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District Court 20 May 2021

R v Zeng (No 2)

[2021] NSWDC 187

Fraud & dishonesty
ARSON COMMITTED FOR FINANCIAL GAIN

Citation: R v Zeng (No 2) [2021] NSWDC 187
Court: District Court of New South Wales
Date: 20 May 2021
Judge(s): Mahony SC DCJ

Background

Following a judge-alone trial in late 2020, the offender was convicted of one count of arson under section 197(1)(b) of the Crimes Act 1900: dishonestly damaging a warehouse and its contents by fire, with a view to making a financial gain for himself. The warehouse was located in an industrial area of Auburn, Sydney. The offender had been in custody since his arrest on 15 August 2019.

The sentencing hearing took place on 12 March 2021. The facts were derived from the trial judgment delivered on 16 December 2020 ([2020] NSWDC 761), which found, on a circumstantial case, that the offender had deliberately lit the fire and had been untruthful across at least 30 separate aspects of his evidence.

These remarks on sentence addressed the objective seriousness of the offending, applicable aggravating and mitigating factors, the offender's subjective circumstances (including significant eye health problems and difficult custodial conditions), and the question of whether special circumstances existed to justify varying the standard non-parole period ratio.

Legal Issues

  • What was the objective seriousness of the arson offence under section 197(1)(b) of the Crimes Act 1900?
  • Which aggravating factors under section 21A(2) of the Crimes (Sentencing Procedure) Act 1999 applied?
  • What weight, if any, should be given to the offender's claimed remorse, poor health, and difficult custodial conditions?
  • Did special circumstances exist under section 44(2) of the Crimes (Sentencing Procedure) Act 1999 to vary the statutory ratio between the head sentence and the non-parole period?
  • What sentence was appropriate, taking into account the purposes of sentencing and the relevant case law on arson?

Decision

Objective seriousness

The court assessed the offending as clearly in the mid-range of objective seriousness for an arson offence under section 197(1)(b) (at [66]). The fire occurred on the evening of a public holiday in a commercial warehouse within a densely populated industrial area close to a motorway. Although the timing reduced the risk to the general public, first responders attending a major fire were put at risk, and the warehouse suffered substantial damage (at [66]).

Aggravating factors

The court identified two applicable aggravating factors under section 21A(2) of the Crimes (Sentencing Procedure) Act 1999. First, the offence was committed without regard to public safety, exposing occupiers of nearby buildings, members of the public, and first responders to risk (at [67]). Second, the offending was a planned or organised activity under section 21A(2)(n), although the planning lacked sophistication: the offender left an obvious trail of evidence, including CCTV footage of him purchasing fire lighters on his way to the premises (at [68]).

Remorse, insight, and rehabilitation

The court found that the offender displayed limited insight into his offending and showed no genuine remorse (at [69]). He had maintained his innocence throughout trial and at sentence, and the court rejected his explanation that a statement to the Sentencing Assessment Report author that he had lit the fire was made on the advice of an unnamed lawyer. The court also declined to accept his expressions of remorse to the forensic psychologist (at [69]). The offender's prospects of rehabilitation were assessed as poor, in part because he did not concede a gambling addiction that appeared to have motivated the offending (at [71]).

Subjective circumstances and special circumstances

The court found that the offender suffered onerous custodial conditions due to serious eye-sight problems, limited access to Mandarin interpreters, minimal visitation, and the effects of the COVID-19 pandemic. However, there was insufficient evidence to establish that his ill health created a serious risk of grave adverse effect on his health in custody, which would have been required to treat health as a standalone mitigating factor (at [72]). Nonetheless, the combination of the offender's eye-sight and language difficulties, COVID-19 conditions, and the fact that it was his first time in custody established special circumstances under section 44(2) of the Crimes (Sentencing Procedure) Act 1999, justifying a variation of the statutory non-parole period ratio (at [73]).

Orders Made

  • The offender was convicted of arson contrary to section 197(1)(b) of the Crimes Act 1900.
  • Sentenced to a total term of imprisonment of 5 years.
  • Non-parole period of 3 years, commencing 15 August 2019 and terminating 14 August 2022.
  • Balance of term of 2 years, from 15 August 2022 to 14 August 2024.
  • The court noted the offender may be committed to immigration custody upon the expiry of the non-parole period.

Key Takeaways

  • Under section 197(1)(b) of the Crimes Act 1900, where arson is committed for financial gain in a commercial setting near a public holiday, with multiple points of ignition and expert evidence excluding accidental causes, the offending may fall in the mid-range of objective seriousness even where few members of the public were directly endangered at the time (at [66]).

  • General deterrence carries significant weight in sentencing for arson: the District Court followed Porter v R [2008] NSWCCA 145 in emphasising that courts should impose condign punishment where members of the public, first responders, and neighbouring properties are placed at risk (at [70]).

  • A disregard for public safety under section 21A(2)(i) of the Crimes (Sentencing Procedure) Act 1999 can be established even where the timing of an arson reduced risk to bystanders, provided that first responders and occupants of nearby buildings were still exposed to danger (at [67]).

  • Special circumstances under section 44(2) of the Crimes (Sentencing Procedure) Act 1999 were established where the combination of serious medical issues, language isolation, and the conditions of a first-time custodial sentence warranted a lengthened parole period, even without evidence meeting the higher threshold required to treat ill health as a mitigating factor under Doudar v R [2021] NSWCCA 37 (at [72]-[73]).

  • Claimed remorse expressed to a forensic psychologist carries little weight where the offender simultaneously denies the offending at sentence, maintains a mendacious account rejected at trial, and advances an implausible explanation for any concessions made during the sentencing process (at [69]).

Legislation and Cases Referenced

Legislation
- Crimes Act 1900
- Crimes (Sentencing Procedure) Act 1999

Cases
- Doudar v R [2021] NSWCCA 37
- Porter v R [2008] NSWCCA 145
- R v Pham [2005] NSWCCA 94
- R v Zeng [2020] NSWDC 761