The King v Mamarika
[2024] NTCCA 5
•16 April 2024
CITATION:The King v Mamarika [2024] NTCCA 5
PARTIES:THE KING
v
MAMARIKA, Anthony
TITLE OF COURT: COURT OF CRIMINAL APPEAL OF THE NORTHERN TERRITORY
JURISDICTION: CRIMINAL APPEAL from the SUPREME COURT exercising Territory jurisdiction
FILE NO:CA 1 of 2023 (22041054)
DELIVERED: 16 April 2024
HEARING DATE: 22 May 2023
JUDGMENT OF: Grant CJ, Brownhill and Burns JJ
CATCHWORDS:
CRIME – Appeals – Appeal against sentence – By Crown against inadequacy
Whether sentence manifestly inadequate – Respondent’s moral culpability reduced by profound disadvantage including childhood deprivation and cognitive dysfunction – Punishment for risk of danger to occupant of building properly incorporated into sentence for aggravated reckless endangerment of life and not also sentence for arson – Fire confined – Little risk of spread to building – Damage caused not significant in monetary terms – Sentence for arson offence within range – Overall sentence not manifestly inadequate having regard to total criminality conduct – Appeal dismissed.
Criminal Code 1983 (NT) s 174C, s 174G, s 243
Ajax v The Queen (2006) 17 NTLR 80, Andalong v O’Neill [2017] NTSC 77, Bugmy v The Queen (2013) 249 CLR 571, Muldrock v The Queen (2011) 244 CLR 120, Pearce v The Queen (1998) 194 CLR 610, R v De Simoni (1981) 147 CLR 383, R v O’Connor [2014] NSWCCA 53, R v Verdins (2007) 16 VR 269, The Queen v Roe (2017) 40 NTLR 187, Veen v The Queen (No 2) (1988) 164 CLR 465, referred to.
REPRESENTATION:
Counsel
Appellant:V Engel SC with T Grealy
Respondent: A Abayasekara with K Roussos
Solicitors
Appellant:Office of the Director of Public Prosecutions
Respondent: Northern Territory Legal Aid Commission
Judgment category classification: B
Number of pages: 29
IN THE COURT OF CRIMINAL APPEAL
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWINThe King v Mamarika [2024] NTCCA 5
CA 1 of 2023 (22041054)
BETWEEN:
THE KING
Appellant
AND:
ANTHONY MAMARIKA
Respondent
CORAM: GRANT CJ, BROWNHILL & BURNS JJ
REASONS FOR JUDGMENT
(Delivered 16 April 2024)
THE COURT:
On 5 December 2022, the respondent was sentenced for one count of arson contrary to s 243(1) of the Criminal Code 1983 (NT) (Count 1), and one count of aggravated reckless endangerment of life contrary to ss 174C and 174G(a) of the Criminal Code (Count 2). The pleaded circumstance of aggravation was that the offence was committed ‘by the use of an offensive weapon, namely fire’.
The maximum penalty applicable to the offence in Count 1 was life imprisonment, while that applicable to the offence in Count 2 was 14 years’ imprisonment. The respondent was sentenced to 2 years’ imprisonment on Count 1 and 5 years’ imprisonment on Count 2. The sentences were accumulated to the extent of 12 months, such that the total sentence imposed was 6 years’ imprisonment. A non-parole period of 4 years was imposed. The accumulated sentences and the non-parole period were backdated to commence on 23 December 2022 to take into account time served prior to sentencing.
The Crown has appealed against the sentences imposed by the primary judge. The single ground of appeal pleaded is that the primary judge erred in imposing sentences which are, both individually and in their totality, manifestly inadequate in all of the circumstances.
The Crown seeks orders that this Court quash the sentences imposed by the primary judge and impose such a sentence as this Court considers warranted in law and which should have been passed at first instance.
The appeal should be dismissed for the reasons which follow.
Principles relating to Crown appeals
The principles to be applied in Crown appeals are not in doubt. They are conveniently to be found in the judgment of this Court in The Queen v Roe[1]:
Crown appeals against sentence should be a rarity brought only to establish some matter of principle, and to afford an opportunity to the Court of Criminal Appeal to perform its proper function in this respect; namely, to lay down principles for the guidance of courts sentencing offenders. The reference to a “matter of principle” must be understood as encompassing what is necessary to avoid the kind of manifest inadequacy or inconsistency in sentencing standards which constitutes an error in point of principle.
As to what will constitute an error in point of principle, in R v Riley this Court stated:
In R v Barbara (NSW Court of Criminal Appeal, unreported judgment number 60638 delivered 24 February 1997), Hunt CJ at CL, with whom the other members of the Court agreed, pointed out that the passage from the judgment in Everett cited by Thomas J was not limited to laying down some new point of principle. His Honour said:
“It is usually overlooked by respondents that the High Court has at the same time also clearly indicated that sentences which are so inadequate as to indicate error or departure from principle, and sentences which depart from accepted sentencing standards, constitute error in point of principle which the Crown is entitled to have this Court correct.”
These remarks do not operate to displace the principle expressed by King CJ in R v Osenkowski, namely:
It is important that prosecution appeals should not be allowed to circumscribe unduly the sentencing discretion of judges. There must always be a place for the exercise of mercy where the judge’s sympathies are reasonably excited by the circumstances of the case. There must always be a place for leniency which has been traditionally extended even to offenders with bad records when the judge forms the view, almost intuitively in the case of experienced judges, that leniency at that particular stage of an offender’s life might lead to reform. The proper role for prosecution appeals, in my view, is to enable the courts to establish and maintain adequate standards of punishment for crime, to enable idiosyncratic views of individual judges as to particular crimes or types of crime to be corrected, and occasionally to correct a sentence which is so disproportionate to the seriousness of the crime as to shock the public conscience.
The principles enunciated in House v The King remain applicable to the determination of manifest inadequacy. In the oft-quoted passage from that decision, the High Court stated:
The manner in which an appeal against an exercise of discretion should be determined is governed by established principles. It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his, if it has the materials for doing so. It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance. In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred. Unlike courts of criminal appeal, this court has not been given a special or particular power to review sentences imposed upon convicted persons. Its authority to do so belongs to it only in virtue of its general appellate power. But even with respect to the particular jurisdiction conferred on courts of criminal appeal, limitations upon the manner in which it will be exercised have been formulated. Lord Alverstone LCJ said that it must appear that the judge imposing the sentence had proceeded upon wrong principles or given undue weight to some of the facts (R v Sidlow). Lord Reading LCJ said the court will not interfere because its members would have given a lesser sentence, but only if the sentence appealed from is manifestly wrong (R v Wolff). Lord Hewart LCJ has said that the court only interferes on matters of principle and on the ground of substantial miscarriage of justice (R v Dunbar).
In Hili v The Queen, the plurality reasons contain the following observations concerning the assessment of manifest inadequacy, in the absence of any assertion of specific error, on the basis that the sentence subject to appeal was unreasonable or plainly unjust:
[A]ppellate intervention on the ground that the sentence is manifestly excessive or manifestly inadequate “is not justified simply because the result arrived at is markedly different from other sentences that have been imposed in other cases”. Rather as the plurality went on to say in Wong, “[i]ntervention is warranted only where the difference is such that, in all the circumstances, the appellate court concludes there must have been some misapplication of principle, even though where and how is not apparent from the statement of the reasons.
[...] But what reveals manifest excess, or inadequacy, of sentence is consideration of all the matters that are relevant to fixing the sentence. The references made by the Court of Criminal Appeal to the circumstances of the offending and the personal circumstances of each offender were, therefore, important elements in the reasons of the Court of Criminal Appeal.
The applicants’ submissions criticising the sufficiency of the reasons given by the Court of Criminal Appeal pointed out that the Court of Criminal Appeal identified no specific error in the sentencing judge’s findings of fact or reasons. That is right, but because the only ground advanced by the Director was the ground of manifest inadequacy, it had to be assumed that the Director alleged no specific error. That the Court of Criminal Appeal identified no specific error is, therefore, unsurprising. The absence of identification of such an error does not bespeak error on the part of the Court of Criminal Appeal.
Even where manifest inadequacy is found, this Court retains a residual discretion as to whether the respondent should be re-sentenced. In R v BJW the New South Wales Court of Criminal Appeal stated:
The right of the Crown to appeal against a sentence on the grounds of inadequacy is exceptional. However, where sentences imposed are so inadequate as to indicate error or departure from principle, or depart from accepted sentencing standards, they demonstrate error in point of principle which the Crown is entitled to have this Court correct. The case must be a compelling one before this Court will interfere. It is not sufficient that this Court would itself, in the position of the sentencing judge, have imposed a more severe sentence. However, sentences outside the permissible range of those the product of a properly exercised sentencing discretion prima facie manifest error. Even so, in the case of a Crown appeal, there remains a residual discretion as to whether the Court will interfere. (Footnotes omitted)
As to the exercise of the residual discretion, in Green v The Queen the plurality of the High Court stated:
A primary consideration relevant to the exercise of the residual discretion is the purpose of Crown appeals under s 5D which, as observed earlier in these reasons, is “to lay down principles for the governance and guidance of courts having the duty of sentencing convicted persons.” That is a limiting purpose. It does not extend to the general correction of errors made by sentencing judges. It provides a framework within which to assess the significance of factors relevant to the exercise of the discretion.
That principle has been accepted and applied by this Court in R v Hitanaya and R v Wilson. In R v Hitanaya this Court stated:
The principles governing Crown appeals are not in doubt and are well known. They were discussed in R v Riley [(2006) [2006] NTCCA 10; 161 A Crim R 414 at [18]-[20]] and it is unnecessary to repeat that discussion. Even if the manifest inadequacy is such as to demonstrate error in point of principle, the Court must carefully consider the next step which involves determination as to whether this is one of those rare and exceptional cases in which the Crown appeal should be allowed and the respondent resentenced.
Following Hitanaya, and before Wilson was decided, s 414(1A) of the Criminal Code was enacted to provide that in exercising its discretion on an appeal against sentence with respect to an indictable offence, the Court must not take into account any element of double jeopardy when deciding whether to allow the appeal or impose another sentence. In R v Wilson Riley CJ considered the impact of s 414(1A) of the Criminal Code on the Court’s residual discretion, and described the ambit of the discretion in light of that section. His Honour stated:
[Section 414(1A) of the Criminal Code] removes any need for the Court of Criminal Appeal to give consideration to ensuring that Crown appeals are “rare and exceptional”. Responsibility in that regard rests with the Director of Public Prosecutions.
....
Apart from double jeopardy considerations, the Court retains a residual discretion to determine that, despite error having been established and being satisfied that a different sentence ought to have been passed, a Crown appeal should be dismissed or a reduced sentence should be imposed.
Factors that may be relevant to the exercise of the residual discretion to dismiss an appeal, despite inadequacy of sentence, include the presence of unfairness arising from such matters as delay, parity, the totality principle, rehabilitation and fault on the part of the Crown.
Accordingly, the principle of double jeopardy no longer requires this Court to ensure that appellate intervention is rare and exceptional in the manner spoken of in Hitanaya. It remains the case, however, that this Court will not intervene where no point of principle arises, and will be slow to intervene where there is a countervailing factor which may warrant the exercise of the residual discretion.
(Footnotes omitted)
Facts of the offending
The facts of the offending are set out in the sentencing remarks of the primary judge:
On 22 December 2020 you and RS were at Mindil Beach, where you drank alcohol. You both went to Uncle Sam's, where you purchased some food and returned to your house at One Mile Dam. You told RS to go to sleep. She stated she did not want to go to sleep as she was hungry, and began to eat her food. You became angry and began to yell at RS.
You walked over to her and punched her once to the back of the head. You used your left clenched fist and continued to yell at her. RS became fearful and locked herself inside the bedroom. You tried to get into the room by kicking the door, but you were unable to gain entry.
RS called 000 to speak to the police, and reported being hit by you. The person who took the call heard banging and smashing in the background. RS requested that she stay on the phone as she was scared. While she was on the phone to police, you dragged a nearby mattress towards the room before leaning it against the bedroom door, where she was taking refuge.
You lit fire to the mattress, causing it to ignite, and smoke began to fill RS's room. You said, "I am going to make you suffocate and you will die." RS, while still on the phone to police, reported seeing the flames and described having difficulty breathing.
You left the area. RS was unable to leave the room due to the ignited mattress blocking the door and all of the windows of the room being shut. Shortly afterwards, the fire brigade attended and extinguished the fire and forced open the bedroom door, which allowed RS to leave. She was taken to hospital by St John Ambulance.
At about 2:08 am on the same morning, you returned to the location, and whilst holding your hands over your head, you approached police and said, "I give myself up." Police arrested you and you were taken to the Palmerston Watchhouse.
The material components of the mattress were completely destroyed, with only the innerspring mattress remaining. The bedroom door of the dwelling, the door frame, walls and steps leading into the bedroom all suffered significant fire related damage, including significant charring.
RS had difficulty breathing due to smoke inhalation. She also had tenderness to the back of her head, where you had punched her.
In her victim impact statement, RS told the court she was in hospital because the smoke meant she could not breathe. She has said it makes her sad that you hit her. She was very frightened. She stated, "He did an awful thing to me."
Further, she told the court her house was burnt, the mattress and blanket got burnt, there was lots of damage inside. She stated, "Anthony is not nice when he is drinking. He is violent."
The decision of the primary judge
The primary judge accepted that the facts revealed serious offending and persistence by the respondent in the offending conduct. The primary judge referred to a report from a psychologist which stated that the respondent had told the psychologist that he set fire to the mattress to terrify the victim and to burn the house down with the victim inside. The respondent had told the psychologist that he behaved badly when intoxicated and was prone to “raging”.
The primary judge noted that the respondent had acknowledged to the psychologist that his conduct was wrong and made no attempt to justify his behaviour. The respondent also agreed that the victim was likely to be harmed by his conduct. The primary judge proceeded on the basis that the events the subject of the charges must have been terrifying for the victim.
The respondent left the scene after he lit the fire. The primary judge stated that this showed that the respondent was reckless about whether the victim lived or died. Her Honour stated that the respondent’s conduct gave rise to a danger of death to the victim and her unborn child.
The primary judge noted that houses at One Mile Dam are in “terrible condition”, and were better described as sheds rather than houses. They nevertheless provided shelter to a number of people who often have nowhere else to live. Photographs of the damage occasioned to the building revealed that the damage was not especially significant from a monetary point of view.
The primary judge acknowledged that the respondent had a significant criminal history, including previous convictions for damaging property, aggravated assault, assaulting a worker, deprivation of liberty, causing bodily harm and other offences. The primary judge noted that although many of the convictions were dated, there was a pattern of reoffending.
The primary judge received a report from a psychologist and other medical records relating to the respondent. So far as the respondent’s personal circumstances were concerned, the primary judge noted that the respondent was 50 years old at the time of offending, and 52 years old at the time of sentence. He was one of eight children and grew up on Groote Eylandt. As an adult he had lived at both Umbakumba and Angurugu, as well as spending one or two years at Elcho Island.
The respondent attended Umbakumba School until year 10. His employment history was described as “chequered”. The primary judge acknowledged the lack of opportunities for work in remote areas. Nevertheless, the respondent had worked with CDEP doing gardening and maintenance, on the Night Patrol at Angurugu and as a ranger on Elcho Island.
The primary judge noted with regard to the respondent’s medical history that:
(a)he was hospitalised at about 16 months of age after ingesting kerosene;
(b)in the early 1980s he suffered a head injury in a car accident;
(c)in 1986 he was hospitalised as a result of an assault with a machete by his stepfather which left him with severe head lacerations;
(d)in 2018 he suffered a “cardiac event”; and
(e)at the time of sentencing, he suffered from health conditions including ischaemic heart disease, persistent atrial fibrillation and type 2 diabetes.
The respondent had been subject to psychiatric reviews in 1992, 1993 and 1998. The primary judge stated that the reports from those reviews “pointed to low intellect, suspected background trauma and neglect”, which explained in part the respondent’s personality difficulties. The respondent’s father was an alcoholic who beat the respondent’s mother regularly. The respondent and his mother and siblings would, on occasion, seek refuge at relatives’ homes until the respondent’s father had settled down. The respondent’s father died when the respondent was eight years old. The respondent was adopted by an uncle who was subsequently banished from the community, leaving the respondent with no clear male role model. His mother died in 1985.
The primary judge did not recite the contents of the psychologist’s report in detail, but summarised them as follows:
It is a high quality report, which is very helpful. She states you have poor cognitive functioning. You are likely to have significant problems with adaptive functioning and will require intervention and supervision regimes geared for people with intellectual impairment. These cognitive problems could represent neurodevelopment disorder or damage from traumatic brain injury linked to a background of trauma and neglect.
Having read about the respondent’s background, the primary judge expressed herself as “readily” able to make a finding of profound disadvantage, including childhood disadvantage and deprivation, which did not diminish with the passage of time. On psychological testing, the respondent placed in the 7th percentile, meaning that 93% of the population scored higher. The primary judge accepted that the respondent’s moral culpability for the offences was reduced because of these matters.
The primary judge stated that the respondent had been addicted to alcohol since his formative years, and had used other substances such as cannabis. The primary judge found that there was an obvious link between the respondent’s childhood disadvantage, his commencement of substance abuse and his offending conduct. The primary judge nevertheless noted that protection of the community was a significant factor in sentencing the respondent.
In conclusion, the primary judge said:
When you are eventually returned to the community, you will need to be monitored and treated for multiple health conditions, including mental health needs. While you are in custody, the psychologist recommends you attend the RAGE; that is Recognising Anger and Gaining Empowerment program, and the family violence program, as well as work camps such as Datjala, which may help you engage in pro social activities and combat institutionalisation.
As the psychologist recommends, and I agree, that upon release, possibly initially on parole, you be assessed for a package through the NDIS to assist with sourcing placement in an appropriate supported accommodation setting, and that you are subject to intensive case management, electronic monitoring and alcohol monitoring.
Further, she recommends you be assessed regularly by a forensic psychologist to determine appropriate interventions, that you be provided individual treatment focussed on self-regulation and that close consultation be conducted with your elders from Groote Eylandt.
It seems to me, given [your] poor cognitive state, when you are eventually released, you will need a disability support worker and a possible guardianship order so that you are able to live a reasonable life in the community. This should also reduce the risk of reoffending.
Correctional Services will need to liaise with the NDIS providers. This really is required in your case.
The primary judge allowed a 20% discount on sentence for the respondent’s pleas of guilty.
The Crown submissions on appeal
The Crown submitted on appeal that the offending in question was extremely serious, involving an attack on a pregnant victim with whom the respondent was in a domestic relationship at the time.
The Crown submitted that the respondent was assessed by the psychologist as presenting a high risk of intimate partner and general violence in the community and a high risk of general offending. The report from the psychologist stated that the respondent had a consistent pattern of perpetrating severe violence against partners in the absence of clear provocation and lacked empathy for his partners. He had demonstrated an entrenched cycle of violence with no ability to manage the danger he presented, and he had persisted in carrying and using weapons in his offending.
The Crown also drew attention to the respondent’s significant prior criminal history, particularly for offences of violence. With regard to that history, the Crown submitted that the sentence imposed by the primary judge suggested an improper assessment was made of the respondent’s prospects of rehabilitation, or that inappropriate weight was given to that consideration. The Crown submitted that it was not open to the primary judge to determine that the establishment of a disability support worker and a possible guardianship order “should also” reduce the risk of reoffending. The Crown contended that this overstated the firmness of the respondent’s post-release plan, and significantly overstated the respondent’s prospects of rehabilitation.
Regarding Count 1, the Crown made the following observations:
(a)it carries a maximum penalty of life imprisonment;
(b)the conduct engaged in by the respondent was accompanied by an intent to kill the victim;
(c)it was preceded by a physical assault on the victim;
(d)the respondent “trapped” the victim in the room where she attempted to call for assistance;
(e)all of the windows in the room were shut;
(f)the victim was pregnant; and
(g)the respondent had a history of serious violent offending, particularly towards women.
The Crown submitted that in all the circumstances, a sentence of two years imprisonment was manifestly inadequate.
Ranged against that, the Crown conceded that the sentence of five years imprisonment imposed by the primary judge for Count 2 was not manifestly inadequate. However, the Crown maintained its submission that the sentence imposed on Count 1 was manifestly inadequate, with the consequence that the total sentence imposed was also manifestly inadequate. In its written submissions, the Crown contended that the non-parole period was also manifestly inadequate, but ultimately did not address this issue at the hearing of the appeal.
The Crown accepted that if the Court was satisfied that error on the part of the primary judge was demonstrated, it carried the obligation of persuading the Court that the residual discretion should not be exercised. The Crown submitted further that although a judgment of this Court might in itself serve to lay down the relevant principles without need to interfere with the sentences imposed, public interest considerations and the maintenance of confidence in the due administration of justice required re-sentencing in order to impose an appropriate sentence on an offender. In support of that proposition, the Crown cited the decision of R v O’Connor, in which Adamson J (with whom RA Hulme and Davies JJ agreed) said:
Although the principal purpose of the determination of a Crown appeal is to give guidance to sentencing judges, the sentence actually imposed on the respondent is still of considerable importance. The need for specific deterrence in the present case would not be served by an exercise of the residual discretion.
Nor indeed would the need for general deterrence be fulfilled were the residual discretion to be exercised. The general deterrence of a sentence is not to be measured solely by reference to its effect on putative respondents. One of the purposes of incorporating an element of general deterrence in a sentence is to ensure that sentences accord with legitimate community expectations and that public confidence in the administration of justice is maintained: Markarian v The Queen (2005) 228 CLR 357 at [82] per McHugh J.[2]
The respondent’s submissions
The respondent submitted that it is plain from the counts on the indictment, which both alleged conduct through the use of fire, and the facts tendered on the pleas before the primary judge, that the two counts overlapped in a significant way. The respondent submitted that, in fact, there was a complete overlap to the extent that the conduct of the respondent which formed the basis of each charge, being the conduct in placing the mattress against the door of the room in which the victim had taken shelter and setting the mattress alight, was the same.[3]
The respondent accepted that it was proper for the Crown to proceed with both counts in order to capture all of the criminality in the offending. While the same conduct was the basis for each count, there was a legitimate distinction between the results of that conduct relevant to each charge. In Count 1 it was the damage to the building that was the relevant result, while in Count 2 it was the resulting danger of death to the victim. The respondent referred in that respect to the decision in Pearce v The Queen in which, in joint reasons, McHugh, Hayne and Callinan JJ said:
To the extent to which two offences of which an offender stands convicted contain common elements, it would be wrong to punish that offender twice for the commission of the elements that are in common. No doubt that general principle must yield to any contrary legislative intention, but the punishment to be exacted should reflect what an offender has done; it should not be affected by the way in which the boundaries of particular offences are drawn. Often those boundaries will be drawn in a way that means that offences overlap. To punish an offender twice if conduct falls in the area of overlap would be to punish offenders according to the accidents of adjustment in history, rather than according to their just deserts.[4]
The respondent submitted that the structure of the total sentence imposed by the primary judge must be considered in the light of this principle. The primary judge had a wide discretion as to how to approach the task of imposing sentence where there were elements common to each of the offences, but was bound to take into account the principle of double jeopardy as expressed in Pearce and Andalong.
The respondent submitted that, consistent with the principles expressed in Pearce, the primary judge was justified in imposing a lower sentence on Count 1 than might otherwise have been the case to ensure that the respondent was not being doubly punished for the same conduct.
While accepting that the offending was objectively serious, the respondent submitted that it was not open to the primary judge to sentence on the basis that the respondent intended to kill the victim. To do so would be to offend against the principle expressed in R v De Simoni[5] that no one is be punished for an offence of which they have not been convicted. In that regard, the respondent was specifically charged with the offence of being reckless to the danger of the victim’s death rather than intending to cause her death, which would have amounted to the more serious crime of attempted murder.
In addition, the respondent submitted that the actual danger of death to the victim in the circumstances of this case was difficult to quantify and should not be overstated. The fire was confined to the mattress that was on the other side of the door and no part of the house caught fire. There did not appear to be a significant risk of the building itself catching fire and the fire spreading further as the building was not made of flammable material. It had a steel frame, tin clad walls and roof, wire windows and concrete steps. The windows in the room in which the victim had taken refuge were not shut, as the Crown alleged, but rather had a wire cage preventing the victim from exiting the room through the windows. It was accepted that the victim had difficulty breathing due to smoke inhalation, but did not appear to have lasting injuries.
With regard to the damage to the house relevant to Count 1, the structural damage was confined to charring and smoke damage from the burning mattress to which the fire itself was confined. No monetary value for the cost of the damage to the building was provided by the Crown and the primary judge remarked that the damage was not significant from a purely monetary point of view.
The respondent referred to the decision of this Court in Ajax v The Queen as recognising that the offence of arson is an offence which can be committed in a wide variety of circumstances. Mildren J, with whom Martin (BR) CJ and Thomas J agreed, stated:
The offence of arson, of course, is an offence which can be committed in a wide variety of circumstances. The extent to which a sentencing court needs to impose a deterrent sentence will often be determined by factors, such as the value of the property destroyed, whether the property was occupied at the time particularly at night by persons who are asleep, the level of risk to other persons in neighbouring properties as well as to police and firefighters involved in checking the premises for occupants and in fighting the fire, whether the offender was intoxicated at the time, whether the owner of the property will suffer any consequential loss over and above the destruction of the property itself (for example in the case of business premises by the loss of profits due to disruption to the business), whether or not anyone was in fact injured or killed as a result of the fire and if so the number of victims and the extent of those injuries. Matters going to mitigation will often include cooperation with the authorities, pleas of guilty, lack of prior convictions and in the case of Aboriginal persons in particular, may include the fact that the defendant has been brought up in an impoverished section of society which has become dysfunctional through the effects of alcohol or other drug misuse. These of course are not intended to be a complete list of all of the aggravating or mitigating factors which the sentence that will be required to consider.[6]
In all of the circumstances, including the need to modify individual sentences to avoid double punishment, the respondent submitted that the individual sentences imposed were not manifestly inadequate.
The respondent submitted that in imposing sentence, the primary judge made express reference to the principles of denunciation and deterrence. Her Honour specifically had regard to the respondent’s significant criminal history and that the respondent was at high risk of general and violent recidivism. The primary judge acknowledged that protection of the community was a significant sentencing factor. The express references to those matters did not reveal error. The respondent submitted, consistent with the decision of the majority of the High Court in Veen v The Queen (No 2),[7] that the primary judge could not give the respondent’s criminal history such weight as to lead to the imposition of a penalty that was disproportionate to the gravity of the offence. In addition, the respondent submitted that the purposes of criminal punishment vary and overlap, and none of those purposes can be considered in isolation from the others. Sometimes different purposes may point in different directions.[8]
The respondent submitted that there were matters in the sentencing exercise undertaken by the primary judge that pointed in the direction of mitigation of sentence. The primary judge had made a finding of profound disadvantage including childhood deprivation which had not diminished with the passage of time and repeat offending. Based on the psychological evidence, the primary judge was able to find that the respondent had early attachment stress from grief and disruption in living and caring contexts, and coming from a home where he witnessed severe violence and his needs were neglected. He had problems with his development, cultural integration, personality and behaviour that were consistent with an individual with significant background trauma. The psychologist’s report established that the respondent had poor cognitive functioning and was likely to have significant problems with adaptive functioning that would require intervention and supervision regimes geared towards people with intellectual impairment.
Counsel for the respondent submitted that these matters reduced the moral culpability of the respondent consistent with well-established principles.[9] Other relevant matters that mitigated sentence included the respondent’s plea of guilty and his poor health, which included ischaemic heart disease, persistent atrial fibrillation and type 2 diabetes.
The respondent submitted that sentencing is not a process that leads to a single correct sentence and the primary judge’s discretion was broad in drawing all of the relevant matters together in order to arrive at a single assessment of the offender and the offending. The respondent submitted that the Crown had not demonstrated that the synthesis of all of these factors had resulted in a sentence that was plainly below the lowest end of the range of sentences that could be imposed on the facts before the primary judge.
In relation to the Crown’s submission that the sentence imposed on the respondent suggested that the primary judge had improperly assessed the respondent’s prospects of rehabilitation or had given inappropriate weight to that consideration, the respondent conceded that the primary judge had not made an express finding as to the respondent’s prospects of rehabilitation. However, the primary judge did state that the respondent’s prior record “does not provide any real hope that [the respondent] might be rehabilitated unless strong interventions, treatments and programs are offered and taken up by [the respondent].” The respondent submitted that this was plainly an expression that the respondent was someone who had poor prospects of rehabilitation at the time of sentencing, but that his prospects may be improved if he was prepared to comply with intensive therapeutic management. The respondent submitted that this assessment did not reveal error.
The primary judge then proceeded to discuss the recommendations of the psychologist as to the necessary interventions, treatments and programs required for an improvement in the respondent’s prospects of rehabilitation. The respondent submitted that it is self-evident that, if the level of support recommended by the psychologist was put in place and the respondent appropriately engaged with the supports, his risk of reoffending would be reduced and his prospects of rehabilitation would be increased. That, however, did not amount to a finding by the primary judge that those plans were currently in place and that, accordingly, the respondent had good prospects of rehabilitation.
Given the substantial overlap arising from the conduct common to both offences, the respondent submitted that substantial concurrency was warranted. Given the Crown’s concession that the sentence on Count 2 was within range, the accumulation of half of the sentence of Count 1 could not be said to be manifestly inadequate. Taking totality into account, the overall sentence of 6 years imprisonment adequately reflected the overall criminality of the offending.
Finally, the respondent submitted that the non-parole period of 4 years represented approximately 67% of the overall sentence, a figure above the mandatory minimum. No specific argument had been advanced by the Crown to support the proposition that the non-parole period was manifestly inadequate.
Consideration
The Crown’s concession that the sentence imposed on Count 2 was not manifestly inadequate leaves open for consideration in this appeal only three matters:
(a)Was the sentence imposed on this offender for this offence of arson manifestly inadequate?
(b)Was the total sentence imposed on the respondent manifestly inadequate to reflect the overall criminality of his offending?
(c)Was the non-parole period imposed manifestly inadequate?
It is worthwhile reiterating what was said by this Court in Roe concerning Crown appeals against sentence, as extracted at the commencement of these reasons. That is, they should be a rarity brought only to establish some matter of principle, and to afford an opportunity to this Court to perform its proper function in laying down principles for the guidance of sentencing courts. In the context of this appeal, the performance of that function must necessarily take into account that in Ajax, Mildren J stated:
Before leaving this appeal, I think something needs to be said about the current level of sentencing for offences of this kind. Arson is potentially an extremely serious offence as it carries a maximum penalty of imprisonment for life. The current level of sentences are, in my view, too lenient and need to be increased significantly.[10]
That statement was expressly endorsed by Martin (BR) CJ, who said that “potential offenders are now on notice that in future they can expect to receive significantly longer sentences of imprisonment for this crime”;[11] and by Thomas J, who said that “I agree with the comments of Mildren J that sentences for this event should be increased taking account of … the factors he has identified”.[12] We respectfully agree with and adopt what was said by their Honours in that respect.
However, the statement by Mildren J was immediately followed by the passage extracted at paragraph [36] above, to the effect that arson is an offence which can be committed in a wide variety of circumstances. Those circumstances were expressed to include whether the defendant has been brought up in an impoverished section of society resulting in dysfunction. That draws attention to the mitigating principles expressed in cases such as Bugmy and Verdins, which had clear application in this case. To the extent that the potentially aggravating circumstances of arson include whether the property was occupied at the time and the attendant level of risk to persons, in accordance with the principle expressed in Pearce, punishment for that feature of this offending was properly incorporated into the sentence imposed for the aggravated reckless endangerment of life offence and not also into the sentence imposed for the arson offence. For these reasons, this case is not an appropriate vehicle for this Court to lay down general principles regarding sentencing for offences of arson.
For those same reasons, it cannot be concluded that the sentence imposed for the arson offence in this case, although low, was so manifestly inadequate as to bespeak error. The primary judge found that the respondent’s moral culpability for his offending, including the offence of arson, was reduced by reason of profound disadvantage including childhood deprivation and cognitive dysfunction. No challenge has been made to that finding. The primary judge was obliged to address the very significant factual commonalities that existed across the two charges. While the primary judge did not expressly state that the sentence for the offence of arson had been moderated for this purpose, that requirement necessarily informs the consideration of whether the sentence imposed was manifestly inadequate. In addition, the fire was confined to the mattress, there was little risk that it would spread to the building given its non-flammable construction, and the damage caused by the fire was not significant in monetary terms.
The respondent’s submission that the primary judge was not entitled to sentence him on the basis that he intended to kill the victim should also be accepted. To do so would be to sentence the respondent on the basis that the elements of the crime of attempted murder were made out, and he was guilty of a serious crime with which he had not been charged. Insofar as the Crown made any allegation regarding the respondent’s state of mind regarding the risk that his conduct presented to the victim, it was found in Count 2. The allegation was that he was reckless as to danger of death to the victim that arose from his conduct. This is very different to an intention to kill the victim.
The primary judge was entitled to sentence the respondent for the arson offence on the following basis:
(a)the value of the damage to the building was not great;
(b)there was little, if any, risk that the fire would actually take hold in the fabric of the building;
(c)while the building was occupied, and a risk of harm to the victim existed, the respondent could not be punished twice for that single act of reckless endangerment;
(d)while the victim suffered from the effects of smoke inhalation, there was no evidence that she had suffered any ongoing physical injury;
(e)there was little if any chance of the fire spreading to other structures;
(f)there was little or no risk to those called to extinguish the fire;
(g)there was no evidence of any consequential loss to the owner of the building;
(h)the respondent pleaded guilty;
(i)the respondent voluntarily surrendered to police and made full admissions; and
(j)the respondent’s moral culpability was reduced by reason of profound disadvantage and cognitive dysfunction, and as a result, the importance of deterrence and punishment as sentencing objectives should be moderated.
Having regard to those considerations, the sentence imposed for the arson offence was within range. Turning then to whether the overall sentence imposed by the primary judge was manifestly inadequate, it must be borne in mind that the same conduct formed the basis of each charge. Accordingly, a substantial degree of concurrency of sentences was inevitable and it cannot be said that a total sentence of 6 years imprisonment was manifestly inadequate having regard to the total criminality of the respondent’s conduct.
Although no submissions were developed by the Crown regarding the non-parole period imposed by the primary judge, the non-parole period imposed amounted to approximately 67% of the total sentence, which fell within the primary judge’s sentencing discretion.
Order
The appeal is dismissed.
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[1] The Queen v Roe (2017) 40 NTLR 187 at [11]-[20].
[2] R v O’Connor [2014] NSWCCA 53 at [88]-[89].
[3] It was accepted that no issue of “double jeopardy” arose on the sentencing of the respondent because each offence had other elements that were not in common: see Andalong v O’Neill [2017] NTSC 77.
[4] Pearce v The Queen (1998) 194 CLR 610 at [40].
[5] R v De Simoni (1981) 147 CLR 383 at 389.
[6] Ajax v The Queen [2006] NTCCA 12; 17 NTLR 80 at [34].
[7] Veen v The Queen (No 2) (1988) 164 CLR 465.
[8] Veen v The Queen (No 2) (1988) 164 CLR 465 at 476-477.
[9] See Bugmy v The Queen (2013) 249 CLR 571; Muldrock v The Queen (2011) 244 CLR 120; and R v Verdins (2007) 16 VR 269.
[10] Ajax v The Queen [2006] NTCCA 12; 17 NTLR 80 at [34].
[11] Ajax v The Queen [2006] NTCCA 12; 17 NTLR 80 at [1].
[12] Ajax v The Queen [2006] NTCCA 12; 17 NTLR 80 at [38].
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