Sclater v Tasmania
[2015] TASCCA 26
•10 December 2015
[2015] TASCCA 26
COURT: SUPREME COURT OF TASMANIA (COURT OF CRIMINAL APPEAL)
CITATION: Sclater v Tasmania [2015] TASCCA 26
PARTIES: SCLATER, Shaun
v
STATE OF TASMANIA
FILE NO: CCA 434/2015
DELIVERED ON: 10 December 2015
DELIVERED AT: Hobart
HEARING DATE: 11 November 2015
JUDGMENT OF: Blow CJ, Tennent and Estcourt JJ
CATCHWORDS:
Criminal Law – Appeal and new trial – Appeal against sentence – Grounds for interference – Sentence manifestly excessive or inadequate – Arson and charges relating to other fires – Sentence of two years' imprisonment with one year suspended.
Aust Dig Criminal Law [3521]
REPRESENTATION:
Counsel:
Appellant: R Mainwaring
Respondent: Y Prenc
Solicitors:
Appellant: Legal Aid of Commission of Tasmania
Respondent: Acting Director of Public Prosecutions
Judgment Number: [2015] TASCCA 26
Number of paragraphs: 48
Serial No 26/2015
File No CCA 434/2015
SHAUN SCLATER v STATE OF TASMANIA
REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL
BLOW CJ
TENNENT J
ESTCOURT J
10 December 2015
Order of the Court
Appeal dismissed.
Serial No 26/2015
File No CCA 434/2015
SHAUN SCLATER v STATE OF TASMANIA
REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL
BLOW CJ
10 December 2015
I have had the advantage of reading the reasons of Estcourt J in draft form. I agree with him that this appeal should be dismissed. I agree with everything he has written. There are some comments that I would like to make.
In this case there were a number of substantial matters that weighed in favour of a lenient sentence. The appellant was only 19 years old when he committed the crimes in question. He had no prior convictions. When he committed the crimes in question, he was in an unfortunate emotional state as a result of learning that he was not welcome to visit his child, as previously arranged. He made significant admissions to the police. He pleaded guilty to the charges, and thus saved the State the cost and inconvenience of a trial. He was very sorry for what he had done. It was unlikely that he would re-offend. Whilst he started three fires, the most serious by far, which resulted in the destruction of the Cygnet Tennis Club building, involved the commission of the crime of arson on the basis of recklessness, not intention. That is to say, he did not have a positive intention to burn the building down, but was aware of the possibility that his fire would cause the building to catch fire, and was recklessly indifferent to that possibility. That was the result of his emotional state on the night in question. There was no premeditation. The fires were the result of drunkenness and anger, not a desire for destruction or revenge. Since the night when he committed these crimes, he had resolved his problems with his former partner, formed a relationship with another woman, obtained employment, organised regular contact with his child, sought psychiatric advice, commenced taking medication that resulted in improved mood, reduced his alcohol consumption, and commenced neurological testing to examine problems in relation to stress and blackouts.
However he caused an enormous amount of damage. It is true that he caused no damage to the utility which he attempted to burn. It is also true that he caused no more than about $19,000 worth of damage by setting fire to the caravan in which he had been staying. However the tennis club fire caused an enormous amount of damage.
The material before the learned sentencing judge as to the consequences of the tennis club fire, and my observations in relation to those consequences, can be summarised as follows:
· The damage to the clubhouse was so severe that the building had to be demolished.
· The tennis club had insurance, but the property was underinsured. Initially the insurance company estimated the damage amounted to $244,000. That estimate was revised a number of times by the company. The final estimate was $1,083,747.90. That took into account damage to contents owned by the club, and damage to the tennis courts. That figure may well have represented the amount that would have been payable pursuant to an indemnity policy if the property had been fully insured. Because the property was underinsured, the amount paid to the club was only $138,145.
· The clubhouse was leased to a potter for use as a studio. He had no insurance. The items that he lost included approximately $10,000 worth of commissioned works, a refrigerator, a washing machine, two potter's wheels, and an antique chair.
· The potter's wife ran yoga and art classes from the clubhouse. Obviously she had to either find another venue or cease running the classes, but the learned sentencing judge was not told what she did.
It was neither necessary nor possible for the learned sentencing judge to quantify the final loss to the tennis club. In his sentencing comments he said, "The insured loss is estimated to be about $138,000, with the total loss in the order of a little over $1,000,000. … The figures I have outlined were not the subject of specific agreement, but I am satisfied that it is proper to approach sentence on the basis that those figures are approximate and may be a little less than stated." I infer that he meant that the loss may have been a little less than stated. All that his Honour could reasonably be expected to do in the circumstances was to make some assessment of the order of magnitude of the damage. It was a fire that caused at least hundreds of thousands of dollars worth of damage. I am not satisfied that his Honour made any error as to the quantification of the damage.
But for the mitigating circumstances that I have referred to, a head sentence significantly longer than two years would have been appropriate. It should be noted that the impugned sentence of two years' imprisonment, with one year suspended and no provision for parole, represents a significantly more lenient penalty than a sentence of two years' imprisonment with provision for parole as early as possible – after serving half the sentence. In the latter case, the person sentenced would spend at least 12 months in custody. In the former, the person sentenced would serve no more than 12 months in custody if he or she did not re-offend, and would be eligible for remission of up to three months of the 12-month operative part of the sentence pursuant to the Corrections Act 1997, s 86, and the Corrections Regulations 2008, reg 22(1).
In all the circumstances, I am not persuaded that the sentence imposed by Porter J was manifestly excessive. I do not think it was out of proportion to the seriousness of the appellant's offending, even after allowing for the significant relevant mitigating factors. It was not unreasonable or plainly unjust. I would therefore dismiss the appeal.
File No CCA 434/2015
SHAUN SCLATER v STATE OF TASMANIA
REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL
TENNENT J
10 December 2015
I have had the benefit of reading in draft form the reasons for judgment of Blow CJ and Estcourt J. In substance I agree with those reasons and would also dismiss the appeal.
File No CCA 434/2015
SHAUN KEVIN SCLATER v STATE OF TASMANIA
REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL
ESTCOURT J
10 December 2015
The appeal
This is an appeal by Shaun Kevin Sclater against the severity of a sentence passed on him by Porter J on 26 May 2015.
On that day the appellant was convicted of one count of unlawfully setting fire to property, one count of attempting to unlawfully set fire to property and one count of arson, and was sentenced to a period of two years' imprisonment from 20 May 2015, with 12 months of that period suspended for two years.
The learned trial judge made no order as to parole eligibility pursuant to the provisions of the Sentencing Act 1997, s 17(2), and thus the effect of s 17(3A) of that Act is that the appellant is not eligible for parole in respect of the operative part of the sentence of 12 months' imprisonment.
In addition, the learned sentencing judge made a probation order for a period of 18 months from the appellant's release from prison. Special conditions of that order were that the appellant attend educational and other programs, undergo assessment and treatment for alcohol or drug dependency, and submit to medical, psychological or psychiatric assessment, all as may be directed by a probation officer.
The appellant appeals on two grounds.
The first is that the learned sentencing judge erred in his calculations as to quantum of the damage caused.
The second is that in all the circumstances the sentence imposed was manifestly excessive.
As to the first ground, counsel for the appellant, Ms Mainwaring, in her written submissions contended that in assessing the amount of damages relevant to count 3 on the indictment, the learned sentencing judge ought to have determined the amount between the figures of two estimates provided by the Crown, namely, $244,000 and $1,083,747.97, as opposed to determining, as his Honour did, that the total loss "was in the order of a little over $1,000,000" although, he said that the figures were approximate and may be "a little less than stated".
Counsel for the appellant on the hearing of the appeal did not press her written submission that in assessing the amount of damages relevant to count 2, the sum determined ought to have been $19,000 and not "nearly $20,000" as the learned sentencing judge observed.
I will set out the learned sentencing judge's comments on passing sentence, but it is not apparent to me that any error is manifest due in particular to an erroneous assumption of the amount of the damage in respect of count 3, if indeed his Honour's assumption was erroneous.
In my view, in this particular case, the question of whether there was specific error in this regard will find its answer in the inquiry as to whether the sentence was manifestly excessive.
The circumstances of the offending
In sentencing the appellant the learned sentencing judge summarised the circumstances of the appellant's offending as follows:
"The defendant has pleaded guilty to one count of attempting to unlawfully set fire to property, one count of unlawfully setting fire to property, and a count of arson. The three separate incidents were part of a course of conduct at Cygnet in the early hours of the morning of 31 March 2014. At that time the defendant lived just outside Cygnet. When socialising with friends in Cygnet, he stayed in a friend's caravan parked in the backyard of her property. The friend is Ms McKenzie-Everett. On the night before, the defendant was drinking with a group of friends and had made plans to stay in the caravan. The defendant has a young child but is estranged from the child's mother. Earlier in the day he had received text messages telling him that he was not welcome at the house and was therefore not able to see the child. Upset by this, he told his companions that he was going to walk to where his ex-partner lived, which was over 30 kilometres away. He was encouraged to stay at the party, which he did, and continued drinking. At about 3.20am on 31 March, Ms McKenzie-Everett was awoken and saw a glow outside her bedroom window. She and her partner, with their three children and another teenager, were staying in the house at the time. The caravan was on fire. She immediately contacted the fire brigade and her partner and her eldest child began moving cars and a boat which were alongside the caravan. The caravan and boat fires are the subject of count 1. At this time Ms McKenzie-Everett noticed a utility vehicle further up the road which was also on fire. The owner, Mr Bourke, had been awoken by the fire at Ms McKenzie-Everett's house. He noticed that pieces of bark and rope that were in tray of the utility were alight. He was able to put out the fire with a bucket of water, with no damage being caused. That is count 2. Ms McKenzie-Everett had thought the defendant was in the caravan but she saw him walking up the street and then running into the yard to help move property. Just after the fire brigade put out the fire at Frederick Street, it was alerted to another fire at the Cygnet Tennis Club, which is about 300 metres away, and in the direction from which the defendant was seen walking. The clubhouse was leased to a Mr Clare who is a potter and used it as his studio. His wife also ran yoga and art classes there. Inside was about $10,000 worth of commissioned works and equipment, along with items of furniture and whitegoods. When the fire brigade arrived, the structure was engulfed by flames and could not be salvaged. The fire officers at the scene were approached by the defendant who said, 'Don't worry, there's cameras around here, whoever did it will get caught.' He then rode off on a bicycle. Police inquiries soon led to the defendant. When interviewed, he said that it was his son's birthday, that he got a message from his ex-partner saying that he was not welcome, and that he was trying to figure out a way to see his son, but was being 'stuffed around'. He said he drank more than he normally would, was very drunk and could not remember anything. He denied that he would have set fire to the caravan as he would not do that to his friend. He did not remember touching the utility. He remembered being inside the tennis club but denied setting fire to it, although he remembered throwing a pot and smashing it. He then said, 'I think I lit the fire … what have I done.' He said it sounded pretty obvious that he had done it, and that he did not want to live anymore.
It is not suggested that there is any inaccuracy in that summary of the events of the evening, and the central question arising in this case, involving as will be seen, a 19 year old man with no criminal record, is whether the nature of that offending is such that it is the duty of the Court to give effect to the deterrent aspect of punishment above the appellant's youth, his status as a first offender, and the steps he had taken of his own accord towards rehabilitation.
In Jones v Fleming [1957] Tas SR 1, Burbury CJ observed at 4-5:
"In the case of a young man of this age [19] who has had no previous convictions involving dishonesty or previous conviction of a serious crime, he should not be sent to gaol unless the nature of his crime is such that it is the duty of the court to give effect to the deterrent aspect of punishment as outweighing other factors".
In that case, Burbury CJ explained at 4 that the "modern approach" to juvenile offenders involves the realisation that the individual should be given every reasonable opportunity to reform, rather than that he (or she) "should be exposed to the possible corrupting influence of other inmates of the gaol and thereby be set on a path of crime".
The sentencing judge next set out the personal circumstances of the appellant as follows:
"The defendant is now 20; he was a few months past his 19th birthday at the time. He has no history of offending. I have a pre-sentence report dated 22 April 2015 and a psychiatric report from Dr Lane. The defendant was diagnosed with ADHD at a young age and was medicated for the condition. He struggled at school and was disruptive by fighting. However he is literate and, at least according to the pre-sentence report, has completed a TAFE construction course. He has had short periods of employment with various local businesses. He has a significant history of alcohol and cannabis abuse, starting in his early teenage years. At the time of the fires he had been binging on alcohol most weeks for some years. There is evidence of impulsivity and threatened self-harm. In 2012 acute intoxication led to presentations at the hospital emergency department. He irregularly takes antidepressant medication. In that year there is a report attributed to a paediatrician about relatively concerning rage attacks. The relationship with his ex-partner was a volatile one particularly over access to the son, although I am told that the issues have now been resolved. He seems to have drunk more heavily on this particular night because of the difficulty in seeing his son. In the psychiatrist's opinion, the actions occurred within the context of ongoing conflict with his ex-partner and her family, and his previous history of fighting and disruptive behaviour, substance abuse and general antisocial tendencies. On this night, he was seriously intoxicated and emotionally elevated. He is not able to understand or explain his actions it seems, particularly as they included damaging his friend's property. The material confirms that the actions were not the result of any form of mental illness, but were in response to his anger and extreme intoxication. Dr Lane reports positives in the form of expression of remorse, modification of drinking behaviour, and the seeking of help for the management of moods and situational problems." (Emphasis added.)
In her written submissions, counsel for the appellant sets out what she contends are the mitigating factors in this case. Some of these were not specifically alluded to by the sentencing judge, but they were contained in the material before his Honour and they are not disputed by the respondent. They are listed by counsel as follows:
"Mitigating factors
• He was 19 at the time and therefore a youthful offender. He had no record of convictions and therefore his behaviour may be characterised as out of character.
• He had pleaded guilty, largely accepting the evidence against him, despite having a poor recollection.
• His emotional distress and intoxication at the time of the crimes contributed to his behaviour. He was unable to think rationally and use good judgment.
• He made admissions at interview, in so far as his recollection allowed and accepted that it appeared he was responsible for the fires. He was distraught at that realisation.
• He had pleaded guilty, accepting the evidence against him, despite having a poor recollection.
• He had resolved issues with his ex- partner and thereby diminished the emotional distress that contributed to his offending on the night.
• His level of intoxication, coupled with his heightened emotions and anger, along with evidence of destruction of pots within the tennis club supported the fact that his behaviour was not intentional, but reckless.
• Recklessness was not disputed.
• He had employment at a fast food franchise, managed by his mother.
• He had commenced a new relationship."
It is clear therefore that there was much weighing on the side of not imposing an immediate custodial sentence.
There was also much weighing on the side of suspending all or part of any custodial sentence. In particular, there were the positives adumbrated by Dr Lane in the psychiatric report before the sentencing judge, and referred to by his Honour in his comments on passing sentence set out above.
In this regard, counsel for the appellant addressed the aspect of rehabilitation in her written submissions. She submitted:
"The plea in mitigation and reports outlined significant steps the Appellant had taken toward rehabilitation since the offending behaviour. That progress included
• Identification of future employment areas/prospects and completion of certificates relevant to potential employment
• Working in stable employment for the past 8 months at a Legs and Breast franchise
• Actively searching for employment in desired areas and offering himself for volunteer work;
• Disassociation from people he identified as having a negative influence
• Having organised weekly access and care of his son by mutual agreement.
• Consultation with a GP, referral to and consultation with a psychiatrist
• Commencement of regular antidepressant medication, with the result of improved mood.
• Commencement of neurological testing to examine reactions to emotional stress and blackouts.
• Socialising less and spending more time with family
• Reduced alcohol consumption.
The Appellant was clearly actively engaged in improving his life and was motivated to do so. He was disappointed by his behaviour and was interested in identifying any 'triggers' for his behaviour. Independent sources provided to the sentencing judge supported submissions to this end."
As can be seen, the learned sentencing judge was well aware of the appellant's remorse. Counsel for the appellant submitted, and I accept, that the appellant had demonstrated real remorse and insight into his offending behaviour.
As the appellant's counsel noted, the presence of remorse was supported independently by Dr Lane's report. Counsel submitted, and I accept, that indications of the appellant's remorse were:
"(a)His evident distress at interview upon realising the evidence suggested he was responsible for the crimes;
(b)Disappointment and upset about his involvement along with regret over damaging friendships as a direct consequence of his acts in relation to count 2;
(c)His admissions and plea of guilty;
(d)Steps taken to reduce stressors in his lifestyle and to identify triggers for his behaviour to better cope;
(e)Has sought (sic) and engaged in counselling with a psychologist to address mood management and situational issues."
The trial judge, I have no doubt, was well aware of all of these factors, and his Honour knew that a balancing exercise was involved. He rolled up the relevant considerations in the following passage in his comments on passing sentence:
"I take into account the defendant's young age, and that he has no recorded history of offending. However, the leniency which that might ordinarily produce as the result of a focus on rehabilitation is, to a very large extent, overtaken by the seriousness of the conduct. This highly destructive spree was prompted by anger and alcohol. That anger was not directed at the victims. I am conscious of the punitive and corrupting prison environment but I see little choice than to order immediate imprisonment. However the defendant's age, personal circumstances and steps towards rehabilitation justify a suspension of part of the appropriate term."
It is clear that his Honour was well aware of the observations of Burbury CJ that I have set out above, but that he felt that the nature of the appellant's crime was such that it was his duty to give effect to the deterrent aspect of punishment as outweighing the other factors favourable to the appellant.
Returning for a moment to the contention that the sentencing judge erred in his calculations as to quantum of the damage caused, I am not, as I have already mentioned, confident that there was in fact an error given that the figure of $1,000,000, represented the highest of two estimates. However, assuming that there was an error, I am not satisfied that it was material and therefore operative.
His Honour did not dwell on the amount of damage and he was entitled to regard the appellant's conduct as he did, as "a highly destructive spree" whether the estimate of damage as to count 3 was a little less than $1,000,000, or within a range of estimates varying between $244,000 and $1,083,747.97. I am not persuaded that his Honour would have taken a different course whichever of the estimates, or somewhere in between, was ultimately the final position.
On the question of whether, however viewed, the sentence was manifestly excessive, I note the advice of counsel for the appellant that between 1978 and 2000 there were 87 single count sentences for arson, and that sentences ranged from two months to four years, with a median of 12 months.
I also note that in that period there were 51 single count sentences for unlawfully setting fire to property, that between 1978 and 1989 a third of sentences were wholly suspended, and that between 1990 and 2000 more than half of sentences were wholly suspended.
I also note counsel for the appellant's observation that the 2012 Sentencing Advisory Council report, Arson and Deliberately Lit Fires, stated that from 2001 to 2008 single count sentences for arson ranged from 3 months to 24 months, with a median of 12 months. In the same period, with respect to single count sentences for unlawfully setting fire to property, the range was one month to 36 months imprisonment, and the median was 22 months.
None of those statistics suggest that the sentencing judge's sentence was outside the appropriate range of sentences for the appellant's crimes.
Manifest excess, in my view, could only dwell in the suspension of only half of the sentence imposed of two years imprisonment and/or in the failure to specify a non-parole period with the result that the appellant must serve the entire 12 months of his operative sentence.
I am conscious, as Hunt CJ at CL said in R v Ellis (1993) 68 A Crim R 449 at 461:
"What must be looked at is whether the challenged sentence is within the range appropriate to the objective gravity of the particular offence and to the subjective circumstances of the particular offender, and not whether it is more severe or more lenient than some other sentence which merely forms part of that range."
However, I do note that the upper end of the range of sentences where it is the crime of arson that features prominently in the case, appears to be marked by the sentences of 6½ years' imprisonment in Capell (7 December 2011), 6 years in Bonnitcha (13 July 2013) and 4½ years in Groenewege v Tasmania [2013] TASCCA 7.
Very recently, in Director of Public Prosecutions (Acting) v Pearce [2015] TASCCA 1, a case involving a sole ground of appeal that the sentence was manifestly inadequate, Pearce J, with whom Blow CJ and Porter J agreed, said at [8], in a passage I have cited on a number of recent occasions because of its succinct expression of the relevant principles:
"As in all such appeals as this, it is necessary to refer to the principles which limit the circumstances in which intervention of an appellate court is justified. The court sits to correct material error: Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321 per Kirby J at [57]-[60]. Where no specific error is alleged, this Court must be persuaded of error of the second type referred to in House v The King [1936] HCA 40; (1936) 55 CLR 499 at 505, that is, that the sentence imposed by the sentencing judge is 'unreasonable or plainly unjust'. It is not to the point that the sentence may be regarded by some as too lenient or too harsh. It must be established that the sentencing order is so manifestly wrong that it could only be the result of some undefinable error in the exercise of the judicial discretion: Bresnehan v The Queen [1992] TASSC 55; (1992) 1 Tas R 234 at 242. A court of criminal appeal may not substitute its own opinion for that of the sentencing judge merely because the appellate court would have exercised its discretion in a manner different from the manner in which the sentencing judge exercised his or her discretion: see Lowndes v The Queen [1999] HCA 29; (1999) 195 CLR 665 at [15], and the other cases referred to by this Court in Director of Public Prosecutions v CSS [2013] TASCCA 10. Sentencing judges should be 'accorded a wide measure of latitude': Postiglione v The Queen [1997] HCA 26; (1997) 189 CLR 295 per Kirby J at 336. Excess or inadequacy is either apparent or it is not: Dinsdale v The Queen (above) at [6]. In considering that question regard is to be given to all the matters that are relevant to determining the sentence: Hili v The Queen [2010] HCA 45; (2010) 242 CLR 520 at 539."
To my mind, no error is apparent in the head sentence, and given the balancing exercise the sentencing judge clearly undertook, and the wide measure of latitude that must be accorded to sentencing judges, I see no error in suspending only half of the sentence.
However, the question remains as to whether error is apparent in the requirement that the appellant serve the whole of the operative part of his sentence. That a non-parole period can render a head sentence manifestly excessive is clear from such cases as Johnstone v Tasmania [2011] TASCCA 9; Pickrell v Tasmania [2011] TASCCA 13 and Richman v Tasmania [2011] TASCCA 18.
In Gill v The Queen [1990] TASSC 37, Crawford J (as he then was), with whom Neasey J agreed, spoke of the effects of not making an order that a defendant be eligible for parole at the earliest possible time, and said at 7-8:
"The making of an order by a sentencing judge that a prisoner shall not be eligible for parole, or extending the non-parole period, has the effect of increasing the severity of the punishment by delaying the possible time for release from prison. It may act as a deterrent to the prisoner and others contemplating crime. It may also have the effect of protecting the public from further criminal conduct by the prisoner by keeping him locked away. Conversely it may discourage reformation and good behaviour in prison, and prevent or lessen the chances of rehabilitation under supervision through conditional freedom. These effects, or the possibility of them or the object of achieving them, or some of them, should be considered by sentencing judges before making an order removing eligibility for parole or extending the non-parole period." (Emphasis added.)
In Devine v Tasmania [2015] TASCCA 19, Tennent J, with whom Pearce and Porter JJ agreed, said at [26]:
"In principle, I do not cavil with the statements relating to the purpose of non-parole periods. However, it cannot flow from those that, in every case, an offender is entitled as of right to a parole order, and if he or she does not have it, they may argue that their chances of rehabilitation will be adversely affected and hence an error has been made."
I respectfully agree with her Honour.
Given the appellant's antecedents and character, including his mental health issues, and given his independently confirmed indications of remorse and the very real prospects of rehabilitation clearly evidenced by the number of significant steps the appellant had already taken towards rehabilitation since the offending behaviour, it may well have been open to the sentencing judge to have suspended the whole of the appellant's sentence, or to have ordered that the appellant not be eligible for parole until he had served half of the 12 months operative period of his sentence. In my view however, his Honour, having recognised the steps taken by the appellant towards rehabilitation, and having recognised all of those other relevant considerations, including the corrupting environment of prison, did not err in the sentence he imposed. His Honour was entitled to give precedence to the deterrent aspect of punishment to the extent that he did.
In my view, both grounds of appeal fail and I would dismiss the appeal.
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