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District Court 30 April 2021

R v Masters

[2021] NSWDC 315

Theft & property

Citation: R v Masters [2021] NSWDC 315
Court: District Court of New South Wales
Date: 30 April 2021
Judge: Bright DCJ

Background

The offender, a 56-year-old man, appeared for sentence on one count of intentionally or recklessly destroying property by fire under s 195(1)(b) of the Crimes Act 1900 (NSW). The fire occurred on 30 October 2018 at a 30-unit apartment complex in Gosford owned and managed by Compass Housing Services Co Ltd, where the offender held a lease on one of the units.

The offender deliberately ignited a mattress in the main bedroom of his unit at approximately 11 am that day. The fire spread rapidly through the unit, engulfed the building, and caused approximately $2.1 million in damage. All residents were displaced, several elderly occupants fled leaving personal belongings, and a number of animals perished in the fire.

The offender pleaded guilty on arraignment in March 2020, but on the basis that he had acted recklessly rather than intentionally. The Crown disputed this and sought findings of fact to establish intentional destruction. A four-day disputed facts hearing was held before sentence was determined.

  • Whether the Crown could establish beyond reasonable doubt that the offender acted intentionally to destroy the apartment complex, as distinct from recklessly
  • Whether specific disputed facts (a second ignition point, use of a mattress to intensify the fire, motivation, and steps to extinguish) were proved to the required standard
  • What sentence was appropriate having regard to the objective gravity of the offence, the offender's subjective circumstances, and the relevant purposes of sentencing
  • Whether special circumstances existed to justify departing from the statutory ratio between the non-parole period and the balance of term
  • Whether the earlier sentence for a related offence should be served concurrently or cumulatively with the sentence imposed

Decision

Disputed facts findings. Following the four-day hearing, Bright DCJ was not satisfied beyond reasonable doubt that the offender had intentionally destroyed the apartment complex. The court found one deliberate ignition in the main bedroom but could not exclude the possibility that the second bedroom fire ignited from drop-down rather than a second deliberate act. The court was also not satisfied that the offender used a mattress to intensify the fire, that his motivation involved acrimony toward Compass Housing, or that he had made no attempt to extinguish the fire (though the court was not satisfied on the balance of probabilities that he had taken any such steps). Accordingly, the offender was sentenced on the basis of recklessness.

Objective seriousness. The offence was treated as one of considerable objective gravity. The damage was extensive, the building was rendered uninhabitable, all residents were displaced, and the estimated loss exceeded $2.1 million. The offender's demeanour at the scene (described by a neighbour as calm, smug, and nonchalant) was also noted, though findings on the precise words he used were limited by the evidentiary standard applied.

Subjective circumstances. The court considered a difficult personal background, including a troubled upbringing that was relevant under the principles in Bugmy v R (2013). The offender had a history of significant drug use, which was connected to the offending. These matters reduced his moral culpability to some extent but did not displace the need for a substantial custodial term. The court was unable to find at the time of sentencing that the offender was unlikely to reoffend.

Special circumstances and commencement. The court was satisfied that special circumstances existed, given the offender's need for extended post-release supervision to support abstinence from prohibited drugs. This justified varying the statutory ratio to reduce the non-parole period relative to the balance of term. The earlier sentence for using a carriage service to threaten to kill was treated as wholly cumulative, given the seriousness of that separate offending, and the present sentence was backdated to 20 March 2019 (the day after that earlier sentence concluded).

Orders Made

  • Convicted of one offence of damaging property by fire contrary to s 195(1)(b), Crimes Act 1900 (NSW)
  • Sentenced to imprisonment with a non-parole period of 3 years and 10 months, commencing 20 March 2019 and expiring 19 January 2023
  • Balance of term of 2 years, expiring 19 January 2025
  • Starting term of 6 years and 6 months, discounted by 10% for the guilty plea
  • Special circumstances found; statutory ratio between non-parole period and balance of term varied
  • Earliest parole eligibility date: 19 January 2023

Key Takeaways

  • A disputed facts hearing in sentencing requires the Crown to prove aggravating factual matters beyond reasonable doubt; where that standard is not met, the offender is sentenced on the more favourable version of events (here, recklessness rather than intention).
  • The District Court confirmed that a difficult upbringing and background of disadvantage, assessed under Bugmy v R, can reduce an offender's moral culpability even for serious property offences, without displacing the need for significant imprisonment.
  • Where multiple distinct offences arise from a related period of conduct, the question of concurrency or cumulation turns on the objective seriousness of each and the principles of totality; the court here ordered full accumulation given the gravity of both matters.
  • Special circumstances under s 44(2) of the Crimes (Sentencing Procedure) Act 1999 (NSW) were established by the offender's entrenched drug dependency and the corresponding need for extended supervised parole rather than by any single unusual feature of the offending.
  • A 10% sentencing discount for a guilty plea entered on arraignment reflects the timing of the plea relative to the available discount range; entry at that stage does not attract the maximum discount available for very early pleas.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), s 195(1)(b)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 5(1), 44(2)

Cases
- Bugmy v R (2013) 249 CLR 571; [2013] HCA 37
- Porter v R [2008] NSWCCA 145
- R v Pitt [2001] NSWCCA 156