R v White - [2009] SASC 239

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v WHITE
[2009] SASC 239
Judgment of The Court of Criminal Appeal
(The Honourable Chief Justice Doyle, The Honourable Justice Bleby and The Honourable Justice Kelly)
14 August 2009
CRIMINAL LAW - SENTENCE - RELEVANT FACTORS - NATURE AND CIRCUMSTANCES OF OFFENDER - MENTAL DISORDER
Appellant pleaded guilty to 21 counts of intentionally causing a bushfire – fires lit in the Adelaide Hills during the bushfire season but caused little damage – appellant suffered from post traumatic stress disorder, personality disorder and associated depression – psychiatric conditions caused appellant to commit offences but appellant could form the relevant intent, and knew the nature and quality of her acts – sentencing Judge gave greater weight to general deterrence and the need to protect the community than to the appellant's circumstances – sentencing Judge imposed a single sentence of imprisonment for 13 years and fixed a non-parole period of 9 years – whether sentence imposed by Judge manifestly excessive.
HELD: very serious sequence of offences – appellant not of 'seriously diminished responsibility' – gravity of the crime and the importance of general deterrence outweighed the mitigating effect of the appellant's psychiatric condition – sentencing Judge did not err in this respect.

CRIMINAL LAW - SENTENCE - RELEVANT FACTORS - NATURE AND CIRCUMSTANCES OF OFFENCE - GRAVITY OF OFFENCE
CRIMINAL LAW - SENTENCE - PURPOSE OF SENTENCE - DETERRENCE
Sentencing Judge gave greater weight to the principle of general deterrence and the need to protect the community than personal circumstances of the appellant – appellant suffered from psychiatric conditions – appellant had good prospect of recovery with treatment – treatment would be most effectively administered in the community – imprisonment of appellant would cause hardship to husband and children – appellant had no previous criminal history – appellant attempted to make reparation – whether sentencing Judge gave insufficient weight to personal circumstances of the appellant.
HELD: remarks of sentencing Judge indicated that he took the circumstances of the appellant into account – Judge did not treat deterrence and protection of the community as wholly displacing the appellant's personal circumstances – head sentence not excessive – more scope to take into account appellant's personal circumstances in fixing non-parole period – non-parole period fixed by the Judge excessive – appeal allowed – lesser non-parole period fixed.
Criminal Law Consolidation Act 1935 (SA) s 85B(1)(a); Criminal Law (Sentencing) Act 1988 (SA) s 18A, referred to.
R v Wiskich (2000) 207 LSJS 431, applied.
Mason-Stuart v The Queen (1993) 61 SASR 204, considered.

R v WHITE
[2009] SASC 239
Court of Criminal Appeal: Doyle CJ, Bleby and Kelly JJ

DOYLE CJ: Ms White pleaded guilty to 21 counts of intentionally causing a bushfire, an offence against s 85B(1)(a) of the Criminal Law Consolidation Act 1935 (SA). The maximum penalty for that offence is 20 years imprisonment. Acting pursuant to s 18A of the Criminal Law (Sentencing) Act 1988 (SA) (“the Act”), the sentencing Judge imposed a single sentence of imprisonment in respect of all of the offences. The Judge imposed a head sentence of 13 years imprisonment, and fixed a non-parole period of nine years.
Ms White appeals by leave against the head sentence and the non-parole period. Ms O’Connor, counsel for Ms White, submits that the Judge erred in failing to make sufficient allowance for the psychiatric condition of Ms White which, on the Judge’s findings, caused Ms White to commit the offences. She further submits that the Judge had insufficient regard to the fact that Ms White has no previous convictions and to the effect that Ms White’s imprisonment would have on her children and husband. Complaint was also made about the weight that the Judge attributed to the principle of general deterrence, and to the potential harm to persons and property to which the fires gave rise.
The offences
Ms White was initially charged with 47 counts of intentionally causing a bushfire on an Information filed in the District Court. A nolle prosequi was entered in respect of 26 of those counts. An amended Information was filed charging Ms White with 21 counts of intentionally causing a bushfire. When she was arraigned in the District Court on that Information, Ms White pleaded not guilty to each of the 21 counts charged.
After several months, Ms White changed her pleas to guilty in respect of each of the 21 counts charged.
Six of the counts to which Ms White pleaded guilty relate to offences committed on 12 January 2007. Four counts relate to offences committed on 5 December 2007. The remaining 11 counts relate to offences committed on 13 and 14 December 2007. All of the offences took place in the Adelaide Hills. All took place during the bushfire season. The place of the offences and time of year illustrate the risk of danger to life and property from what Ms White did. The lighting of a number of fires over a relatively short time must have put pressure on the CFS resources.
The offences of 12 January 2007 were committed between about 3.30pm and 8.15pm. The fires the subject of counts one to six burnt several thousand square metres of land, but were all contained. The CFS was involved in extinguishing four of the fires. Two of those fires were extinguished with the assistance of specialist aircraft. Notably, one of the fires came within 150 m of a dwelling. No dwellings or other structures were damaged by the fires. Damage was caused to fencing separating private properties from the road.
As a result of conversations between the police and Ms White, police suspected that Ms White was involved in starting the fires of 12 January. Police fitted Ms White’s car with a tracking device. That device recorded the location of Ms White’s vehicle at all times.
The four offences of 5 December 2007 were committed between approximately 2.30pm and 3.30pm. The tracking device fitted to Ms White’s car recorded the car at the location of each fire shortly before the detection of each fire. In the case of three of the fires, the tracking device recorded the car stopping at the location of the fire. Like the fires of 12 January, several thousand square metres of vegetation was burnt. Each of the fires was extinguished by the CFS. One of the fires was located 25 m from a pine plantation. Another of the fires came within about 100 m of a dwelling. No dwellings or other structures were damaged, but some fencing was destroyed.
Ms White lit the fires of 13 and 14 December 2007 during a two hour period. The first of these fires was detected about 10.20pm. The last fire was detected shortly after midnight. The tracking device fitted to Ms White’s car recorded the car stopping at each of the locations at which a fire was started shortly prior to the detection of each of the fires. The person who detected the first of these fires observed a car with a registration number matching that of Ms White parked close to the first fire. CFS personnel extinguished all but four of these fires, those fires being extinguished by other means. Like the other occasions, the fires burnt several thousand square metres of pasture, but did not result in any damage to dwellings or other structures. It is worth noting, however, that one of the fires was ignited approximately 20 metres from a dwelling. Another came within 10 m of a dwelling. The fires damaged fencing; in one case, $3000 damage was caused to fencing. One of the fires entered a paddock which contained stock, but the fire did not harm the stock.
Each of the three occasions on which the offences took place involved a course of conduct spanning a period of a few hours. The offences committed on each occasion were committed in quick succession. It can be inferred that Ms White drove through the countryside, lighting the fires the subject of the offences.
Ms White lit all but one of the fires in vegetation next to the road on public property. The only exception is a fire which was started close to the road on a vacant block. The fires caused a total of approximately $7000 damage to property. Ms White has attempted to make reparation of this amount. No attempt has been made to ascertain the cost of the fires to the CFS and other authorities associated with extinguishing and investigating the fires. The cost must have been substantial.
The Judge made the pertinent point that Ms White’s offences caused a lot of fear and anxiety in the Adelaide Hills area in which she lit the fires. As he said, for a good part of two bushfire seasons Ms White “terrorised” her community. He said:
Your neighbours were worried sick that they, their families and property might be the victims of a major bushfire disaster. Every movement, every outing, even shopping expeditions, had to be planned against that possibility. I cannot overlook those emotional effects of your offending.
Ms White’s circumstances
Ms White was 43 years old at the time of the offences committed in January 2007. She was 44 years old at the time of the offences committed in December 2007. At the time of sentencing, Ms White was 45 years of age. She had no criminal history.
In sentencing Ms White, the Judge had available to him several psychiatric and psychological reports relating to Ms White. Dr Raeside, a forensic psychiatrist, provided several of those reports and gave evidence during the course of sentencing submissions.
The Judge made significant findings about Ms White’s background, about her mental health, and about the effect of these things on Ms White. He said:
Your early childhood was fairly unremarkable, although you had a poor relationship with your father. Your parents sent you to a good school. You left school after year 10 but before that time you had suffered the first of a number of traumatic experiences which have had an enormous effect on your mental health. You kept most of them secret, even from your husband, until you were charged with these offences. I am not going to describe them. The details are set out in the various medical reports. I shall not humiliate you or embarrass members of your family by reciting those details. Eventually you made a happy marriage and had your two younger children. But, even then, you suffered further traumas: post-natal depression and a broken ankle soon after the birth of your youngest child. On top of all that had gone before in your life, you then had to face another very difficult time. It is quite plain from the medical evidence that, on account of that long series of traumas stretching back to the time when you were only 12, you have severe psychiatric and psychological problems: post-traumatic stress disorder, a personality disorder and depression.
I accept that your psychiatric condition caused you to light these fires. You did so because you felt powerless, depressed and angry. I also accept that you have no memory, or almost no memory, of your offending.
These findings are warranted by the material before the Judge. For the reasons that the Judge gave I will not elaborate. But I make the point that Ms White’s circumstances are sad indeed, and I agree with the Judge that her circumstances “excite great compassion”. On the other hand, it is also relevant to note two other things that the Judge said. He said:
Although you were mentally unwell when you lit the fires, you did so deliberately. You intended to do what you did and you knew full well that what you were doing was wrong. Further, you did not commit these crimes on the spur of the moment. Your use of mosquito coils as ignition devices in at least some of the fires shows that you planned your crimes.
Later in his reasons he said:
You have been and still are a danger to the community but I accept that with appropriate treatment you will cease to be a danger. You are not a typical arsonist: specific psychiatric conditions led you to offend.
The authors of the reports record that Ms White has dealt with her psychiatric condition by way of dissociation. They noted that periods of dissociative amnesia followed stressful situations. One of the psychologists, Mr Reid, noted that there was a “build-up of stress, depression and anger during the twelve month period prior to the offences…”. They each recorded that during consultations, Ms White recounted that she had no memory of any involvement in the fires the subject of the charges, and had only limited memories of her activities at the time of the fires. The psychiatrist, Dr Raeside, remarked in his report that Ms White’s dissociation “does not suggest that her behaviours were unintentional, uninformed, or even unplanned.” In cross-examination, Dr Raeside confirmed that it was his opinion that Ms White knew that what she was doing was wrong.
The Judge’s sentencing remarks
The Judge outlined the offending conduct and Ms White’s circumstances. What I have set out above captures what he said in this respect.
The Judge referred to the evidence of Dr Raeside that Ms White needed extensive treatment which would be most effectively administered in the community rather than during a period of imprisonment. Later, when imposing sentence, the Judge said that the availability and likely effectiveness of such treatment allowed him to fix a lower non-parole period than that which he might otherwise have fixed.
The Judge referred to the effect that a sentence of imprisonment would have on Ms White’s husband and two daughters. Whilst feeling sympathy for Ms White and her family, the Judge concluded that “there are not special circumstances, as understood in the law, which would permit me significantly to reduce any period of imprisonment on their account.” The Judge continued:
Your sad background, your present poor mental health and the lot of your children excite great compassion but this is a case where matters such as those must take second place to the court’s paramount duty to protect life and property.
As I have noted, the Judge fixed a single sentence of imprisonment in respect of all 21 counts pursuant to s 18A of the Act. The Judge noted that had he not done so, he would have ordered that the sentences that he imposed in respect of each offence be served concurrently with the sentences imposed in respect of the other offences committed at the same time. He indicated that he would have ordered that the three resulting periods of imprisonment, which related to the three separate occasions during which the offences were committed, be served cumulatively.
The Judge adopted a starting point of 18 years imprisonment. He noted that although Ms White did not co-operate with police in the early stages of their investigation, and did not enter her pleas of guilty at the earliest opportunity, she deserved significant credit for her pleas of guilty. He imposed a head sentence of 13 years imprisonment, and fixed a non-parole period of nine years.
Consideration of appeal
The task of the sentencing Judge was difficult. These were very serious offences. The consequences, had any one of the fires got out of control, could have been catastrophic for the community. The danger of bushfires, especially in areas like the Adelaide Hills, is very great. The community expects the courts to impose a sentence for such offending that will protect the community, if necessary by removing offenders from the community, and that will deter other offenders.
On the other hand, Ms White’s mental problems were very real, and led to her offending.
In her written submission Ms O’Connor put some emphasis on the fact that all bushfires have the potential to cause harm, that all of these fires were detected quite quickly, and that all were put out without doing much damage. In light of that, she submits, the offending was near the lower end of the range of seriousness.
I do not accept this submission. Lighting a series of fires in the places where Ms White lit them, and at the height of the bushfire season, is serious because of the risk of harm created. It is also serious because of the impact on the community of the threat created and the anxiety caused. It was well known at the time that a repeat arsonist was probably at work. This naturally caused great alarm in the relevant parts of the Adelaide Hills. In short, even though none of the fires got out of control, this is a very serious sequence of offences.
Ms O’Connor rightly put a lot of weight on Ms White’s background, its effect on her mental health, and the link between that and the offences.
Ms O’Connor invokes the principle identified by King CJ in Mason‑Stuart v The Queen (1993) 61 SASR 204 at 205-206, where King CJ said:
A person of seriously diminished responsibility is not an appropriate subject for exemplary punishment with a view to deterring others and the ends of justice are not served by insisting that the punishment be proportionate to the gravity of the crime viewed objectively, as distinct from the subjective gravity of the particular offender's offending. The problem is to find a solution which will enable the public to be protected, without imposing a harsh punishment upon a person whose subjective moral responsibility is seriously diminished.
She also referred us to the consideration of this principle by Martin J (with whom the other members of the Court agreed) in R v Wiskich [2000] SASC 64; (2000) 207 LSJS 431. In his reasons, Martin J thoroughly reviewed the case law relevant to the sentencing of persons suffering from mental disorders. He said at 457-458:
The existence of a mental disorder is always a relevant factor in the sentencing process, but its impact upon that process and the various issues that arise in sentencing will vary considerably according to the circumstances of the individual case. An assessment of the severity of the disorder is required. A sentencing court must determine the impact of the disorder upon both the offender's thought processes and the capacity of the offender to appreciate the gravity and significance of the criminal conduct. In this respect I agree with the approach taken in the Victorian and New South Wales authorities that, as a general proposition, if an offender acts with knowledge of what is being done and with knowledge of the gravity of the criminal conduct, the importance of the element of general deterrence otherwise appropriate in the particular circumstances is not greatly affected. The gravity of the criminal conduct is also an important consideration. It is not difficult to understand that the element of general deterrence can readily be given considerably less weight in the case of an offender suffering from a significant mental disorder who commits a minor crime, particularly if a causal relationship exists between the mental disorder and the commission of such an offence. In some circumstances, however, the mental disorder may not be serious or causally related to the commission of the crime, and the circumstances of the crime so grave, that very little weight in mitigation can be given to the existence of the mental disorder and full weight must be afforded to the element of general deterrence. In between those extremes, an infinite variety of circumstances will arise in which competing considerations must be balanced.
A reference to the application of these principles to the particular case is instructive. At 459-460 Martin J said:
The learned sentencing judge found that the mental illness of the respondent arising from the three independent but interacting mental disorders was such that it "significantly impaired" the respondent's capacity to self-reason and self-control. His Honour was also satisfied, however, that the respondent was capable of understanding the nature and implications of his actions and that his illness reduced, but did not remove, the respondent's capacity to control his conduct. During his oral submissions, counsel for the respondent acknowledged that those findings were open to his Honour and could not be challenged. In my opinion, those conclusions were reasonable conclusions to draw from all the evidence before his Honour.
…
In my opinion, although the respondent's mental condition was a factor to be taken into account by way of mitigation because it assisted in explaining his actions and, to some extent, it reduced the respondent's moral culpability, this was not a case in which the principle enunciated in Mooney and Mason-Stuart should have been applied to the point of giving little or considerably reduced weight to the element of general deterrence. The mitigating effect of the respondent's mental condition was far outweighed by the gravity of the crime and the importance in the particular circumstances of the element of general deterrence. It follows in my view, that the learned sentencing judge erred in giving full force and effect to the principle enunciated in Mason-Stuart and Mooney.

In her submissions Ms O’Connor made the point that Ms White did not seek to be sentenced on the basis that her mental illnesses meant that she did not know the nature and quality of her conduct, or did not form the relevant intent. Her submission is that Ms White’s mental illness meant that less weight should be given to general and personal deterrence, and that more emphasis and weight could and should be given to Ms White’s need for treatment and prospects of recovery with treatment.
I have read the material before the Judge, including the reports from the psychiatrist and the psychologists. It does not appear to me that Ms White was a person of “seriously diminished responsibility”, the terms used by King CJ. Nevertheless, I accept that her mental state was such that one could fairly say that there would have been some diminution of her responsibility and of her moral culpability. But, reflecting the approach of Martin J, with which I agree, the mitigating effect of Ms White’s mental condition is outweighed by the gravity of the crime and the importance, in the particular circumstances of the case, of general deterrence. I wish to emphasise that these offences were not spontaneous events. The offending was spread over a period of 12 months. Each group of offences was spread over a period of some hours. The circumstances indicate a degree of planning and preparation.
I do not consider that the Judge erred in this respect. True, the Judge referred to “the Court’s paramount duty to protect life and property”. But taking his reasons as a whole, there is no reason to think that the Judge approached the case on the basis that this duty displaced all other considerations. To the contrary, there is every indication that the Judge gave careful consideration to all of the relevant circumstances.
I make the same response to the submission by Ms O’Connor that the Judge gave insufficient weight to Ms White’s prospects of recovery with treatment, and to the circumstance that that treatment would be better provided while Ms White was in the community, rather than in prison. I make the same response also to the submission by Ms O’Connor that the Judge failed to give adequate weight to the sad circumstances of Ms White’s husband and children. There can be no doubt that the Judge carefully considered these matters.
Standing back, the sentence is a heavy one. But, as I have said several times, the offending is very serious and Ms White’s circumstances did not require the sentencing Judge to discount significantly the importance of deterrence and the importance of reflecting the gravity of the offences.
Ms White’s previous good character and her willingness to make reparation were also mitigating factors, but having regard to the prolonged nature of the offending, and its seriousness, they were not circumstances that called for a lesser head sentence.
For these reasons, I reject the submission that the head sentence is excessive.
I turn to the non-parole period. There was greater scope for factors personal to Ms White to be taken into account in relation to the non-parole period. Having considered Ms O’Connor’s submissions, I have come to the conclusion that the non-parole period is excessive. I am particularly influenced in reaching that conclusion by her previous good record, and by the prospects of recovery with appropriate treatment. I consider that it is appropriate to allow a longer than usual period on parole, if Ms White can demonstrate to the Parole Board that she is fit for release under supervision. If she cannot, then of course she will continue to serve her sentence after the expiry of the non-parole period. In the circumstances of this case, a non-parole period that is half the head sentence is appropriate. Accordingly, I would allow the appeal for the purpose of setting aside the non-parole period, and in substitution fix a non‑parole period of six years and six months.
Conclusion
I would allow the appeal, set aside the sentence imposed by the Judge, and substitute a sentence of imprisonment for 13 years, in relation to which I would fix a non-parole period of six years and six months.
BLEBY J: I agree with the orders proposed by the Chief Justice and with his reasons. In particular I agree that the need for rehabilitation and the likelihood of its success require that the non-parole period be reduced for the reasons that he gives.
This has been a particularly difficult sentencing exercise. The appellant’s distressing personal history and resulting psychiatric condition, which explain her offending, were only revealed, even to her immediate family, after her arrest for these offences. The evidence suggests that, after appropriate ongoing treatment, the appellant will be unlikely to offend again. For the time being, however, because of the seriousness of the offending and the immediate need for protection of the public, a substantial custodial sentence is required.
However, the evidence is also clear that the appellant will require ongoing psychiatric treatment and intensive psychological therapy while in custody if she is to gain any benefit from a period of parole. I trust that that will be afforded the same priority while the appellant remains in custody as would any serious physical illness.
KELLY J: I agree with the reasons of the Chief Justice that the head sentence of thirteen years is not excessive. However, in my respectful view, the appellant has not demonstrated any error in relation to the fixing of the non‑parole period which would justify the intervention of this Court.
It might be observed that a non-parole period of nine years which represents approximately seventy percent of the head sentence, is in all of the circumstances, somewhat high. Equally it might be observed that a non-parole period which represents approximately fifty percent of the head sentence, is somewhat low. It is always a matter of degree and to some extent, subjective assessment. However, this Court may only interfere with a discretionary decision on appeal if error is identified or, if no particular error has been identified, the sentence is so manifestly excessive to warrant the conclusion that it must have been infected by error.
As the Chief Justice pointed out there is every indication that the Judge gave careful consideration to all of the relevant circumstances in arriving at the head sentence and fixing the non-parole period. In the circumstances I do not agree that the non-parole period fixed by the Judge was beyond the scope of his lawful discretion such as to manifest error.
For these reasons I would decline to interfere with the sentence.