Court of Criminal Appeal Supreme Court New South Wales

• Medium Neutral Citation: Cohen v R [2011] NSWCCA 165
• Hearing dates: 20 July 2011
• Decision date: 28 July 2011
• Before: Allsop P at 1; Simpson J at 2; Buddin J at 72

Decision

1. Leave to appeal granted;

2. Appeal allowed in respect of count 1;

3. The applicant be re-sentenced as follows:

Count 2: imprisonment for 4 years, comprised of a non-parole period of 2 years and 6 months commencing on 21 July 2010 and expiring on 20 January 2013, with a balance of term of 1 year and 6 months, expiring on 20 July 2014;

Count 1: imprisonment for a term of 4 years, comprised of a non-parole period of 2 years commencing on 21 January 2011 and expiring on 20 January 2013, with a balance of term of 2 years, expiring on 20 January 2015.

• Catchwords: CRIMINAL LAW - application for leave to appeal against severity of sentence - break and enter of a school by applicant and younger brother - property stolen - arson - fire lit to destroy bloodstain left by applicant - extensive damage caused by fire - at liberty on bail at time of offences - error in finding that aggravated break enter and steal of mid-range of objective gravity - assessment influenced by greater objective seriousness of arson offence - failure to make appropriate allowance for special circumstances - leave granted - appeal allowed - applicant re-sentenced; CRIMINAL LAW - particular offences - s 112(2) Crimes Act aggravated break enter and commit serious indictable offence - s 195(1)(b) intentionally causing damage to property by fire
• Legislation Cited: Crimes Act 1900; Crimes (Sentencing Procedure) Act 1999
• Cases Cited: Pearce v The Queen [1998] HCA 57; 194 CLR 610; R v Huynh [2005] NSWCCA 220; R v McDonald, (unreported, 12 October 1998); R v Silver [1999] NSWCCA 108.; R v Thomson; R v Houlton [2000] NSWCCA 309; 49 NSWLR 383; R v Way [2004] NSWCCA 131; 60 NSWLR 168
• Category: Principal judgment
• Parties: Thomas Cohen (Applicant); Regina (Respondent)
• Representation: H Cox (Applicant); J Pickering/T Smith (Respondent); Aboriginal Legal Service (Applicant); Solicitor for Public Prosecutions (Respondent)
• File Number(s): 2009/219081

Decision under appeal

• Date of Decision: 2010-09-20 00:00:00
• Before: Woods ADCJ
• File Number(s): 2009/219081

Judgment

1 ALLSOP P: I agree with Simpson J.

2 SIMPSON J: The applicant seeks leave to appeal against the severity of sentences imposed upon him in the District Court at Dubbo on 20 September 2010, following his pleas of guilty to two counts on an indictment.

3 The first count was of aggravated break enter and commit serious indictable offence and, pursuant s 112(2) of the Crimes Act 1900, carries a maximum penalty of imprisonment for 20 years. Pursuant to Part 4 Div 1A of the Crimes (Sentencing Procedure) Act 1999 ("the Sentencing Procedure Act") a standard non-parole period of 5 years is prescribed (for offences in the mid-range of objective gravity). The "serious indictable offence" was larceny. The circumstance of aggravation was that the offence was committed in company (see Crimes Act s 105A). The second count on the indictment was of intentionally causing damage to property by fire (arson). Pursuant to s 195(1)(b) of the Crimes Act , that offence carries a maximum penalty of imprisonment for 10 years. No standard non-parole period is prescribed. Both offences were committed on 27 September 2009.

4 Having heard the evidence, Woods ADCJ sentenced the applicant. For the arson offence, he imposed a sentence of imprisonment for 4 years, commencing on 21 July 2010, with a non-parole period of 3 years. For the aggravated break enter and steal offence, he imposed a partially accumulated (by one year) sentence of imprisonment for 5 years, commencing on 21 July 2011, with a non-parole period of 3 years. The aggregate sentence was therefore of imprisonment for 6 years with a non-parole period of 4 years.

The Facts

5 The facts were put before the sentencing judge by way of an agreed statement. There was also a Victim Impact Statement. In addition, some evidence given by the applicant threw some additional light upon the circumstances of the offences. The facts can be reduced to a relatively simple outline.

6 The applicant, who was then 19 years of age, lived with his mother, younger brother and sister, aunt and cousin at an address in east Dubbo, in close proximity to the Buninyong primary school, which the applicant had attended.

7 27 September 2009 was a Sunday. Although the time of the offences is not clear from the materials, it appears that they were committed at night. The applicant, with his younger brother (15 years of age) following him, went to the Buninyong school, and broke into one of the school blocks. He stole property, which included, at least, two data projectors, a digital camera, a DVD player with remote control, a projector pole and a laptop computer.

8 During the course of his activities in one of the classrooms, the applicant injured or cut himself, causing bleeding onto the carpet. He appreciated that the blood could be used to identify him; he therefore lit a fire to destroy the bloodstain. This, of course, was the arson offence.

9 It was the applicant's intention merely to damage that part of the property onto which he had bled. However, the fire burned out of his control and caused immense damage - the building block was considered to be damaged beyond repair. A provisional estimate of the cost of rebuilding was $2 million. The contents of the building destroyed were valued at "up to" $250,000. Other consequential costs were incurred, such as costs of hiring and siting temporary classrooms, bringing the total estimated loss caused by the fire to between $2,350,000 and $2,500,000. There were also individual and personal costs. Six teachers lost personal teaching resources (some irreplaceable) that they had collected, as well as personal items of property. Some pupils' property was destroyed.

10 The school was classified as a "low socio-economic" school; sixty-four percent of its pupils were Aboriginal. Many of the pupils came from disadvantaged backgrounds. The principal of the school who prepared the Victim Impact Statement on behalf of the "school community" wrote of how "soul destroying" and "devastating" it had been to witness the fire when she was called to the school at 1:30am on 28 September. She said that staff were "gutted to see all their and their students hard work go up in smoke". She described it (fairly) as "an absolute senseless waste". She said that observing the aftermath of the fire, including the results of the Fire Brigade's efforts to control it, and police investigation, was distressing for many pupils.

11 The applicant surrendered himself to police on 1 October 2009. He remained in custody until sentencing for these offences. However, two months later, on 9 November he was dealt with in the Children's Court in respect of an offence of aggravated break enter and steal, and one of resisting a police officer in the execution of his duty, committed on 18 April 2008, and in respect of which the applicant was at liberty on bail. A control order of 13 months, commencing on 9 November 2009, with a non-parole period of 9 months and 23 days expiring on 31 October 2010, was imposed. Notwithstanding that the applicant surrendered himself, he did not enter a plea of guilty until the day on which the charges were listed for trial. The reason for that is not apparent.

The Applicant's Personal Circumstances

12 Both the applicant and his mother gave evidence in the sentencing proceedings. A pre-sentence report was before the Court.

13 As I have indicated, the applicant was 19 years of age at the time of the offences - just 19 and 1 month. He is of Aboriginal heritage. He was raised in Dubbo, and attended the school that he subsequently burned. His father left home when he was a baby and he has had little contact with him. However, he is said (by the author of the pre-sentence report) to have had a stable and supportive family environment and maintains a close relationship with his mother, who works as a nursing assistant at a local aged care centre. I would regard with some scepticism the assessment of a stable and supportive family environment; his mother gave evidence that, while she is now in regular employment, sixteen years ago she underwent rehabilitation herself and three of her other children have recently had encounters with the law.

14 Because of the problems his mother had earlier had, her own mother played a significant role in the upbringing of the applicant. She died in 2008, leaving the applicant with unresolved grief and loss issues.

15 At the time of the offences, the applicant had been in a relationship as a result of which a daughter (2 years of age at the time of sentencing) was born. It appears that this relationship had terminated at or about the time of the offences. His former partner has maintained regular contact with the applicant during his incarceration.

16 The applicant completed year 9 and left school, and has not undertaken any further training, nor held any paid employment.

17 He gave some conflicting information to the author of the pre-sentence report. He denied problematic alcohol consumption, and said that, although he had used cannabis while at school, he had ceased its use because he did not like its effect on him. Notwithstanding this, he said that, at about the time of the offences, he had used cannabis, and that he had been intoxicated to a point where he had no recollection of what he had done.

18 The applicant has a limited criminal record, predominantly for motor vehicle offences, including two of driving whilst never having held a licence to do so. There is also the offence of aggravated break enter and steal for which, in the Children's Court, in November 2009, he was subjected to the control order I have mentioned above. He had in fact been at liberty on bail in respect of these offences at the time of the offences.

19 In his evidence, the applicant expressed his remorse for the damage he had caused, and recognised that this extended to the stress imposed on teachers and pupils, and impacted upon their education and the community generally. While in custody he has undertaken some educational courses. He said that, at the time of the offences, he had personal issues, such as the termination of the relationship with his girlfriend, and also disagreements with his mother.

20 The applicant's mother confirmed much of what had been contained in the pre-sentence report, and said that she was considering relocating from Dubbo when the applicant is released.

The Remarks on Sentence

21 The sentencing judge recounted the facts of the offences and the applicant's personal circumstances. Having regard to the manner in which the grounds of the application are framed, it is convenient to set out some passages from the Remarks.

22 With respect to the aggravated break enter and steal offence, his Honour said:

"The first offence of break enter and steal is regarded as a very serious offence by the law and the community. Whether it is the break and enter of a house or a commercial or public premises, there is still a great deal of cost and loss to the community and the community is always calling for stronger measures to punish wrongdoers and deter possible offenders.

Then the initial offence is added to by the even greater damage and loss caused by the fire. Crimes like this do cost the community both in the need for more community resources to be spent on law and order and the cost to individual victims in the cases of household stealings and business for the loss and damage to their property.

In this case the premises was a major public institution, a school, of major importance to members of the community and the total loss to the community is estimated to be well over $2 million. These offences of course would have a wide range of circumstances. It can be said that a break and enter of a house where people are residing may be more serious than a break and enter of a public building, however it is not just a public building, it is a school and the theft of teaching aids and equipment in which the larger community has serious interest and concern and could be of critical importance to the daily education needs of many children." (emphasis added)

23 Later, in the context of considering the extent to which rehabilitation ought be taken into account, and whether any sentence other than imprisonment could properly be imposed, he said:

"However such a deliberate break and enter in such a public building to steal essential material for personal gain and then the lighting of a fire which in his words got out of control and then did so much damage does raise these offences into a level of extreme seriousness which must warrant a condign punishment of imprisonment."

24 In respect of the arson offence, his Honour said:

"And then, whilst the same could be raised in the situation of damage by fire, that fire in a private home where people are sleeping has a serious risk of loss of life yet the destruction of school buildings by fire only involves the destruction of property and no risk to human life, yet it again must be of serious concern to the wider community with the loss of essential public assets. As I have noted, I have a statement from the principal of the school which notes the effect of the loss on the teachers and students of the school and much of that loss would be incalculable, such as the loss of personal possessions and records."

He found that offence to be "at a high level of objective seriousness".

25 His Honour recognised that, by reason of the applicant's plea of guilty to the aggravated break enter and steal count, the standard non-parole period did not strictly apply: see R v Way [2004] NSWCCA131; 60 NSWLR 168, and that he retained a general sentencing discretion.

26 He expressed reservations about the degree of the applicant's rehabilitation, having regard to the earlier offence in respect of which he was on bail at the time of the present offences.

27 He found the aggravated break enter and steal offence to be at the mid-range of objective seriousness and considered the appropriate starting point to be a sentence of imprisonment for 6 years (head sentence) which he reduced, by reason of the plea of guilty, to 5 years, in accordance with the principles stated in R v Thomson; R v Houlton [2000] NSWCCA 309; 49 NSWLR 383. That represents a reduction of 16 percent. Given that the plea of guilty came at a late stage, no complaint could be (nor is) made about the extent of the reduction.

28 The judge turned to consider the aggravating and mitigating circumstances which are required, by s 21A of the Sentencing Procedure Act, to be taken into account. He said:

"I must have regard to the provisions of [the Sentencing Procedure Act] and in particular to s 21A, aggravating and mitigating factors. In considering aggravating factors I must not double count factors which are in fact in effect elements of the charge. Being in company is an aggravating element in the actual charge. The incident may not have been the result of a long term deliberate plan, but to break and enter such a public institution as a public school and steal such equipment for personal gain was a deliberate act.

It was clearly a deliberate act by the offender. He may have been drinking but what he did that night still involved deliberate decision and understanding what he was doing. I note what the offender has said, that he did not think it would all burn. It is all very well saying something like that but he did deliberately light the fire. By its nature, fire is an inherently dangerous act and as already noted, the destruction caused extreme dislocation and even disturbance amongst the people who relied upon that school.

Whilst he did state that he did not intend to do so much damage, he only wanted to remove the evidence of the bloodstain ... as I have already said, any fire in such a situation must always be seen as inherently dangerous. There was an intention to damage by fire, so he must be held responsible for the full extent of what happened. I do find that the damage by fire offence of a school building must be placed at the upper level of objective seriousness."

29 Finally, his Honour considered how to structure the sentences. He noted that the offences were separate, only related "because one followed the other in a continuum." He then said:

"However on the totality for a young person of his age I will consider some concurrency and then an appropriate period on parole to allow for such a young person to rehabilitate into the community."

30 In resect of the arson offence, to which no standard non-parole period applies, and which, anomalously enough, carries a maximum penalty of only half that of the aggravated break enter and steal, his Honour fixed a starting point of 5 years, which he reduced by reason of the plea of guilty, to 4 years - a reduction of 20 percent. (That, in my opinion, was generous, bearing in mind the late stage at which the plea was entered).

31 His Honour then imposed the sentences I have outlined above.

The Grounds of the Application

32 The grounds of the application are pleaded as follows:

"Ground 1: His Honour erred in his assessment of the objective seriousness of the aggravated break, enter and steal matter contrary to s 112(2) Crimes Act 1900.

Ground 2: His Honour erred in rejecting s 21A(3)(b) [of the Sentencing Procedure Act] as a mitigating factor.

Ground 3: His Honour erred in failing to consider special circumstances properly or at all.

Ground 4: The sentences imposed by his Honour were manifestly excessive."

At the hearing of the application, Ground 3 was amended to read:

"His Honour erred by:

a) Failing to make a finding of special circumstances and recording a reason for that decision in accordance with s 44 [of the Sentencing Procedure Act].

b) Failing to make an appropriate allowance for special circumstances."

Ground 1: Objective Seriousness of Aggravated Break Enter and Steal

33 As mentioned above, his Honour found that this offence was at the mid-range of objective seriousness. This, it was argued, was unwarranted.

34 In order to comply with the dictates of Pearce v The Queen [1998] HCA 57; 194 CLR 610 , it was necessary separately and objectively to evaluate the seriousness of this offence, uninfluenced by the dramatic circumstances of the arson offence. Compartmentalisation was essential.

35 As I understand the argument put on behalf of the applicant, two points were made about the manner in which his Honour dealt with the assessment of the objective seriousness of this offence.

36 The first was the apparent juxtaposition of his observations concerning that offence, with those concerning the arson offence (see the emphasised passages in the extracts in para [22] above). In doing so, it was suggested, his Honour impermissibly, in evaluating the assessment of the objective seriousness of the break and enter offence, allowed himself to be influenced by the far greater objective seriousness of the arson offence. Counsel for the applicant pointed to the passage, extracted above, in which his Honour said:

"Then the initial offence is added to by the even greater damage and loss caused by the fire..."

and the later reference to the loss caused by the fire. That was repeated in the later passage extracted above at [23].

37 These passages are open to the interpretation placed upon them. However, that is not the only interpretation, and it may be that his Honour was merely having regard to the question of totality. It cannot be that the break enter and steal offence was aggravated by what came later - that was a separate offence (and despite the respective maximum penalties provided and the penalties imposed, a vastly more serious one).

38 One way of testing whether the questioned remarks did deflect his Honour from a properly objective assessment of the gravity of the break enter and steal offence is to ask whether, absent the arson offence, an assessment of mid-range gravity was open to his Honour.

39 The break enter and steal offence involved breaking into a school, and stealing a significant quantity of equipment and property. The manner of the break and entry is not disclosed in the materials.

40 The applicant's argument was that, when separated from the arson offence, the break enter and steal offence could not reasonably be seen as of mid-range gravity. In order to understand the manner in which that argument was presented, it is necessary to understand the legislative provisions that create the offence. Section 112 of the Crimes Act is relevantly in the following terms:

"(1) A person who:

(a) breaks and enters any dwelling-house or other building and commits any serious indictable offence therein ...

is guilty of an offence and liable to imprisonment for 14 years.

(2) Aggravated offence

A person is guilty of an offence under this subsection if the person commits an offence under subsection (1) in circumstances of aggravation. A person convicted of an offence under this subsection is liable to imprisonment for 20 years.

(3) ..."

41 A "serious indictable offence" is defined in s 4 of the Crimes Act as meaning:

" ... an indictable offence that is punishable by imprisonment for life or for a term of 5 years or more."

42 Section 105A prescribes "circumstances of aggravation". They are the following:

"(a) the alleged offender is armed with an offensive weapon, or instrument;

(b) the alleged offender is in the company of another person or persons;

(c) the alleged offender uses corporal violence on any person;

(d) the alleged offender intentionally or recklessly inflicts actual bodily harm on any person;

(e) the alleged offender deprives any person of his or her liberty;

(f) the alleged offender knows that there is a person, or that there are persons, in the place where the offence is alleged to be committed."

43 The "serious indictable offence" which the applicant committed was larceny. By s 117 of the Crimes Act , the maximum penalty for that offence is imprisonment for 5 years - that is, at the very bottom of the range of sentences that will bring the break and enter offence within s 112. Other serious indictable offences that may be committed in the course of a break and entry that would bring that offence within s 112 include rape, assault, other offences of violence, and property damage. That the "serious indictable offence" was larceny, and not one of the more serious indictable offences specified in s 4, is a relevant circumstance in considering the objective gravity of the offence. The nature and value of the property the subject of the larceny is also a relevant consideration: R v Huynh [2005] NSWCCA 220 at 27, but not decisive. Here, there was no evidence of the value of the property stolen (as distinct from the value of the property destroyed in the fire).

44 A second matter relevant to the objective gravity of the offence is the circumstance that took the offence into the aggravated category. Here the circumstance of aggravation was that the applicant was in the company of another person. That, in itself, is, in the hierarchy of circumstances prescribed as of aggravation, of a relatively low level or order. In the circumstances of this case, that is more so when it is borne in mind that the person in whose company he was was his 15 year old brother, who had, effectively, simply tagged along. (The applicant's moral culpability in leading his younger brother into criminality, while worthy of condemnation, does not bear upon the objective gravity of the offence: see R v Way [2004] NSWCCA 131; 60 NSWLR 168).

45 As I have mentioned, in the assessment of objective gravity of this offence, the offence had to be quarantined from the very serious objective gravity of the arson. When that is done, it seems to me that error has been established. It was not open to find the aggravated break enter and steal to have been of mid-range gravity. Two important factors - the nature of the serious indictable offence, and the nature of the circumstance of aggravation - put the offence significantly below that level. In my opinion, the passages from the Remarks on Sentence I have extracted above, together with the assessment reached, establish that his Honour fell into the error of allowing the circumstances of the very serious arson offence to colour his perception of the break enter and steal offence.

46 In my opinion, this ground of appeal has been made good.

2: Sentencing Procedure Act s 21A(3)(b)

47 It was next complained that his Honour failed to take into account a relevant mitigating factor. Sections 21A(2) and (3) of the Sentencing Procedure Act set out, respectively, aggravating and mitigating factors that a sentencing court is obliged to take into account. Section 21A(3)(b) is:

"(b) the offence was not part of a planned or organised criminal activity"

Its counterpart in sub-s (2) is sub-s (2)(n):

"(n) the offence was part of a planned or organised criminal activity"

48 Counsel for the applicant interpreted the passage extracted above at [28] as rejection of a submission that the arson offence was not part of a planned or organised criminal activity.

49 I have difficulty in so reading the passage. While I accept that there is some lack of clarity, the paragraph in which it appears opens with a reference to aggravating factors. At the conclusion of that part of the Remarks, the sentencing judge moved to consider mitigating factors, starting with the applicant's plea of guilty.

50 In my opinion, the ground is based upon an erroneous reading of a specific passage in the Remarks on Sentence. It is true that his Honour made no reference to s 21A(3)(b) and no finding concerning any such mitigating factor. Had he done so, in my opinion (contrary to the submissions of the Crown) a finding favourable to the applicant would have been inevitable.

51 Notwithstanding that the observation appears in that part of the Remarks on Sentence that deal with aggravating factors, nor do I read it as a finding that the offence was part of a planned or organised criminal activity. It was merely an observation that, while the offence (at least the arson offence) was unpremeditated, it was nevertheless a conscious and deliberate act. This is correct and unobjectionable.

52 In my opinion, it was an error to fail expressly to advert to and accept the submission made on behalf of the applicant concerning an available mitigating factor. However, in all of the circumstances of this case, it was not, in my opinion, an error of any great moment.

3: Special Circumstances: s 44(1) Sentencing Procedure Act

53 Sections 44(1) and (2) provide as follows:

"(1) When sentencing an offender to imprisonment for an offence, the court is first required to set a non-parole period for the sentence (that is, the minimum period for which the offender must be kept in detention in relation to the offence).

(2) The balance of the term of the sentence must not exceed one-third of the non-parole period for the sentence, unless the court decides that there are special circumstances for it being more (in which case the court must make a record of its reasons for that decision). " (italics added)

54 I have set out above what the sentencing judge said about the structure of the sentences. He made no express reference to s 44 of the Sentencing Procedure Act. I do, however, read the reference to allowing the applicant an opportunity to rehabilitate into the community as a reference to special circumstances permitting departure from the statutory ratio. That is a very common reason given by sentencing judges for such a departure. It is also in part supported by the sentences imposed.

55 The sentence imposed in respect of the break enter and steal offence was varied from the statutory ratio: the non-parole period imposed is 60 percent (as distinct from 75 percent provided by s 44) of the head sentence. The sentence imposed in respect of the arson offence - 4 years with a non-parole period of 3 years - was precisely in accordance with the s 44 proportion.

56 Accumulation produced a different result. The aggregate sentence is of 6 years with a non-parole period of 4 years: the non-parole period is therefore 66.5 percent of the aggregate head sentence. While that is not an enormous variation, it is not insignificant: the non-parole period, if the s 44 proportions were applied, would have been 4 years and 6 months. The applicant has therefore received a benefit of a reduction in the non-parole period of 6 months.

57 However, the argument went further, and incorporated reference to the total of all sentences to which the applicant was subject, including the sentence imposed in the Children's Court in November 2009 and which the applicant had been serving until shortly before the imposition of these sentences. When that is factored in, the overall non-parole period is 70 percent of the overall head sentence, a reduction of only 5 percent.

58 The first question, therefore, is whether the determination of the proportion ought to have included that earlier sentence.

59 I am not persuaded that it was an error not to have taken the earlier sentence into account. The non-parole period of that sentence had expired three weeks before sentencing. The exercise which his Honour undertook was a discrete one, relevant to the two offences on the indictment.

60 A further argument was put, to the effect that his Honour failed to give reasons for his finding of special circumstances, making it difficult for this Court to appreciate whether, in the result, he achieved his purpose. Reference was made to the decisions of this Court in R v McDonald, (unreported, 12 October 1998) and R v Silver [1999] NSWCCA 108.

61 In my opinion, the reasons given for the finding were inadequate. They do not allow this Court, with confidence, to know why his Honour structured the sentences as he did. I am prepared to infer that it was his Honour's intention to allow the applicant an extended period on parole under supervision in order to give him the best chance of achieving his goal of rehabilitation. The allowance made was small, but not inadequate. I would reject this ground of appeal.

4: Manifestly Excessive?

62 On behalf of the applicant it was contended that both sentences are manifestly excessive. As the Crown accepts, the outcome of this ground in respect of the aggravated break enter and steal offence depends largely upon the outcome of ground one. As I would uphold ground one, I would also uphold this ground to the extent that it relates to that offence.

63 Counsel for the applicant had a more difficult task in asserting that the sentence imposed in respect of the arson offence was also manifestly excessive. His Honour found that this offence was "at a high level of objective seriousness"; that, having regard to the damage, can hardly be contested. There is, as I have suggested above, a clear anomaly in the prescribed maximum sentences for the two offences. A first reaction to the sentence imposed for the arson offence would suggest that it was extremely lenient. However, it is 40 percent of the maximum prescribed sentence, in respect of an unpremeditated offence, committed by a 19 year old (who was, it must be recognised, on bail at the time).

64 It was also contended that the applicant's motive in lighting the fire was not as serious as, for example, cases where such an offence is committed for vandalism or revenge, or to obtain insurance or reap damage upon others. The Crown contested this, suggesting that a motive of avoiding punishment for a less serious offence is no less serious than those. I accept the Crown's position on this. The applicant's motive was entirely self-protection, to avoid the consequences of the earlier committed offence.

65 I am unable to conclude that the head sentence was manifestly excessive. Nor do I consider that the non-parole period, of itself and standing alone, was manifestly excessive.

66 Given the view I have reached about ground one and the sentence imposed in respect of the aggravated break and enter offence, it will be necessary to re-sentence. Against that contingency, the Court accepted affidavit evidence showing that the applicant has applied himself whilst in custody and has undertaken educational courses. This is a positive development, and has some, although slight, bearing upon the sentences I propose. There are also concerns about the applicant's health. He is significantly underweight.

67 As I have indicated, I would not interfere in the head sentence imposed in respect of the arson offence. In respect of the aggravated break enter and steal offence, I consider that an appropriate sentence is imprisonment for 4 years, with a non-parole period of 2 years. I would reduce the degree of accumulation to 6 months, so that the sentence commences on 21 January 2011. This would produce an aggregate head sentence of 4 years and 6 months, with an overall non-parole period of 2 years and 6 months.

68 I am satisfied that the applicant will require significant rehabilitative assistance on his release, and would therefore, in respect of the arson offence, vary the statutory ratio by reducing the non-parole period to 2 years and 6 months.

69 I would not like it to be thought that I am not conscious of the extreme seriousness of the arson offence. This was an offence that, plainly, had an intense effect on a small and impoverished community, and on a band of dedicated teachers. Against that has to be balanced in the determination of a just sentence for a serious crime the youth and disadvantage of the applicant, and the impressive steps he has taken towards rehabilitation. Balancing these two considerations has not been an easy task. Ultimately, I have leaned in favour of rehabilitation.

70 The orders I propose are as follows:

1. Leave to appeal granted;

2. Appeal allowed in respect of count 1;

3. The applicant be re-sentenced as follows:

1. Count 2: imprisonment for 4 years, comprised of a non-parole period of 2 years and 6 months commencing on 21 July 2010 and expiring on 20 January 2013, with a balance of term of 1 year and 6 months, expiring on 20 July 2014;

2. Count 1: imprisonment for a term of 4 years, comprised of a non-parole period of 2 years commencing on 21 January 2011 and expiring on 20 January 2013, with a balance of term of 2 years, expiring on 20 January 2015.

71 The applicant would be eligible for release on parole on 20 January 2013.

72 BUDDIN J: I agree with Simpson J.

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Decision last updated: 22 August 2011