Citation: R v Rosenow [2022] NSWDC 126
Court: District Court of New South Wales
Date: 26 April 2022
Judge(s): Grant DCJ
Background
The offender, a 32-year-old Rural Fire Service (RFS) volunteer of more than ten years, pleaded guilty to three charges of intentionally causing a fire and being reckless as to its spread to vegetation on public land, contrary to section 203E(1) of the Crimes Act 1900. A fourth offence of the same type was taken into account on a Form 1 (a mechanism that allows additional, uncharged or uncommitted offences to be factored into the one sentence without separate punishment).
On multiple occasions in December 2020 and January 2021, the offender drove along Whitton Darlington Point Road in rural New South Wales, stopped his vehicle, and used a lighter to ignite dry roadside grass. After each incident, he returned home and then attended the resulting fire call-out in his capacity as an RFS volunteer. Police identified him through electronic monitoring and arrested him on 22 January 2021. He made full admissions in a recorded interview.
The offender told police he believed he was conducting unauthorised hazard reduction burns. He had been in continuous custody from the date of arrest, amounting to more than 15 months by the time of sentencing.
Legal Issues
- Where the offences fell on the range of objective seriousness, given the absence of major property damage but the deliberate and repeated nature of the conduct
- Whether the offender's status as a trained RFS volunteer increased his moral culpability
- The appropriate sentence after applying a 25% discount for an early guilty plea
- Whether special circumstances existed justifying a reduction in the proportion of sentence served before parole eligibility
- How the Form 1 offence should be reflected in the overall sentence
Decision
Grant DCJ assessed each offence as falling towards the lower end of the range of objective seriousness. The fires were small grass fires extinguished within a few hours, and the Crown conceded there was no significant property damage. However, the conduct was deliberately repeated over multiple occasions during summer in a rural area, which the offender, given his decade of RFS experience, must have understood created real risk of a major blaze.
The offender's role as a volunteer firefighter was treated as an aggravating factor increasing moral culpability, following the Court of Criminal Appeal's decision in Lambkin v R [2020] NSWCCA 327. His conduct was, in the court's words, "diametrically opposed" to everything expected of a trained firefighter. General deterrence was given significant weight, reflecting the legislature's decision to increase the maximum penalty from 14 to 21 years and the community's heightened concern about deliberately lit bushfires.
The subjective case in the offender's favour was strong. He had no prior criminal history, made full admissions at arrest, entered an early guilty plea, and showed genuine remorse. A clinical psychologist's report identified underlying mental health issues and alcohol use disorder, and the offender had good prospects of rehabilitation. The court accepted that his treatment needs would be better met in the community, providing the basis for a special circumstances finding under section 44(2) of the Crimes (Sentencing Procedure) Act 1999, which allowed the non-parole period to be set at 66% of the head sentence rather than the standard 75%.
The court found that no penalty short of full-time imprisonment was available, but applied the 25% early guilty plea discount to each indicative sentence and structured an aggregate term that reflected the totality of the criminality across all three charged offences and the Form 1 matter.
Orders Made
- Aggregate term of imprisonment of 3 years and 6 months, commencing 22 January 2021 and expiring 21 July 2024
- Non-parole period of 2 years and 4 months, with parole eligibility from 21 May 2023
- Indicative sentence for Sequence 1: 1 year and 9 months (indicative non-parole period: 1 year)
- Indicative sentence for Sequence 3: 2 years and 6 months (indicative non-parole period: 1 year and 8 months)
- Indicative sentence for Sequence 5: 16 months imprisonment (indicative non-parole period: 11 months)
Key Takeaways
- A convicted offender's membership in a volunteer emergency service can increase moral culpability where the offending is directly contrary to the responsibilities that membership entails, following Lambkin v R [2020] NSWCCA 327.
- The District Court placed each offence at the lower end of objective seriousness, principally because the fires caused no significant property damage and were extinguished quickly, but the repeated and deliberate nature of the conduct over multiple days weighed against the offender.
- General deterrence carries particular weight in sentencing for deliberately lit fires, as reflected in the legislature's increase of the maximum penalty to 21 years imprisonment and the community's well-documented concern about bushfire risk.
- Under section 44(2) of the Crimes (Sentencing Procedure) Act 1999, a finding of special circumstances can reduce the proportion of the sentence to be served before parole eligibility below the standard 75%, where post-release rehabilitation needs are best addressed in the community.
- Hardship arising from COVID-19 custodial conditions, including lockdowns and restricted family contact, was treated as a relevant mitigating factor, consistent with a line of NSW and interstate authorities decided from 2020 onwards.
Legislation and Cases Referenced
Legislation
- Crimes Act 1900 (NSW), s 203E(1)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 5, 25D(2)(a), 32, 44(2)
Cases
- Attorney General's Application Under s 37 of the Crimes (Sentencing Procedure) Act 1999 No. 1 of 2002 [2002] NSWCCA 518
- DPP v Tennison [2020] VCC 343
- Lambkin v R [2020] NSWCCA 327
- McKinnon v R [2020] NSWCCA 106
- R v Kelso [2020] NSWDC 157
- R v Mills [2005] NSWCCA 175
- R v Tangi (No 12) [2020] NSWSC 547
- Valentine v R [2020] NSWCCA 116