not the product of a free choice.[13] This might include circumstances where the offender’s addiction, or history of substance abuse, is a product of their social disadvantage or the environment in which they were raised.[14] As mentioned later, an addiction or history of substance abuse may also be relevant in providing a context for the offending, and as bearing upon the scope for rehabilitation.[15]
[12] R v Bui [2018] SASCFC 19 at [30] (Vanstone J, Kourakis CJ and Kelly J agreeing); R v Proom (2003) 85 SASR 120 at [43] (Doyle CJ, Duggan J agreeing); R v Spiero (1979) 22 SASR 543 at 549 (King CJ, Walters and White JJ agreeing).
[13] R v Williams [2018] SASCFC 14 at [55] (Hinton J, Blue and Stanley JJ agreeing); see also R v Proom (2003) 85 SASR 120 at [37]-[48] (Doyle CJ, Duggan J agreeing), and the discussion of the differing views in R v Henry (1999) 46 NSWLR 346 as to the degree of ‘choice’ involved in addiction.
[14] Bugmy v The Queen (2013) 249 CLR 571 at [38] (French CJ, Hayne, Crennan, Kiefel, Bell and Keane JJ).
[15] R v Bui [2018] SASCFC 19 at [30] (Vanstone J, Kourakis CJ and Kelly J agreeing); R v Proom (2003) 85 SASR 120 at [43] (Doyle CJ, Duggan J agreeing).
General deterrence
Secondly, the existence of an impairment of the offender’s mental functioning may also affect the sentencing judge’s consideration of general deterrence. It is well recognised that offenders whose offending reflects some underlying mental illness or disability may be an inappropriate medium for achieving general deterrence.[16] Lush J explained the reason for this in R v Mooney:[17]
[The] significance [of general deterrence] in a particular case will, however, at least usually be related to the kindred concept of retribution or punishment in which is involved an element of instinctive appreciation of the appropriateness of the sentence to the case. A sentence imposed with deterrence in view will not be acceptable if its retributive effect on the offender is felt to be inappropriate to his situation and the needs of the community.
[16] Muldrock v The Queen (2011) 244 CLR 120 at [53]-[54] (the Court); R v Hronopoulos [2017] SASCFC 143 at [24] (Stanley J, Blue and Hinton JJ agreeing); Mason-Stuart v The Queen (1993) 61 SASR 204 at 205-206 (King CJ, Millhouse and Olsson JJ agreeing).
[17] R v Mooney (unreported, Victorian Court of Appeal, 21 June 1978) at 8, in a passage quoted with approval in Muldrock v The Queen (2011) 244 CLR 120 at [53] (the Court).
While mental illness or disability may thus result in the need for general deterrence being ‘sensibly moderated’, it will not generally eliminate the need for general deterrence. Indeed, in cases in which the offending is particularly grave, or the impairment is not particularly significant or did not impair the offender’s understanding of the gravity of their conduct, the need for general deterrence may not be much diminished.[18]
[18] R v Hronopoulos [2017] SASCFC 143 at [29]-[32] (Stanley J, Blue and Hinton JJ agreeing), [69]-[71] (Hinton J, Blue J agreeing); R v White [2009] SASC 239 at [29]-[31] (Doyle CJ, Bleby and Kelly JJ agreeing); R v Wiskich [2000] SASC 64 at [62], [70] (Martin J, Prior and Williams JJ agreeing); R v Engert (1995) 84 A Crim R 67 at 68 (Gleeson CJ, Allen and Sully JJ agreeing).
Mental impairment by reason of self-induced intoxication will not ordinarily lessen the need for general deterrence. Indeed, in the case of offences regularly committed by intoxicated persons (for example, violent offences fuelled by intoxication, or sexual offences committed by persons emboldened by intoxication), the fact of self-induced intoxication may only serve to underscore the need to ensure an adequate measure of general deterrence.[19]
[19] R v Williams [2018] SASCFC 14 at [52] (Hinton J, Blue and Stanley JJ agreeing); R v Sewell (1981) 29 SASR 12 at 15 (Zelling J, Mitchell and Cox JJ agreeing).
Personal deterrence, character and rehabilitation
Thirdly, the existence of an impairment may be relevant to the sentencing court’s consideration of personal deterrence,[20] and the related considerations of the offender’s character and prospects of rehabilitation. The rationale for a potentially reduced concern with personal deterrence in cases of mental impairment was explained by Maxwell P in Green v The Queen:[21]
The principle of specific deterrence is premised on the assumption that an appropriate punishment will operate to deter an offender from repeating the same or similar conduct in the future. Whether and to what extent that assumption is applicable to a person whose mental functioning was impaired at the time of the offending will depend on the circumstances. As Steytler J explained in Payne v The Queen [2002] WASCA 186 at [43]:
[I]n a case in which the mental illness contributed to the commission of the offence, the importance of personal deterrence may, depending upon the nature and effect of the illness, be lessened. The whole notion of personal deterrence assumes some rational analysis or reasoning in the course of comparing the likely gains from the crime against the prospect, and likely severity, of punishment. Where the illness affects the person’s ability to make that very analysis, there is no justification for affording the consideration of personal deterrence the measure of significance as it might have in the case of a well person, although there may then be a greater need to protect the public.
[20] R v Verdins (2007) 16 VR 269 at [32] (Maxwell P, Buchanan and Vincent JJA).
[21] Green v The Queen [2011] VSCA 311 at [28] (Maxwell P, Lasry AJA agreeing).
This rationale applies more directly to cases of impairment flowing from some underlying and ongoing mental condition, and less directly in the case of impairment associated with self-induced intoxication.
In the context of self-induced intoxication, and related to the concept of personal deterrence, the circumstances of the impairment will be relevant to the sentencing judge’s consideration of the offender’s character and prospects of rehabilitation.[22] The impairment of the offender’s mental functioning by reason of drug or alcohol induced intoxication may explain why an offender acted in a manner which was otherwise quite out of character and hence be consistent with the offender having good prospects of rehabilitation.
[22] R v Bui [2018] SASCFC 19 at [30] (Vanstone J, Kourakis CJ and Kelly J agreeing); R v Proom (2003) 85 SASR 120 at [43], [50] (Doyle CJ, Duggan J agreeing); R v Williams [2018] SASCFC 14 at [49]-[50] (Hinton J, Blue and Stanley JJ agreeing); R v Sewell (1981) 29 SASR 12 at 15 (Zelling J, Mitchell and Cox JJ agreeing).
On the other hand, in cases where the self-induced intoxication is accompanied by a history of addiction or substance abuse, this may adversely affect the sentencing court’s assessment of the offender’s prospects of rehabilitation. As Doyle CJ explained in R v Proom:[23]
Addiction to drugs may indicate that assurances by an offender of a desire to be rehabilitated are unreliable, or must at least be treated with caution, and sadly may mean that even a genuine wish to rehabilitate may have to be treated with caution. In the worst case, if there is no reason to think that the addiction will be broken, there will be no basis for leniency by reference to the prospect of rehabilitation.
[23] R v Proom (2003) 85 SASR 120 at [50] (Doyle CJ, Duggan J agreeing).
Similarly, in other cases of mental impairment attributable to ongoing conditions (particularly those not susceptible to treatment), this may adversely impact upon the offender’s prospects of rehabilitation. Indeed, it may result in a greater need to ensure that the sentence imposed adequately protects the safety of the community.[24]
[24] R v Engert (1995) 84 A Crim R 67 at 68 (Gleeson CJ, Allen and Sully JJ agreeing), referring to Veen v The Queen (No 2) (1988) 164 CLR 465.
Hardship of the sentence
Fourthly, the existence of an impairment that reflects some underlying mental condition may also, depending on the nature and circumstances of that condition and its treatment, affect the hardship of a given sentence of imprisonment to the offender. The offender’s mental condition may result in a sentence of imprisonment being a greater burden on the offender, or having a significant adverse effect upon the offender. This may in turn affect the sentence that it is appropriate to impose, including not only the length of the sentence but also the form and conditions of the sentence.[25]
[25] R v Verdins (2007) 16 VR 269 at [27]-[30], [32] (Maxwell P, Buchanan and Vincent JJA), applying R v Smith (1987) 44 SASR 587 at 589 (King CJ, Cox and O’Loughlin JJ agreeing).
Some further observations
The above summary of the potential relevance of an offender’s mental impairment to the sentencing exercise not only reflects the decisions of this Court, but also broadly accords with similar summaries provided by interstate courts.[26] While admittedly general and non-exhaustive, such summaries assist in providing a framework for considering the potential relevance of an offender’s mental condition to the sentencing exercise.
[26] For example, in Victoria in R v Tsiaras [1996] 1 VR 398 at 400 (Charles and Callaway JJA and Vincent AJA), R v Verdins (2007) 16 VR 269 at [32] (Maxwell P, Buchanan and Vincent JJA), and Director of Public Prosecutions v O’Neill (2017) 47 VR 395 (Warren CJ, Redlich and Kaye JJA). And in New South Wales in authorities such as Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1 at [177] (McClellan CJ at CL), Melham v The Queen [2011] NSWCCA 121 at [56]-[60] (Garling J, Macfarlan JA and Johnson J agreeing) and Iskandar v The Queen [2013] NSWCCA 235 at [29] (Beazley P, Hume and Bellew JJ).
However, it is important to bear in mind the complex, multi-factorial and ultimately intuitive and individualised nature of the sentencing process. Indeed, it can be readily seen from the above that generalisations about the significance of an offender’s mental impairment are of limited value in determining its significance in any given case. Its significance will often be complex and nuanced, and exist at multiple stages in the sentencing process.
It is often misleadingly simplistic to speak in terms of the impairment being a mitigatory (or aggravating) factor. Not only is it often artificial to attempt to divide all sentencing factors into those that mitigate and those that aggravate,[27] but also, in the case of an offender’s mental impairment, it may point in different directions at different stages of the sentencing process. Given the nature of the instinctive synthesis required in arriving at an appropriate sentence, and the fact that the existence of a mental impairment potentially operates at multiple stages of the process and in combination with other considerations at each of those stages, it is generally neither accurate nor appropriate to speak in terms of its net effect upon the sentence imposed.
[27] Weininger v The Queen (2003) 212 CLR 629 at [22] (Gleeson CJ, McHugh, Gummow and Hayne JJ).
As Gleeson CJ said in R v Engert, in considering the potential relevance of a mental condition to the sentencing exercise:[28]
A moment’s consideration will show that the interplay of the considerations relevant to sentencing may be complex and on occasion even intricate. In a given case, facts which point in one direction in relation to one of the considerations to be taken into account may point in a different direction in relation to some other consideration. For example, in the case of a particular offender, an aspect of the case which might mean that deterrence of others is of lesser importance, might, at the same time, mean that the protection of society is of greater importance. … Again, in a particular case, a feature which lessens what might otherwise be the importance of general deterrence, might, at the same time increase the importance of deterrence of the offender.
It is therefore erroneous in principle to approach the law of sentencing as though automatic consequences follow from the presence or absence of particular factual circumstances. In every case, what is called for is the making of a discretionary decision in the light of the circumstances of the individual case, and in the light of the purposes to be served by the sentencing exercise.
[28] R v Engert (1995) 84 A Crim R 67 at 68 (Gleeson CJ, Allen and Sully JJ agreeing).

To similar effect are the following observations of Ashley JA in R v Dupuy:[29]
[I]n analysing the ways in which the appellant’s mental illness was relevant to the sentencing process, I have focussed upon the competing submissions. They descended, no doubt inspired by R v Tsiaras and more recently R v Verdins to exquisite detail. Counsel cannot be criticised for their approach. No doubt it helps to ensure that no relevant sentencing consideration is ignored. But such an approach does tend, in my opinion, to devalue the reality that sentencing remains an intuitive synthesis of a range of often-competing considerations, not a mechanistic ticking or crossing of boxes. I think, with respect, that there was force in the observation of this very experienced judge, in the course of the plea, that ‘we seem to have finessed this area of the law to an astonishing degree in recent years’. As Nettle JA said in R v Howell when speaking about the impact of Verdins upon sentencing considerations in a particular case:
The point of R v Verdins is that each case depends upon its own facts and in particular the nature of the mental condition in question … In each case it will depend on the facts. The theory and reality upon which the intuitive synthesis approach to sentencing is built is that each case is unique …
[29] R v Dupuy [2008] VSCA 63 at [34] (Ashley JA, Buchanan JA and Forrest AJA agreeing) (citations omitted).
Several authorities of this Court have also emphasised the many and varied ways in which an offender’s mental condition may be relevant in the sentencing process.
By way of example, Martin J, after a careful review of the authorities, made observations to this effect in R v Wiskich.[30] And more recently, after referring to the reasons of both Martin J in R v Wiskich and Gleeson CJ in R v Engert, and the High Court’s endorsement of the latter in Bugmy v The Queen[31] and Munda v Western Australia[32], Hinton J emphasised the significance of the individualised nature of the sentencing process to the consideration of an offender’s mental impairment. In R v Hronopoulos,[33] in the context of an offender affected by mental illness, his Honour said:[34]
Thus, within the bounds of proportionality, a sentence is to be fashioned having regard to the protection of the community and the purposes of punishment that fits the offending and the offender. Within that framework the question of how a particular mental illness influences the sentencing outcome will be a product of its symptoms and consequences for the defendant and the bearing that such symptoms and consequences have on achieving the purposes of the sentencing task. Critical to the task will be the expose of a link grounded in the evidence before the sentencing court between the illness and any of the purposes of punishment or the mode of punishment under consideration.
[30] R v Wiskich [2000] SASC 64 at [22], [62] (Martin J, Prior and Williams JJ agreeing); applied by this Court in several subsequent cases, including R v White [2009] SASC 239 at [29]-[31] (Doyle CJ, Duggan J agreeing) and R v Flentjar [2013] SASCFC 11 at [42] (Sulan J, Kourakis CJ and David J agreeing).
[31] Bugmy v The Queen (2013) 249 CLR 571 at [45] (French CJ, Hayne, Crennan, Kiefel, Bell and Keane JJ).
[32] Munda v Western Australia (2013) 249 CLR 600 at [58] (French CJ, Hayne, Crennan, Kiefel, Gageler and Keane JJ).
[33] R v Hronopoulos [2017] SASCFC 143.
[34] R v Hronopoulos [2017] SASCFC 143 at [72] (Hinton J, Blue J agreeing).
Subsequently, in R v Williams,[35] in the context of an offender affected by intoxication, his Honour similarly observed:[36]
At the end of the day sentencing is individualised. Where the offender is intoxicated, to limit the relevance of intoxication to the question of whether it aggravates or mitigates the offending risks misjudging the complexity of the individual and failing to appreciate the forces that impacted upon his or her conduct which will be relevant, in turn, to the assessment of the need to protect, punish, deter and rehabilitate. Put slightly differently, it may be accepted that ordinarily intoxication does not mitigate and that the intoxicated offender cannot expect any reduction because they were intoxicated, and it may be accepted that the offender’s intoxication may in some circumstances aggravate their offending, but mitigation and aggravation aside, the offender’s intoxication will be relevant to any explanation for their offending which, in turn, is important to an assessment of the need to protect, punish, deter and rehabilitate.
[35] R v Williams [2018] SASCFC 14.
[36] R v Williams [2018] SASCFC 14 at [54] (Hinton J, Blue and Stanley JJ agreeing)
Finally, it is important to bear in mind that even in those cases where a mental condition operates to reduce the offender’s moral culpability, and to reduce the need for general and personal deterrence, the sentencing court must not lose sight of some of the broader objectives of the sentencing process. Those broader objectives may still call for a very substantial sentence. Relevant in this respect is the following passage from the reasons of French CJ, Hayne, Crennan, Kiefel, Gageler and Keane JJ in Munda v Western Australia:[37]
[T]he proper role of the criminal law is not limited to the utilitarian value of general deterrence. The criminal law is more than a mode of social engineering which operates by providing disincentives directed to reducing unacceptably deviant behaviour within the community. To view the criminal law exclusively, or even principally, as a mechanism for the regulation of the risks of deviant behaviour is to fail to recognise the long-standing obligation of the state to vindicate the dignity of each victim of violence, to express the community’s disapproval of that offending, and to afford such protection as can be afforded by the state to the vulnerable against repetition of violence. Further, one of the historical functions of the criminal law has been to discourage victims and their friends and families from resorting to self-help, and the consequent escalation of violent vendettas between members of that community.
[37] Munda v Western Australia (2013) 249 CLR 600 at [54] (French CJ, Hayne, Crennan, Kiefel, Gageler and Keane JJ).
Application to the present case
Applying the above principles to the present case, the appellant was suffering from acute methamphetamine intoxication, or methylamphetaine-induced psychosis, at the time of his offending. This not only impaired the appellant’s mental functioning, but did so in a manner that was directly linked to, and causative of, his offending. He lit the fires in the belief that this would assist him to escape his (imagined) pursuers.
In my view, there was no error in the sentencing judge concluding that the appellant’s subjective culpability was “lower than it otherwise might have been.”
This was so both because his mental functioning (in particular, his ability to exercise appropriate judgment, and to think and reason clearly) was impaired, and because this provided an explanation for the offence that obscured any intention to cause a bushfire and negated any suggestion of significant deliberation or premeditation. His objective in lighting the fires was one of self-preservation, rather than one of causing damage.
On the other hand, as the sentencing judge recognised, this lowering of the appellant’s subjective culpability was tempered by the absence of any suggestion that the appellant did not know what he was doing or that it was wrong to do it.
Indeed, given that the appellant’s impairment was a result of self-induced drug intoxication or psychosis, it might be said that the sentencing judge was generous to acknowledge any mitigatory effect in terms of the appellant’s subjective culpability for his offending. As mentioned in my earlier summary of the authorities, impairment that is the product of self-induced intoxication will not generally lessen the offender’s moral culpability, and indeed may be an aggravating factor where the offender ought to have foreseen the risk that he might engage in inappropriate or criminal behaviour. Several authorities have extended this general approach to cases involving offenders impaired by drug-induced psychosis.[38]
[38] R v Martin (2007) 20 VR 14 at [30], [53] (Maxwell P, Nettle and Redlich JJA); Director of Public Prosecutions v Arvanitidis (2008) 202 A Crim R 300 at [29] (Redlich JA, Buchanan and Nettle JJA agreeing); R v Robazzini [2010] VSCA 8 at [60] (Neave JA, Buchanan JA agreeing); Butler v The State of Western Australia [2010] WASCA 104 at [60]-[62] (Owen JA, Pullin JA agreeing).
While there may be an exception to this general approach in cases where the offender had no reason to foresee a risk of engaging in inappropriate or criminal conduct while intoxicated, this exception had no application in the present case. The appellant had a history of substance abuse and was hence familiar with the ways in which his use of alcohol and drugs (and methylamphetamine in particular) might impair his mental functioning. He had previously committed a serious criminal offence while intoxicated, albeit very different in its nature and circumstances from the present offending. More relevantly for present purposes, the appellant had recently experienced significant adverse effects from his use of methylamphetamine, yet chose to use it again on the occasion of his offending.
While the above would normally result in the appellant being fully responsible for his conduct despite being impaired by self-induced intoxication, the sentencing judge’s approach (of acknowledging some reduction in the appellant’s subjective culpability) may be justified by the background to the appellant’s drug usage. As mentioned earlier, a background of substance abuse or addiction is not of itself mitigatory. But in this case, as the sentencing judge acknowledged, the appellant fell into his substance abuse at a very young age and as a means of coping with his dysfunctional and abusive upbringing.
These background issues were not themselves directly operative in, or causative of, the appellant’s offending. Nor did they entirely excuse his decision to use methylamphetamine in the lead up to his offending, particularly given that the appellant had significant periods free from substance abuse while in custody for his previous offending. But they did provide at least some explanation, if not partial excuse, for the appellant’s relapse into the use of methylamphetamine in the months leading up to his offending.
It is now well-recognised that significant abuse in the early and formative years of a person’s life can have a long-standing, and potentially permanent, effect upon him or her. While not entirely negating the element of choice involved in deciding to consume alcohol or drugs, I have little difficulty in accepting that the appellant in this case continues to be affected by the abuse he suffered during his childhood, and that this at least contributed to his relapse into the use of methylamphetamine in the period leading up to his offending.
It is for these reasons that I consider that it was appropriate for the sentencing judge to allow for some modest reduction in the appellant’s moral culpability for his offending.
The sentencing judge did not make any express allowance for the appellant’s impaired mental condition in respect of general or personal deterrence. Again, in my view, there was no error in his Honour’s approach. Self-induced intoxication, including drug-induced psychosis, is not a matter that would ordinarily render an offender an inappropriate medium for giving effect to the concern to ensure a level of general deterrence. That is particularly so in a case of offending of the potential seriousness of the present case.[39]
[39] R v White [2009] SASC 239 at [23], [31] (Doyle CJ, Duggan J agreeing).
A moderation of the measure of general deterrence will generally be confined to those cases where the offender was impaired by some intellectual disability or long-standing form of mental illness. I acknowledge that the appellant in this case does have a history of mental health issues. And it is true that moderation of the need for general deterrence is not necessarily confined to those cases where there is a direct causal relationship between the offending and the offender’s underlying mental health issues; and is not necessarily confined to those cases where the underlying mental health issues have the status of a recognised psychiatric illness.
However, the law has been cautious in recognising any role for more general mental health issues in the offender’s background, including personality disorders, in mitigating the need for general deterrence.[40] In this case, I am not persuaded that the appellant’s underlying or background mental health issues were of a nature or severity to call for any moderation of the need for general deterrence.
[40] Director of Public Prosecutions v O’Neill (2015) 47 VR 395 at [55], [85]-[87] (Warren CJ, Redlich and Kaye JJA).
Similar observations apply in respect of the need for personal deterrence. I am not satisfied that the appellant’s mental health issues relevantly diminished his ability to learn from, or to be discouraged from reoffending by, a sentence of imprisonment.
On the other hand, in the related context of the appellant’s prospects of rehabilitation, the sentencing judge was justified in concluding that, by reason of the appellant’s history of substance abuse, including his relapse into methylamphetamine use after a period of detoxification while in custody, one could not have “any real confidence” about his successful rehabilitation. That is a fair and significant conclusion, despite the unfortunate circumstances in which the appellant first fell into substance abuse.
Finally, I do not consider that the appellant’s mental health or substance abuse issues were of a nature that would result in a sentence of imprisonment being a greater burden on the appellant, or having a significant adverse effect upon the appellant, in the sense necessary to affect the sentence to be imposed.
For the above reasons, I do not consider that any error has been identified in the sentencing judge’s approach arising out of either the drug-induced intoxication or psychosis affecting the appellant at the time of his offending, or the appellant’s underlying history of substance abuse and mental health issues. However, it remains to be considered whether, in light of all of the circumstances of the appellant’s offending and personal circumstances, the sentence was nevertheless manifestly excessive.
Manifest excess
As mentioned at the outset of these reasons, having commenced with a notional starting point of six years imprisonment, the sentencing judge reduced this by approximately 40 per cent on account of the appellant’s early plea of guilty. His Honour imposed a sentence of three years, seven months and two weeks imprisonment, and fixed a non-parole period of two years and five months.
The appellant complains on appeal that this sentence was manifestly excessive, both as to the head sentence and the non-parole period. Establishing that a sentence is manifestly excessive, of course, entails establishing that it was unreasonably high, or plainly unjust, in the sense required by House v The King.[41]
[41] House v The King (1936) 55 CLR 499 at 504-505 (Dixon, Evatt and McTiernan JJ).
In considering the issue of whether the sentence imposed by the sentencing judge was manifestly excessive, I bear in mind the approach to the identification of manifest excess required by the High Court in Hili v The Queen.[42] This requires a consideration of the range of matters relevant to the sentencing task, including the maximum penalty for the relevant offending, where the objective circumstances of the offending sit in the scale of seriousness of crimes of that type, and the personal circumstances of the offender.[43] But ultimately there is a limit to the amount of analysis that may be brought to bear. Often manifest excess will be a conclusion that does not admit of lengthy exposition or amplification.[44]
[42] Hili v The Queen (2010) 242 CLR 520 at [59]-[60] (French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ).
[43] R v Morse (1979) 23 SASR 98 at 99 (King CJ, White and Mohr JJ agreeing).
[44] Hili v The Queen (2010) 242 CLR 520 at [59]-[60] (French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ); Dinsdale v The Queen (2000) 202 CLR 321 at [6] (Gleeson CJ and Hayne J).
The maximum penalty for the offence of causing a bushfire under s 85B(1) of the Criminal Law Consolidation Act is 20 years. This significant maximum penalty is a clear indication of the seriousness with which Parliament views the offence. This is understandable given the enormous destructive potential of bushfires, and the danger they present to people and their property. They are a source of much anxiety and fear amongst the Australian community, particularly those living in the rural and semi-rural areas of Australia that are most vulnerable to fire. Similar sentiments were expressed by this Court in R v White, [45] leading to the conclusion that “the community expects the courts to impose a sentence for such offending that will protect the community, if necessary by removing offenders from the community, and that will deter other offenders.”
[45] R v White [2009] SASC 239 at [23] (Doyle CJ, Duggan J agreeing).
Turning to the particular circumstances of this case, the fires lit by the appellant damaged some 300,000 square metres of paddocks and 1.5 kilometres of fencing (to the value of about $9,000). While it was fortunate that the fires were relatively quickly controlled and extinguished, the destructive potential of the fires was limited to some extent by the remoteness of the location, and the absence of any residence or other building within the immediate vicinity of the area affected by the fires. It is also relevant that there was nothing about the terrain or weather conditions that heightened the destructive potential of the fires lit by the appellant.
In considering the seriousness of the appellant’s offending, it is also relevant that it involved lighting the fires with reckless indifference by the appellant as to whether he would cause a bushfire (within the meaning of s 85B(2)), rather than with the intention of causing a bushfire. Related to this is the consideration that the appellant’s objective in lighting the fires (flowing from his drug-induced psychosis) was one of self-preservation rather than the destruction of property.
For the reasons set out earlier, in the circumstances of this case it was appropriate to acknowledge some modest reduction in the subjective culpability on the part of the appellant by reason of his impaired mental condition at the time he lit the fire. But there were limits to the significance that could be appropriately attached to this impairment, given that it was a product of self-induced intoxication. That was so, in my view, despite the connection between the appellant’s drug use and his unfortunate upbringing.
The nature of the present offending warranted a significant measure of general deterrence. Neither the appellant’s drug-induced psychosis nor his background mental health issues reduced the need for general deterrence; nor did they reduce the need for, or appropriateness of, a significant measure of personal deterrence.
Further, for the reasons outlined earlier, the sentencing judge was right to conclude that there was no basis for any real confidence in the appellant’s prospects of rehabilitation. It was a matter of particular concern in this regard that the appellant lapsed back into substance abuse so soon after his earlier lengthy sentence of imprisonment, and in particular that he continued to use methylamphetamine despite his awareness of its significant adverse effects upon him.

The particular, indeed peculiar, circumstances of this case suggest that there is little reason to think that the appellant is likely to commit a further fire-related offence. However, the appellant’s history of being unable to manage his substance abuse, and of engaging in inappropriate and criminal conduct more generally, mean that a significant sentence of imprisonment was appropriate. There was little scope for leniency in the sentence to be imposed, and a real need to ensure that the sentence provided an adequate measure of deterrence (both general and personal), and adequate protection of the community.
On one view, the head sentenced imposed by the sentencing judge was a relatively heavy one, having regard to all of the circumstances I have outlined. That said, and while conscious of the limited relevance of comparison with other cases, it is perhaps not a heavy sentence by comparison with the significantly longer head sentence imposed in R v White.[46]
[46] R v White [2009] SASC 239.
In that case, the defendant, with no previous criminal record, pleaded guilty to 21 counts of intentionally causing a bushfire, contrary to s 85B(1)(a) of the Criminal Law Consolidation Act. The offending involved the defendant, on three separate occasions, lighting a number of fires within a relatively short period of time. The fires were lit in the Adelaide Hills, in terrain and weather conditions that involved a heightened risk of the fires spreading. While the fires did cause damage to significant areas of vegetation and pasture, and some fencing, no dwellings or other buildings were damaged. The fires caused a total of $7,000 damage to property.
The sentencing judge in that case accepted that the defendant was suffering from various psychiatric and psychological issues (including post-traumatic stress disorder, a personality disorder and depression) at the time of lighting the fires, and that these caused her to light the fires – essentially because she felt powerless, depressed and angry. Despite the relevance of the defendant’s mental condition (and the absence of any suggestion it was any way self-induced), the sentencing judge commenced with a notional head sentence of 18 years imprisonment, which was then reduced on account of the defendant’s guilty pleas to 13 years imprisonment. On appeal, this Court rejected the submission that the head sentence was manifestly excessive.
Returning to the present case, all things considered, and even if the head sentence might be considered relatively heavy, I am not satisfied that it was unreasonably so. I am not satisfied that the head sentence was manifestly excessive.
Turning to the non-parole period fixed by the sentencing judge, I accept that at this stage of the sentencing process, there was more scope for the sentencing judge to attach significance to the factors personal to the appellant; albeit that the non-parole period must still reflect the punitive, deterrent and other purposes of the sentencing process.[47]
[47] R v Creed (1985) 37 SASR 566 at 568 (King CJ, Cox and Olsson JJ agreeing).
However, I do not consider that there is any basis for contending that the sentencing judge failed to have adequate regard to the factors personal to the appellant in fixing a non-parole period. While the factors relevant to the non-parole period were relatively complex, there is nothing in his Honour’s sentencing remarks to suggest that he misunderstood any of those factors or otherwise had inadequate regard to any of them. There was nothing in those circumstances that called for a shorter than usual non-parole period, or longer than usual period on parole.[48] The non-parole period of two years and five months, being two thirds of the head sentence, was an appropriate one in the circumstances. It was not manifestly excessive.
[48] cf the circumstances of the defendant in R v White [2009] SASC 239 at [37] (Doyle CJ, Duggan J agreeing).
Conclusion
For the reasons given, I would dismiss the appeal.