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 a southerly direction along Whitton Darlington Point Road, Whitton. He pulled his vehicle to the side of the roadway and set fire to the dry grass using a lighter three times.

10. He turned into River Road, pulled over, and set fire to the dry grass a fourth time. He returned home, travelling in a northerly direction on Whitton Darlington Point Road, past the lit fires (sequence 3). The RFS received a call. The offender attended and assisted in its control.

11. On 17 January 2021, the offender was electronically monitored while he travelled in a northerly direction upon Whitton Darlington Point Road. He pulled over and lit the dry grass before returning home (sequence 5). The RFS received a call which the accused attended and assisted with its control. The fire was extinguished.

12. The offender was arrested when police attended his address and executed a search warrant on 22 January 2021. He was conveyed to Griffith Police Station where he participated in an electronically recorded interview with police. He made full admissions.

Objective seriousness

13. The charged offence does not have a wealth of comparative cases from which sentencing principles can be drawn. However, in assessing the objective seriousness of the offence, the Court of Criminal Appeal decision in R v Mills [2005] NSWCCA 175 at [55] is a helpful starting point.

14. This offending involved multiple instances of lighting fires over a number of days. Mr Rosenow had the opportunity to contemplate what he had already done. In circumstances where he believed he was doing the right thing by conducting “hazard reduction burns”, he had the opportunity to reflect on his initial offending and appreciate that his actions were clearly were not achieving the objectives of hazard reduction burning and decided upon repetition. This offending was an ongoing course of serious criminality.

15. It is submitted by Mr McGorey, counsel for the offender, that the conditions were not ‘highly conducive’ to a major blaze to the level present in Mills. However, these offences were committed in summertime in a rural area. The risk of a major blaze in the bushfire season was a matter of which he must have been aware, having regard to his experience over more than 10 years as an RFS volunteer.

16. In relation to the destructive nature of the fires, Mills involved substantial damage to a National Park, with injuries sustained by several firefighters and approximately one million dollars expended in containing the fire. This offending involves small grass fires, which were all extinguished within a few hours. The Crown concedes that there was no significant destruction of property as a result of the offending. This offending was still a waste of valuable resources at a time when there would have been a lot of pressure.

17. Deliberate lighting of bushfires is conduct that is diametrically opposed to everything which was expected of a trained firefighter. Although his service was in a volunteer capacity, volunteer firefighters are often properly regarded as community heroes. This behaviour is the antithesis of what is expected of a volunteer firefighter. While I accept this conduct was out of character, I am of the view that his position as a volunteer firefighter increases his moral culpability: Lambkin v R [2020] NSWCCA 327.

18. The offender made full admissions to the police when he was arrested, accepting responsibility for his actions early on.

19. The community entertains a very real concern in relation to bushfires, particularly where they are deliberately lit. This is reflected in the increase in the maximum penalty since Mills from 14 years to 21 years imprisonment. In the second reading speech for the amendment, the Attorney-General said:

“Bushfires have the potential to cause catastrophic damage to land and properties, loss of livestock, injury and death to members of the community, and substantial economic costs to individuals and the State. Recent data shows that the cost of bushfires to the State is steadily increasing”.

20. The increased maximum penalty reflects the legislature and community’s expectation that condign punishment will follow offenders who deliberately light bushfires. General deterrence is particularly relevant to the sentencing exercise. The Courts must impose sentences that reflect the seriousness and catastrophic consequences that fires cause to deter others who might be inclined to commit similar offences from the dangerous and destructive conduct involved.

21. I am of the view that each offence falls towards the lower end of the range of objective seriousness, especially considering the lack of substantial damage caused by the offending.

22. As I previously mentioned, the offender also asks that I take into account on sentence pursuant to section 32 of the Crimes (Sentencing Procedure) Act, 1999, one offence of intentionally causing a fire and then being reckless as to the spread listed in a Form 1, being sequence 2. This offence is referable to sequence 1.

23. I note that having availed himself of this arrangement, the offender has the benefit of not facing separate punishment for the additional offence. I have reviewed the principles enunciated in Attorney General’s Application Under s 37 of the Crimes (Sentencing Procedure) Act 1999 No. 1 of 2002 [2002] NSWCCA 518.

24. The Court is to impose a sentence for the totality of the criminality before it, reflected in both the offences for which the offender is to be sentenced and the offence taken into account. This may mean that the sentence passed is greater than that which would have been appropriate for the principal offence standing alone.

25. The fact that matters on a form 1 are to be taken into account means that greater weight should be given to personal deterrence and retribution. As part of the instinctive synthesis approach to sentencing, the Court takes the form 1 matters into account as required by the statute in determining the appropriate penalty for the offence for which the offender is convicted.

Subjective circumstances

26. The offender is a 32-year-old man. At the time of the offences, he was 30 years old.

27. I have before me a report of Dr Stephanie Bennett, clinical psychologist. It discloses that the offender grew up in regional New South Wales, tending to move frequently between places. He describes his parents in positive terms.

28. He did not excel academically, experiencing learning difficulties across all subjects. He was physically and verbally bullied at school, which negatively impacted his confidence.

29. After completing year 9, he left school and has been employed since, working as a farmer’s labourer and as a tyre fitter. In 2020, he and his wife started their own business where he would work as a farmer’s labourer on a subcontract basis. Since leaving school, he has only been unemployed for 6 months because of a spinal injury. He has a good work history. A number of character references have been tendered which commend his excellent work ethic.

30. The offender married his wife when he was 25 and they have a 5-year-old son. He also has a 9-year-old daughter from a previous relationship. Mr Rosenow describes his relationship with his wife as a positive one. The offender was involved in the 2019-2020 Black Summer bushfires and was experiencing traumatic flashbacks and poor sleep through nightmares. He has difficulties communicating his emotions about his distressing bushfire experiences with his wife. Instead, he would ‘bottle up’ these emotions, turning to alcohol as a coping mechanism.

31. To manage his emotions and trauma from the 2019-2020 bushfires, at the time of the offending, Mr Rosenow was consuming up to 20 standard drinks per night. Dr Bennett advises that he was experiencing alcohol use disorder at the time of the offending. Mr Rosenow gave evidence before me today that he had been drinking before he lit the fires. Dr Bennett is of the view that his disorder may still have negatively impacted on his decision-making skills and judgment.

32. When he was 12 years old, the offender was witness to a motor vehicle accident that resulted in the death of a family friend. He received counselling, but he did not like opening up to the counsellor. In relation to the trauma from his volunteer firefighting experiences, he expressed difficulty in processing emotions. Since being in custody, he has been seeing a psychologist and has found the sessions helpful. Mr Rosenow has been assessed as being in the ‘moderately severe’ depressed range and as having a ‘moderate’ level of anxiety. Dr Bennett confirms that he is currently experiencing depressive and anxious symptoms.

33. Mr Rosenow has a small group of friends in the community. The character references I have read inform me that he is hard-working, respectful, and courteous. He is a well-respected member of the community. In addition, Mr Rosenow is absent any previous criminal history. I take these matters into account in mitigation on sentence.

Prospects of rehabilitation

34. Mr Rosenow is someone without any criminal history and has been assessed as having a medium-low risk of reoffending. Mr Rosenow has difficulty with respect to identifying the negative impacts of his alcohol use, and Dr Bennett opines that there is a risk of relapse with respect to his alcohol use disorder. She recommends the offender engage in a Relapse Prevention program through public health services to assist with managing alcohol safely.

35. Although he has previously struggled with discussing his emotions, he has been seeing a psychologist in custody. He has a positive attitude to seeing psychological assistance when in the community and has expressed an interest in continuing to seek this assistance.

36. Mr Rosenow enjoys the strong support of his family and friends, particularly his wife with whom he intends to live on release from custody. These connections are prosocial supports, which is positive for his rehabilitation. He has a good work history and is likely to regain employment quickly upon his release. In evidence before me, he said that he intends to be abstinent from alcohol.

37. Overall, with the right support in place, I am of the view that he has excellent prospects of rehabilitation.

Contrition/remorse

38. To the author of the sentencing assessment report, the offender acknowledged how fearful people in the community might have been and the negative effect his offending behaviour may have had on his fellow firefighters. To Dr Bennett, he explained that he feels like a failure, referring to the destructive potential of the fires, and the danger posed to the community, people’s lives, and property.

39. In evidence, he said that he was sorry for the crimes that he had committed and the potential danger to the community, and the heartache he has caused to his family.

40. I am of the view that this offender has expressed genuine remorse and insight into his offending behaviour, and that he is contrite.

COVID-19

41. The impact and restrictions of COVID-19 in the prison environment are multi-faceted. Both appellate and courts of first instance in NSW have recognised a variety of species of hardship that inmates presently suffer in the custodial environment, including:

1. the suspension of social and family visits: McKinnon [2020] NSWCCA 106 at [32]. He has not had a contact visit with his wife or children.

2. restrictions to movement and subsequent isolation of inmates: R v Tangi (No 12) [2020] NSWSC 547 at [57]-[58]; R v Kelso [2020] NSWDC 157 at [46]. He has been subjected to 60 or more lockdowns.

3. Negative impacts on well-being including stress and anxiety: Valentine [2020] NSWCCA 116.

42. Furthermore, courts across the different jurisdictions of the Commonwealth have further recognised additional hardships, including work opportunities during the pandemic, when available at all, are limited: DPP v Tennison [2020] VCC 343 at [36]-[39].

Special circumstances

43. The offender was arrested and refused bail for these offences on 22 January 2021. He has been in custody for over 15 months now. This period is his first time in custody.

44. Dr Bennett recommends treatment for the offender’s mental health and alcohol use disorder. I accept that his need for rehabilitation in this respect will be optimised in the community, and a longer period of supervision on parole is beneficial. I make a finding of special circumstances in accordance with section 44(2) of the Crimes (Sentencing Procedure) Act 1999. The non-parole period will be 66% of the head sentence.

Sentence

45. The threshold in section 5 of the Crimes (Sentencing Procedure) Act 1999 is crossed, and no penalty other than one by way of full-time imprisonment is appropriate.

46. Benjamin Rosenow, you are convicted and sentenced to an aggregate term of imprisonment of 3 years and 6 months to commence on 22 January 2021 and expiring on 21 July 2024. I set a non-parole period of 2 years and 4 months, and you will be eligible for parole on 21 May 2023. The indicative sentences are as follows:

Sequence 1: 1 year and 9 months, but for the 25% discount, the term would have been for 2 years and 4 months. The indicative non-parole period is 1 year.

Sequence 3: 2 years and 6 months, but for the 25% discount, the term would have been for 3 years and 4 months. The indicative non-parole period is 1 year and 8 months.

Sequence 5: 16 months imprisonment, but for the 25% discount, the term would have been for 22 months imprisonment, rounding down. The indicative non-parole period is 11 months.

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Decision last updated: 26 April 2022