WARREN v Police - [2020] SASC 145

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
WARREN v POLICE
[2020] SASC 145
Judgment of The Honourable Justice Bleby
11 August 2020
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - JUDGE ACTED ON WRONG PRINCIPLE
CRIMINAL LAW - PARTICULAR OFFENCES - PROPERTY OFFENCES - ARSON AND LIKE OFFENCES - SENTENCE
CRIMINAL LAW - PARTICULAR OFFENCES - PROPERTY OFFENCES - INJURY OR DAMAGE TO PROPERTY - SENTENCE
CRIMINAL LAW - SENTENCE - SENTENCING ORDERS - NON-CUSTODIAL ORDERS - SUSPENDED SENTENCE OF IMPRISONMENT
CRIMINAL LAW - SENTENCE - RELEVANT FACTORS - NATURE AND CIRCUMSTANCES OF OFFENCE - CIRCUMSTANCES OF OFFENCE
Appeal against a sentence imposed by a Magistrate.
On 4 August 2019, the appellant set fire to a tree and to the boarded-up window of an unoccupied house, and threw a rock through the window of another nearby house to alert the occupants to the fact that the tree was on fire. He then put a message on Facebook, saying that he had lit the fires and that the police had taken no action.
The appellant’s cousin had been found hanging from the tree in 2016. The appellant believed that the person he held responsible for the death resided at the house. He also believed that the police had not investigated the death properly.
On 13 March 2020, the appellant pleaded guilty to two counts of property damage and one of arson. The appellant was remanded in custody and was sentenced on 16 April 2020. The magistrate imposed a sentence of imprisonment of 18 months after deducting 40 percent for an early guilty plea. He fixed a non-parole period of 10 months.
The appellant advanced nine grounds of appeal against the sentence. He required an extension of time to appeal.
Held, granting the application for an extension of time to appeal against the sentence imposed by the magistrate and allowing the appeal:
1. The sentencing magistrate erred in treating the fact of the appellant being on remand for other matters as a relevant consideration to the question of suspension of the sentence.
2. The sentence is set aside.
3. From a notional head sentence of 19 months imprisonment, reduced by 40 percent for the appellant’s early guilty plea, a head sentence of 11 months, one week and five days is imposed.
4. The sentence is partially suspended, such that the appellant is to serve a period of six months in prison, commencing 13 March 2020, with the remainder of the sentence suspended on the condition that he enter into a bond to be of good behaviour for a period of one year.
Criminal Law (Sentencing) Act 1988 (SA); Sentencing Act 2017 2017 (SA) s 96(3)(a), (4); s 47(5); Criminal Law Consolidation Act (SA) s 85(3), referred to.
House v The King (1936) 55 CLR 499, applied.
R v Goldsmith (1995) 65 SASR 373; R v McLean (2013) 118 SASR 280, discussed.
Da Silva v The Queen [2020] SASCFC 66; R v Wheeler [2015] SASCFC 83; Munda v Western Australia (2013) 249 CLR 600; R v Robinson (1979) 22 SASR 367; Bugmy v The Queen (2013) 249 CLR 571; R v Timmins [2015] SASCFC 153; R v James (1981) 27 SASR 348, considered.

WARREN v POLICE
[2020] SASC 145
Magistrates Appeal: Criminal

BLEBY J: This is an appeal against sentence. On 13 March 2020, the appellant entered pleas of guilty to three offences, which were particularised in the information as follows:
1.On the 4th day of August 2019 at COOBER PEDY in the said State, without lawful excuse and [INTENT], damaged a tree the property of Beverly Elizabeth MASON such damage amounting to not more than $2,500.
Section 85(3) of the Criminal Law Consolidation Act, 1935.
This is a summary offence.
2.On the 4th day of August 2019 at COOBER PEDY in the said State, without lawful excuse and intending to damage property, damaged a window the property of Beverly Elizabeth MASON such damage amounting to not more than $2,500.
Section 85(3) of the Criminal Law Consolidation Act, 1935.
This is a summary offence.
3.On the 4th day of August 2019 at COOBER PEDY in the said State, without lawful excuse and intending to, damaged a building the property of Katrin VOGLER by setting alight a boarded up window, such damage amounting to $30,000 or less.
Section 85(1) of the Criminal Law Consolidation Act, 1935.
This is a Minor Indictable offence.
The appellant was remanded in custody on that date and was sentenced by the magistrate on 16 April 2020. The magistrate imposed one sentence for the three offences. He calculated the term in the following way:
In my view there is no reasonably available option in your case other than a sentence of imprisonment. It is appropriate that there be one sentence imposed for the three offences in question. My calculation of the term of that sentence has proceeded as follows;
Count one – I have allowed six months.
Count two – I have allowed six months.
Count three – I have allowed 18 months.
That is a total of 30 months. I deduct from that 40% for your early plea. That will bring the sentence to one of 18 months.
The magistrate declined to suspend the sentence. He ordered that the appellant be imprisoned for 18 months to run from 13 March 2020 and fixed a non‑parole period of ten months, which was also to run from that date.
There are nine grounds of appeal. These read as follows:
1.The sentence was manifestly excessive under all the circumstances, both as to head sentence and non-parole period.
2.The learned sentencing Magistrate erred in failing to properly or adequately consider his discretion to suspend the sentence in all or in part.
3.The learned sentencing Magistrate erred in failing to give adequate consideration to the defendant’s unstable and at time traumatic upbringing
4.The learned sentencing Magistrate erred in failing to give adequate consideration to the particular disadvantages attributable to the defendant being indigenous
5.The learned sentencing Magistrate erred in failing to give adequate consideration to the personal circumstances and events leading up to the offending behaviour.
6.The learned sentencing Magistrate erred in failing to give adequate consideration to the defendant’s level of intoxication, its causes on the day and its effect on the defendant’s self-control and judgment.
7.The learned sentencing Magistrate erred in failing to give adequate consideration to the defendant’s contrition and remorse.
8.The learned sentencing Magistrate erred in failing to give adequate consideration to the defendant’s status as sole carer for his sons at the time of sentence.
9.The learned sentencing Magistrate erred in failing to give any or any adequate consideration to the increased impact on the defendant of imprisonment during a pandemic.
For reasons which I will come to, it is only necessary to consider ground 2. I note, however, that grounds 3 to 8 simply comprise complaints that the magistrate failed to give adequate consideration to various personal circumstances relevant to the appellant. A complaint that inadequate or excessive weight was given to one or other factor does not of itself identify an appealable error.[1] These grounds are better understood as matters to be taken into account when considering the complaint of manifest excess in ground 1, should that have been necessary.
[1] BRK v Police [2020] SASC 116 at [46] (Livesey J); R v Lutz (2014) 121 SASR 144 at [46]-[47], [51] (Vanstone and Parker JJ); Police v Chilton (2014) 120 SASR 32 at [17] (Kourakis CJ).
Background
The appellant is a 29-year-old Aboriginal man. He grew up in Coober Pedy and went to Coober Pedy Area School until year 8. He moved to Port Augusta when he was 14 and completed his education to year 10. He left school during year 11.
He was raised by his extended family, initially with his maternal aunty and uncle. His elder siblings had been raised by his parents, but he was moved out of the household and into the care of other relatives, on account of his parents drinking and fighting. He was looked after by many family members once he moved to Port Augusta. He had intermittent contact with his father.
He played football for the North Adelaide under 17s. When he moved back to Port Augusta with his father, he started drinking heavily. He stopped playing football when he was 18. He lost interest in school and felt that his family did not support his education. He has had intermittent and unsteady work.
The appellant has been in one serious relationship by which he has had three children. They are aged nine, four and three. Prior to his being arrested, he was the sole carer of his sons. They are now with their mother.
The offending
On the night of Saturday 3 August 2019, the appellant had been drinking heavily. He was reflecting on the death of his cousin in 2016. His cousin had been found hanging from a tree in Coober Pedy. The appellant was significantly affected by this death. He had reached the view that a third party was responsible for the death and that the police had not investigated it properly.
In the early hours of Sunday 4 August 2019, the appellant went to the tree where his cousin had been found. This was close to a house owned and occupied by a Ms Mason. The appellant set fire to the tree and then walked the short distance across the road to a house which he thought was owned by the person he held responsible for his cousin’s death. He set fire to the frame of a boarded-up window on the house.
At about 4.45am, Ms Mason was woken by a noise. She saw flames at the base of the tree outside her bedroom window and rang 000, requesting the fire brigade. She then saw that the front of the house across the road also appeared to be on fire. She moved her car away from the fire in her yard and then rang 000 again, requesting police, as she was concerned that someone was lighting fires. She saw the appellant walking through the front gate into her yard and became very frightened. The appellant walked around her house, banging on walls, windows and doors. Ms Mason thought that he was angry and trying to break in.
The CFS arrived and extinguished the fire in the tree and then the fire on the window frame of the house across the road. The fire on the window frame appeared to be dying out in any event. The police arrived shortly after that. The police returned after sunrise and advised Ms Mason that there was a smashed window to her dressing room. There was a rock on the floor of the dressing room.
Meanwhile, after lighting the fires, the appellant put a message on Facebook, saying words to the effect that he had lit the fires and that the police had taken no action. As the magistrate observed, that action reflected his state of mind that the police had not properly investigated the death of his cousin.
The magistrate accepted that the reason that the appellant had used a rock to break the dressing room window of Ms Mason’s house was to alert her to the burning tree. He did not want to cause her, or anybody, harm. His motivation was to draw attention to his concerns about his cousin’s death. Notwithstanding that, the appellant submitted in mitigation of penalty that he had set fire to the window frame of the house because he thought that the person who owned it was involved in his cousin’s death. It would be difficult to conclude that that aspect of the offending was not motivated to some degree by a desire for vengeance. As it was, the appellant was mistaken in his apprehension about the house, which was owned by someone else. It was also unoccupied.
The value of the property damage was not great. The potential for greater damage was real, but it appears unlikely that the window fire would have spread. Ms Mason was extremely frightened by the events of that early morning.
The decision not to suspend
Ground 2 of the appeal includes the complaint that the magistrate erred in failing to consider properly his discretion to suspend the sentence. In pursuit of that ground, the appellant pointed to the following paragraph of the magistrate’s Remarks on Penalty:
The fact that you are, and will remain, remanded in custody on another matter is a relevant consideration although not necessarily determinative on the issue of whether it is appropriate to suspend the sentence. This is because, and this does apply in your circumstances, there would be little justification in suspending the sentence unless that went hand in you hand with you being able to be properly supervised by the Department of Correctional Services on an accompanying bond. Clearly it would not be possible for the Department of Correctional Services to supervise you outside custody if you remain remanded in custody for any appreciable period. At the moment, as I understand it, the period of time which you may remain remanded in custody on other matters cannot be determined with any certainty. Having weighed all the relevant considerations it is my view that there are no proper or good grounds on which to suspend the sentence. It is my further view that home detention or even an intensive corrections supervision order are not appropriate or available in your case.
As the appellant accepted in oral argument, where a person has been convicted of other offending following the offence for which a sentence is being contemplated, that is directly relevant to the question of whether to suspend. Moreover, subject to a limited exception, if a person is sentenced to a term of imprisonment to be served cumulatively on, or concurrently with, another term of imprisonment, the sentence may not be suspended.[2]
[2] Sentencing Act 2017 (SA), s 96(3)(a), (4).
However, the position is different where the person is on remand. There will often be no certainty as to how long it may take for the matters to which the remand relates to be resolved. In that circumstance, to treat the remand as a relevant consideration would seem to approach the utility of suspension from a position of speculation.
This is illustrated by the eventuality in the present case, that the charges the subject of the remand did not proceed.
The uncertainty of the appellant’s future custodial status required consideration of suspension without speculating that the remand would mean that there was little utility in any suspension, even with the qualifier that this consideration was not determinative. Not only was it not determinative, it was not relevant.
Counsel for the Director conceded that it was an error for the magistrate to have categorised the fact of the remand as a relevant consideration. She also accepted that it was clear from the Remarks on Penalty that the magistrate had taken it into consideration. These concessions were appropriately made.
Counsel submitted, however, that notwithstanding the error, the sentence was within the appropriate range for these offences, and that there was no good reason to suspend or to put the appellant on a more intensive correctional supervision order or home detention. I understood this submission to be an invitation to dismiss the appeal on the basis that the same sentence should be passed in any event.
In my view, it was an error for the magistrate to treat the fact of the appellant being on remand for other matters as a relevant consideration. Doing so constituted a process error within the description in House v The King.[3] I consider it is necessary to set the sentence aside and to resentence the appellant. This conclusion relates to the whole sentence and not just to the question of whether to suspend, for the following reasons.
[3] (1936) 55 CLR 499 at [505].
In R v McLean,[4] the Full Court considered an appeal against a decision not to suspend a term of imprisonment. The appellant had pleaded guilty to one count of arson and was sentenced to imprisonment for two years and 11 months, with a non‑parole period of 13 months.
[4] (2013) 118 SASR 280.
The appellant in that case submitted that the discretion not to suspend the sentence miscarried because, first, the judge had applied the wrong test and, secondly, the judge had failed to consider whether it would be unduly harsh for the appellant to serve any time in prison under the then section 38(2c) of the Criminal Law (Sentencing) Act 1988 (SA).
Justice Nicholson observed:[5]
This was a case where there were quite powerful considerations in favour of suspension. The circumstances of the offending in this case, whilst serious, were not such as to place the appellant’s offence towards the upper end of seriousness for this type of offence and prison sentences for arson have been suspended in the past.
[Footnote omitted]
[5] R v McLean (2013) 118 SASR 280 at [41] (Nicholson J, Kourakis CJ and Peek J agreeing), citing R v Hallett [2012] SASCFC 143; R v Ireland (2012) 114 SASR 438.
Then, when considering the second of the appellant’s submissions, he concluded:[6]
I am satisfied that the judge did overlook s38(2c) when considering whether or not to suspend the sentence he imposed.
[6] R v McLean (2013) 118 SASR 280 at [47] (Nicholson J, Kourakis CJ and Peek J agreeing).
His Honour then held:[7]
The judge erred in failing to take into account an important consideration material to the question of whether or not the sentence should be suspended and as such the court should revisit at least the issue of suspension. However, the appeal is against the sentence as imposed and in the circumstances the whole of the sentence had to be set aside and the appellant resentenced.
[7] R v McLean (2013) 118 SASR 280 at [48] (Nicholson J, Kourakis CJ and Peek J agreeing).
In resentencing, Nicholson J began with the same head sentence as the sentencing judge, highlighting that there was no complaint to the length of sentence nor could one have been justified. His Honour then reduced the head sentence to reflect time spent in custody and on home detention bail.[8] His Honour was then satisfied that imprisonment would be unduly harsh for the appellant and suspended the sentence.[9]
[8] R v McLean (2013) 118 SASR 280 at [49] (Nicholson J, Kourakis CJ and Peek J agreeing).
[9] R v McLean (2013) 118 SASR 280 at [50], [59] (Nicholson J, Kourakis CJ and Peek J agreeing).
In Da Silva v The Queen,[10] the Court of Criminal Appeal considered whether a non-parole period that had been erroneously set enlivened the possibility that an appellate court could revisit the head sentence.
[10] [2020] SASCFC 66.
Justice Livesey held:[11]
This recognised connection between the setting of a head sentence and the fixing of a non-parole period in the appropriate discharge of the sentencing discretion will usually require that the appellate review of a flawed non-parole period encompass a reappraisal of both the head sentence and the non-parole period. Whilst a sentencing Judge will conventionally address the constituent elements of a sentence, particularly where legislation increasingly dictates particular treatment for aspects of those elements, the discretion is exercised as to the sentence as a whole. A specific error as to one constituent element usually calls into question the whole sentence, because the exercise of discretion on resentencing must ensure “a duly proportioned and properly balanced sentence that is appropriate to meet all the circumstances of the case”.
That will be so regardless whether the appeal court, in the independent exercise of its sentencing discretion, declines to resentence or adopts aspects of the approach taken by the sentencing Judge.
[11] Da Silva v The Queen [2020] SASCFC 66 at [56]-[57] (Livesey J, Kourakis CJ, and Stanley J agreeing), quoting R v Robinson (1979) 22 SASR 367 at 369 (King CJ, Walters and White JJ agreeing).

In R v Wheeler, Stanley J, in considering an appeal against the length of a sentence, held:[12]
…if the error identified by the appeal court is one of failing to take into account all relevant matters or taking into account extraneous ones (a process error), the Full Court may fix a different sentence in accordance with what it thinks ought to have been imposed, even if the sentence imposed below was not, in itself, manifestly unreasonable. On the other hand, the Full Court may, after finding the process error, nonetheless take the view that the same sentence should have been passed. In such a case, it will dismiss the appeal.
[12] R v Wheeler [2015] SASCFC 83 at [20] (Stanley J, Gray and Peek JJ agreeing), referring to R v Kreutzer (2013) 118 SASR 211 at [10] (Kourakis CJ).
It follows that it is open for me to sentence afresh. For the reasons that I give below, I take a different view from the magistrate as to the sentence that should have been imposed. In that circumstance, I consider that the conceded process error warrants setting aside the sentence and fixing a different one.
Considerations on sentencing
As the magistrate observed, the fact that the appellant is an Indigenous person does not of itself entitle him to any more favourable treatment than a non‑Indigenous person. To so treat him would offend the principle that all persons are equal before the law. Thus, as the High Court said in Munda v Western Australia (Munda):[13]
Mitigating factors must be given appropriate weight, but they must not be allowed “to lead to the imposition of a penalty which is disproportionate to the gravity of the instant offence”. It would be contrary to the principle stated by Brennan J in Neal to accept that Aboriginal offending is to be viewed systemically as less serious than offending by persons of other ethnicities. To accept that Aboriginal offenders are in general less responsible for their actions than other persons would be to deny Aboriginal people their full measure of human dignity. It would be quite inconsistent with the statement of principle in Neal to act upon a kind of racial stereotyping which diminishes the dignity of individual offenders by consigning them, by reason of their race and place of residence, to a category of persons who are less capable than others of decent behaviour. Further, it would be wrong to accept that a victim of violence by an Aboriginal offender is somehow less in need, or deserving, of such protection and vindication as the criminal law can provide.
(Footnotes omitted)
[13] (2013) 249 CLR 600 at [53] (French CJ, Hayne, Crennan, Kiefel, Gageler and Keane JJ).
Nevertheless, as the High Court put in Bugmy v The Queen[14] which was decided at the same time as Munda:[15]
The experience of growing up in an environment surrounded by alcohol abuse and violence may leave its mark on a person throughout life. Among other things, a background of that kind may compromise the person’s capacity to mature and to learn from experience. It is a feature of the person’s make-up and remains relevant to the determination of the appropriate sentence, notwithstanding that the person has a long history of offending.
Because the effects of profound childhood deprivation do not diminish with the passage of time and repeated offending, it is right to speak of giving “full weight” to an offender’s deprived background in every sentencing decision. However, this is not to suggest, as the appellant’s submissions were apt to do, that an offender’s deprived background has the same (mitigatory) relevance for all of the purposes of punishment. Giving weight to the conflicting purposes of punishment is what makes the exercise of the discretion so difficult. An offender’s childhood exposure to extreme violence and alcohol abuse may explain the offender’s recourse to violence when frustrated such that the offender’s moral culpability for the inability to control that impulse may be substantially reduced. However, the inability to control the violent response to frustration may increase the importance of protecting the community from the offender.
(Footnote omitted)
[14] (2013) 249 CLR 571 at [43]-[44] (French CJ, Hayne, Crennan, Kiefel, Bell and Keane JJ).
[15] Munda v Western Australia (2013) 249 CLR 600.
The appellant had a deprived childhood that was characterised by alcohol‑fuelled violence. As his counsel put it, he shows many of the hallmarks of Aboriginal people who have suffered disadvantage. Counsel also emphasised that the appellant had lost the custody of his son.
As to the offending itself, counsel emphasised that the appellant had not actually intended to cause harm to Ms Mason’s property, and that in throwing the rock, he intended to notify her of the fire, however inappropriate a course of action that was. The offending was not, in that sense, actuated by malice. That submission could not extend to the lighting of the window frame of the house across the road. Counsel accepted that it must be taken that there was some degree of malice that motivated that offence.
Counsel for the Director submitted that it was plain that the appellant could not show good reason to suspend the sentence once his antecedents had been reviewed carefully. Those antecedents show him to have been offending as a youth in 2007 with low grade property damage and failures to comply with a bail agreement. He was again dealt with in 2008 as a youth for being unlawfully on premises and damaging property. He was not convicted of these various offences.
In May 2009, the appellant, now an adult, was convicted of offences of damage property, aggravated assault and failure to comply with a bail agreement. He was placed on a good behaviour bond for 18 months. Two months later, he breached that bond. That breach was excused.
In September 2011, he was convicted of offences of damage property and aggravated assault. He received his first sentence of imprisonment, being for four months, which was suspended on his entry into a bond for six months.
In May 2013, the appellant was convicted of being unlawfully on premises and failing to comply with a bail agreement, as well as contravening a term of an intervention order. He was sentenced to period of imprisonment of three months. That too was suspended.
In August 2013, he was convicted of two counts of failing to comply with a bail agreement and one count of dishonestly taking property without consent. He was given a sentence of imprisonment of one month which was suspended. Then in November 2014, he was convicted of damaging a building or motor vehicle and failing to comply with a bail agreement. He was fined.
The appellant then received his fourth sentence of imprisonment in July 2015 when he was convicted of aggravated assault, breach of a term of intervention order and another breach of bail agreement. He had committed those offences in April 2015. He was sentenced to a term of imprisonment for three months and 14 days. At the time of the order, he had spent two months and 15 days in custody. The sentence was then suspended on his entering into a bond for 18 months.
In August 2016, he was found to have breached the bond. The bond was extended for a further three months.
Then on 16 June 2017, he was convicted again of breaching bail. On 29 August 2017, he was convicted of contravening a term of the intervention order and fined.
This is not the totality of the appellant’s offending, but these were the matters on which the Director relied as being particularly relevant to informing the sentencing for the present offending.
The essential submission that counsel for the Director made in respect of this history was that the appellant had already had the benefit of four separate suspended sentences over an extensive period of time between 2011 and 2016, the last one being extended after a breach. That history, counsel submitted, demonstrated clearly the appellant’s failure to comply with court orders. Counsel submitted that the present offending was manifestly more serious than that from the past.
Counsel for the appellant submitted that this offender history cut both ways. With the exceptions of the assaults that were related to the breaches of an intervention order, the offending had generally been of a low level. As to the various suspended sentences, counsel submitted that on each occasion, the appellant had made good the bonds, excepting the last one. When he was given a second chance in respect of that fourth bond, he succeeded. While counsel accepted that there must be a limit to the Court’s patience, that series of successful bonds should be taken to be an encouragement.
While I accept the import of counsel’s submission that the successful completion of a succession of bonds should be treated as carrying encouraging signs, the other side to this is that all four bonds were, of course, precipitated by successive incidents of offending. Moreover, as counsel for the Director pointed out, the present offending appears to have been an escalation of a long history of property damage-type offending.
Against this, however, is one factor which strikes me as particularly important in the context of this history. The appellant’s most recent offending occurred on 9 April 2017, that is, two years and four months before the offending the subject of this appeal. This was an offence of contravening a term of an intervention order. The appellant was fined. The most recent offending that had warranted a term of imprisonment, albeit suspended, had occurred in April 2015, that is, over four years earlier.
While I accept that the offences the subject of the present appeal were more serious than those that had occurred in the past, when viewed against the appellant’s long history of offending going back to when he was a child, they were committed after what was a notable period of not offending, and a longer period of not offending in a like manner. I also accept the submission of counsel for the appellant that aspects of this offending were ‘bizarre’ and likely carried an unusual and complex motivation.
These two matters tend to refute any thesis of the appellant being caught in an escalating pattern of property damage-type offending. Rather, they suggest a period of stability that evidences a level of rehabilitation and then a serious but isolated relapse into dangerous offending, the motivations for which appear to have been complex and unusual. Moreover, the gap between incidents of offending cannot be viewed without reference to the appellant’s personal circumstances which, as I have noted above, include his role as sole carer for his children prior to being incarcerated.
Nevertheless, the morning of 4 August 2019 was understandably terrifying for Ms Mason. The fire to the window frame of the unoccupied house, while causing only about $500 damage, had the potential to cause damage of up to $150,000, had it spread.
Sentencing standards
Counts 1 and 2 on the information were summary offences on account of the cost of the property damage. Each carries a maximum penalty of 10 years. Count 3 was a minor indictable offence but the maximum penalty is imprisonment for life.
Arson is a particularly serious offence. However, it is not an offence with respect to which useful guidelines have been established.
In R v Timmins, Sulan J said:[16]
Arson is an extremely serious offence. The maximum penalty is life imprisonment, which demonstrates how seriously Parliament regards this type of offending. There is no range of sentences which are appropriate for the offence. It is inevitable that, in the majority of cases, a sentence of imprisonment will follow.
[16] [2015] SASCFC 153 at [26] (Sulan J, Peek and Stanley JJ agreeing).
Justice Sulan adopted the following passage from R v James, where Walters, Zelling and Williams JJ said:[17]
In our view, the crime of arson cannot be regarded as a crime so usually or so often dealt with in this Court as to be identified with any particular tariff or range of penalty. We doubt very much whether any sophisticated formulation of tariff can be devised, or any precise guidelines laid down, for a crime where there can be so many different, aggravating or mitigating circumstances. Varying factual situations must necessarily be encountered in relation to the crime of arson and, to our minds, there can be no established pattern of dealing with any particular set of facts. The legislature has seen fit to provide a maximum penalty of life imprisonment for arson, leaving the Court a discretion exercisable within wide limits in fixing a sentence in respect of each offender. It seems to us that ordinarily a substantial sentence of imprisonment is called for by reference to the immediate gravity of the crime and its consequences. Arson, in all its forms, is an extremely serious and dangerous crime, and the element of general deterrence must be given proper weight, in order to reflect the Court’s condemnation of the crime, especially where it is committed with an appreciation of what is being done and there is a calculated act of vengeance.
[17] (1981) 27 SASR 348 at 351.
The circumstances in which arson is committed are as broad as the offence is dangerous. Two examples provide some insight into the difficulty of addressing sentencing for this offence, as well as providing some, quite limited, assistance in approaching sentencing in the present matter.
In R v Goldsmith,[18] an Aboriginal man set fire to an already partially destroyed house, causing damage quantified at $27,065. The Court accepted that he had done so in order to allow the restless spirit of a dead friend in the house to rest in peace. It was not done for personal or financial gain, revenge or any other improper or ulterior motive.[19] The accused came from a socially disturbed background, suffered from an intellectual disability, post-traumatic stress disorder, and alcohol abuse. He did not have a serious criminal record. The Court imposed a head sentence of two years with a non-parole period of 12 months, suspended upon the accused entering into a bond.
[18] (1995) 65 SASR 373.
[19] R v Goldsmith (1995) 65 SASR 373 at 375 (Mullighan J, Debelle and Nyland JJ agreeing).
In R v McLean,[20] the accused pleaded guilty to one count of arson. The circumstances were that he had been drinking heavily, had abused a neighbour and then set fire to her possessions in her carport, with the fire spreading to the carport ceiling and unit. The damage was estimated at $85,000. The accused suffered from dwarfism, and had a complex developmental history. He was very likely to become paraplegic. He was depressed and had social, sexual and physical limitations. He had low-average intelligence. He had been abused. He suffered hardship on a daily basis. He had a criminal record, although the most serious offending had been 18 years earlier.[21] He was sentenced to four years, reduced to three years for a guilty plea, with a 14-month non-parole period. That was further reduced for time spent in custody and on bail, and the term was suspended.
[20] (2013) 118 SASR 280.
[21] R v McLean (2013) 118 SASR 280 at [23] (Nicholson J, Kourakis CJ and Peek J agreeing).
Sentence
Having regard to all of the matters that I have identified above, in my view, this offending necessarily warrants a sentence of imprisonment. It is appropriate that I sentence the appellant to a single penalty, pursuant to s 26 of the Sentencing Act 2017 (SA). I calculate that sentence in the following way.
On Count 1, I would impose a notional head sentence of six months’ imprisonment. This was a summary offence of property damage pursuant to s 85(3) of the Criminal Law Consolidation Act 1935 (SA) (CLCA), but it was committed in frightening circumstances.
On Count 2, I would impose a notional head sentence of two months’ imprisonment. This too was a summary offence of property damage pursuant to s 85(3) of the CLCA. I do not consider it to be as serious as Count 1. I accept that it was done to alert Ms Mason to the fires, however inappropriately. Ms Mason was not aware of the broken window until police pointed it out to her in daylight.
On Count 3, I would impose a notional head sentence of 12 months’ imprisonment. This was the most serious offence by reason of its potential and the malice that actuated it, but as I have noted, the fire appeared to be dying out by the time the CFS arrived. The appellant had acted to draw attention to this and the other fire, albeit inappropriately and ineffectively.
I would order that one of the two months’ imprisonment for Count 2 be served concurrently with the six months in respect of Count 1. These were separate offences of property damage, but quite linked in their intent. The balance I would make cumulative.
That makes a total of 19 months’ imprisonment. I reduce that by 40 percent for the appellant’s early guilty plea. This establishes a head sentence of 11 months, one week and five days. Pursuant to s 47(5) of the Sentencing Act 2017 (SA), I cannot fix a non-parole period.
The conflicting relevant considerations going to whether to suspend the sentence of imprisonment make that question particularly difficult. This was an alcohol and grief-fuelled episode of property damage and arson, part of which was actuated by malice. The appellant has a long history of property damage‑type offences and suspended terms of imprisonment. These matters cause me to conclude that it is appropriate that he serve at least some of his sentence in prison.
However, the appellant has had a recent and considerable period of stability, which he has managed against the background of his deprived and difficult upbringing and history of offending. The present offending was motivated by what seems to have been a complex emotional state. These matters cause me to think that this offending can be characterised as a potentially aberrant relapse. I conclude that there is good reason to suspend a portion of the sentence, on condition that he enter into a bond, pursuant to s 96(4) of the Sentencing Act 2017 (SA).
I therefore direct that the appellant is to serve a period of six months in prison, commencing 13 March 2020. I suspend the remainder of the sentence on condition that he enter into a bond to be of good behaviour for a period of one year with the following conditions to be attached:
1That he be of good behaviour and comply with all the conditions of the bond;
2That he not possess a firearm or ammunition or any part of a firearm;
3That he submit to tests, including testing without notice, for gunshot residue as may be reasonably required;
4That he be under the supervision of a Community Corrections Officer for a period of 12 months and obey the lawful directions given to him by the Community Corrections Officer to whom he is assigned for the purposes of supervision and during that period of supervision not leave the State for any reason except in accordance with the written permission of the Chief Executive Officer for the Department of Correctional Services;
5That he report, two working days of having been released from custody, at the offices of the Department for Correctional Services;
6That he attend and complete any assessment, counselling, treatment and therapeutic programs as may be deemed appropriate to effectively case manage his individual needs as directed by the Community Corrections Officer assigned to supervise him;
7That he not consume alcohol or any other drug which is not medically prescribed or otherwise legally available and then only at the prescribed or recommended dosage; and
8That he submit to any blood, breath or urine analysis as directed by the Community Corrections Officer assigned to supervise him and sign all required forms and comply with the requirements of the testing procedures.
I extend the time for filing the Notice of Appeal to 22 May 2020.