Stanger v The Queen
[2021] VSCA 25
•23 February 2021
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S EAPCR 2020 0188
| LIAM STANGER | Appellant |
| v | |
| THE QUEEN | Respondent |
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| JUDGES: | MAXWELL P, KAYE and T FORREST JJA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | 17 February 2021 |
| DATE OF JUDGMENT: | 23 February 2021 |
| MEDIUM NEUTRAL CITATION: | [2021] VSCA 25 |
| JUDGMENT APPEALED FROM: | [2020] VCC 735 (Judge Dalziel) |
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CRIMINAL LAW – Appeal – Sentence – Appellant lit two bushfires – Fires lit in fire danger period – Fuel hazard rating extreme for location of fires – Appellant pleaded guilty to one rolled-up charge of intentionally causing a bushfire – Guilty plea – Appellant suffering neurodevelopmental disorder – Total effective sentence of 3 years’ imprisonment with non-parole period of 2 years – Leave to appeal granted on the papers – Whether sentence manifestly excessive – Sentence not wholly outside range of sentencing options – Appeal dismissed – Lisle v The Queen [2017] VSCA 4, Ganon v The Queen [2018] VSCA 110, Robson v The Queen [2018] VSCA 256 distinguished.
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| APPEARANCES: | Counsel | Solicitors |
| For the Appellant | Mr A G Waters with Ms A Renieris | Victoria Legal Aid |
| For the Respondent | Ms K Hamill | Ms A Hogan, Solicitor for Public Prosecutions |
MAXWELL P
KAYE JA
T FORREST JA:
The appellant pleaded guilty to one single rolled-up charge of intentionally causing bushfires on 23 February 2019 in bushland in north-east Victoria. Following a plea on his behalf, he was sentenced to a total effective term of imprisonment of three years with a non-parole period of two years. That sentence was constituted as follows:
| Charge on Indictment | Offence | Maximum | Sentence | Cumulation |
| 1. | Intentionally causing a bushfire (s. 201A Crimes Act 1958) | 15 years’ imprisonment | 3 years’ imprisonment | — |
Total Effective Sentence: | 3 years’ imprisonment | |||
Non-Parole Period: | 2 years’ imprisonment | |||
Pre-sentence detention declared: | N/A (serving sentence) | |||
| 6AAAA Statement: 5 years’ imprisonment with a non-parole period of 3 years | ||||
Other relevant orders: N/A | ||||
The appellant appeals, pursuant to leave, against the sentence on the ground that it is manifestly excessive.
Circumstances of offences
The appellant was born in December 1981, and at the time of the offending he was 37 years of age. Until early 2018 he had been residing in Cooma, New South Wales. In the period immediately preceding the incidents, that were the subject of the charge, he was residing in Numurkah, Victoria.
On Saturday 23 February 2019, the appellant left an area around Cobram in Victoria in his vehicle, in order to drive to Cooma to collect his pet dog from his father’s home. At about 5:00 pm, he was intercepted by police exceeding the speed limit outside Tallangatta. He was given a verbal warning, and then continued to proceed in an easterly direction on the Murray Valley Highway towards the border of Victoria and New South Wales. At the time of the interception, the appellant was observed to be angry, agitated and aggressive.
Having resumed his journey, the appellant continued to drive east. He then, at about 5:15 pm, turned his vehicle off the highway onto a track that led to Firebrace Track near Koetong. The maximum temperature on the day in that area was around 30 degrees centigrade. The relative humidity was low, and there was a south-east breeze of approximately 16 kph. On that date, the State of Victoria was declared as being in a ‘fire danger period’.
After the appellant entered Firebrace Track, he drove for a distance of approximately two kilometres, travelling uphill and deeper into the Mount Lawson State Park. He then stopped his vehicle, exited it, and used a cigarette lighter to set fire to dry vegetation on the side of the road. The fire took hold and began burning into the bushland. It was approximately 750 metres to the west of a large commercial pine tree plantation. The overall fuel hazard rating for the location was assessed at approximately 24.5 tonnes per hectare, classifying it as ‘extreme’.
Having lit the fire, the appellant returned to his vehicle and drove back down Firebrace Track. As he approached the highway, he stopped his vehicle about 250 metres short of the intersection. He alighted from his vehicle, and used his cigarette lighter to set fire to dry vegetation on the side of the road. The fire was approximately 600 metres to the west of the commercial pine tree plantation. The overall fuel hazard rating for the location at which the appellant lit the second fire was assessed at approximately 30.5 tonnes per hectare, thus classifying it as ‘extreme’. Having set the fire, the appellant returned to his vehicle, drove to the highway, turned into it, and travelled east to Cooma.
In the meantime, Graeme and Cheryl Swinton, who owned a farm property in Koetong, became aware of the second fire. They contacted their son, who in turn telephoned the emergency services number triple 0 to report the fire. Mr and Mrs Swinton used their water supply, and with the assistance of their neighbours, sought to contain that fire.
Following the alert, Country Fire Authority (‘CFA’) and Department of Environment Land Water and Planning (‘DELWP’) fire-fighting teams arrived. The fires were finally extinguished at about 10:25 pm. It is estimated that the total time spent by CFA and DELWP teams fighting and extinguishing the fires was about four and one-half hours. During that time, a number of pieces of equipment were employed, including a water bombing helicopter and bulldozer. The first fire burnt approximately 0.36 hectares of dense bushland in the Mount Lawson State Park. The second fire burnt a total of 0.12 hectares of roadside bushland, privately owned fences and grazing land. The cost of fence repairs as a result of the second fire amounted to $483.95, and the total cost of the response, assessment and extinguishment of both fires by the DELWP team was $17,664.85.
The arrest of the appellant
The appellant was arrested on 10 May 2019 while driving his vehicle in Shepparton.
Following his arrest, he was interviewed by police. At the commencement of the interview, the appellant denied any involvement in the fires. The police who interviewed him then put to him evidence which linked him to the fires, including CCTV footage and tracking of his mobile telephone. He was also told that there were witnesses who had observed his vehicle on Firebrace Track. After that evidence was put to him in some detail, the appellant responded by stating that he was very angry about being ‘harassed by the police again’, and that he lit the fire with a cigarette lighter. He said that he was angry about being stopped and warned on that day, and he said that his anger was aggravated because he had been repeatedly intercepted and spoken to by police. He said that he had driven up Firebrace Track to light the fires and to avoid being detected by passing witnesses. He said that having worked in the country, he knew how serious bushfires could become, and he was aware of the impact that they could have on a farming community.
Remand history since arrest
After the completion of the interview, the appellant was charged and then released on bail. Subsequently, he was arrested again in late May 2019 on separate charges. On 25 June 2019, he was granted bail by the Shepparton Magistrates’ Court on those charges. He breached that bail and bail on the present matter, and was returned to custody in late August 2019. At the time of sentencing, he had remained in custody since that date.
On 14 October 2019, the appellant was sentenced, on the further offending, to a total effective sentence of one year’s imprisonment with a non-parole period of six months. At the time of sentencing in the present case, the non-parole period in respect of that sentence had expired.
The appellant’s previous convictions
The appellant has a substantial criminal history, having come before the courts of New South Wales on some 28 separate occasions since 2000.
In December 2001, the appellant was convicted by the Goulburn Local Court on charges of common assault, stalking/intimidating with intention to cause fear, physical/mental harm, affray, and having custody of an offensive implement in a public place. He was sentenced to 12 months’ imprisonment which was suspended for 12 months, and fined $200. In the following fifteen years, he was convicted on separate occasions on a number of different charges, including charges of intimidating and resisting a police officer in the execution of duty, having custody of a knife in a public place, breaking and entering, destroying or damaging property, and drug offences.
On 2 November 2015, the appellant was sentenced by the Queanbeyan Local Court to nine months’ imprisonment with a non-parole period of five months, on charges that included breaking and entry, custody of a knife in a public place, and demanding property with menaces. On 16 November 2015, he was dealt with by the Downing Centre District Court of New South Wales for breach of a previous order imposing a two year good behaviour bond, and he was sentenced to two years’ imprisonment with twelve months’ non-parole period. Subsequently, on 6 November 2017, he was sentenced by the Queanbeyan District Court to nine months’ imprisonment, with a non-parole period of three months, for offences including common assault, carrying a cutting weapon upon apprehension and custody of a knife in a public place.
The appellant’s first criminal conviction in Victoria was before the Wodonga Magistrates’ Court on 22 August 2018. He was convicted on charges of altering a prescription for a drug of dependence, uttering a forged prescription for drug, robbery, possessing cannabis and committing an indicatable offence while on bail. He was sentenced to an aggregate term of seven months’ imprisonment, and a Community Correction Order (‘CCO’) for a period of twelve months, such order to commence upon the appellant’s release from imprisonment. A condition of the order was that the appellant undergo assessment and treatment for rehabilitation, including testing for abuse of a drug of dependence, and mental health assessment.
The appellant was released from custody, and commenced to serve the CCO, on 18 December 2018, a little more than two months before the date of the offending in this case.
The appellant’s background
The appellant was raised in Cooma, New South Wales. His parents separated when he was 12 years of age. He spent a lot of time with his grandmother during that period. His grandmother had a heart attack at the kitchen table when he was 12 years of age, and the appellant, who was present, summoned an ambulance. His grandmother died a few days later. The sudden death of his grandmother, and the manner in which it occurred, exacerbated the difficult circumstances in which the appellant grew up.
The appellant was educated to Year 10, having had to repeat Year 9 due to learning difficulties. Since then he has worked off and on as a labourer, but at the time of the offending, he had not been employed for some time. He commenced drinking alcohol to excess, and using amphetamines and heroin, at the age of 18 years. In the previous ten years before the offending, he had been prescribed 100 mg of methadone per day.
During the sentences of imprisonment that were imposed on him in November 2015, the appellant suffered bacterial encephalitis, and on his plea it was put that he had been denied medical assessment or treatment by prison staff. As a result of the significant pain and discomfort suffered by him, he became suicidal and cut his arms from elbow to wrist with a razor blade, having already written a suicide note. He was admitted to hospital on 26 December 2015 with bilateral lacerations to his forearms. The wounds were closed, and the appellant’s arms were placed in casts. Five days later, on 31 December 2015, he engaged in another bout of self-harm, head butting the concrete bedhead, thereby causing injury to his scalp and skull. He sustained a linear vertical fracture through the right frontal bone which involved the right frontal sinus, and a fracture to the roof of the right orbit, with comminuted fractures of the medial orbital wall and fracture through the orbital floor. He also sustained a small brain contusion of the right frontal bone.
The principal focus of the plea was on the appellant’s mental health issues, which were the subject of three reports that were tendered on the plea, and on his previous experiences of self-harm while in custody.
Medical reports
The appellant relied on three reports that were tendered on his plea.
Dr Aaron Cunningham, a forensic psychologist, assessed the appellant on 7 May and 18 May 2020. He considered that the appellant displayed symptoms of generalised anxiety disorder and post-traumatic stress disorder, but those symptoms had not reached the level of a severe mental illness.
At the time of assessment, the appellant was appropriately oriented in time, person and place, and his thought processes appeared to be based in reality. Dr Cunningham observed that the appellant was not currently suicidal. Dr Cunningham noted that the appellant had been diagnosed with Attention Deficit Hyperactivity Disorder (‘ADHD’), for which he had been prescribed Ritalin.
Dr Cunningham expressed the view that the appellant presented with childhood instability in the form of parental separation and the death of his grandmother. However, the majority of his instability occurred in the context of learning and behavioural difficulties, which were consistent with an underlying neurodevelopmental disorder such as ADHD or Autism Spectrum Disorder. Dr Cunningham expressed the view that the appellant was both psychologically and emotionally immature. His thinking was fixed in concrete terms, and he had a tendency to externalise the blame for his problems. In particular, he felt persecuted by authority figures such as the police. On the occasion of the offending, he had reacted in a childlike and reckless manner in lighting the fires, and he did not appear to consider the potential consequences to other victims.
Dr Cunningham considered that the appellant would benefit from a disposition that would facilitate his rehabilitation. He noted that the appellant’s inflexibility, and his difficulty coping with authority, extends to his time in prison, so that he is frequently placed into management and is isolated when in custody. In those circumstances, instead of adapting his behaviour, the appellant continued to ‘push back’ against authority which he perceived to be unjust. In turn, that reaction has resulted in an exacerbation of his depression, anxiety and persecutory ideation. Dr Cunningham expressed some concern that the appellant has evidenced symptoms consistent with a delusional disorder.
Dr Cunningham considered that there were ‘real concerns’ that the appellant would be a risk of suicide while in jail. He cautioned that the appellant would require ongoing monitoring of his mental state while in custody, and that when the appellant is released into the community, he would benefit from maintaining stable accommodation and employment.
The second report tendered on the plea was prepared by Dr Simon Byrne, a consultant psychiatrist and psychotherapist, dated 24 January 2019. Dr Byrne had examined the appellant by the Access Telehealth platform on 23 January 2019. He noted that the appellant scored positive for a number of symptoms on the ADHD checklist, including: making frequent mistakes in work; starting a new task without having finished the previous one; failing to pay attention to conversations; failing to complete tasks; having a disorganised approach to problem solving; being easily distracted and forgetful; and losing everyday items.
Dr Byrne expressed the view that the problems that the appellant has with frustration tolerance and anger management are a common consequence of ADHD, and that they might improve when the appellant is able to resume taking Ritalin.
The third report tendered on the plea was by Dr John MacKellar, a general practitioner, dated 18 June 2019. Dr MacKellar noted that the appellant had been diagnosed with ADHD, for which he was treated as a child. However, he had not received treatment as an adult. Dr MacKellar noted that Dr Byrne had again diagnosed the appellant to suffer from that condition, and that treatment for that condition had been commenced. Dr MacKellar was of the view that if the appellant’s ADHD was treated, he would be able to function normally and he would be stable over time. In the absence of treatment, the appellant is most unwell and ‘will behave badly’. Dr MacKellar expressed the view that a term of imprisonment would aggravate the appellant’s mental health problems, increasing his difficulty in living in society. Further, a period of incarceration would reduce his proper care and prolong his return to good health.
The plea submissions
On the plea, counsel for the appellant conceded that the fires had the potential to result in significantly more damage and harm than occurred. However, they were not lit near residential properties with animals, and the two fires were lit in close physical and temporal proximity.
As mentioned, particular emphasis was placed on the appellant’s physical and mental health. It was submitted that, by reason of the appellant’s psychological condition, a term of imprisonment would be more burdensome for him, and that it would exacerbate his condition. In particular, it was noted that during the time in which the appellant had been in custody, he had been isolated in management units on a number of occasions. Further, the prison authorities had not made his prescribed medication, Ritalin, available to him.
In addition, counsel for the appellant relied on the appellant’s plea of guilty, which it was submitted was of substantial utilitarian value. It was also submitted that the plea evidenced remorse. Counsel also referred to the principle of totality, because the appellant had spent a number of months in custody since the offence, none of which counted as pre-sentence detention. Finally, counsel submitted that the appellant’s time in custody would be made more difficult by the COVID-19 pandemic.
In answer to a question from the judge, counsel for the appellant stated that she did not submit that the sentence imposed by the judge should include a CCO. Counsel acknowledged that, due to the appellant’s persecutory ideation described by Dr Cunningham, the compliance of the appellant with such an order, involving necessary management and monitoring in the community, would be quite problematic.
The judge’s reasons for sentence
In careful and thorough reasons,[1] the judge outlined the circumstances of the offending, the appellant’s personal circumstances, the issues relating to his mental and physical health, and his criminal history.
[1]DPP v Stanger [2020] VCC 735 (‘Reasons’).
Based on the report of Dr Cunningham, the judge accepted that due to the appellant’s childhood neurodevelopmental disorder, his thought processes had been affected in a manner which diminished his capacity to exercise appropriate judgment, to make calm and rational choices, and to process his feelings of anger about having been intercepted by police in Tallangatta.[2] Her Honour also accepted that the appellant’s disorder would render his time in prison more difficult, and that a term of imprisonment would have a deleterious effect on his mental health.[3] Her Honour stated that she would give both of those two matters appropriate weight in mitigation.[4]
[2]Ibid [23].
[3]Ibid [24].
[4]Ibid [25].
On the other hand, the judge noted that the appellant’s long-standing issues would raise significant concerns as to his prospects of rehabilitation. While her Honour accepted that the appellant does have some prospects of rehabilitation, the extent to which he could remain out of trouble would be dependent on the appellant receiving appropriate treatment and medication.[5]
[5]Ibid [26].
The judge noted that the appellant has a substantial criminal history dating back to 2000, but he does not have any previous convictions for arson.[6] Her Honour also took into account that the current offence was committed a little more than two months after the appellant’s release from prison.[7]
[6]Ibid [27].
[7]Ibid [28].
In assessing the objective gravity of the offending, the judge noted that the offence occurred on a day on which a ‘fire danger period’ declaration had been made. The fact that the appellant lit the first fire two kilometres from the main road meant that it was less likely to be detected, which was a factor that significantly increased the gravity of the offending. The second fire was near the main road, and although it was more likely to be detected, the area was rural. The judge considered that the appellant’s offending was ‘unsophisticated but purposive’, with the appellant lighting two fires in reaction to his anger against the police.[8] Her Honour stated:
The area in which you lit the fires, the time of day, the absence of people around and the dry weather all must have led you to understand the risk of the fires spreading was significant.[9]
[8]Ibid [29.2]–[29.4], [29.6].
[9]Ibid [30].
The judge noted the mitigating circumstances relied on on behalf of the appellant, including his physical and mental health, his plea of guilty, the application of the principle of totality in relation to the months which the appellant had spent in custody since his arrest, and the effect of the COVID-19 pandemic. Her Honour accepted that the appellant’s plea of guilty was, in the circumstances, an early plea, and that it had resulted in considerable savings in time and effort for the community and the courts. Her Honour considered that the appellant’s plea had greater effect in mitigation by reason of the effect of the COVID-19 restrictions, which have limited the conduct of criminal trials in the County Court. She also accepted that the appellant’s plea was an indication of remorse, that the appellant understood that what he did was wrong, and that he regretted his actions.[10]
[10]Ibid [33]–[34].
The judge noted the sentences imposed in the cases to which she had been referred by counsel for the appellant in the course of the plea. She also noted that counsel had accepted that the appellant would be sentenced to a term of imprisonment, and that counsel had acknowledged the difficulties that the appellant would have in complying with a CCO.[11]
[11]Ibid [42].
The grant of leave to appeal
After the filing of written cases, leave to appeal was granted ‘on the papers’ on the basis that, notwithstanding the seriousness of the offending, there was a serious question whether the continued incarceration of the appellant could be justified in light of the expert evidence which pointed to an inevitable deterioration of the appellant’s condition, and a real risk of suicide, while he remained in custody. It was therefore considered that, if the ground of appeal were upheld, the question for the appeal bench would be whether it would be possible to fashion an appropriate non-custodial disposition, with treatment conditions, which would adequately accommodate the applicable sentencing purposes. The parties were directed to file additional submissions relating to that question.
Appeal submissions
In submitting that the sentence was manifestly excessive, counsel for the appellant acknowledged the objective seriousness of the appellant’s offending and the potential harm that attached to it. However, it was submitted, the sentencing judge failed to give adequate weight to significant mitigating factors in favour of the appellant, so that the sentence imposed by her Honour was manifestly excessive.
Counsel submitted that the relevant mitigating factors included: the appellant’s reduced moral culpability due to the effect of his neurodevelopmental disorder; the high probability that the appellant’s mental health condition would deteriorate while he is in custody; that a term of imprisonment would impose a significant burden and hardship on the appellant; that the appellant did not have any previous conviction for arson and there was a ‘low risk’ of him engaging in such offending in the future; that the appellant had made an early plea of guilty; and that the appellant had been remorseful.
In particular, counsel noted that, based on the evidence of Dr Cunningham, the judge had accepted that the appellant’s thought processes as an adult had been affected by his childhood neurodevelopmental disorder, so as to diminish his capacity to exercise appropriate judgment and to make calm and rational choices. Thus, it was submitted, the judge accepted that the appellant’s moral culpability for the offending was reduced.
Counsel further noted that sentences of imprisonment, imposed on the appellant in the past, had led to him engaging in distressing suicidal behaviour. In particular, counsel drew attention to the circumstances in which the appellant, while in custody in New South Wales in 2015, had attempted suicide by cutting his arms with a razor blade from his elbows to his wrists, and that five days later he had again engaged in serious self-harm by repeatedly striking his head against the steel bed frame, splitting open his skin, and fracturing his facial bones. Counsel noted that Dr MacKellar had expressed the view that imprisonment would exacerbate the appellant’s poor health, and Dr Cunningham considered that there were real concerns that the appellant would be at risk of suicide while in custody. Counsel noted that the judge had accepted that, as a result of the appellant’s neurodevelopmental disorder, his mental condition would deteriorate while he remained in custody. Her Honour further accepted that the appellant’s time in custody would be made more difficult because of his difficulties with authority, his ADHD, and his frequent isolation in management units. In addition, it was submitted that the principle of totality had particular application to the determination of the appellant’s sentence, as, at the time of sentence, the appellant had been in custody in respect of other matters for almost twelve months. It was thus submitted that, in effect, the total effective term of imprisonment imposed by her Honour involved the appellant spending 4 years in custody, with a non-parole period of 3 years.
Counsel for the appellant referred to previous decisions of this Court in Lisle v The Queen,[12] Ganon v The Queen[13] and Robson v The Queen,[14] and a number of sentences in the County Court,[15] in support of the submission that, in light of the mitigating factors available to the appellant, the sentence was outside the range of current sentencing practices as illustrated by the sentences imposed in those cases. Accordingly, it was submitted, in view of the mitigating circumstances, and the observations made by this Court in Robson, the sentence and the non-parole period imposed on the appellant were manifestly excessive.
[12][2017] VSCA 4 (‘Lisle’).
[13][2018] VSCA 110 (‘Ganon’).
[14][2018] VSCA 256 (‘Robson’).
[15]DPP v Brown [2016] VCC 378; DPP v Morgan [2016] VCC 939; DPP v Lester [2016] VCC 1445; DPP v Briggs [2016] VCC 1557; DPP v Thumpston [2018] VCC 434; DPP v Poole [2018] VCC 2107.
In response to the question raised by the grant of leave in this matter, counsel for the appellant submitted that a CCO, with appropriate treatment conditions, would be an appropriate disposition which would adequately serve the applicable sentencing purposes. Counsel referred to the decision of this Court in Boulton v The Queen[16] in which the Court expressed the view that a CCO may be an appropriate sentencing option, that serves both the punitive and rehabilitative purposes of sentencing, even in cases of relative seriousness. It was submitted that the rehabilitation of the appellant, and the treatment of his condition, would provide the best protection to society against the appellant re-offending. It was submitted that, for a combination of reasons, his rehabilitation, and the protection of the community, would be best served by a CCO with appropriate conditions. Those reasons included: the connection between the appellant’s mental impairment and the offending; the deleterious effect of imprisonment on the appellant’s mental health; the probability that a term of imprisonment would be adverse to the appellant’s restoration to good health; and the appellant’s prospects of rehabilitation.
[16](2014) 46 VR 308; [2014] VSCA 342.
In response, counsel for the respondent submitted that the judge had paid proper regard to all the relevant circumstances, and that the sentence imposed by her Honour fell within the range of available sentences. In particular, the judge had regard to: the appellant’s reduced moral culpability; the likelihood that his mental health condition would deteriorate in custody; the circumstance that he would suffer hardship while in custody; and the appellant’s early plea of guilty, his remorse, and his lack of previous convictions for arson.
On the other hand, it was submitted that the offending was objectively serious. Both fires lit by the appellant burnt hundreds of square metres of bushland and required significant effort on behalf of the CFA and DELWP to extinguish them. The fires were lit in dense bush on a warm dry day which had been declared a fire danger day. The location of the fires would ordinarily have made early detection unlikely. Accordingly, the potential harm of the appellant’s offending was high.
Further, although the appellant had no previous convictions for arson or for causing a bush fire, he had extensive previous convictions, which demonstrated that he had difficulty with authority and with complying with court orders. The offence that was committed by the appellant was already subject to a CCO, and was committed by him only two months after he had been released from custody. Further, it was contended, the principle of general deterrence is of particular importance in respect of the offending.
In response to the question raised by the grant of leave, counsel for the respondent submitted that it was unlikely that the appellant would comply with a sentence that required community supervision by way of a CCO. In that respect, counsel noted that, on the plea, counsel then appearing on behalf of the appellant had acknowledged that the appellant would have difficulty complying with a CCO, and for that reason did not seek such a disposition for her client.
In that respect, counsel noted that compliance by the appellant with a CCO would require him to follow and adhere to instructions, and to attend appointments, which, in light of the appellant’s history, would challenge him significantly. In the present case, the appellant committed the offence after being stopped by police for speeding, and given a warning rather than being issued with a fine. That conduct of the appellant, it was submitted, reflected the difficulty that he would experience in complying with the conditions of a CCO.
Counsel for the respondent contended that, in those circumstances, a sentence involving supervision on parole might be more appropriate for the appellant, particularly in light of the capacity for parole officers to respond more promptly to any breach of parole by the appellant than would be possible through the process of commencing or prosecuting a contravention of a CCO. In that respect, counsel noted that the offending in this case was committed just two months after the appellant had been released from custody on a CCO, and that there was a delay of almost five months after the appellant committed the offences until the breach of the CCO was dealt with by the court.
Accordingly, it was submitted that, if the appeal were allowed, the opportunity of release on parole would better address the sentencing principle of community protection than the release of the appellant on a CCO.
Analysis and conclusion
In order to succeed on the ground that the sentence imposed on him was manifestly excessive, the appellant must demonstrate that the sentence was wholly outside the range of sentencing options available to the judge. In other words, it must be demonstrated that the sentence, imposed on the appellant, was so excessive as to bespeak error by the judge in the exercise of her sentencing discretion, notwithstanding that no specific error may be identified in her Honour’s reasons for sentence.[17]
[17]Clarkson v The Queen (2011) 32 VR 361, 384 [89]; [2011] VSCA 157 (Maxwell ACJ, Nettle, Neave, Redlich and Haper JJA); DPP v Macarthur [2019] VSCA 71, [58] (Ferguson CJ, Kaye and Weinberg JJA).
In considering the submissions advanced on behalf of the appellant, the starting point is that the offending was, by its nature, serious. The prescribed maximum sentence for the offence is 15 years’ imprisonment. The offence involved the appellant intentionally causing a fire, and in doing so being reckless as to the spread of that fire to vegetation on property belonging to another. The maximum sentence reflects the serious potential impact of offending of that nature. In Victoria, as in many places of Australia, the high level of danger associated with bushfires has been tragically demonstrated in recent years. Any person living in this State could only be all too familiar with the severe devastation caused by bushfires in the course of the summer. A person who deliberately lights such a fire, being reckless as to the spread of that fire to vegetation on property belonging to another, must be well aware of the potential nature and extent of the harm which can ensue from such conduct.
In the present case, there were a number of serious aspects attaching to the appellant’s offending. The appellant lit the two fires on a day in which the State of Victoria had been declared as being in a ‘fire danger period’. The maximum temperature on the day, in the area in which the appellant lit the fires, was approximately 30 degrees centigrade. The appellant lit the fires in positions where the overall fuel hazard rating was ‘extreme’. Each fire, and in particular the first fire, was lit by the appellant in circumstances in which there was a significant prospect that it might not be detected until after it had spread and caused significant damage. It was a matter of mere happenstance that, fortunately, Mr and Mrs Swinton became aware of the fires at an early stage, and set in train the arrival of the emergency firefighting teams, who were able to extinguish them.
There was an element of premeditation in the appellant’s offending. By his own admission, he drove his vehicle from the highway along Firebrace Track, in order to set fire to the bushland. In his police interview, he acknowledged that, having lived in the countryside, he was well aware of the dangers of lighting bushfires, and the damage caused by them.
The appellant has a long history of criminal convictions. While he does not have any previous conviction for any arson related offending, nevertheless his criminal history demonstrates that he has little regard for complying with the law, and he has a significant antipathy to those in authority. It could not be submitted on his behalf that the offending in this case was out of character. His previous history impacted negatively on his prospects of rehabilitation, and was relevant to the weight to be attributed to the sentencing purpose of specific deterrence.
In view of the foregoing considerations, in the absence of cogent mitigating circumstances, the sentence imposed by the judge could be characterised as quite moderate, if not lenient.
There were, however, important mitigating factors on which the appellant was entitled to rely, and which were accepted by the judge as relevant to the sentence to be imposed on him.
In particular, the judge accepted that the appellant’s childhood neurodevelopmental disorder, and the associated condition of ADHD, affected his thought processes in a manner that diminished his capacity to exercise appropriate judgment, to make calm and rational choices, and to rationally process his feelings of anger about having been pulled over by police in Tallangatta.[18] Accordingly, the judge accepted that the appellant’s moral culpability for the offending was materially reduced.
[18]Reasons [23].
In addition, by reason of the appellant’s mental disorder, the weight to be given to the sentencing purposes of general deterrence and denunciation would be moderated. Further, as the judge accepted, the appellant’s disorder would render his time in custody more onerous. As a result of the manner in which the appellant’s thought processes are structured, he is prone to react inappropriately to direction and to authority, and thus is liable to come into conflict with authority. Further, as accepted by the judge, the appellant’s time in custody is made more difficult by the current COVID-19 pandemic. The significantly restricted conditions of custody which have resulted from the pandemic would impact more severely on the appellant than on other prisoners, as a result of the appellant’s ADHD.[19] In addition, as the judge correctly acknowledged, in accordance with the principle of totality, the fact that the appellant, at the time of sentencing, had been in custody on unrelated matters for almost twelve months, weighed in favour of some moderation of the sentence.
[19]Ibid [31.2], [32].
The two incidents in which the appellant engaged in self-harm, while he was in custody in New South Wales in December 2015, are of particular concern. It must be accepted that a term of imprisonment is unlikely to be beneficial to the appellant’s mental health, and may adversely affect it.[20]
[20]On the plea, counsel then acting for the respondent, questioned whether the appellant’s neurodevelopmental disorder, and the attendant ADHD, fell within the principles outlined in R v Verdins (2016) 16 VR 269; [2007] VSCA 102 (‘Verdins’). The judge did not express a view on that issue, but correctly stated that, regardless of the ‘heading’ under which those matters came, she would give them appropriate weight in mitigation. In that respect, it should be observed that it is now well established that a developmental disorder such as that suffered by the appellant is of a kind that is encompassed within the principles stated in Verdins. See, eg, Londrigan v The Queen [2010] VSCA 81; Gray v The Queen [2018] VSCA 163; Wilson v The Queen [2018] VSCA 219.
The appellant’s plea of guilty was of real utilitarian value, particularly in light of the difficulties in undertaking jury trials in the County Court and Supreme Court during the current pandemic. The plea has thus facilitated the course of justice. In addition, the judge recognised that it was accompanied by remorse.
Thus, notwithstanding the seriousness of the appellant’s offending, he did have in his favour a number of important mitigating factors. As indicated by the grant of leave in this case, a factor of particular relevance in the determination of the most appropriate sentence was the concern expressed by Dr Cunningham that the appellant might be a suicide risk while in prison. It is for that reason that we have given consideration to the question whether, notwithstanding the gravity of the appellant’s offending, and the rather unusual circumstances of this case, a sentence that involved a non-custodial disposition would have been appropriate.
In that respect, it is significant that counsel, who appeared on behalf of the appellant on the plea, acknowledged to the judge that it would not be realistic for the appellant to be released on a disposition such as a CCO. Having considered the further submissions advanced in relation to that matter, we are well persuaded that that concession was correct.
The appellant has in the past failed to abide by a number of non-custodial dispositions made in his favour. Of particular note is that he committed the present offence a little more than two months after he had been released from custody subject to a CCO. The difficulties that the appellant has experienced in accepting and following direction given to him by persons in authority would render it unlikely that he would be able to comply adequately with the provisions of a CCO. Further, as counsel for the respondent noted, if the appellant were released on a CCO, and if he were to breach the conditions of that order, there would be an inevitable delay in any prosecution of him for that breach, and the disposition of that prosecution by a court. Taking those matters into account, we are not persuaded that it would have been realistic for the appellant to have been released on a CCO, or subject to any other non-custodial disposition.
In those circumstances, the judge had no option other than to impose a sentence of imprisonment on the appellant. Certainly, in view of the seriousness of the offence, and the improbability that the appellant would be able to abide by the conditions of a CCO, it could not be concluded that a custodial sentence was outside the range of sentencing options available to the judge.
As we have stated, in the absence of mitigating circumstances, the sentence of 3 years’ imprisonment with a non-parole period of 2 years would properly be considered to be quite lenient. The appellant was able to rely on some cogent mitigating circumstances to which the judge had regard. The sentence imposed by her Honour reflected that appropriate weight was given to those mitigating factors. Taking those factors into account, it could not be maintained that the sentence imposed on the appellant was wholly outside the range of sentencing options available to the judge. On the contrary, we consider that the sentence imposed was quite appropriate in the circumstances of the case.
In the course of submissions, and on the plea, counsel placed some reliance on current sentencing practices which, it was submitted, were demonstrated by the decisions in Robson, Lisle and Ganon, and the sentences imposed in the County Court cases to which counsel referred.
In considering those cases, it is important to bear in mind that, as the High Court emphasised in DPP v Dalgliesh,[21] while s 5(2)(b) of the Sentencing Act 1991 provides that current sentencing practices are a relevant consideration in the determination of the sentence in each case, nevertheless that factor is only one of a number of factors which must be taken into account in the exercise of the sentencing discretion in a particular case.[22] Further, as this Court has noted on a number of occasions, some caution must be exercised in identifying the appropriate sentencing range by reference to previous decisions. The exercise of the sentencing discretion, in each case, is necessarily the product of a balancing of a number of different, and frequently conflicting, factors which can vary considerably between individual cases.[23] That caution is particularly relevant in a case such as this, in which the offending engaged in by the appellant was serious, and the appellant had such a long and extensive history of previous offending.
[21](2017) 262 CLR 428; [2017] HCA 41.
[22]Ibid 434 [5]–[9] (Kiefel CJ, Bell and Keane JJ), 453–4 [82] (Gageler and Gordon JJ).
[23]Hili v The Queen (2010) 242 CLR 520; [2010] HCA 45, 535–7 [48]–[54] (French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ); Hudson v The Queen(2010) 30 VR 610, 617–18 [28]–[33]; [2010] VSCA 332 (Ashley, Redlich and Harper JJA); Hasan v The Queen (2010) 31 VR 28, 38 [44]; [2010] VSCA 352 (Maxwell P, Redlich and Harper JJA).
Particular reliance was placed by the appellant on the decision of this Court in Robson. In that case, the offender pleaded guilty to two charges of intentionally causing a bushfire, and to three summary charges. Between 9:20 am and 9:30 am on 15 October 2015, he set fire to litter, bark and twigs at the base of two large eucalyptus trees in a reserve in Sunbury. The temperature at the time was 21 degrees centigrade. The maximum temperature on the day was 34 degrees. Both fires were observed by individuals and were extinguished. The appellant had a history of alcohol abuse from his early teenage years. He had particular health problems. He had suffered two previous heart attacks and two strokes and also had experienced several autogenic seizures while in custody. He had a long history of previous offending including having served a total effective sentence of 4 years’ imprisonment in 2001 on charges of arson.
While in custody in relation to the matters on which he was sentenced, he made considerable gains through treatment that addressed underlying issues arising from a dysfunctional and abusive childhood. His prospects of rehabilitation were rated as good. He was sentenced in respect of the first fire to 2 years and 6 months’ imprisonment with a CCO of 3 years and 9 months, and in respect of the second fire to 3 years’ imprisonment with a CCO for 3 years and 9 months. The total effective sentence was 3 years and 9 months’ imprisonment combined with a CCO for 3 years and 9 months. On appeal, that sentence was held to be manifestly excessive. Having regard to the punitive nature of a CCO, the effect of the total effective sentence was to deprive the offender of his full right to liberty to 7 years and 6 months.[24] He was resentenced to a total effective term of 2 years and 9 months’ imprisonment with a CCO for 2 years and 6 months.
[24]Robson [2018] VSCA 256, [56] (Kyrou and Kaye JJA).
Quite plainly, the circumstances of the offending, and the circumstances of the offender, were quite different in Robson to those in the present case. The circumstances of both the offending, and the offender, in the other two cases referred to, Lisle and Ganon, and in the County Court decisions referred to by counsel, were also quite different.
In Lisle, the offender set fire to toilet rolls and papers on a wooden clipboard at Crown Casino. He pleaded guilty to three charges of arson and one charge of burglary. He had a relevant previous conviction, having been sentenced five years previously to 3 years and 10 months’ imprisonment for nine charges of causing a bushfire and other offences. For the offending in Crown Casino, the offender was sentenced to 5 years’ imprisonment with a non-parole period of 3 years in combination with the CCO for seven years. On appeal, that sentence was held to be manifestly excessive, and he was re-sentenced to a total effective sentence of 3 years and 6 months’ imprisonment with a non-parole period of 2 years.
In Ganon, the offender pleaded guilty to six charges of intentionally causing a bushfire. Those charges were rolled-up charges encompassing a number of fires that had been lit in early January 2017, and which burned in excess of 400,000 square metres of grassland. He was sentenced to a total effective sentence of 5 years’ imprisonment with a non-parole period of 3 years and 4 months. On appeal, it was held that the sentences were not manifestly excessive.
As we have observed, in each of those three cases, and in the County Court sentencing decisions, the circumstances of the offending, and the circumstances of the offender, were relevantly different to those that applied in the present case. While in a broad sense the sentences imposed in those cases might provide some guide as to current sentencing practices, on analysis, they do not demonstrate that the sentence imposed on the appellant was wholly outside such a range.
Summary of Conclusions
In conclusion, then, as we have noted, the offence to which the appellant pleaded guilty was, of itself, serious. There were a number of circumstances attaching to the offending which were of particular seriousness. Taking into account, and giving full weight to, the mitigating circumstances relied on by the appellant, in our view the sentence imposed on the appellant was well within the range of sentencing options available to the judge. We are not persuaded that that sentence was manifestly excessive.
For those reasons, the appeal by the appellant against the sentence imposed on him must be dismissed.
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