R v Swift; R v Ghous
[2018] ACTSC 277
•26 September 2018
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v Swift; R v Ghous |
Citation: | [2018] ACTSC 277 |
Hearing Dates: | 2 August 2018 and 26 September 2018 |
DecisionDate: | 26 September 2018 |
Before: | Murrell CJ |
Decision: | See [54], [56] |
Catchwords: | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – knowingly concerned in arson |
Legislation Cited: | Crimes (Sentencing) Act 2005 (ACT) s 35 Criminal Code 2002 (ACT) ss 45, 404 |
Parties: | The Queen (Crown) Jonathon Swift (Offender) Ahtsham Ghous (Offender) |
Representation: | Counsel Mr J Walker (Crown) Mr J Stewart (Offender) Mr J Sabharwal (Offender) |
| Solicitors ACT Director of Public Prosecutions (Crown) Boxall Legal (Offender) Rachel Bird and Co (Offender) | |
File Numbers: | SCC 90 of 2018; SCC 106 of 2018 |
Murrell CJ
Introduction
On 23 April 2018, the first offender, Jonathan Swift, pleaded guilty to the offence that on 7 March 2017, he was knowingly concerned in the commission of an arson offence (recklessly causing damage to a building by explosive). On 26 April 2018, he was committed to the Supreme Court for sentence.
On 3 May 2018, the second offender, Ahtsham Ghous, pleaded guilty to the same offence and was committed to the Supreme Court for sentence.
An offence against ss 45 and 404 of the Criminal Code 2002 (ACT) carries a maximum penalty of 15 years’ imprisonment and/or a fine.
After Swift was charged in the Magistrates Court with other charges in relation to the events of 7 March 2017, there were short negotiations resulting in a plea of guilty to the charge upon which he was committed for sentence. In those circumstances, I consider that the plea was entered at the earliest reasonable opportunity and, pursuant to s 35 of the Crimes (Sentencing) Act 2005 (ACT), the offender should receive a discount of 25 per cent on the sentence that would otherwise have been given.
The positon in relation to Ghous, and the entry of plea is similar. He was charged in the Magistrates Court with other charges relating to the events of 7 March 2017. On the first three occasions that he appeared in the Magistrates Court he was self-represented and was granted adjournments to arrange legal representation. Following the fourth mention, his legal representative indicated that he would be prepared to enter a guilty plea to the charge of being knowingly concerned in the arson and on the following mention date the plea was entered. Given the seriousness of the charges and the fact that the offender was a young man who was self-represented on the first three mentions, I consider that he should receive a discount of 25 per cent on the sentence that would otherwise have been given.
Facts
In November 2015, BUPA Aranda, an aged care facility, was progressively vacated and operations were moved to a more modern facility. A security firm was engaged to monitor the security of the abandoned premises.
Sometime during 2015, Anthony Nguyen, Mitchell Webber, Swift and numerous other people engaged in a Facebook Messenger group conversation called “frashn bin it”. Swift used the profile name “I want a lexus”. Later, Ghous joined, using the profile name “Blue sututu”.
At about 9:00 PM on 7 March 2017, Jonathan Fitzgerald and his girlfriend drove to the Coles Express service station in Gungahlin. Swift, Ghous, and other co-offenders including NF and Boyan Noveski (who were all members of the conversation group) were already present.
The principal offenders, NF and Nguyen, entered the rear seat of Fitzgerald’s vehicle and started assembling the explosive devices by pulling sparklers apart. They had made prior plans in relation to the assembly of makeshift explosive devices. At some stage while all were present at the service station in Gungahlin, a firm plan was made that those present would attend the abandoned BUPA Aranda facility.
10. Swift and Ghous attended with the others. The group went there in two vehicles. Fitzgerald drove one of the vehicles. Swift and Ghous travelled in Noveski’s vehicle.
11. The two vehicles were parked in a car park that was close to the BUPA facility. The group entered through a door with a broken glass panel and made their way upstairs to the first floor, entering a large room. The principal offenders remained in the room, and the other members of the group left the room and waited nearby.
12. A loud explosion and a flash of light emanated from the room when the principal offenders detonated an explosive device. The principal offenders then detonated a second explosive device before running out to join the other offenders.
13. The whole group returned to the cars and drove past the facility. Swift, Ghous and the other offenders saw that it was alight. Fitzgerald dropped the principal offenders back at the Coles Express Service Station in Gungahlin.
14. At 10:41 PM, ACT Fire and Rescue Services requested that police attend the facility as it was well alight.
15. The following day, a video of the fire was posted on the group conversation. It showed ACT Fire and Rescue arriving at the scene. Ghous participated in a Facebook group discussion about the video and an article in the Canberra Times concerning the fire.
16. The fire rendered the premises structurally unsafe; the ceiling and walls partially collapsed. Police were advised that the premises posed a potential asbestos contamination risk due to the age of the construction.
17. When spoken to by police on 11 September 2017, Fitzgerald made numerous admissions but said that he was not aware that the principal offenders had intended to commit the arson offence.
18. Swift had participated in a Facebook group conversation on the morning of 7 March 2017, in which there was a discussion about detonating an explosive device at BUPA. Ghous also participated in that conversation, although he made only a very minor contribution.
19. Neither Swift nor Ghous participated in a record of interview or made admissions.
20. BUPA stated that the costs directly attributable to the fire were $187,195.50. However, because the building was to be demolished, the total costs were said to be far greater. The bald figure of $187,195.50 indicates that the damage was very substantial.
Objective seriousness
21. The incident and the associated offences were objectively serious. Apart from anything else because of the extent of the damage caused and the cost of remediation. There was also the cost, inconvenience and risk posed to ACT Fire and Rescue and perhaps to the police who also attended the scene. There was risk to the other participants in the offence. There was some planning involved on the part of all offenders.
22. General deterrence is very important as a sentencing purpose in relation to arson offences because of the potential for extensive damage to persons and property.
23. I accept that the motive for Swift, Ghous and the other persons who were involved was thrill-seeking. No doubt, the offenders gave no real thought to the extent to which the property might be damaged by their actions. If they had thought about it, the possible consequences would have been obvious.
24. Although there is no evidence that Swift or Ghous played a significant role in planning the offence, earlier on the day of the offence both became aware that an offence of the general type was to occur and—at least tacitly, and to some extent expressly—encouraged its commission.
25. They provided further encouragement by attending on the night and going to the scene. The roles of these offenders were significantly less objectively serious than those of the principal offenders, and were very much akin to the roles played by Fitzgerald and Noveski: see below [49]–[53].
Subjective circumstances: Swift
26. At the time of the offence, Swift was 19 years of age. He has no criminal history.
27. He is an only child, although he has a step-brother. He resides with his mother and step-father. He has positive relationships with his biological parents and step-father, as well as his grandparents. He was greatly affected by the recent death of his grandfather.
28. The offender experienced health problems in Years 11 and 12 but has since completed Year 12 and started a business degree at university (but deferred it because of mental health issues). He undertakes odd jobs and is otherwise supported by his parents.
29. His mother described the family as very conservative and the commission of the offence as both out of character for the offender and out of character for the entire family. Indeed, members of the extended family have not been advised of the offender's involvement. Closer family members are well aware and support the offender strongly.
30. Referees describe the offender as an intelligent and caring young man who is very attached to his family and say that the offence was quite out of character. They state that the offender is remorseful. They indicate that the offender tended to be vulnerable to influence by others.
31. Since 2014, the offender has suffered from depression and anxiety for which he is currently medicated. He is receiving counselling from a psychiatrist because of a relatively recent and serious bout of depression.
32. Since the offence, he has been attempting to distance himself from negative peers. His involvement in the offence has caused him great anxiety and regret. His mother says that, since the offence, the offender’s behaviour has changed dramatically.
33. The offender has demonstrated a high level of remorse and insight. He accepted a referral to restorative justice, although the matter was found not suitable (for reasons which are difficult to understand).
34. In addition to understanding the impact of the offence on BUPA and the possibility that others could have been affected, the offender is aware of the serious impact of his conduct on his family.
35. The offender was assessed as at low risk of re-offending.
Subjective circumstances: Ghous
36. At the time of the offence, the offender was 20 years old.
37. He has a minor criminal history, being two minor driving matters and an offence of damaging property, which were committed in 2016. The property damage matter resulted in a non-conviction order requiring the offender to undertake a supervised good behaviour order for 12 months. Two months into the order, supervision was terminated due to the offender’s low risk assessment.
38. The offender was born in Pakistan and moved to Australia when he was three years old. He is one of three children. He has a good relationship with his parents and siblings and resides with them.
39. Because of poor mental health, the offender ceased formal schooling in Year 12. He worked for two years in the retail industry but left the position four months ago due to a disagreement with his manager.
40. The offender was involved in a car accident when he was seven years old and sustained a brain injury. He received compensation and the money is held in a trust account.
41. At 16 years of age, the offender was diagnosed with depression and anxiety and was medicated. The offender had engaged with a psychologist in the past. However, both medication and counselling ceased six months ago.
42. The offender has a tendency to impulsivity, consistent with his involvement in this offence.
43. In relation to the offence, the offender has minimised his involvement, and blamed it on his own impulsive behaviour and pressure to follow his friends. However, he was one of the older participants.
44. The offender is assessed as having a medium to low risk of general re-offending. The author of the pre-sentence report considers that the offender should re-engage with a psychologist and make a concerted effort to disassociate from antisocial peers.
45. The offender wants to study business management.
46. Referees describe the offender as trustworthy and respected and say that the offence was out of character.
47. When compared to some other offenders, including Swift, Ghous has not demonstrated the same level of remorse and contrition and he has not demonstrated a dramatic change in his life. Nor has he shown a commitment to making a positive contribution to the community. Rather, as his counsel fairly conceded, he is "drifting".
Co-offenders
48. In sentencing these offenders, considerations of parity are very important. I will outline the sentences imposed on the co-offenders.
49. On 21 May 2018, the principal co-offender Nguyen was sentenced for the offence of arson by joint commission to one year and 11 months’ imprisonment to be served by way of an intensive corrections order (ICO). A condition of the order was that the offender complete 150 hours of community service within 12 months. The starting point for the sentence was two years and six months’ imprisonment. Nguyen was 19 years old at the time of the offence. His criminal history was of little significance. He had a low risk of general re-offending. Taking into account the offender’s youth and excellent prospects of rehabilitation as well as his early and continuing cooperation with police, I decided that he need not serve the sentence by way of full-time imprisonment.
50. On 22 May 2018, the principal co-offender NF was sentenced for the offence of arson by joint commission to two years and three months’ imprisonment. At the same time, he was sentenced and re-sentenced for other offences. Objectively, his involvement in the offence was very significant. Although he was a young person, his subjective circumstances differed greatly from those of other offenders and were far less favourable.
51. On 6 June 2018, the co-offender Fitzgerald was sentenced for the offence of being knowingly concerned in arson to serve 12 months’ imprisonment by way of an ICO. The starting point for the sentence was 16 months’ imprisonment. At the time of the offence, the offender was 18 years and five months of age. He had no criminal history. When interviewed, he made extensive admissions, thereby assisting the justice process. He was remorseful and demonstrated insight. He was assessed at being of medium to low risk of general re-offending. I was satisfied that the offence had been a “wake-up call” to the offender which had caused him to change his associates and re-focus his life in a much more mature way.
52. Like Fitzgerald, on 6 June 2018, the co-offender Noveski, was sentenced for the offence of being knowingly concerned in arson to 12 months’ imprisonment to be served by way of an ICO. The starting point for the sentence was 16 months’ imprisonment. At the time of the offence, the offender was 18 years and five months of age. He had no criminal history. When interviewed by police, he made extensive admissions. He had expressed remorse and demonstrated insight. I saw no reason to distinguish between the sentences imposed on Fitzgerald and Noveski.
53. Another co-offender was sentenced for trespass in the Children’s Court, which imposed non-conviction orders.
Sentences
54. Comparing the objective and subjective circumstances of Swift, with those of Fitzgerald and Noveski, I see no reason to distinguish in the penalty imposed, i.e., I consider that the appropriate sentence is 12 months’ imprisonment to be served by way of an ICO. I impose the condition that Swift comply with such mental health interventions as are recommended by Community Corrections.
55. Although the objective factors relating to the offender Ghous, are very similar to those of Fitzgerald, Noveski and Swift, his subjective circumstances are less favourable. He was slightly older than the other offenders at the time of the offence. He has a prior offence of damaging property. Most importantly, he has not demonstrated a commitment to changing his life; he is still "drifting".
56. I consider the appropriate starting point for the sentence to be 20 months’ imprisonment, reduced by 25 per cent, resulting in a sentence of 15 months’ imprisonment. I accept that Ghous may benefit from close supervision which guides him in the right direction. Consequently, I order that the sentence of imprisonment be served by way of an ICO. To that ICO I attach the condition that he engage with such mental health interventions as are recommended by Community Corrections.
| I certify that the preceding fifty-six [56] numbered paragraphs are a true copy of the Reasons for Sentence of her Honour Chief Justice Murrell. Associate: Date: |
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