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District Court 3 April 2018

R v Keighran

[2018] NSWDC 536

Assault & violencePublic order & justice offences

Citation: R v Keighran [2018] NSWDC 536
Court: District Court of New South Wales
Date: 3 April 2018
Judge: Buscombe DCJ

Background

The offender pleaded guilty to damaging by fire a licensed hotel at Emu Plains, the O'Donoghue's Irish Hotel, in the early hours of 10 June 2016. He committed the offence in company with Harley McKenna, who died from burns sustained during the incident. Both men had been ejected from the hotel earlier that evening before returning to carry out the arson.

The offender carried a garden rake from his nearby home, which he used to smash a kitchen window. His companion threw a bucket of petrol through the broken window, and the petrol was then ignited, most likely by a cigarette lighter. The resulting fireball engulfed both the building and McKenna. The offender suffered serious burns to approximately 30% of his body while attempting to assist his companion. McKenna died later that day from burns to approximately 90% of his body.

The fire caused significant property damage. The hotel's insurer paid out approximately $99,000 for property repairs and a further $456,000 for loss of trade during the repair period. The offender was on conditional liberty at the time of the offence, which operated as an aggravating factor under the sentencing legislation.

  • What was the objective seriousness of the offence, including the nature of the joint criminal enterprise and the offender's individual role?
  • What weight should be given to extra-curial punishment (that is, punishment already suffered outside the formal justice system, here the severe burns sustained by the offender)?
  • How should the sentencing objectives of deterrence, general and specific, be balanced against the offender's subjective circumstances?
  • What sentence was appropriate given the plea of guilty, the offender's criminal history, the breach of conditional liberty, and the significant harm already suffered?

Decision

Buscombe DCJ found the offence was objectively serious. Arson in company, by its nature, creates grave risks to property and human life. The offender actively participated in the joint criminal enterprise by smashing the hotel window with the rake, enabling McKenna to throw the petrol. His role was not peripheral, even though it was McKenna who carried the petrol and most likely ignited it.

The court gave significant weight to the extra-curial punishment the offender had already suffered. His burns to 30% of his body represented substantial punishment outside the formal sentencing process. The court noted that this meant the objectives of sentencing had, in part, already been achieved. The offender's remorse, his plea of guilty, and his concern for McKenna immediately after the incident were also taken into account as subjective mitigating factors.

Deterrence, both general and specific, remained important sentencing considerations given the inherent danger of fire offences. The breach of conditional liberty was treated as an aggravating factor under s 21A of the Crimes (Sentencing Procedure) Act 1999 (NSW). The court declined to treat the cases referred to by counsel as establishing a fixed sentencing range, affirming that sentencing remains an individualised and intuitive exercise, while acknowledging the need for consistency.

The maximum penalty of 11 years imprisonment under s 195(1A)(b) of the Crimes Act 1900 (NSW) was taken into account as a legislative guidepost, consistent with the approach confirmed by the High Court in Muldrock v R.

Orders Made

  • The offender was convicted of damaging property by fire in company, contrary to s 195(1A)(b) of the Crimes Act 1900 (NSW).
  • Sentenced to a total term of imprisonment of 2 years and 7 months, comprising a non-parole period of 1 year and 8 months and a balance of term of 11 months.
  • Sentence backdated to commence 21 September 2016, expiring 20 April 2019.
  • Release to parole pursuant to a statutory parole order on 20 May 2018.

Key Takeaways

  • Offences of arson in company are treated by the courts as always seriously objectively, given the inherent risks to property and human life, even where the physical damage is ultimately contained.
  • Extra-curial punishment, such as severe physical injury suffered as a direct consequence of the offence itself, can reduce the sentence that would otherwise be imposed, on the basis that sentencing objectives have already been partially achieved through that suffering.
  • A participant in a joint criminal enterprise who plays an active enabling role, here smashing the window that allowed petrol to be thrown, bears criminal responsibility for the arson even where another party carries the accelerant and provides the ignition.
  • Breach of conditional liberty at the time of the offence operates as a statutory aggravating factor under s 21A of the Crimes (Sentencing Procedure) Act 1999 (NSW) and was treated as such in this sentence.
  • Sentencing statistics and comparable cases may inform the exercise, but the District Court reaffirmed that sentencing remains an individualised and intuitive process, with no fixed range established for this category of offence on the materials presented.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 195(1A)(b) (destroying or damaging property by fire in company, maximum 11 years imprisonment)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 21A (aggravating and mitigating factors); s 3A (purposes of sentencing)

Cases:
- Muldrock v R (2011) 244 CLR 120 (High Court guidance on use of maximum penalty as a legislative guidepost)
- R v Harmouche (2015) 158 A Crim R 357
- Jehad Jodeh v R [2011] NSWCCA 194
- Hampton v R [2014] NSWCCA 13