R v Gray [2003] ACTSC 81 (25 September 2003)

Last Updated: 24 November 2003

The Queen v Dennis Michael Gray

[2003] ACTSC 81 (25 September 2003)

Ex Tempore Judgment

SENTENCING - causing a bushfire - factors relevant to sentencing - general deterrence.

Crimes Act 1900, s 341

Criminal Code 2002, s 105

No SCC 29 of 2003

Judge: Connolly J

Supreme Court of the ACT

Date: 25 September 2003

IN THE SUPREME COURT OF THE )

) No SCC 29 of 2003

AUSTRALIAN CAPITAL TERRITORY )

THE QUEEN

v

DENNIS MICHAEL GRAY

ORDER

Judge: Connolly J

Date: 25 September 2003

Place: Canberra

THE COURT ORDERS THAT:

1. The accused be sentenced to imprisonment for a period of five years with a non-parole period of two and a half years.

1. On 25 September 2003 I sentenced the accused, Mr Gray, in relation to the offence of causing a bushfire. My remarks on sentence were as follows.

2. Mr Gray, you are before this Court having pleaded guilty to the offence that on 22 January you did intentionally light a fire. The offence to which you have pleaded guilty and for which I record a conviction is the offence that was created by the Parliament of this Territory only in 2002 in s 105 of the Criminal Code 2002.

3. The Parliament saw fit to regard this, as has been acknowledged by your counsel and stressed to me by Ms Whitbread, as a very serious offence. The offence of intentionally or recklessly setting fire to vegetation on property belonging to someone else described in the Criminal Code as simply "causing bushfires" is an offence for which Parliament has said the maximum penalty is 15 years imprisonment, or a very substantial fine, or both.

4. In sentencing any offender the Parliament has set down in s 341 of the Crimes Act 1900 (the Crimes Act) the factors which the Court should take into account. Parliament has said that the only purposes for which a sentence may be imposed are to punish the offender to an extent and in a way that is just and appropriate in all the circumstances, to deter the offender or other persons from committing the same or similar offence, to rehabilitate the offender or to make it clear that the community, acting through the court, denounces the type of conduct in which the offender engaged, or to protect the community from the offender, or a combination of two or more of the purposes referred to in s 341(a) to (e).

5. It seems to me that this Court must regard this offence as one of significant seriousness. 22 January 2003 was four days into the bushfire emergency. In early January of this year a major fire started in the hills to the west of Canberra. The precise cause of that fire is yet unknown with any certainty, and indeed Magistrate Doogan is currently commencing a Coronial Inquiry into the causes of that fire. As I understand the situation, at least publicly, the most likely cause at the moment is seen to have been lightning strikes somewhere in those mountains, whether on the Australian Capital Territory side of the surveyors line that divides the Australian Capital Territory from New South Wales in that wilderness area, or on the New South Wales side of that line, will no doubt be determined in due course.

6. But nonetheless it is a matter of notoriety that that fire spread. And on 18 January 2003 it hit the western areas of the Australian Capital Territory with great savagery. It was the largest natural disaster that this community has ever suffered. Four of our fellow citizens lost their lives. Some 500 houses were destroyed, businesses were destroyed, thousands of people lost their homes, taking into account that they were family homes. Many people lost their businesses and their livelihoods. Our community is still recovering.

7. In the pre-sentence report it is recorded that you stated to the Corrections Officer that you were unaware of the emergency conditions. I will accept that you may not have known that there was a state of emergency declared, that is a legal concept, but I find it incredible that any person who was resident, or in the Australian Capital Territory, in that week beginning 18 January 2003 was unaware that we were in a state of extreme fire emergency. The skies were black for over a week, the sound of helicopters was a constant refrain. Everybody in this town knew that we were facing a fire emergency.

8. The facts on which you are sentenced are that on 22 January 2003 two citizens who were security officers at the Chifley on Northbourne Hotel, a Mr Joseph and a Mr Jackson observed you crouching near a fence on a building site at the corner of Mason Street and Northbourne Avenue in Turner, and using a lighter to set fire to grass near the fence. The facts are that Mr Jackson saw the grass catch fire and spread to an 8 by 3 metre area behind the fence, and you were seen to walk away.

9. Mr Jackson and Mr Joseph ran over to the fire. Mr Joseph called the police while Mr Jackson followed you, told you to stop. I am not sure whether he physically restrained you, but he certainly was with you until the police arrived. It seems that the other gentleman assisted other passers-by to put the fire out. The community owes a debt of gratitude to Mr Joseph and Mr Jackson.

10. Police attended, you were immediately searched, and a gas lighter was found in your possession. At the time you denied the lighting of the fire but within a relatively short period you acknowledged your guilt and indicated an intent to plead guilty. And that is always a factor that must be taken into account. You have some health difficulties, and that is a factor to be taken into account in relation to your individual circumstances.

11. The Crimes Act makes it clear that general deterrence and specific deterrence are factors that a court is entitled to take into account. The Crimes Act specifically states that deterring the offender or similar persons from committing such an offence is a factor that the court may take into account, and s 341(d) of the Crimes Act makes it clear that a court may take into account the need to -

... make it clear that the community acting through the court denounces the type of conduct in which the offender engaged.

12. Lighting bushfires is an incredibly easy offence to commit. It requires merely a box of matches or a plastic cigarette lighter obtainable at a modest price from any store. It is an incredibly difficult offence for the police or fire authorities to prove or detect. Canberra is surrounded by thousands of hectares of natural bushland. We cannot have a police officer or a fire officer stationed by every tree.

13. It was a mere coincidence, fortunate to the community, that two citizens saw you light this fire and were able to, in effect, apprehend you and hold you until police attended. The difficulty of detecting and apprehending persons who light bushfires, it seems to me, is a factor to take into account in relation to the need for a clear message in relation to deterrence, both specifically for you and for other persons who are minded to light bushfires.

14. The Parliament says that it is an appropriate role for the court to make it clear that the community denounces the type of conduct in which the offender engaged. The events of January 2003, the major firestorm having hit some four days before this offence, made it clear to everyone in this community the extent to which all of us who live in this community depend for our safety and security on the efforts of fire fighters, both professional and volunteers who put their lives at risk to stand between members of the community and the fires.

15. Police officers, ambulance officers, emergency services workers and many other citizens also put their lives at risk during that fire emergency to protect this community. And we know that this summer they will do the same, and the summer after. We know that volunteer and professional fire fighters have done that year after year. I note indeed that this week some awards were given out for some Canberra citizens who I think had 40 years of community service protecting all of us from bushfires.

16. As we look to the Fire Services to protect us from the danger of bushfire, it seems to me that those citizens who put themselves in the line of fire to protect us are entitled to and can be expected to look to the courts to protect them. The Parliament specifically says that it is a proper role of the sentencing judge to make it clear that the community, acting through the court, denounces the type of conduct in which the offender engaged. And it seems to me that the community generally, and fire and emergency services workers in particular, be they professional or volunteers, would expect the courts to make it clear that lighting a fire, particularly during a time of fire emergency, whether that be a declared statutory emergency or the mere fact that it is public knowledge that there is a major fire situation in the Australian Capital Territory, is a matter that would be taken very seriously.

17. It is clear that everyone knew that there was a major fire emergency in the Australian Capital Territory at the time. As I say, the skies were black, the sound of helicopters was everywhere, our fire and emergency services were stretched to the absolute limit. We know that we had fire crews from surrounding New South Wales and further a field. Indeed South Australia, Victoria and Queensland sent fire crews to the Australian Capital Territory to assist at the time.

18. Other emergency workers were also putting themselves in grave danger during that period to restore emergency services. ACTEW crews were working virtually 24-hour shifts to try and restore power. Commercial rivals of ACTEW, the power suppliers in surrounding New South Wales were also sending crews down.

19. If Mr Joseph and Mr Jackson had not observed you light this fire, and with other members of the community put it out, and a fire had spread in North Canberra it would have done so at a time when the fire and emergency protection available to Canberra was stretched almost to breaking point.

20. It seems to me that this is a very serious offence indeed and must be treated by the courts as such. I take into account what has been said in relation to your health. I take into account that there have been some suggestions for psychiatric assessment or treatment which you have not complied with in the past, but you indicated in your letter to me today that you would be prepared to take part in. It seems to me that that is something that can occur following the passing of a sentence.

21. I note that in your letter tendered today you express a degree of remorse and sorrow, but I am gravely concerned that the pre-sentence report records that you demonstrated to the Corrective Services officer "little remorse or responsibility for the matter, laughing during interviews and stating that it was not a serious matter".

22. Now I note that you say otherwise today, but it is not unusual for a person in the well of the court to express remorse, and the extent to which I regard that as genuine must be tempered by the fact that the Corrective Services officers indicate that earlier view.

23. Mr Gray, in relation to the offence of lighting a bushfire, as defined in s 105 of the Crimes Act, on 22 January 2003, I sentence you to imprisonment for a period of five years. I direct that parole not be available until 25 March 2006, being an effective two years and six months non-parole period. In setting that period I take into account the 14 weeks that you have spent in custody. I also take into account your age, your health condition, the fact that you have not previously been convicted of an offence of arson. All of those factors have reduced the sentence that I might otherwise have imposed. I also take into account that you have pleaded guilty to this offence, although I note that you have done so in the face of an overwhelming Crown case by way of the eye-witnesses who would have been able to give evidence against you.

24. I note that Corrective Services has noted certain risk factors and I would recommend strongly that they be taken into account in relation to the disposition within the New South Wales prison system. I also make the strong recommendation to ACT Corrective Services that, and I say at whatever additional cost this may involve, because no doubt it would involve an additional cost, you attend the Arson and Firelighter programs that are run within the New South Wales Corrective Services prisons in order to provide you with appropriate psychological and other counselling and treatment to deal with what seems, on the pre-sentence report, to be a long- standing issue with fires. I note that you have never previously been convicted for lighting a fire but the pre-sentence report indicates a clear difficulty with fire lighting.

I certify that the preceding twenty-four (24) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Justice Connolly.

Associate:

Date: 25 September 2003

Counsel for the prosecution: Ms J Whitbread

Solicitor for the prosecution: ACT Director of Public Prosecutions

Counsel for the accused: Mr J Sabharwal

Solicitor for the accused: ACT Legal Aid Office

Date of hearing: 25 September 2003

Date of judgment: 25 September 2003