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District Court 21 March 2019

R v David Keith Green

[2019] NSWDC 66

Theft & property
ARSON BUGMY PRINCIPLES APPLIED

Citation: R v David Keith Green [2019] NSWDC 66
Court: District Court of NSW
Date: 21 March 2019
Judge(s): Mahony SC DCJ

Background

The offender, a 28-year-old inmate held at Moree Police Station, set fire to his mattress in a holding cell in October 2017 using a cigarette lighter left behind by another prisoner. CCTV footage captured him flicking the lighter and placing an object in the corner of the bed. Within seconds, the mattress ignited and thick smoke filled the cell complex.

Three other inmates in adjacent cells were placed in serious danger and were unable to evacuate without assistance. NSW Fire and Rescue extinguished the blaze, but the front of cell 1 was destroyed and extensive smoke damage affected the wider complex. Repair costs totalled $234,554.00, and the cells remained partially or fully unusable for approximately five months.

The offender pleaded guilty to recklessly damaging property by fire contrary to s 195(1)(b) of the Crimes Act 1900, which carries a maximum penalty of 10 years imprisonment. The sentence hearing took place at Moree District Court in March 2019.

Legal Issues

  • What was the appropriate objective seriousness of the offending within the range for s 195(1)(b)?
  • Whether the principles in Bugmy v R (2013) 249 CLR 571 applied to substantially reduce the offender's moral culpability, given his background of deprivation, cognitive deficits, and the hearing of voices
  • Whether the offender was an appropriate vehicle for general deterrence, given his intellectual disability and subjective circumstances
  • What discount applied for the early guilty plea, and whether special circumstances existed to vary the statutory non-parole period ratio
  • Whether any sentencing option other than full-time custody was available

Decision

Objective seriousness

Mahony SC DCJ accepted the offender's own concession that the offending fell in the upper part of the mid-range for a s 195(1)(b) offence (at [35]). Although the act was reckless rather than intentional, the section covers a wide spectrum of conduct including intentional damage and use of explosives, so the mid-to-upper range remained appropriate. Aggravating factors were also present, including the danger posed to the three other inmates who could not evacuate independently (at [36]).

Bugmy principles and moral culpability

The court was satisfied that the Bugmy v R principles applied on the material before it (at [39]-[40]). The offender had an IQ in the extremely low range, was functionally illiterate, suffered mild visual and speech impairments, and had a history of alcohol and drug abuse from the age of 15 (at [37]). The court also accepted that the offender had heard voices directing him to start the fire, and that there was no planning or premeditation (at [38]). Taking those matters together with a background of significant deprivation, the court found the offender's moral culpability for his inability to control his impulses must be substantially reduced (at [40]).

General deterrence

Consistent with the principle in DPP (Cth) v De La Rosa, and accepted by both parties, the court found the offender was not an appropriate vehicle for general deterrence given his intellectual deficits and the other subjective factors (at [42]).

Sentence and special circumstances

The court found the threshold in s 5 of the Crimes (Sentencing Procedure) Act 1995 was crossed: no sentence other than full-time imprisonment was available (at [42]). A 25% utilitarian discount applied for the early guilty plea (at [37]). The court also found special circumstances based on the offender's cognitive deficits and drug dependency, justifying a variation of the standard statutory ratio between head sentence and non-parole period (at [43]). A head sentence of 2 years and 6 months was imposed, with the non-parole period reduced to 1 year and 3 months rather than the standard two-thirds proportion (at [42]-[43]).

Orders Made

  • The offender was convicted of recklessly damaging property by fire contrary to s 195(1)(b) of the Crimes Act 1900.
  • Non-parole period of 1 year and 3 months, commencing 21 March 2019 and expiring 20 June 2020.
  • Balance of term of 1 year and 3 months, commencing 21 June 2020 and expiring 20 September 2021.
  • Total head sentence: 2 years and 6 months.
  • Parole eligibility date: 20 June 2020.

Key Takeaways

  • The District Court confirmed that Bugmy v R principles can apply to substantially reduce an offender's moral culpability where there is adequate material establishing a background of deprivation, cognitive disability, and an impaired capacity to control impulses, even without a formal diagnosis of mental illness (at [39]-[40]).

  • Where an offender has significant intellectual disability and related subjective factors, a sentencing court may find that person an inappropriate vehicle for general deterrence in line with DPP (Cth) v De La Rosa, regardless of the objective gravity of the offending (at [42]).

  • A reckless arson causing substantial property damage, endangering multiple people unable to self-evacuate, and occurring within a custodial facility, was assessed as falling in the upper part of the mid-range for a s 195(1)(b) offence, notwithstanding the absence of planning or premeditation (at [35], [38]).

  • Special circumstances may be found, and the standard non-parole period ratio varied under s 44(2) of the Crimes (Sentencing Procedure) Act 1995, where an offender's cognitive deficits and drug dependency indicate a heightened need for support and supervision on release (at [43]).

  • Under R v Mazur, a full-time custodial sentence for arson is the default outcome, departing from it only in the most exceptional circumstances; no such circumstances were present here, and imprisonment was imposed despite the significant mitigating factors (at [41]-[42]).

Legislation and Cases Referenced

Legislation
- Crimes Act 1900
- Crimes (Sentencing Procedure) Act 1995

Cases
- Bugmy v R (2013) 249 CLR 571; [2013] HCA 37
- DPP (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194
- Kennedy v R [2010] NSWCCA 260
- R v Fernando [1992] 76 A Crim R 58
- R v Mazur (2000) 113 A Crim R 67
- R v Perrone (1989) 43 A Crim R 360