R v Parlov
[2017] ACTSC 205
•17 July 2017
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v Parlov |
Citation: | [2017] ACTSC 205 |
Hearing Date: | 17 July 2017 |
DecisionDate: | 17 July 2017 |
Before: | Murrell CJ |
Decision: | Sentenced to three years’ imprisonment from 16 April 2016 to 15 April 2019. Nonparole period to expire on 15 October 2017. |
Catchwords: | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – Property damage offence – arson – in company – principal offender – committed for financial gain – extensive criminal history – non-compliance with supervision and custodial requirements – offender relatively young – rehabilitation |
Legislation Cited: | Crimes (Sentencing) Act 2005 (ACT) ss 7, 33 Criminal Code 2002 (ACT) ss 45A, 404(1) |
Parties: | The Queen (Crown) Nicholas Peter Parlov (Offender) |
Representation: | Counsel Mr T Hickey (Crown) Mr R Davies (Offender) |
| Solicitors ACT Director of Public Prosecutions (Crown) Legal Aid ACT (Offender) | |
File Number: | SCC 167 of 2016 |
MURRELL CJ:
The offender was found guilty of the offence that, on 13 March 2014 at Canberra, he and Mr Eliadis intentionally caused damage by fire to a building, Brierly’s Cafe.
The offender was the principal offender. Mr Eliadis was convicted on the basis that he was a joint participant in the criminal enterprise of arson: s 45A of the Criminal Code 2002 (ACT) (Criminal Code).
Arson is an offence against s 404(1) of the Criminal Code. It carries a maximum penalty of 15 years’ imprisonment and/or a large fine.
Mr Parlov has been in custody since 16 April 2015 in relation to other matters for which he was eligible to be released to parole on 15 April 2016. He did not apply for parole because the arson proceedings were unresolved. It is debatable whether he would have been granted parole had he applied. Nevertheless, it is appropriate to commence the sentence for this matter on 16 April 2016.
Facts
On 12 March 2014, the sale of Brierly’s Cafe (the cafe) in Weston was finalised and the new owners took possession.
On the evening of 12 March 2014, there was brief telephone contact between the offenders. There is no evidence of prior communication or planning.
That night, Mr Eliadis drove his green Honda CR-V vehicle to Belconnen, where he collected the offender and drove him to a car park close to the cafe. At about midnight, the offender exited the vehicle and walked towards the rear door of the cafe carrying a tin of petrol and a hammer. He was disguised; he was wearing a distinctive bright hooded jumper and gloves. He forced open an unlocked flyscreen attached to the rear door of the cafe, used the hammer to smash a glass panel at the bottom of the door, and tipped petrol through the hole that he had created. He poured a trail of petrol leading away from the rear door, removed a cigarette lighter from his pocket and ignited the petrol, causing a fire within the cafe.
The offender ran from the scene to where Mr Eliadis was waiting in his vehicle. The pair drove away.
A fire alarm was activated. Witnesses who were in the vicinity were alerted to the fire. ACT Fire and Rescue attended the scene and extinguished the fire, but not before it had caused extensive damage to the kitchen and other parts of the cafe.
In August and September 2014, Mr Eliadis paid the offender for his services. The amount is unknown and it is unclear whether the offender was paid in full.
During the trial, Mr Parlov’s father gave evidence to the effect that the payment of money by Mr Eliadis to the offender related to work undertaken by the offender and Mr Parlov senior at Fyshwick premises. Mr Parlov senior said that the work was undertaken some months prior to the offence and the offender had not been paid. I do not accept the evidence of Mr Parlov senior. In my view, he was lying to protect his son. It is contrary to ordinary experience that payment would be organised in the manner that occurred and so long after the work had been undertaken. It is an inescapable inference that Mr Eliadis arranged to pay the offender for the offender’s role in the offence.
The Crown case was based on circumstantial evidence. Among other evidence, CCTV images of the relevant Weston car park and nearby area indicated that the vehicle of interest in the arson investigation was a dark coloured Honda CR-V. Mr Eliadis owned such a vehicle. Mr Eliadis told lies about damage to his Honda vehicle (in relation to an undamaged area of the offending vehicle that was visible in the CCTV footage, he said that that part of his vehicle had been damaged at the time of the offence, when other evidence established that it had not). Mr Eliadis was associated with a cafe in the same area as Brierly's Cafe. The police obtained legal recordings of conversations between the offender and Mr Eliadis and between Mr Eliadis and others in which Mr Eliadis repeatedly expressed concern that police would link him with the arson offence. Some of the conversations referred to the payment of money by Mr Eliadis to the offender. There was an associated brief meeting between the two men that was the subject of police surveillance. Mr Parlov's then girlfriend gave evidence that, on an evening in March 2014, Mr Eliadis had collected the offender and that, upon his return, the offender was in possession of clothing that resembled that of the arsonist in the CCTV footage taken at the rear of the cafe at the time of the arson.
Victim impact
Due to the recent change in ownership, the incoming owners had not finalised their insurance arrangements at the time of the arson. Afterwards, they became embroiled in a dispute with an insurance company and incurred significant legal expenses. They suffered both capital and trading losses. The arson also had a significant psychological impact on the incoming owners. A victim impact statement described them as being “emotionally and financially wrecked” as a result of the events. They continue to suffer significant psychological and financial consequences.
Objective seriousness
The offence was objectively serious. It was premeditated. There was a brief telephone call between the offenders at around 9.40pm on 12 March 2014. Mr Eliadis collected the offender from the offender’s home. The offender was disguised, wearing a hooded jumper and gloves. He exited the vehicle carrying a tin of petrol and a hammer. The offence was committed in company. The offender committed the offence for financial gain. Mr Eliadis’ motive was not clearly established, although there was some evidence that his godfather owned a cafe in the vicinity.
The offence caused extensive damage to the cafe and great financial and emotional cost to the incoming owners, both directly and through trading loss. The ACT also suffered loss; ACT Fire and Rescue was obliged to attend the scene to extinguish the fire. The damage to property could have been much worse had the fire spread to nearby premises. Fortunately, an alarm was activated and there was a quick response. It is also fortunate that passers-by observed the situation.
On the other hand, the premises were retail premises and the incident occurred in the middle of the night when no one was at the premises, or nearby. There was no real risk of personal injury. There was no evidence of planning or communication prior to the evening of the incident. Nevertheless, for the reasons mentioned, the offence was objectively serious.
Parity
The offender’s role was to execute the offence. As mentioned above, he did so for financial gain. Mr Eliadis’ role was to plan and coordinate the offence, provide support on the night and organise payment afterwards. Mr Eliadis was 44 years of age at the date of the offence, whereas Mr Parlov was only 20 years of age. In significant respects, Mr Eliadis was the dominant party, although he was not responsible for actually lighting the fire. Neither offender demonstrated remorse for the offence.
I accept the Crown’s submission that Mr Eliadis was somewhat more culpable, but not significantly so. When both of the offenders’ subjective features are considered it is difficult to distinguish between them, as Mr Parlov’s subjective circumstances are less favourable. Although the offender was much younger than Mr Eliadis, he was on conditional liberty at the time of the offences, he had a worse criminal history and his prospects of rehabilitation were uncertain.
Subjective circumstances
The offender is 24 years old. At the time of the offence, he was 20 years old.
In 2011, he committed an offence of damage property and, on 5 December 2012, he was released on a supervised good behaviour order. In 2011 and 2012, he committed some relatively minor traffic offences that are of no real relevance to this sentencing exercise. On 15 June 2012, he committed two offences of common assault, for which he was fined. On 9 December 2013, he was resentenced in breach proceedings; and he received a total sentence of 13 months' imprisonment from 9 December 2013 to 8 January 2015, with eight months' imprisonment to be served by way of periodic detention and the remainder suspended. The offender was serving that sentence at the time that the arson was committed.
In August 2014, after the arson offence, the offender committed three offences of assault occasioning actual bodily harm and three offences of common assault. In September 2015, he was sentenced to a total period of 16 months' imprisonment from 16 April 2015 to 15 August 2016, with a nonparole period of 12 months’ imprisonment expiring on 15 April 2016, as mentioned above. On that occasion, he also received nominal resentences for offences of failing to appear, damage property and possess knife without reasonable excuse, each of which was committed in 2012.
The subsequent offences are of no relevance to this sentencing exercise, except to indicate the offender’s ongoing attitude of disobedience to the law. While subject to supervision in the community, the offender has been noncompliant; he has failed to attend for community service and has committed further offences. While in custody, he has been subjected to disciplinary action on 13 occasions, including action relating to positive drug tests and failing to provide samples for testing.
The offender was raised in Canberra in a supportive family with whom he enjoys good relations. He proposes to reside with his parents when he is released from custody. He was educated to Year 10. Since leaving school, he has been largely unemployed. However, he has undertaken some work in the construction industry.
In his late teens, the offender was a heavy drinker. More recently, he has used cannabis and he has been a significant methylamphetamine user. Drug tests taken in custody have been positive for methylamphetamine. The author of the pre-sentence report states that the offender requires a medium level of intervention to address re-offending, unemployment and illicit substance use.
Sentencing purposes and other sentencing considerations
As mentioned above, Mr Parlov's subjective circumstances are less favourable than those of Mr Eliadis because of Mr Parlov’s criminal history and the fact that he was on conditional liberty at the time of the offence.
In sentencing the offender, I take into account the sentencing purposes in s 7 of the Crimes (Sentencing) Act 2005 (ACT) (Sentencing Act). General deterrence is an important sentencing purpose, particularly where an arson offence has been planned. Such offences may be relatively easy to commit and relatively difficult to detect. Indeed, in this case, significant police resources were devoted to investigating the matter. Given the offender’s history of non-compliance with the law, personal deterrence is also relevant. Punishment, accountability, denunciation and recognition of harm to the victims are also important sentencing purposes.
Because the offender is relatively young, rehabilitation must be considered. On the one hand, the offender has shown little aptitude for rehabilitation. As mentioned, he has continued to use drugs while in custody and has been somewhat non-compliant with other custodial requirements. On the other hand, he is a relatively young man and there may be a danger of institutionalisation if his criminal behaviour is not addressed and he is not offered the opportunity to change in the near future.
In sentencing, I am required to consider the matters in s 33 of the Sentencing Act that are known and relevant. I have referred to those factors above.
No comparable ACT decisions were identified. Arson offences often involve offenders who are drunk or mentally unstable and who commit offences directed towards acquaintances or family, often impulsively, and often motivated by anger or revenge. Cases involving offences committed for financial gain are less common.
Sentence
Having regard to the maximum available penalty, the objective seriousness of the offence, the offender's subjective circumstances and the other matters referred to above, full-time imprisonment is the only appropriate sentence. Neither the Crown nor the offender submitted otherwise.
In my view, an intensive corrections order or a suspended sentence would involve a significant degree of leniency and would not adequately address sentencing purposes such as general deterrence, punishment and accountability.
The offender is convicted and sentenced to three years’ imprisonment from 16 April 2016 to 15 April 2019.
In setting the nonparole period, I take into account that the offender is serving an effective sentence of four years’ imprisonment from 16 April 2015 to 15 April 2019. Having regard to his youth, should his behaviour improve, the offender should have the opportunity of obtaining parole after serving just over 60 per cent of the effective sentence. Consequently, I set a nonparole period to expire on 15 October 2017, a period of 30 months from 16 April 2015.
| I certify that the preceding thirty-three [33] numbered paragraphs are a true copy of the Reasons for Sentence of her Honour Chief Justice Murrell. Associate: Date: 4 August 2017 |
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