Citation: Police v Kevin Francis Barlow (No 2) [2011] NSWLC 20
Court: Local Court of NSW
Date: 1 July 2011
Judge(s): Lerve LCM
Background
Following a defended hearing, the offender was convicted of two counts of damaging property by fire under s 195(1)(b) of the Crimes Act 1900. The two fires occurred at a rural dwelling called "Carinya" near Culcairn, NSW, on 12 May 2010 and 14 June 2010. The property was owned by the offender's estranged wife and was subject to a mortgage.
The first fire was confined largely to the roof cavity, causing approximately $2,800 in damage. Neighbours discovered it in time for emergency services to extinguish the blaze. The second fire, set approximately a month later, completely destroyed the dwelling, which was valued at $200,000. The offender had left his Albury accommodation that morning, travelled to the property, and proceeded to his workplace after setting the fire.
Charges of dishonestly damaging property by fire for gain under s 197(1) of the Crimes Act 1900 were also brought, alleging fraudulent insurance motives. The offender was acquitted of those charges because the court could not be satisfied beyond reasonable doubt of a fraudulent purpose.
Legal Issues
- What was the appropriate objective seriousness of each offence, and how should the damage value inform that assessment?
- Whether the Local Court's jurisdictional sentencing limit applied, and how a sentence should be calibrated when the appropriate total term exceeds that limit
- Whether a full-time custodial sentence was required for the more serious offence, having regard to general and specific deterrence
- Whether special circumstances existed to justify varying the statutory non-parole to balance-of-term ratio
Decision
The Magistrate assessed the first fire as falling well below the midpoint of objective seriousness, given the limited damage of $2,800. The second fire was assessed at or slightly above the halfway mark. The total destruction of a $200,000 dwelling, combined with the degree of planning involved in travelling from Albury to commit the offence, supported the higher assessment. The court accepted the insurer's loss adjuster's valuation of $200,000 in the absence of any contradicting evidence, noting that the defence had declined the opportunity to adjourn to challenge the figure.
The court applied the principle from R v Doan (2000) 50 NSWLR 115 that the Local Court's two-year jurisdictional ceiling is not a substitute maximum penalty. The appropriate sentence, viewed in its totality, exceeded that ceiling, which itself represented a substantial concession of leniency to the offender through the choice of summary jurisdiction. The court concluded that a full-time custodial sentence was necessary for the second offence, given the need for both general and specific deterrence in cases of deliberate arson.
On the question of special circumstances, the Magistrate declined to vary the statutory proportion between non-parole period and balance of term. The parole period produced by the standard ratio was considered sufficient for supervision purposes, particularly as the offender would also be subject to Probation and Parole supervision under the bond imposed for the first offence.
Orders Made
- Sequence 2 (fire of 12 May 2010): Conviction recorded; offender released on a s 9 bond under the Crimes (Sentencing Procedure) Act 1999 for 30 months, on conditions including good behaviour, supervision and guidance of the Probation and Parole Service, and notification of any change of address.
- Sequence 4 (fire of 14 June 2010): Conviction recorded; sentenced to a non-parole period of 18 months from 13 May 2011 (expiring 12 November 2012), with a balance of term of 6 months (expiring 12 May 2013).
Key Takeaways
- Under R v Doan, the Local Court's jurisdictional sentencing maximum is a ceiling on the penalty the court may impose, not a substitute maximum penalty for the offence. Where the appropriate sentence exceeds that ceiling, the offender already benefits from the leniency of summary disposal.
- Objective seriousness in arson cases turns on factors including the extent of damage, risk to others, potential for fire spread, degree of planning, and the offender's knowledge of financial consequences. The absence of accelerant evidence does not preclude a finding of deliberate conduct.
- A sentence assessed as at or slightly above the midpoint of seriousness for total destruction of a $200,000 dwelling supported a full-time custodial term, even in the Local Court, where general and specific deterrence are engaged.
- The mere existence of circumstances capable of constituting "special circumstances" does not compel a variation of the statutory non-parole ratio. Following R v Fidow, those circumstances must be sufficiently special to justify the variation.
- Where a defence declines an adjournment offered to contest a valuation, the court will proceed on the uncontested expert evidence before it.
Legislation and Cases Referenced
Legislation
- Crimes Act 1900 (NSW), ss 195(1)(b), 197(1)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 9, 21A(2)
Cases
- R v Doan (2000) 50 NSWLR 115
- R v Fidow [2004] NSWCCA 172
- Porter v R [2008] NSWCCA 145
- R v Carroll [2008] NSWCCA 218
- Han v R [2009] NSWCCA 300
- Hili & Jones v The Queen [2010] HCA 45
- R v Dodd (1991) 57 A Crim R 349
- R v Majors (1991) 27 NSWLR 624
- R v Mazur (2000) 131 A Crim R 67
- R v Olive [2006] NSWCCA 329
- R v Perrone (1989) 43 A Crim R 366
- R v Ryan (2003) 141 A Crim R 403
- R v Williams [2011] NSWSC 583
- R v Zamagias [2002] NSWCCA 17