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Court of Criminal Appeal 11 December 2020

Lambkin v R

[2020] NSWCCA 327

Public order & justice offences
CRIMINAL LAW OFFENCES SENTENCE APPEAL WHETHER SENTENCE MANIFESTLY EXCESSIVE NO ERROR ESTABLISHED

Citation: Lambkin v R [2020] NSWCCA 327
Court: Court of Criminal Appeal, NSW
Date: 11 December 2020
Judges: Simpson AJA, Bellew J (principal judgment), Campbell J

Background

The applicant, a retained firefighter stationed at Abermain, pleaded guilty in the District Court to two counts of intentionally encouraging his brother to commit an offence of intentionally causing a fire while being reckless as to the spread of that fire to vegetation on public land. The fires occurred on 18 January 2017 and 24 January 2017, both days on which the Bureau of Meteorology had assessed fire danger as "very high" and fire crews had been directed to patrol their areas.

On 18 January, text messages between the brothers preceded the co-offender entering bushland near Kurri Kurri, where fires burned out of control for hours, damaging approximately 986 hectares of bushland in total across two locations, forcing evacuations of homes and closing the Hunter Expressway. On 24 January, the co-offender visited the applicant's home shortly before a fire ignited behind the Kurri Kurri Aquatic Centre, which also burned out of control and resulted in the evacuation of the aquatic centre, a local hospital, and nearby homes. The applicant was himself called out to fight the fire he had encouraged his brother to start.

The agreed facts established that the applicant had asked his brother to light the fires and had informed him of the best locations to do so. A co-conspirator was to supply the co-offender with cannabis as payment. The sentencing judge imposed an aggregate sentence of 7 years and 9 months' imprisonment with a non-parole period of 5 years and 2 months. The applicant sought leave to appeal that sentence.

  • Whether the sentencing judge erred in treating the applicant's status as a retained firefighter as a factor aggravating his moral culpability
  • Whether the sentencing judge made an error in assessing the applicant's remorse
  • Whether the sentencing judge erred in calculating the discount for the guilty plea and cooperation
  • Whether the sentencing judge failed to properly take into account the applicant's mental state
  • Whether the sentencing judge erred in the way he dealt with two additional identical offences taken into account on a Form 1
  • Whether the aggregate sentence was manifestly excessive

Decision

Bellew J, with whom Simpson AJA and Campbell J agreed, dismissed all grounds of appeal and found none had merit. A significant obstacle confronting the applicant was that several arguments raised on appeal were directly inconsistent with concessions made by his own counsel in the District Court below. The Court treated those abandoned positions as binding, and declined to allow the applicant to re-agitate matters that had been expressly conceded at first instance.

On the question of the applicant's role as a retained firefighter, the sentencing judge had taken that status into account when assessing moral culpability. The Court of Criminal Appeal held this was entirely appropriate. The applicant had been on active patrol duty on both days of offending, had personally directed his brother to suitable ignition sites, and had then been called out and paid to fight the very fires he had encouraged. That context plainly elevated the seriousness of the conduct.

The sentencing judge's assessment of remorse was also upheld. The applicant's expression of remorse was weighed against the objective circumstances of his offending and his conduct, and the sentencing judge was entitled to accord it limited weight. Similarly, no error was identified in the calculation of the guilty plea discount or in the treatment of the Form 1 offences, nor was any operative failure demonstrated in relation to the applicant's mental state.

On manifest excess, the Court found no error in the overall sentence. Given the gravity of the offending, the applicant's position of trust as a firefighter, the extensive damage caused, and the impact on the community, the aggregate sentence was within the available range and could not be characterised as excessive.

Orders Made

  • Leave to appeal against sentence is refused.

Key Takeaways

  • A sentencing court may properly treat a defendant's professional role as an aggravating factor in assessing moral culpability, particularly where that role is directly relevant to the nature and execution of the offence.
  • No error was established in the sentencing judge's limited assessment of the applicant's remorse, where objective circumstances surrounding the offending were inconsistent with a genuine or compelling expression of contrition.
  • Arguments raised for the first time on appeal that were inconsistent with concessions made in the court below will not ordinarily be entertained by the Court of Criminal Appeal.
  • In dismissing each ground of appeal, the Court confirmed that a guilty plea discount and allowance for assistance must be assessed on the facts as presented at sentencing, and the applicant bore the burden of demonstrating error in the sentencing judge's approach.
  • Sufficient objective seriousness existed to sustain the aggregate sentence: the fires burned out of control across hundreds of hectares, forced hospital and residential evacuations, and were set on days of declared extreme fire danger by a person paid to prevent exactly that outcome.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 203E(1) and 346
- Crimes (Sentencing Procedure) Act 1999 (NSW)

Cases:
- R v Thomson; R v Houlton (2000) 49 NSWLR 383; [2000] NSWCCA 309
- R v Pont (2000) 121 A Crim R 302; [2000] NSWCCA 419
- Dinsdale v The Queen (2000) 202 CLR 321; [2000] HCA 54
- R v Baker [2000] NSWCCA 85
- Nguyen v R (2004) 149 A Crim R 343; [2004] NSWCCA 332
- R v Mills (2005) 154 A Crim R 40; [2005] NSWCCA 175
- Einfeld v R (2010) 266 ALR 598; [2010] NSWCCA 87
- Dionys v R (2011) 217 A Crim R 280; [2011] NSWCCA 272
- Tiknius v R (2011) 221 A Crim R 365; [2011] NSWCCA 215
- Ryan v R [2009] NSWCCA 183
- Zreika v R (2012) 223 A Crim R 460; [2012] NSWCCA 44
- R v Calcutt (2012) 221 A Crim R 505; [2012] NSWCCA 40
- Abbas & ors v R (2013) 231 A Crim R 413; [2013] NSWCCA 115
- Van Zwam v R [2017] NSWCCA 127
- R v DP [2019] NSWCCA 55
- Attorney General's Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 (No 1) of 2002 (2002) 56 NSWLR 146; [2002] NSWCCA 518