R v Rosenow

[2022] NSWDC 126

District Court

New South Wales

Medium Neutral Citation:

R v Rosenow [2022] NSWDC 126

Hearing dates:

26 April 2022

Date of orders:

26 April 2022

Decision date:

26 April 2022

Jurisdiction:

Criminal

Before:

Grant DCJ

Decision:

Orders at [46]

Catchwords:

SENTENCING – intentionally causing a fire – volunteer firefighter deliberately lighting grass fires – bushfire season – unauthorised backburning – community heroes – conduct diametrically opposed to community expectations – increased moral culpability – strong subjective case – remorseful offender – strong prospects of rehabilitation

Legislation Cited:

Crimes Act 1900

Crimes (Sentencing Procedure) Act 1999

Cases Cited:

Attorney General’s Application Under s 37 of the Crimes (Sentencing Procedure) Act 1999 No. 1 of 2002 [2002] NSWCCA 518

DPP v Tennison [2020] VCC 343

Lambkin v R [2020] NSWCCA 327

McKinnon v R [2020] NSWCCA 106

R v Kelso [2020] NSWDC 157

R v Mills [2005] NSWCCA 175

R v Tangi (No 12) [2020] NSWSC 547

Valentine v R [2020] NSWCCA 116

Category:

Sentence

Parties:

Regina
Benjamin Charles Rosenow

Representation:

Counsel:
Mr Chris McGorey (offender)

Solicitors:
Mr William Glowrey (offender)
Mr Aaron Thomas (DPP)

File Number(s):

2021/00020059

Publication restriction:

Nil

Ex Tempore Judgment

Introduction

1. Benjamin Rosenow is to be sentenced for three offences of intentionally causing a fire and then being reckless as to the spread of that fire to vegetation on public land, namely, the roadside of Whitton Darlington Point Road, Whitton, contrary to section 203E(1) of the Crimes Act 1900.

2. The offender asks me to take into account on a Form 1 a further offence under the same provision.

3. The maximum penalty applicable is 21 years imprisonment, with a standard non-parole period of 9 years imprisonment. These are important guideposts in the assessment of sentence; a sentencing judge should steer by the maximum penalty and standard non-parole period, but not aim for it.

Plea of guilty

4. A plea of guilty was accepted by the Local Court Magistrate in committal proceedings for the offences. As such, the offender is entitled to have his sentence reduced by 25% for his early plea in accordance with section 25D(2)(a) of the Crimes (Sentencing Procedure) Act 1999.

The Facts

5. There is an agreed facts document. In summary, the facts are these:

6. The offender has been a member of the Rural Fire Service (RFS) since 21 March 2009.

7. On 29 December 2020, the offender travelled down Whitton Darlington Point Road, Whitton. He pulled over, opened the driver’s side door of his vehicle, and set fire to the dry grass using a lighter (sequence 1). He went home. The RFS received a call to attend a grass fire at the location, which the offender attended in his capacity as a member of the RFS. The fire was extinguished.

8. Later the same evening, the offender travelled the same road again. Again, he set fire to the dry grass before returning home (sequence 2). The RFS received a call which the offender, again, attended. The fire was extinguished.

9. On 11 January 2021, the offender travelled in…