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District Court 18 April 2019

R v Markarian

[2019] NSWDC 374

Assault & violencePublic order & justice offences

Citation: R v Markarian [2019] NSWDC 374
Court: District Court of New South Wales
Date: 18 April 2019
Judge: Buscombe DCJ

Background

The offender pleaded guilty to a single charge of intentionally damaging property by fire with the intention of causing bodily injury, contrary to s 196(1)(b) of the Crimes Act. The offence carried a maximum penalty of 14 years imprisonment, with no applicable standard non-parole period.

The charge arose from a dispute over a garage rental advertised on Gumtree. After the victim declined the offender's offer, he sent a threatening and racially abusive text message. Approximately three weeks later, in the early hours of 21 August 2013, the offender purchased petrol from a service station, travelled to the victim's Eastwood unit, and set fire to the exterior of the front door to her unit using an accelerant. The unit was part of an 18-unit apartment block. Twelve residents were asleep inside at the time, including five children aged between two and fourteen years.

The offender subsequently drove to Leichhardt and sent a further threatening text message to the victim, referencing the fire and threatening further violence. Police arrested him approximately two months later. Physical evidence including a fuel container, a matching jacket, and documentation relating to the unit's strata manager were found at his home.

  • What was the appropriate sentence for an offence of intentionally damaging property by fire with intent to cause bodily injury, having regard to the objective seriousness of the offending?
  • What weight should be given to subjective factors, including the offender's physical and mental health conditions and their potential to make custody more burdensome?
  • Whether special circumstances existed to justify a variation in the standard ratio between the non-parole period and the balance of the sentence?

Decision

Buscombe DCJ assessed the offending as a very serious example of its type. The fire was the product of considerable planning, having occurred approximately one month after the initial dispute. The attack targeted a residential apartment block occupied by sleeping residents, creating obvious potential for serious injury or death to persons beyond the intended victim. The threatening text message sent after the fire compounded the seriousness of the overall conduct.

On subjective matters, the court accepted that the offender had good prospects for rehabilitation, noting his limited criminal history and his compliance with bail conditions over a lengthy period without reoffending. His physical and mental health conditions were also taken into account, on the basis that those conditions were likely to make the experience of custody more arduous for him than for other persons. However, the court noted there was no evidence suggesting appropriate treatment would be unavailable while he was in custody.

A finding of special circumstances was made, permitting a longer balance of term relative to the non-parole period than would otherwise apply. The court took into account that this was the offender's first time in custody, together with the health considerations already identified. Both general and specific deterrence were identified as relevant sentencing considerations, and the court concluded that full-time imprisonment was the only appropriate sentence.

Orders Made

  • Convicted of intentionally damaging property by fire with intent to cause bodily injury, contrary to s 196(1)(b) of the Crimes Act.
  • Sentenced to full-time imprisonment of four years and nine months, commencing 14 March 2019 and expiring 13 December 2023.
  • Non-parole period of three years, expiring 13 March 2022.

Key Takeaways

  • The District Court treated this offending as a very serious example of arson with intent, given the extent of premeditation, the residential context, and the presence of sleeping occupants including young children.
  • Where an offence involves deliberate use of fire in an occupied apartment block, the potential for harm to persons beyond the intended victim is a significant aggravating factor in the assessment of objective seriousness.
  • A finding of special circumstances may be supported by a combination of factors including the offender's first-time experience of custody and physical and mental health conditions likely to make imprisonment more burdensome.
  • The absence of a standard non-parole period does not diminish the role of general and specific deterrence as sentencing considerations where the offending is objectively serious.
  • Good prospects for rehabilitation, evidenced by a limited criminal history and compliance with bail over an extended period, remained relevant mitigating considerations even in the context of grave objective criminality.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 196(1)(b) (intentionally damaging property by fire with intent to cause bodily injury)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 3A (objects of sentencing)

Cases: No cases were cited in the judgment.