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District Court 1 May 2019

R v Amante

[2019] NSWDC 222

Assault & violenceDomestic & family violence
CRIME SENTENCE SPECIAL CIRCUMSTANCES.

Citation: R v Amante [2019] NSWDC 222
Court: District Court of New South Wales
Date: 1 May 2019
Judge: Colefax SC DCJ

Background

The offender was a man in his early forties who, in January 2018, was subject to an apprehended violence order (AVO) prohibiting him from coming within 200 metres of his former partner's Department of Housing unit in Harris Park. The relationship had been turbulent. The victim held a tenancy in a multi-storey apartment block on the top floor.

On the evening of 6 January 2018, the offender breached the AVO by attending the premises. During a confrontation that night, he made a threat referencing a "murder scene" if police arrived. He returned the following day and spent much of it at or in the unit. That evening, he sent a text message threatening to light a fire, entered the building, and minutes later a loud explosion was heard and smoke poured from the victim's unit. Emergency services were called, the fire spread into the roof void, and residents were evacuated.

The offender pleaded guilty to one charge of intentionally damaging property by fire in a domestic violence context, contrary to section 195(1)(b) of the Crimes Act 1900 (NSW). He appeared before the District Court for sentencing.

  • What is the appropriate head sentence for intentionally damaging property by fire in a domestic violence context, given the objective seriousness of the offending?
  • What weight should be given to the offender's guilty plea, subjective circumstances, and criminal history?
  • Whether special circumstances existed to justify varying the standard ratio between the head sentence and the non-parole period.

Decision

Colefax SC DCJ assessed the objective seriousness of the offending as mid-range for this type of offence, accepting the joint position of the parties, though his Honour indicated that without that agreement he would have placed it above mid-range. Aggravating features included that the offender was on bail at the time and that the property damaged was the primary victim's home. The fire had spread into the roof void of a social housing building, posing a serious structural risk, displaced residents, and destroyed the victim's limited personal possessions.

The offender gave evidence at the sentencing hearing explaining his actions, but his Honour rejected that account as inconsistent with the agreed statement of facts. His Honour could not make definitive findings about the precise mechanics of how the fire was set beyond the agreed fact that the offender caused it. The Court noted the absence of expert fire investigation evidence as a significant and disappointing gap in the material.

On the offender's personal circumstances, his Honour acknowledged a difficult upbringing, a history of drug dependence, and underlying psychological issues, but also noted the offender's intelligence, capacity for hard work, and family support. The offender had an extensive prior record including dishonesty, violence, and drug supply offences, and was not entitled to leniency as a first offender. His Honour assessed his rehabilitation prospects as reasonable, provided he received appropriate treatment.

Special circumstances were found to justify extending the parole period beyond the statutory norm. Two factors supported this finding: a longer period on parole would better support rehabilitation, and the offender was serving his sentence in protection, a circumstance likely to continue.

Orders Made

  • Head sentence of 3 years and 9 months imprisonment (reduced from a notional 5 years by reason of the guilty plea).
  • Non-parole period of 2 years, commencing 4 October 2018 and expiring 3 October 2020.
  • Balance of term of 1 year and 9 months, commencing 4 October 2020.
  • Referral to the Compulsory Drug Treatment Programme, if eligible.

Key Takeaways

  • The District Court treated arson of a victim's home in a domestic violence context, committed while on bail, as carrying significant objective seriousness, even at the agreed mid-range characterisation for this offence type.
  • Where an agreed statement of facts omits material detail, such as expert evidence about the cause or spread of a fire, the sentencing court is constrained in how far it can go in assessing seriousness, even if it regards the omission as regrettable.
  • A sentencing court may reject an offender's oral evidence at a sentence hearing where it is inconsistent with agreed facts, while still being limited to findings supported by the agreed material.
  • Special circumstances justifying a departure from the standard non-parole period ratio can be established by a combination of rehabilitation prospects requiring a longer supervisory period and the practical conditions of custody, such as serving time in protection.
  • Under section 195(1)(b) of the Crimes Act 1900 (NSW), the maximum penalty for intentionally damaging property by fire is 10 years imprisonment, and no standard non-parole period applies to this offence.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 195(1)(b) (intentionally damage property by fire, domestic violence context)

Cases cited: None stated in the judgment.