R v Nugnes
[2002] VSCA 114
•30 July 2002
SUPREME COURT OF VICTORIA
COURT OF APPEAL
No. 203 of 2001
| THE QUEEN |
| v. |
| MAURICE NUGNES |
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JUDGES: | WINNEKE, P., PHILLIPS, J.A. and O'BRYAN, A.J.A. | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 30 July 2002 | |
DATE OF JUDGMENT: | 30 July 2002 | |
MEDIUM NEUTRAL CITATION: | [2002] VSCA 114 | |
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Criminal law - Sentencing - Arson causing property damage in a prison cell on two occasions - Sentences not manifestly excessive or disproportionate - Potential risk to other prison inmates a relevant consideration - Specific and general deterrence of paramount importance when a prison inmate deliberately sets fire to property in a prison cell.
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| APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr T. Gyorffy | Ms K. Robertson, Solicitor for Public Prosecutions |
| For the Appellant | Mr M.J. Croucher | Leanne Warren & Associates |
WINNEKE, P.:
I will invite O'Bryan, A.J.A. to give the first judgment of this appeal.
O'BRYAN, A.J.A.:
The appellant, who is now aged 33 years, pleaded guilty in the County Court to two counts of arson causing property damage in a prison cell on 31 August and 8 October 2000. On each date the appellant was being held at the Port Phillip Prison.
On the afternoon of 31 August the appellant was locked down in his cell for the purpose of receiving his Methadone treatment that day. The Methadone treatment was delayed due to the absence of the pharmacist and a corrections officer advised the appellant that the time when he would receive his Methadone was uncertain.
Later in the afternoon the appellant spoke to the corrections officer through the communication trap in the cell door. The appellant said that he did not believe he would receive his Methadone and that he would set fire to his cell. He was sitting on a bed smoking.
About 30 minutes later the prison unit's fire alarm sounded. Smoke was seen emerging from the bottom of the cell door. The appellant had set fire to a pile of bedding which had been placed at the base of the cell door.
The cell door was opened and the fire extinguished. Damage had been caused to the walls, floor, door and ceiling of the cell. This constituted Count 1.
At about 2 p.m. on 8 October a corrections officer went to the appellant's cell and removed a quantity of tobacco because the appellant was subject to "loss of privileges" as a result of his actions on 31 August. The appellant was upset and said that he would set fire to his cell.
At about 6 p.m. the fire alarm sounded and smoke was seen coming from under the appellant's cell door. A fire hose had to be used through the communication trap in the door. Flames could be seen by a corrections officer coming up past the trap and the fire was observed directly behind the door. The appellant had set fire to a pile of clothing behind the door. This constituted Count 2.
The appellant admitted 96 prior convictions from 26 court appearances, mainly in the Magistrates' Court, between 25 March 1987 and 20 July 2000, none of which were for arson. He was undergoing a custodial sentence for trafficking in heroin when the arson offences were committed.
The maximum penalty for arson causing property damage is 15 years' imprisonment.
Following a plea on 30 July 2001, the sentencing judge sentenced the appellant to be imprisoned on count 1 for a period of 18 months and on count 2 for a period of two years. An order was made whereby three months of the sentence on count 1 was to be served cumulatively upon the sentence imposed on count 2. The total effective sentence was two years and three months. A minimum term of 18 months was fixed before the appellant could become eligible for parole. A compensation order in the sum of $300 payable to Group 4 Securitas Pty Ltd was made.
The appellant applied for leave to appeal the sentence imposed on the ground that the sentence was manifestly excessive. I granted the appellant leave to appeal on 9 November 2001 after being informed that the appellant wished to amend the grounds of appeal.
Later, the appellant was granted leave to amend the grounds of appeal by adding two additional grounds. The additional grounds are:
"2.That the learned sentencing judge erred -
(a)in fixing individual sentences (a total effective sentence and a non-parole period) disproportionate to the gravity of the crimes considered in the light of their objective circumstances; and -
(b)in fixing different sentences on counts 1 and 2 or as to the extent of that difference.
3.The learned sentencing judge erred -
(a)in speculating about the risk of the fire spreading and causing harm to others;
(b)in regarding any such risk as the most serious and aggravating factor; and -
(c)in placing any or excessive weight on any such risk."
Following the first fire the police charged the appellant with arson but the charge had not come to court before the second fire was started.
The judge said in his sentencing remarks:
"The most serious aggravating factor is setting a fire in circumstances where had it spread or had toxic fumes spread, your fellow prisoners had no freedom of movement to escape it but would have had to rely upon the efforts of others to release them or rescue them. I do not know how great the risk of the fire spreading actually was but it is notorious that supposedly fireproof structures have proved to be anything but.
There is, in my opinion, a very real need to deter you from repeating your behaviour and equally, a very real need to deter other prisoners from copying it, and that need has loomed very large in the sentencing process."
I propose to deal with the grounds of appeal in reverse order.
Under ground 3 Mr Croucher, for the appellant, submitted that there was no evidence of any risk of the fire spreading or of toxic fumes or the like spreading. Further, he submitted, it was agreed that the fire was extinguished quickly. Accordingly, Mr Croucher submitted, the judge should not have been preoccupied with the risk of harm to other persons and no evidentiary basis existed for finding that there was any such risk.
In my opinion, the judge was justified in commenting as he did, based not on speculation but experience. A fire in a prison cell, whether intentionally lit or accidentally caused, has the potential to spread and cause harm to many persons. This is not speculation, it is a serious risk. It is within the memory of many, and no doubt the judge's memory, that an intentionally lit fire in Pentridge Prison once caused the death of several prisoners and injury to others.
The potential for harm in the present case was indeed a relevant factor. The acts of the appellant on each occasion when he lit a fire in his cell were reckless indeed. The fact that the potential risk did not materialise did not mean that the judge could not advert to the risk that the appellant's conduct had potential to injure other prisoners locked in cells. The judge noted that crimes of this type presented a very real need to deter other prisoners from copying the appellant's conduct.
I endorse his remarks and add that specific deterrence necessarily loomed large in the sentencing process. An angry or petulent prisoner cannot be allowed to seriously disrupt prison discipline and endanger inmates without severe consequences. Prisoners who engage in conduct of the kind involved here must anticipate the imposition of substantial punishment.
Mr Croucher submitted, in support of ground 2, that the sentences imposed were disproportionate to the gravity of the crimes committed in light of their objective circumstances. Those circumstances were that only minor property damage was caused and no one was actually put at risk. Accordingly, he argued, there was no warrant for imposing different sentences on each count and the additional six months imposed on count 2 was excessive as the objective circumstances in each offence were almost the same.
Mr Gyorffy submitted that when the appellant committed the second offence he was awaiting trial on the first offence and the reason given for the second offence "being deprived of his cigarettes" was less significant than the reason for the first offence "being deprived of Methadone".
In my opinion, these offences were serious examples of arson. It was only the prompt actions of Correction Officers that contained the fires before greater harm was caused. I agree that the circumstances of the second fire were very similar to the circumstances of the first fire, but the judge was entitled, in my opinion, to impose a more severe penalty for the second fire because it was a repeat offence. The appellant was fully aware of the consequences of the first fire and he deliberately set about doing the same thing five weeks later. Had the first arson been a prior conviction, the difference in punishment for the second arson might have been greater. I agree with Mr Gyorffy that different sentences were justified. The appellant should have realised after the first fire the potential danger of his conduct for other prisoners and prison staff. The second fire was more serious in terms of culpability and the repeated conduct heightened the need for specific deterrence to be strongly reflected in the sentence.
In support of ground 1, Mr Croucher submitted that the total effective sentence of two years and three months and the non-parole period of 18 months are manifestly excessive, being well outside the range properly open and disproportionate to the offending. Accordingly, he submitted, a proper sentence should have been measured in weeks or at most months. The following six matters, he submitted, if accorded proper weight, would have led to such a sentence:
1.Minor damage was caused to property;
2.No actual harm to any person was caused;
3.The appellant was denied eligibility for parole on the sentence he was undergoing when the offences were committed with the result that he had to serve an additional seven and a half months in prison before commencing the new sentence of two years and three months;
4.An early plea of guilty was made;
5The appellant was frustrated and upset by long hours in a cell and deprivation of Methadone and cigarettes;
6.The appellant had difficult personal circumstances.
Mr Croucher conceded that his Honour had regard to various mitigating factors but must have given them insufficient weight.
Mr Gyorffy, on the other hand, submitted the offences were serious, particularly as they took place in a prison and the offender had a significant criminal history.
I agree with Mr Gyorffy. Offences of this type, having the potential for serious consequences, call for stern punishment for the following reasons: First, discipline by prison inmates in a prison is of paramount importance for the safety of prison officers and the security of the prison. Second, to ensure safety and security, deterrence, both specific and general, is of considerable importance and this was noted by the sentencing judge.
It was fortuitous that only minor damage was caused to property by each fire. Had the alarm system not been working, the potential for physical and property damage was considerable.
The reasons offered by the appellant for responding as he did were quite unacceptable and did not, in my view, mitigate the offending.
The loss of eligibility for parole was made known to the judge and was taken into account, as was the plea of guilty.
In my opinion, neither the individual sentences nor the cumulation order nor the non-parole period have been shown to be manifestly excessive. The sentence on each count was within range for a person with a significant criminal history for a variety of offences. There was nothing in his personal circumstances that called for mitigation. Some cumulation was necessary, in that the second fire was started in a cell only five weeks after the first. The non-parole period was appropriate in the circumstances, in my view.
I consider the appeal should be dismissed.
WINNEKE, P.:
I agree, for the reasons given by O'Bryan, A.J.A., that the appeal should be dismissed.
PHILLIPS, J.A.:
I also agree.
WINNEKE, P.:
The formal order of the Court will be that the appeal is dismissed.
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