Whitten v The King

SUPREME COURT OF VICTORIA
COURT OF APPEAL

S EAPCR 2022 0182

JAI WHITTEN	Applicant
v
THE KING	Respondent

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JUDGES:	PRIEST JA and J FORREST AJA
WHERE HELD:	Melbourne
DATE OF HEARING:	8 August 2023
DATE OF JUDGMENT:	8 August 2023
MEDIUM NEUTRAL CITATION:	[2023] VSCA 181
JUDGMENT APPEALED FROM:	DPP v Whitten [2022] VCC 1753 (Judge Chettle)

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CRIMINAL LAW – Appeal – Sentence – Arson and reckless conduct endangering serious injury – Whether aggregate sentence of 4 years’ imprisonment with non-parole period of 2 years and 9 months manifestly excessive – Leave to appeal refused.

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Counsel
Applicant		Mr J Connolly
Respondent		Ms J Warren
Solicitors
Applicant	Stary Norton Halphen
Respondent	Ms A Hogan, Solicitor for Public Prosecutions

PRIEST JA
J FORREST AJA:

On 4 October 2022, the applicant, aged 25 years,[1] pleaded guilty before a judge in the County Court to arson[2] (charge 1) and reckless conduct endangering serious injury[3] (charge 2).
[1]His date of birth is 17 April 1998.
[2]Crimes Act 1958, ss 197(1) and (6). The maximum penalty is 15 years’ imprisonment.
[3]Crimes Act 1958, s 23. The maximum penalty is five years’ imprisonment.
Following a plea, on 11 October 2022 the judge sentenced the applicant to an aggregate sentence[4] of four years’ imprisonment, and fixed a non-parole period of two years and nine months.[5]
[4]See Sentencing Act 1991, s 9(1).
[5]Pursuant to s 6AAA of the Sentencing Act 1991, the judge declared that, but for the plea of guilty, he would have sentenced the applicant to be imprisoned for seven years, with a non-parole period of four years and six months.
The applicant now seeks leave to appeal on a single ground that contends that the aggregate sentence and the non-parole period are manifestly excessive.
For the reasons that follow, we would refuse leave to appeal.
It appears that the applicant set fire to residential premises, thereby endangering a number of occupants, for no better reason than he thought that one of the residents had been sleeping with a casual girlfriend. The offending occurred as follows.
At about 3.20 am on 26 October 2021, the applicant was picked up from his apartment in St Kilda by a person unknown driving a white Maserati. About ten minutes later, the Maserati arrived at a Coles Express Petrol Station in Barkly Street, St Kilda. The applicant paid cash for two jerry cans which he then filled with unleaded petrol, once more paying cash. He put both jerry cans in the car, then got into the front passenger seat. The Maserati then drove off and travelled south along Barkly Street.
At 3.54 am, the white Maserati parked outside 113 Spray Street, Elwood. At that time, Mr George Lewis was sleeping at his house at 62 Glen Huntly Road, Elwood, part of a two-story building which occupies 60 to 82 Spray Street. The building is attached to 64 Glen Huntly Road on the east, and 82 Spray Street to the west.
The applicant walked to Mr Lewis’ house, carrying the two jerry cans. He emptied the unleaded fuel from both jerry cans onto the front porch of the premises and ignited it. Large flames sprang up immediately, causing damage to the front porch and windows on the premises. The applicant then fled the premises and ran west along Glen Huntly Road. He got into the front passenger seat of the Maserati, which drove away west along Glen Huntly Road, eventually dropping him at his apartment.
Mr Lewis was woken by the smoke alarm going off and went to the front door to investigate. He saw fire which he unsuccessfully attempted to extinguish by pouring water on it. The fire continued to grow.
A neighbour, Olivia Hrouda, who had also been asleep, was also woken by a loud bang. She went to her bedroom window and saw flames. When she opened a door to outside, smoke came into her house. She woke up her daughter, got her dog and ran out of her house, calling emergency services.
Mr George Giampietri, a neighbour, and landlord of Mr Lewis’ house, was woken by screaming. When he opened his front door he could immediately smell smoke. He evacuated his wife and two children from his home. The fire was burning at a point adjacent to the children’s bedroom.
Not long afterwards, the Metropolitan Fire Service attended and extinguished the fire. There was damage to the front of Mr Lewis’ house and smoke damage to the neighbouring residence.
Police, including officers from the Forensic Services Centre, also attended. They observed that two of the six front windows were broken. The glass was heavily sooted. They observed that the floor tiles of the front porch were scorched; most of the ceiling timbers from the porch had fallen (and the remaining ones were heavily burnt); and the roof space was sooted, although the roof tiles largely remained (albeit that several had broken and fallen to the floor). The southern rendered brick porch wall and timber frames were also burnt, and the main door was scorched.
The Maserati was registered to a business called Race Group Pty Ltd. On 25 October 2021, it had been leased to one Shannon Stibbard. Police arrested Mr Stibbard at about 5.00pm on 26 October 2021. When interviewed, he told Police that he had parked the Maserati outside his home in Brighton Road, Elwood, around 11.30 pm on 25 October 2021, then went to sleep and awoke around 7.30 am on 26 October 2021. The Maserati was still where he left it.
An insurance company investigated the fire damage at Mr Lewis’ property, which was assessed to be uninhabitable. The estimated cost of the damage caused by the fire was $62,500.00. There was also light smoke and soot damage to units 3 and 4. At the date of the plea, the insurer’s estimated costs were $128,191.01, with another approximately $27.680.50 outstanding.
Police arrested the applicant on 5 November 2021. He was not interviewed due to his COVID-19 positive status.
Although the applicant did not provide a reason for his actions to police, he gave an explanation to Mr Jeffrey Cummins, a clinical, consulting and forensic psychologist, who had been engaged to assess him. In a report dated 28 September 2022, Mr Cummins recounted the applicant’s explanation as follows:
… “Well I’d been mates with George Lewis (then aged 25) for some time and then I found out he’d been sleeping with my casual girlfriend, Holly. We exchanged some text messages about him sleeping with my girlfriend and I became frustrated and upset – I had heaps of Xanax and cocaine. I then formed this idea to go and light a fire at the front of his property, but I never thought the fire would get out of control and cause the damage that it did. I know I’m in big trouble in relation to what I’ve done. At the time I just didn’t give enough thought to the possible consequences of my actions. I was acting out of anger. As I said before, I’ve got a big anger management problem and I know I have to address it”.
An aggravating feature of the applicant’s offending is that he was subject to a community correction order (‘CCO’) at the time of its commission.[6] The CCO, of 18 months’ duration, had been imposed on 27 July 2021, together with 94 days’ imprisonment, for recklessly causing serious injury and unlawful assault.
[6]Bieljok v The Queen [2018] VSCA 99, [68] (Weinberg, Beach and Hargrave JJA); DPP v Basic [2017] VSCA 376, [70] (Weinberg, Osborn and Priest JJA); DPP v Milson [2019] VSCA 55, [66] (Priest and Weinberg JA).
Among his antecedents, in 2014, when aged 16, the applicant was dealt with in the Children’s Court on charges relating to property damage. A year later, in 2015, he was once ore dealt with by the Children’s Court for offences related to property damage. In 2016, he was before the Magistrates’ Court for damaging property. And in 2019 he was released on a CCO — which he subsequently breached — for offences including damaging property, burglary, theft, unlawful assault, recklessly causing injury and contravening a condition of bail.
In this Court, in support of the contention that the sentence is manifestly excessive, the applicant’s counsel relied in summary on the following factors:
·    the applicant’s age – 23 at the time of offending, and 24 at sentence;
·    his expressions of remorse;
·    his disjointed, disrupted and dysfunctional childhood;
·    the utilitarian benefit of his early guilty plea;
·    the additional COVID-19 utilitarian benefit;
·    the particular difficulties experienced by the applicant in custody as a result of COVID-19;
·    the effect of gaol on his mental health; and
·    the applicant’s prospects of rehabilitation.
It is clear from the judge’s sentencing remarks, however, that all of the matters referred to immediately above were matters that he took into account. Thus, in his sentencing remarks, he said:
[22]You counsel relied upon a number of matters in mitigation of your offending. Firstly, your age. You relevantly young and immature at the time of your offending. You are now reaching the age where you hopefully develop consequential thinking and maturity.
[23]Secondly, the remorse you expressed in your letter to the court, to Mr Cummins and to your mother.
[24]Thirdly, your disjointed, disrupted and dysfunctional childhood. That led you to drugs and alcohol abuse and to subsequent criminal offending.
[25]Fourthly, I take into account your pleas of guilty. Such pleas were entered an early stage in the proceedings. You have spared the community the time and expense of a criminal trial and your victims the trauma of giving evidence at such a trail. You are entitled to a substantial reduction to the sentence I would otherwise impose for your offending to reflect those pleas of guilty.
[26]Fifthly, because of the effect COVID-19 has had upon our justice system, your pleas have greater utilitarian benefit and you are entitled, therefore, to a greater reduction in sentence as a result.
[27]Sixthly, COVID-19 has made time in custody more onerous for you and will continue to do so in the future. You personally have felt the effects of COVID with imposed lockdowns when you fell ill.
[28]Seventh, your depression issues are likely to be exacerbated whilst you are in custody. However, [defence counsel] acknowledged that gaol had been good for you; something you and your mother confirm.
[29]Eighthly, I take into account your prospects of rehabilitation which, I believe, are reasonable provided you remain drug free, control your alcohol use and deal with your anger issues. You have strong family support and a place to live and a job. Your future rests in your own hands. The drugs screens tendered on your behalf support the assertion that you have been drug free for some time. I take all these factors into account in sentencing you.
Mr Cummins, whose report the judge also took into account, made a number of relevant observations, including the following:
[37]On the basis of his comments and presentation at interview, it is my opinion [the applicant] has been intermittently suffering from a Major Depressive Disorder which has been of moderate severity and associated with symptoms of anxiety and traumatisation (DSM-5 Code 296.32). He also attracts the diagnosis of being a poly-substance user and, on his account, he has had dependencies on Xanax, Valium, Clonazepam, alcohol, cocaine and methamphetamine.
[38]He has a very significant criminal history for someone of his age. In my opinion his criminal history to date indicates he is likely to attract the diagnosis of an Antisocial Personality Disorder, although at interview he stated his history of offending was related to alcohol and/or other substance abuse and also related to his pent-up feelings of anger and frustration.
[39]At interview he stated that when he is released from custody he would take whatever steps are available to him to resist resuming abusing alcohol and/or prescription medication and/or using illicit drugs. At interview he acknowledged he would be prepared to receive ongoing mental health treatment of relevance to his acknowledged dysfunctional upbringing. Mr Whitten currently presents as someone who is prepared to seek mental health treatment, both in terms of talking based treatment (psychotherapy) and also in terms of being trialled on medication for symptoms of ADHD.
[40]In my opinion, the longer the time Mr Whitten spends in custody, the more likely it is that his antisocial behaviour and his problems with anger will be reinforced and therefore exacerbated. In my opinion he has unresolved attachment issues which could have been relevant in terms of his offending behaviour, i.e. believing his girlfriend was cheating on him. He presented as being psychosocially immature.
As we followed his submissions, the applicant’s counsel contended that the circumstances demonstrated the applicant’s developing maturity. The applicant had developed insight into his offending behaviour and his mental health difficulties, and had expressed remorse. These factors, which augured well for his prospects of rehabilitation, cannot have been given sufficient weight by the judge. Counsel submitted that the sentence imposed does not adequately take account of these factors, and ignores Mr Cummins’ opinion that the longer the applicant spends in custody, the more likely it is that his antisocial behaviour and his problems with anger will be reinforced and therefore exacerbated. Furthermore, counsel argued that the applicant’s plea of guilty was further evidence of remorse. Counsel submitted in writing that ‘the applicant’s plea of guilty was one of the strongest mitigating factors that he called upon’, yet no substantial reduction is reflected in the sentence actually imposed. Further, no perceptible reduction of sentence for entering a plea of guilty during the pandemic can be detected.[7]
[7]See Worboyes v The Queen (2021) 96 MVR 344.
We are far from persuaded that the sentence under challenge is manifestly excessive.
In our view, the gravity of the applicant’s offending is objectively very serious. It was premeditated — apparently motivated by a desire for revenge — and placed a number of entirely innocent people in danger of serious injury. Plainly, general and specific deterrence, denunciation and just punishment were, therefore, all factors which needed to be given recognition in the sentence imposed.
Indeed, specific deterrence was of particular importance given the applicant’s antecedents. Although he does not fall to be punished again for his previous offending, his criminal record is an indicator of his moral culpability, his prospects of rehabilitation, his dangerous propensities and, concomitantly, the community’s need for protection. It cannot be gainsaid that specific deterrence was of increased importance as a factor in sentencing, having regard to the failure of more moderate penalties such as CCOs as a means of deterrence.[8] As the applicant’s counsel realistically conceded on the plea, ‘in all the circumstances, a term of imprisonment is the appropriate penalty’.
[8]R v O'Brien and Gloster [1997] 2 VR 714, 718.
The judge, as we have mentioned, imposed an aggregate sentence of imprisonment. On the plea, both counsel had agreed that was the appropriate course to adopt. One of the difficulties associated with adopting that course is, however, a lack of transparency. Beevers[9] exemplifies the problem. In that case a jury had found the applicant guilty of a charge of arson and two charges of attempting to obtain property by deception. The arson was of an unoccupied house with the intention of defrauding an insurer. Ultimately, the trial judge imposed an aggregate sentence of four years and four months’ imprisonment on the three charges, and fixed a non-parole period of two years and four months. When considering an application for leave to appeal against that sentence, this Court (among other things) observed:[10]
Resort to an aggregate sentence[11] has made the sentence imposed by the judge somewhat opaque. We note, however, that sentences of imprisonment of two, three or four years’ imprisonment for arson perpetrated against houses (depending, of course, upon the individual circumstances of each case) seem to accord with current sentencing practices.[12] Assuming a notional sentence of that order to be appropriate for a single charge of arson, and assuming some modest notional cumulation to be justified for the two charges of attempting to obtain property by deception — to reflect their overlapping but discrete criminality — all other things being equal, a total effective sentence of four years and four months’ imprisonment sentence would, in our view, be within the appropriate notional range (and a non-parole period of two years and four months would be unremarkable).
[9]Beevers v The Queen [2016] VSCA 271 (Priest and Santamaria JA) (‘Beevers’).
[10]Ibid, [41].
[11]See Sentencing Act 1991, s 9. See also Fitzpatrick v The Queen [2016] VSCA 63, [42] et seq.
[12]See R v Stallworthy [2002] VSCA 135; R v Hasan [2004] VSCA 137; DPP v Bright (2006) 163 A Crim R 538; R v Dosen [2012] VSCA 307.
In the present case, of course, unlike Beevers, the premises set alight were not unoccupied. As the plea of guilty to charge 2 recognises, in this case a number of occupants — including children — were put at risk of serious injury.
A case factually more comparable to the present is McPadden.[13] In that case, the applicant had an accomplice set fire to a pizza restaurant that he operated with the purposes of defrauding an insurer. The fire caused extensive damage to the premises and exposed a number residential tenants of the building in which the restaurant was housed to the danger of serious injury. A jury found the applicant guilty of arson, reckless conduct endangering serious injury, attempting to obtain property by deception and perjury, for which the trial judge later imposed a total effective sentence of nine years’ imprisonment, with a non-parole period of six years. Significantly, an individual sentence of five years’ imprisonment was imposed on the charge of arson, and three years for reckless conduct endangering serious injury, two years of which was ordered to be served cumulatively on the arson sentence. Among other things, the Court observed:[14]
This was a very serious example of arson, exposing, as it did, multiple commercial and residential premises to damage, and a number of occupants of the residential premises to serious injury. Moreover, apart from the applicant’s previous good character, there was very little by way of mitigation. Certainly there was no mitigation flowing from a plea of guilty.
In those circumstances, rather than regarding the individual sentence imposed on the applicant for arson as being manifestly excessive, we regard it as being very lenient. We think it probable that the judge imposed a lenient sentence for the charge of arson being conscious of the need to avoid double punishment. But whatever the reason, a significantly more severe sentence would have been well-justified.
Similarly, we consider the individual sentence on charge 2, reckless conduct endangering serious injury, to be lenient. The charge embraced a number of victims,[15] all of whom were placed in danger by [the applicant’s accomplice] setting fire to the restaurant. That fact needed to be given recognition in any sentence imposed. Thus, in circumstances where multiple victims were exposed to the risk of serious injury by reason of a premeditated and deliberately set fire, and there was an almost complete absence of mitigating features, we regard the sentence on charge 2 [reckless conduct endangering serious injury] also as being lenient. The applicant’s is a very serious example of the offence. Once more, a more severe sentence would have been warranted.
[13]McPadden v The Queen [2018] VSCA 57 (Priest and Hargrave JJA and Kidd AA) (‘McPadden’).
[14]Ibid [75]–[77].
[15]Although eight people were asleep in the premises when the fire was set, there were four victims specifically named in the charge.

In imposing the aggregate sentence in the present case, the judge said that he had been ‘conscious to avoid doubly punishing’ the applicant. He was correct to do so. But we note the following additional observations from McPadden, which are apposite:[16]
Of course, given that the single act of setting fire to the restaurant was the conduct which placed the victims in danger of serious injury, and was also the conduct which founded the charge of arson,[17] there was a need to avoid doubly punishing the applicant. It must be remembered, however, that although notionally both offences resulted from a single act (or acts) in setting the restaurant premises alight, arson and reckless conduct endangering serious injury possess very different elements. The essence of the crime of arson is the intentional destruction of, or damage to, property by fire. On the other hand, charge 2 required that the applicant foresaw that placing another (or others) in danger of death was a probable consequence of setting the fire, and a reasonable person in their position, engaging in setting the fire in the same circumstances, would have realised that they had placed another in danger of serious injury.[18] Thus, there is little (if any) overlap in the elements of the offences.
Notwithstanding that there is little (or no) overlap in the elements of the offences of arson and reckless conduct endangering serious injury, however, exposing occupants of premises to the risk of harm is a recognised feature of aggravation in the case of arson. Thus, some concurrency between the sentences on charge 1 and charge 2 was necessary to avoid the risk of double punishment.
[16]McPadden, [78]–[79].
[17]Cf Crimes Act 1958, s 197(2).
[18]R v Abdul-Rasool (2008) 18 VR 586, 591 [19]; R v Marijancevic (2009) 22 VR 576, 580 [17]; Phillips v The Queen [2017] VSCA 313, [43].
To once more traverse a well-trodden path, manifest excess is a conclusion which does not depend upon the attribution of identified specific error. Ordinarily, it is a conclusion that does not admit of much elaboration or sustained argument,[19] since excess is, or is not, plainly apparent, and a sentence is, or is not, unreasonable or plainly unjust. The sentence may be excessive because the wrong type of sentence has been imposed, or because the sentence imposed is manifestly too long.[20] Appellate intervention is justified only if the sentence is wholly outside the range of those open in the sound exercise of discretion.[21]
[19]See, e.g., Allen v the Queen (2013) 36 VR 565, 573 [51]–[52].
[20]Dinsdale v The Queen (2000) 202 CLR 321, 325–6 [6] (Gleeson CJ and Hayne J).
[21]Lowndes v The Queen (1999) 195 CLR 665, 671–672 [15].
To risk repetition, specific deterrence, general deterrence and denunciation all required adequate reflection in the sentence imposed. It was also necessary that the sentence adequately punish the applicant for his serious offending. Ultimately, balancing all relevant factors, we do not consider it to be reasonably arguable that the sentence imposed is manifestly excessive.
Leave to appeal should be refused.

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[2023] VSCA 181

8 August 2023