R v Timmins - [2015] SASCFC 153

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v TIMMINS
[2015] SASCFC 153
Judgment of The Court of Criminal Appeal
(The Honourable Justice Sulan, The Honourable Justice Peek and The Honourable Justice Stanley)
26 October 2015
CRIMINAL LAW - PARTICULAR OFFENCES - PROPERTY OFFENCES - ARSON AND LIKE OFFENCES - GENERALLY
CRIMINAL LAW - SENTENCE - SENTENCING ORDERS - CUSTODIAL ORDERS - MENTAL HEALTH, HOSPITAL SECURITY ORDERS, ETC - GENERALLY
The appellant was charged with arson, the Judge finding the objective elements established but finding the appellant not guilty by reason of mental incompetence. The Judge fixed a limiting term of seven years.
Counsel for the appellant submitted that the seven year limiting term was manifestly excessive.
Held, dismissing the appeal (Sulan J, Peek and Stanley JJ agreeing):
1. The seven year limiting term was within the Judge's discretion.
2. Appeal dismissed.
Criminal Law Consolidation Act 1935 (SA) s 269O, s 269O(2); Criminal Law (Sentencing) Act 1988 (SA) s 10(1), referred to.
R v Draoui (2008) 101 SASR 267; R v James (1981) 27 SASR 348; R v Bober (No 3) (2010) 107 SASR 165, considered.

R v TIMMINS
[2015] SASCFC 153
Court of Criminal Appeal: Sulan, Peek and Stanley JJ

SULAN J: This is an appeal against a decision to impose a limiting term of seven years in respect of an offence of arson.[1]
[1] Criminal Law Consolidation Act 1935 (SA), s 269O(2).
Background
On 11 September 2014, in the early hours of the morning, the Anembo Park Sports and Community Centre at Littlehampton was gutted by fire, causing approximately $197,000 of damage. At 7.48 am on the morning of the fire, the appellant, Steven Mark Timmins, contacted police and admitted lighting the fire.
Police had attended the community centre at about 2.35 am on 11 September 2014 in response to an alarm activation. When police arrived, they observed that the roof of the centre was alight. Fire was engulfing the building. Police immediately called the Country Fire Service. Officers of that service arrived at the centre. The fire was contained.
Police forensic investigators determined that a side window had been broken by a brick prior to the fire starting and that the fire had been deliberately lit. They observed the remains of a plastic container. Petrol residue was located in the function room from which the fire had originated.
When the appellant contacted police operations, he told the operator his name and that he had lit the fire. He told the operator that he was in Mount Barker and he was being abused, so he decided to take it out on the people who he saw abusing other people. When police arrested the appellant, he admitted that he had set fire to the premises. He told police that, once he had entered the premises, he splashed petrol around. He then stepped out of the window and ignited the fire.
The Judge who fixed the limiting term described the damages as amounting to $400,000. It was agreed that this was an error, but of no significance when considering whether the limiting term was manifestly excessive.
At the trial, psychiatric evidence was led. There was no dispute that the appellant suffers from chronic paranoid schizophrenia, that he was mentally ill at the time of the offending and that he was mentally incompetent at the time.
Dr Raeside, one of the examining psychiatrists, was of the opinion that the appellant suffered delusional beliefs, one of which was that police were not responding adequately to his concerns about sexual abuse. Dr Raeside was of the view that, although the appellant knew, technically, of the wrongfulness of his conduct, he was unable to reason with a moderate degree of sense and composure about the wrongfulness of his actions. The appellant believed that, in setting fire to the building, he was drawing attention to greater concerns which would result in police responding to his concerns about sexual offending.
The appellant has a long-standing history of chronic paranoid schizophrenia. He suffers from persistent delusional beliefs, primarily of a sexual and paranoid nature, which has a significant affect and impairment upon his functioning. The Judge referred to his history of mental illness, probably commencing when he was a teenager. The appellant has been the subject of a community treatment order in the past. At the time of this incident, he was not subject to an order and he was not taking appropriate medication.
On 24 March 2015, a District Court Judge found the appellant not guilty of the offence of arson, the Judge having found the objective elements of the offence established but concluding that the appellant was mentally incompetent at the time.
In concluding that the appellant was mentally incompetent, the Judge referred to the reports of three psychiatrists, Drs Raeside, Begg and Nelson, all of whom agreed that the appellant should be released on licence and subject to a treatment plan.
On 22 June 2015, the Judge fixed a limiting term of seven years. She released the appellant on conditions which include the following:
1.That the defendant be subject to a supervision order pursuant to Section 269O(1)(b)(ii) of the Act.
2.     That the defendant be released on licence subject to the following conditions:-
(a)     That the defendant be under the care and direction of the Clinical Director,     Forensic Mental Health Service (“The Director”), or a consultant psychiatrist      nominated by him or her (“the nominee”), and obey any directions given to him from time to time with regard to medical and psychiatric treatment and     medication.
(b)     That the defendant be under the supervision of a Community Corrections Officer assigned by the Parole Board of South Australia and comply with the lawful directions of that officer or the Board with respect to non-medical matters. To effect initial contact the defendant is to report to the Murray Bridge Office of the Department for Correctional Services at 10 First Street, Murray Bridge, within two working days of the date of this order.
(c)     That the defendant attend for supervision with the Community Corrections Officer on a weekly basis until otherwise directed by the Parole Board.
Other conditions concerning the appellant’s treatment regime, his management, the place at which he is to reside and restrictions on his movements, were imposed.
In fixing the limiting term, the Judge observed:
I must fix a limiting term as to the offending conduct. The maximum penalty for the offence of arson is life imprisonment. The limiting term must relate to the appropriate head sentence for the offence if proved without having regard to the mitigation of your psychiatric illness.
I note that you have no relevant prior record and also that you spent eight days in custody shortly after your apprehension.
I have regard to your general personal circumstances as set out in the numerous psychiatric reports that I have received (other than your psychiatric background; I am not able to have regard to your psychiatric condition in mitigation of the sentence or limiting term).
The setting of this fire was very serious offending behaviour. The victim suffered substantial loss. There was use of an accelerant and a danger to the community by the setting of this fire in those circumstances. I note that there was no-one present in the building at the time and there was no immediate danger when the fire was set. I note your later contact with the police and admission to them that you set the fire.
The appeal
Counsel for the appellant submitted that the period of the limiting term of seven years is manifestly excessive. He pointed to a number of factors in support of his submission as follows:
-    The applicant has a very limited offending history generally, with prior convictions only for traffic matters and no prior convictions for similar matters.
-    The appellant had never been sentenced to a term of imprisonment.
-    The appellant co-operated with police by telephoning the police after the commission of the offence, and by making full admissions to the offence immediately upon speaking with police and during his record of interview.
In addition, counsel contended that the appellant was not seeking vengeance or a desire to harm or endanger others. I do not agree. The appellant, in his delusional state, set about his conduct believing there were persons inside the clubrooms who were engaged in violent and abusive conduct. The Judge referred to the appellant’s belief as to the state of the premises and activities allegedly occurring therein as being the product of his state of paranoid schizophrenia.
Counsel for the Director submitted that there is no basis to interfere with the period of the limiting term. Counsel submitted that this was serious offending and, having regard to the appellant’s long-term mental problems and his prior history, the limiting term was not excessive.
Discussion
In R v Draoui,[2] Doyle CJ, Duggan, Sulan, Vanstone and Anderson JJ considered the operation of s 269O of the Act and the factors to which a court can and cannot have regard in setting a limiting term. Section 269O provides:[3]
[2] (2008) 101 SASR 267.
[3]    Criminal Law Consolidation Act 1935 (SA).
269O—Supervision
(1)     The court by which a defendant is declared to be liable to supervision under           this Part may—
(a)     release the defendant unconditionally; or
(b)     make an order (a supervision order)—
(i)     committing the defendant to detention under this Part; or
(ii)    releasing the defendant on licence on the following conditions:
(A)     the conditions imposed by subsection (1a);
(B)any other conditions decided by the court and specified in the licence.
(1a)Subject to this Act, every licence under subsection (1)(b)(ii) is subject to the following conditions:
(a)     a condition prohibiting the defendant from possessing a firearm or ammunition (both within the meaning of the Firearms Act 1977) or any part of a firearm;
(b)     a condition requiring the defendant to submit to such tests (including testing without notice) for gunshot residue as may be reasonably required by a person or body specified by the court.
(1b)A court may only vary or revoke the conditions imposed by subsection (1a) if the defendant satisfies the court, by evidence given on oath, that—
(a)     there are cogent reasons to do so; and
(b)     the possession of a firearm, ammunition or part of a firearm by the defendant does not represent an undue risk to the safety of the public.
(2)If a court makes a supervision order, the court must fix a term (a limiting term) equivalent to the period of imprisonment or supervision (or the aggregate period of imprisonment and supervision) that would, in the court's opinion, have been appropriate if the defendant had been convicted of the offence of which the objective elements have been established¹.
(3)At the end of the limiting term, a supervision order in force against the defendant under this Division lapses.
Note—
1The court should fix a limiting term by reference to the sentence that would have been imposed if the defendant had been found guilty of the relevant offence and without taking account of the defendant's mental impairment.
Vanstone J, with whom the other four members of the Court agreed, said:[4]
The reference in s 269O(2) to “the period of imprisonment ... that would ... have been appropriate if the defendant had been convicted of the offence” must be taken to attract the factors enumerated in s 10 of the Criminal Law (Sentencing) Act 1988 (SA), so far as they “are relevant and known to the court”: s 10(1) of the Sentencing Act. For the reasons which follow I consider that the factor found in s 19(1)(g) – the fact of a plea of guilty – cannot be relevant to the task contemplated by s 269O(2) of the CLCA.
In my opinion the words “a term ... equivalent to the period of imprisonment ... that would ... have been appropriate if the defendant had been convicted” in s 269O(2) cannot accommodate the reduction in sentence which would have been given to a defendant who had pleaded guilty. What the section requires is an exercise or calculation which is hypothetical. It is hypothetical, first, because in determining what sentence would otherwise have been imposed no account is to be taken of the defendant’s mental impairment and, secondly, because it is based on the premise that the defendant had been found guilty of the offence. He has not been. Under the legislative framework he has either been found mentally incompetent and therefore not guilty, or mentally unfit to stand trial.
[4] (2008) 101 SASR 267 at [65]-[66].
Sulan J, with whom other members of the Court agreed, observed:[5]
In fixing a limiting term, the court must fix a term which is equal to the term of imprisonment to which the defendant would have been sentenced had he or she been convicted of the offence. The setting of a limiting term by equating that term to the sentence which would have been imposed is somewhat artificial. Nevertheless, the words of the section are plain. This Court has previously decided that the length of the limiting term is to be equated to the head sentence of imprisonment that would have been imposed on conviction.
[Footnotes omitted.]
[5] (2008) 101 SASR 267 at [18].
Vanstone J observed that the imposition of a supervision order and the setting of a limiting term was not to punish the defendant but, rather, to protect the public and to secure to the defendant such supervision and treatment as is available and appropriate. Unlike a sentence of imprisonment, a supervision order can be varied, having regard to how a defendant is responding to supervision and treatment. In this case, the Judge made it clear that was a course open to the appellant.
The Court is not to take into account the appellant’s mental impairment when determining the limiting term.[6]
[6] Criminal Law Consolidation Act 1935 (SA) s 269O; R v Bober (No 3) (2010) 107 SASR 165 at [12].
The issue for this Court is whether a limiting term of seven years is so excessive that it demonstrates error.
The defendant’s response to treatment will govern whether the licence conditions are varied or revoked. In considering that question, the Court is to have regard to the factors referred to in s 10(1) of the Criminal Law (Sentencing) Act 1988 (SA), other than those which are excluded, such as the mental condition of a defendant and the fact that he has pleaded guilty. If the defendant has co-operated in the investigation, this has little relevance to the setting of a limiting term, as co-operation is referrable to a person’s mental state. Personal deterrence is not relevant, as the setting of a limiting term is not regarded as punishment.
In my view, the imposition of a limiting term has no relevance to rehabilitation. A person subject to a limiting term is to be supervised and treated.
Arson is an extremely serious offence. The maximum penalty is life imprisonment, which demonstrates how seriously Parliament regards this type of offending. There is no range of sentences which are appropriate for the offence. It is inevitable that, in the majority of cases, a sentence of imprisonment will follow.
In R v James,[7] the Full Court (Walters, Zelling and Williams JJ) considered a submission that the sentence for arson was manifestly excessive, as it fell outside the range of sentences fixed by the Court over a period of approximately 10 years. Counsel produced a schedule of penalties for arson over that period. The Court said:[8]
In the present case, we cannot be persuaded that there is any ground for upholding a submission that there was an unjustified discrimination against the applicant. In our view, the crime of arson cannot be regarded as a crime so usually or so often dealt with in this Court as to be identified with any particular tariff or range of penalty. We doubt very much whether any sophisticated formulation of tariff can be devised, or any precise guidelines laid down, for a crime where there can be so many different, aggravating or mitigating circumstances. Varying factual situations must necessarily be encountered in relation to the crime of arson and, to our minds, there can be no established pattern of dealing with any particular set of facts. The legislature has seen fit to provide a maximum penalty of life imprisonment for arson, leaving the Court a discretion exercisable within wide limits in fixing a sentence in respect of each offender. It seems to us that ordinarily a substantial sentence of imprisonment is called for by reference to the immediate gravity of the crime and its consequences. Arson, in all of its forms, is an extremely serious and dangerous crime, and the element of general deterrence must be given proper weight, in order to reflect the Court’s condemnation of the crime, especially where it is committed with an appreciation of what is being done and there is a calculated act of vengeance ...
[7] (1981) 27 SASR 348.
[8] (1981) 27 SASR 348 at 351.
In my view, the comments of the Court are apposite. In arriving at a sentence and, in this case, the limiting term, the Court will consider all relevant circumstances surrounding the offence. However, as observed, personal factors to which the Court can have regard in setting a limiting term are limited.
The offending in this case was serious. The appellant broke into the premises, doused them with petrol and set them alight. He caused considerable damage and had little or no regard to the personal safety of others. Although he telephoned police and admitted his involvement, by the time he did so the damage was done. The limiting term was well within the Judge’s discretion. It cannot be said that it was manifestly excessive.
I would dismiss the appeal.
PEEK J. I would dismiss the appeal. I agree with the reasons of Sulan J.
STANLEY J: I would dismiss the appeal. I agree with the reasons of Sulan J.