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District Court 8 July 2022

R v Thompson

[2022] NSWDC 724

Assault & violencePublic order & justice offences
CRIME RELEVANT FACTORS ON SENTENCE BREACH OF COMMUNITY CORRECTIONS ORDER S EARLY GUILTY PLEA TARGETED ARSON OFFENCE YOUNG OFFENDER

Citation: R v Thompson [2022] NSWDC 724
Court: District Court of New South Wales
Date: 8 July 2022
Judge: Haesler SC DCJ

Background

The offender, a young Aboriginal man born in 2001, pleaded guilty to one charge of damaging property by fire with intent to injure under s 196(1)(b) of the Crimes Act 1900, carrying a maximum penalty of 14 years imprisonment. He also asked the court to take into account a second, earlier offence of the same kind on a Form 1 (a procedure that allows additional offences to be considered at sentencing without separate convictions being recorded for them).

Both offences occurred at a residential unit block in Wollongong. The offender had formed a grievance against a young woman who lived in the building, for reasons that remained unclear. On 26 June 2021, he placed two pillows in the stairwell of her building and set them alight. A resident extinguished the fire using a bucket of water. Threatening notes were later delivered to the complainant's unit. Then, in the early hours of 13 July 2021, the offender and another person carried a double mattress into the same stairwell and set it alight, blocking the only means of escape for occupants. The sprinkler system suppressed the fire, and firefighters fully extinguished it. Minor smoke and water damage resulted, but the potential for serious injury or death was significant.

At the time of the offences, the offender was serving sentences subject to Community Corrections orders. The court also dealt with those breaches at the same sentencing hearing. The offender had a background marked by childhood trauma, limited education, substance abuse involving ice, Xanax and alcohol, and mental health issues.

  • What was the appropriate sentence for a targeted arson offence inside a residential unit block, where actual damage was limited but potential for serious harm was high?
  • How should an early guilty plea, a Form 1 offence, breaches of Community Corrections orders, the offender's youth, and his background of disadvantage and trauma be weighed in fixing the sentence?
  • Whether a full-time custodial sentence was required, or whether an Intensive Correction Order (ICO) was a viable alternative.
  • What finding of special circumstances was appropriate, given the offender's need for rehabilitation and supervision on release?

Decision

Haesler SC DCJ characterised the objective seriousness of the offending as substantial. The motive was revenge for a perceived grievance of no real consequence. The offence was targeted at a specific young woman, involved planning (the mattress had to be obtained and transported), and was repeated. The stairwell fire had the potential to trap and endanger every occupant of the block. Although actual property damage was minor, that outcome was attributable only to the prompt response of a resident and the fire service, not to any restraint on the offender's part.

The court placed considerable weight on general deterrence, drawing on Porter v R [2008] NSWCCA 145 and R v Pitt [2001] NSWCCA 156, noting that arson within residential buildings is easy to commit, often difficult to detect, and carries catastrophic potential. The Form 1 offence increased the need for personal deterrence and retribution, though the court was careful not to double-count matters already reflected in the principal sentence.

In mitigation, the court accepted the utilitarian value of the early guilty plea, entitling the offender to a 25% reduction. His youth, background of significant disadvantage and trauma, and expressed intention to engage in rehabilitation were all taken into account, though the court noted that nearly a year on remand had produced no concrete rehabilitative progress beyond clearer thinking while drug-free. An ICO was rejected as inadequate given the seriousness of the offence and the need to protect community safety. A finding of special circumstances was made, resulting in a parole period equal to the non-parole period, to allow for the extensive supervision and drug rehabilitation support the offender would need on release.

The breaches of Community Corrections orders were treated as an aggravating factor in fixing the head sentence. To avoid double-counting, the court imposed only a three-month concurrent sentence for one breach (intimidating a bus driver), backdated to the sentence start date and already served. Two obtain-by-deception breach matters were dealt with under s 10A of the Crimes (Sentencing Procedure) Act 1999 (that is, findings of guilt were recorded but no further penalty was imposed).

Orders Made

  • Total sentence of three years and four months imprisonment for the principal offence (s 196(1)(b) Crimes Act 1900), backdated to commence 1 September 2021.
  • Non-parole period of one year and eight months, with eligibility for release to parole from 30 April 2023. Parole period of one year and eight months (a finding of special circumstances, extending parole beyond the statutory one-third).
  • Release to parole subject to the decision of the State Parole Authority, including determination of whether release is to home or a residential rehabilitation facility.
  • Breach of Community Corrections order (intimidating a bus driver): three months imprisonment, commencing 1 September 2021 (already served).
  • Breach of Community Corrections orders (obtain benefit by deception matters): s 10A findings made, no further penalty imposed.
  • A 25% reduction applied to the head sentence to reflect the utilitarian value of the early guilty plea.

Key Takeaways

  • Arson within residential buildings attracts significant weight on general deterrence at sentencing, given the ease of commission, difficulty of detection, and potential for catastrophic harm to occupants, even where actual damage is limited.
  • Limited actual property damage does not reduce objective seriousness where that outcome depended entirely on prompt intervention by others rather than any restraint by the offender.
  • A 25% reduction from the otherwise appropriate sentence applied where a guilty plea was entered at the Local Court stage, consistent with the utilitarian value recognised under the Crimes (Sentencing Procedure) Act 1999.
  • Where an offender commits offences while on Community Corrections orders, that breach is an aggravating factor; however, a court must take care not to double-count that fact when separately dealing with the formal breaches at the same hearing.
  • A finding of special circumstances was appropriate where a young offender with entrenched substance abuse, mental health issues, and a background of disadvantage required an extended parole period to access rehabilitation and supervision, reducing the risk of institutionalisation.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), s 196(1)(b)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 10A, 37

Cases
- Attorney General's Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 [2013] NSWCCA 115; (2002) 56 NSWLR 146 (guideline judgment on Form 1 offences)
- Porter v R [2008] NSWCCA 145
- R v Pitt [2001] NSWCCA 156