Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: Lambkin v R [2020] NSWCCA 327 Hearing dates: 3 December 2020 Date of orders: 11 December 2020 Decision date: 11 December 2020 Before: Simpson AJA at [1] Bellew J at [2] Campbell J at [95] Decision: Leave to appeal against sentence is refused. Catchwords: CRIMINAL LAW – Offences – Sentence – Appeal – Where applicant pleaded guilty to encouraging the commission of an offence of intentionally causing a fire – Where applicant was a retained firefighter – Whether the sentencing judge erred in taking into account that position in assessing the applicant's moral culpability – Whether the sentencing judge erred in his assessment of the level of the applicant's remorse – Whether the sentencing judge erred in his assessment of the discount for the plea of guilty and assistance – Whether the sentencing judge erred in failing to take into account the applicant's mental state – Whether the sentencing judge erred in the manner in which he dealt with identical offences on a Form 1 – Whether sentence manifestly excessive – Where some of the issues which were sought to be raised on appeal were at odds with concessions which were made in the Court below – No error established – No merit in any ground of appeal sought to be advanced – Leave to appeal refused Legislation Cited: Crimes Act 1900 (NSW) Crimes (Sentencing Procedure) Act 1999 (NSW) Cases Cited: Abbas & ors v R (2013) 231 A Crim R 413; [2013] NSWCCA 115 Attorney General's Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 (No 1) of 2002 (2002) 56 NSWLR 146; [2002] NSWCCA 518 Bayram v R [2012] VSCA 6 Dinsdale v The Queen (2000) 202 CLR 321; [2000] HCA 54 Dionys v R (2011) 217 A Crim R 280; [2011] NSWCCA 272 Einfeld v R (2010) 266 ALR 598; [2010] NSWCCA 87 Keane v R [2011] VSCA 156 Nguyen v R (2004) 149 A Crim R 343; [2004] NSWCCA 332 R v Baker [2000] NSWCCA 85 R v Calcutt (2012) 221 A Crim R 505; [2012] NSWCCA 40 R v DP [2019] NSWCCA 55 R v Mills (2005) 154 A Crim R 40; [2005] NSWCCA 175 R v Pont (2000) 121 A Crim R 302; [2000] NSWCCA 419 R v Thomson; R v Houlton (2000) 49 NSWLR 383; [2000] NSWCCA 309 Romero v R (2011) 32 VR 386; [2011] VSCA 45 Ryan v R [2009] NSWCCA 183 Tiknius v R (2011) 221 A Crim R 365; [2011] NSWCCA 215 Van Zwam v R [2017] NSWCCA 127 Zreika v R (2012) 223 A Crim R 460; [2012] NSWCCA 44 Category: Principal judgment Parties: Joshua Lambkin – Applicant Regina – Respondent Representation: Counsel: J Lo Schiavo – Applicant E Balodis – Respondent Solicitors: Greg Murphy Legal – Applicant C Hyland, Solicitor for Public Prosecutions (NSW) – Respondent File Number(s): 2017/233129 Publication restriction: Nil Decision under appeal Court or tribunal: District Court of NSW Jurisdiction: Criminal Date of Decision: 19 September 2019 Before: His Honour Judge Gartelmann SC Judgment 1. SIMPSON AJA: I agree with Bellew J. 2. BELLEW J: Joshua John Lambkin (the applicant) pleaded guilty in the District Court to the following offences: [1] 1. intentionally encouraging Craig Talman Lambkin on 18 January 2017 to commit an offence, namely intentionally causing a fire and being reckless as to the spread of that fire to vegetation on public land, namely, bushland adjacent to McLeod Road and Kurri Kurri TAFE (count 1); 2. intentionally encouraging Craig Talman Lambkin on 24 January 2017 to commit an offence, namely intentionally causing a fire and being reckless as to the spread of that fire to vegetation on public land, namely, bushland behind Kurri Kurri Aquatic Centre (count 2). 1. The applicant also asked the sentencing judge to take into account two further identical offences on a Form 1, [2] both of which were said to have occurred on 18 January 2017. 2. Each of the offences to which the applicant pleaded guilty is contrary to ss. 203E(1) and 346 of the Crimes Act 1900 (NSW) and carries a maximum penalty of 14 years' imprisonment. A standard non-parole period of 5 years' imprisonment is prescribed. 3. On 19 September 2019 the sentencing judge gave the following indicative sentences: [3] 1. in respect of count 1, and taking into account the Form 1 offences, imprisonment for 5 years and 10 months with a non-parole period of 3 years and 10 months; 2. in respect of count 2, imprisonment for 6 years and 9 months with a non-parole period of 4 years and 6 months. 1. The sentencing judge imposed an aggregate sentence of 7 years and 9 months' imprisonment with a non-parole period of 5 years and 2 months' imprisonment. [4] 2. The applicant now seeks leave to appeal against that sentence on the grounds more fully discussed below. THE FACTS OF THE OFFENDING Background 1. The applicant and Craig Lambkin (the co-offender) are brothers. The applicant was a retained firefighter stationed at the Abermain patrol area. [5] Count 1 – 18 January 2017 1. On 18 January 2017, the Bureau of Meteorology weather forecast assessed the fire danger as "very high". The temperature reached 43.1° and relative humidity was as low as 19%. Wind gusts reached 63km/h. The NSW Fire and Rescue Commander directed fire crews to patrol their areas commencing at 12pm. The applicant was on patrol at Abermain Fire Station, whilst the co-offender was at home. The applicant and the co-offender exchanged the following text messages between 12:41pm and 12:43pm: [6] Applicant: Oi, wotz doing? Co-offender: Going up Cessnock. Applicant: Oh OK, good day. Co-offender: Mmhhh, let U no. Applicant: We R keen as now already in truck. 1. The co-offender left home shortly afterwards and spoke with the applicant at 1:03pm for 1 minute and 17 seconds. [7] 2. The co-offender then entered bushland between Swanson Street, Weston and Chinaman's Hollow. A fire was reported at that location to triple 0 at 1:56pm and an area of bushland measuring 16m x 18m was burned. CCTV recorded the co-offender's car near Bishops Bridge Road and Hart Road, Loxford between 1:48pm and 1:51pm. [8] 3. Residential properties to the west and south, and the Hunter Expressway to the north, bordered the bushland in this area. A motorist reported to triple 0 at 2:02pm that the fire was "just starting". It quickly gained hold and its course altered as the wind direction changed from north-west to south. It burned out of control for hours, resulting in damage to 300ha of bushland. Homes in Loxford, Sawyers Gully and Kurri Kurri were evacuated, and the Hunter Expressway was closed, trapping commuters. [9] 4. CCTV recorded the co-offender's car near the Kurri Kurri TAFE Institute at 1:57pm, and leaving at 2:13pm. A motorist reported to triple 0 at 2:14pm that a fire in the area had just started. The fire spread as the wind direction changed from north-west to south, and burned out of control for hours resulting in 686ha of bushland being damaged. Homes were threatened and evacuated. The NSW Fire and Rescue Service deployed aerial services and other extensive resources to extinguish it. CCTV recorded the co-offender returning home at 2:25pm. He phoned the applicant at 3:16pm and they spoke for 36 seconds. [10] 5. The applicant and the co-offender exchanged the following messages between 12:55am and 12:56am the following morning: [11] Co-offender: Hope all is gd. Applicant: Home Co-offender: OK cool. Just on lunch break. No 1 hurt. Talk to you U tomorrow. Applicant: Nah. Co-offender: OK. 1. The fires which occurred on 18 January were within the Abermain patrol area. The applicant was assigned to fight them, and was paid to do so by NSW Fire and Rescue. [12] Count 2 – 24 January 2017 1. On 24 January 2017 the Bureau of Meteorology weather forecast assessed the fire danger as "very high". The temperature reached 41° and relative humidity was approximately 32%. Wind gusts reached 45km/h. The NSW Fire and Rescue Commander directed fire crews to patrol their areas commencing at 12:30pm. [13] 2. The applicant and the co-offender exchanged the following messages between 10:17am and 10:21am: [14] Co-offender: Hey, wotz going on today? Applicant: Fuck all. U? Co-offender: Same. Got canned this morning. Applicant: That sucks. Co-offender: If UR hme, I'm going for a ride N halfa. Co-offender: I'll pop in. I'll tx U 1st. Applicant: Yer sure am. 1. CCTV recorded the co-offender leaving his house on a bicycle at 11:00am at which time he rode towards the applicant's house which was 370m away. The co-offender later told police he visited the applicant for 10 or 15 minutes. The applicant's home was located a few minutes from the fire ground by bike. The applicant called the co-offender at 11:19am and they spoke for 32 seconds. [15] 2. At 11:22am the applicant sent a message to Ashley Gordon, the Abermain Deputy Fire Captain, asking whether he was patrolling "Boss", a Fire Brigade Job System that retained firefighters could access from their own computers. The applicant then sent a message to the Fire Captain, Bill Lang at 11:23am asking if he should put on a Davey pump, a device which allowed a fire truck to move while its hose was in use. Mr Lang agreed and the applicant said that he would do so. [16] 3. CCTV recorded the presence of wispy smoke in bushland in the vicinity of the Kurri Kurri Aquatic Centre at 11:26am. The co-offender was seen by residents of the area riding his bike through the car park of the aquatic centre. CCTV recorded him riding from that area towards his home at 11:28am. The applicant called the co-offender at 11:27am and they spoke for 10 seconds. [17] 4. NSW Fire and Rescue began to receive calls regarding the fire, resulting in the Abermain Fire Station alarm being activated at 11:32am. The applicant was called to extinguish the fire. The fire burned out of control for hours resulting in the Kurri Kurri Aquatic Centre, the Kurri Kurri Hospital and homes in the area being evacuated. Approximately 74.8ha of bushland was damaged. Fire investigators later confirmed, with the assistance of aerial footage, that the fire had multiple ignition points. [18] 5. CCTV recorded the co-offender riding his bicycle on Government Road, Weston at 11:38am and returning to his home at about 11:41am. A witness followed him home. Police then arrested the co-offender who was in possession of a mobile phone, a water bottle and a cigarette lighter. When he was interviewed, the co-offender said that he went to the applicant's home to look at animals, but had left when the applicant received a fire call. He denied going near the aquatic centre. Police then played CCTV footage showing him riding away from that very area, following which he admitted visiting the applicant but said that he had made up the fact that the applicant had received the fire call. He admitted to being in bushland behind the aquatic centre but said he was visiting deceased relatives in a nearby cemetery. He claimed that he discarded a lit cigarette and then panicked, although he agreed that he had not contacted emergency services. [19] 6. The applicant was arrested on 31 July 2017 and declined to participate in an interview. [20] 7. Having set out the facts of the offending, the sentencing judge said the following: [21] As noted previously, the statements of agreed facts differ in one respect. [The co-offender] made assertions to police regarding [the applicant's] role in the offences that are agreed as facts in [the applicant's] case. Accordingly it is agreed that [the applicant] and another named firefighter encouraged [the co-offender] to light the fires on 18 and 24 January 2017 for them. The other named firefighter was to supply [the co-offender] cannabis for doing so. [The applicant] asked [the co-offender] to light the 18 January 2017 fires and informed him the best places to do so. [The applicant] also urged [the co-offender] to light the 24 January 2017 fire in a home visit and in a phone call and again advised him where to do so. The offenders' respective statements to police were otherwise admitted in these proceedings solely for the purpose of evaluating their assistance to the authorities. THE GROUNDS OF APPEAL Ground 1 – The sentencing judge erred in finding that the applicant bore a high degree of culpability as a retained firefighter The sentence proceedings 1. The written submissions of counsel who appeared for the applicant on sentence (who was not counsel who appeared for the applicant before this Court) included the following: [22] It is conceded that an employee of the Rural Fire Service is morally more culpable for offences of this nature, given their knowledge and experience of bushfires. 1. In oral submissions, counsel said: [23] The fact that he was in that service is an aggravating factor in terms of his moral culpability. The findings of the sentencing judge 1. In assessing the objective criminality of the applicant's offending, the sentencing judge said the following: [24] [The applicant] bears a high degree of culpability as a retained firefighter for his conduct in encouraging [the co-offender] to light the fires whatever his purpose, as he must have appreciated the grave risk to lives and property of many in the community in doing so. Submissions of the applicant 1. Counsel for the applicant submitted that in circumstances where the applicant's position as a retained firefighter did not enable or facilitate his offending, and did not give rise to a breach of trust, the sentencing judge had erred by placing "too much weight" on the applicant's status as a firefighter. Counsel submitted that this had caused "the overall sentence to be greater than properly required". [25] Submissions of the Crown 1. The Crown pointed to the express concessions, made both orally and in writing, by counsel who appeared for the applicant before the sentencing judge, as to the relevance of the applicant's position as a firefighter in an assessment of his moral culpability. The Crown submitted that the applicant's conduct represented the antithesis of what was expected of him as a retained firefighter. In this regard, the Crown emphasised that the applicant would necessarily have been aware of the harm that could be caused by the fires, and would have appreciated that the conditions which prevailed on each of the two days were obviously conducive to the rapid spread of fire. In all of these circumstances, the Crown submitted that his Honour's conclusion was entirely appropriate. Consideration 1. In written submissions, counsel for the applicant before this Court relied upon a passage extracted from the judgment of James J in R v Pont [26] in support of this ground, and specifically in support of the proposition that the applicant's offending did not involve a breach of trust. [27] The written submissions extracted only part of the relevant passage. The passage in its entirety is in the following terms (the italicised portion representing that which was included in the written submissions): [76] I have, in this survey, admittedly by looking at examples rather than seeking to make an exhaustive analysis, sought to discern whether there is or should be some such principle as would normally, or in the absence of exceptional features, require sentences of full-time custodial imprisonment to be passed in cases of single offence, breach of trust, employee dishonesty, albeit involving a substantial but not enormous sum. Whilst it seems clear that there is such a principle as would require imprisonment in the absence of exceptional circumstances of defalcating professionals or others, eg., company directors, whose crimes are of considerable extent and wide effect, I am unable to conclude that there is a useful statement of such a principle of general applicability in cases where persons are in a position of trust, the position of trust arising out of an employer/employee relationship. Expressions of the necessity for general deterrence and condign punishment are of limited utility to define the appropriate nature of the sanction to be employed in such circumstances. It may well be that this is the sort of case which draws attention to the prospect of this court providing a guideline judgment for such matters. 1. Properly read, that passage of his Honour's judgment is directed to the question of whether, as a general proposition, a sentence of full-time custody should be imposed in a case where there is a single offence involving a breach of trust. It provides no support whatsoever for the applicant's position in respect of this ground. Specifically, it provides no support for the proposition which counsel advanced, namely that the applicant's offending did not involve a breach of trust. In any event, in circumstances where the applicant had the responsibility of fighting fires, his offending amounted to a clear breach of trust. 2. In the present case, his Honour's finding that the applicant bore a high degree of culpability in light of his position as a retained firefighter was made in the context of his assessment of the applicant's moral culpability. That finding was entirely consistent with the unequivocal concession which was properly made by counsel who appeared for the applicant in the court below. 3. The submissions of counsel for the applicant before this Court sought to depart from that concession. This Court has repeatedly emphasised that the hearing of a sentence appeal is not an occasion for the revision and reformulation of the case presented below. The Court will not lightly entertain arguments that could have been put, but were not advanced, on the plea. The Court will have an even greater reluctance to entertain arguments of the kind advanced by counsel for the applicant in this case which sought to resile from concessions made at first instance. In such cases, there is a need to establish exceptional circumstances which demonstrate that there has been a miscarriage of justice. [28] No exceptional circumstances were advanced by counsel for the applicant before this Court. The submission that the applicant did not use his position as a retained firefighter to commit the offences is not to the point. 4. Moreover, and leaving aside the fact that the submissions advanced by counsel for the applicant before this Court were inconsistent with the concession properly made before the sentencing judge, such submissions were also entirely at odds with an established line of authority. In R v Nguyen, [29] a case involving a police officer who had committed an offence of perverting the course of justice, Spigelman CJ observed that the fact that such an offence had been committed by a person involved in the administration of justice was a relevant consideration, even though the conduct had not occurred in the course of that person's official duties. A similar approach was taken by this Court in Einfeld v R. [30] 5. Even more significantly, R v Mills [31] was a case involving a retained firefighter who had pleaded guilty to three counts of intentionally causing a fire being reckless as to its spread. Wood CJ at CL (with whom Grove J and Hoeben J (as his Honour then was) agreed) observed that a matter of importance in the assessment of that offender's overall criminality was the fact that he had "engaged in conduct that was diametrically opposed to everything which was expected of a trained firefighter, in circumstances where he was well aware of the potential harm which can be caused by bushfires". [32] His Honour also highlighted the significance of the fact that by the time of committing the third offence (which was one month after the first and second offences) the offender in that case was "fully aware of the destruction, and the disruption to the lives of other firefighters … which his earlier conduct had caused, yet he proceeded intentionally, and deliberately, to light two further fires". [33] Those observations are particularly apt in the present case, given that the applicant's offending in count 2 occurred 6 days after his offending in count 1. 6. Ground 1 is not made out. Ground 2 – His Honour erred in finding that the evidence did not establish that the applicant had generally accepted responsibility for his actions or an acknowledgement of their consequences The sentence proceedings 1. An affidavit of the applicant affirmed on 5 September 2009 was tendered before the sentencing judge [34] at which time the following exchange took place: [35] His Honour: The effect of which is that he's not required for cross-examination now is that? Crown: Indeed your Honour Counsel for the applicant: That is correct your Honour. 1. The affidavit included the following: [36] I know that I have put [my wife] and the kids in this position because of my offences. I will never forgive myself for this. … When I think of what happened I feel ashamed. When I was suspended from being a fire-fighter after these charges I felt relieved. I felt relieved when I pleaded guilty and talked to police. … I understand that the fires could have been so much worse than what they were. I now truly understand that people's lives and property could have been lost or destroyed. I didn't think about this at the time. I had not seen the TV news coverage of the fires until they were played in court at my bail hearing on 28 June, 2019. When I saw that footage I just felt sick. 1. Counsel for the applicant said the following in written submissions: [37] 15. It is submitted that there is evidence of remorse before the Court contained in the affidavit of [the applicant], affirmed 5 September 2019. It is a matter for the Court whether or not it is satisfied that this is sufficient evidence of him either taking responsibility for his actions or sufficient to warrant a finding on the balance of probabilities that [the applicant] is remorseful. 16. It is submitted that his statements of regret and remorse contained in his affidavit should be considered in light of the following factors: a. He provided two detailed statements to police detailing his involvement in the offending, and the role of the co-offenders; b. [The applicant] has limited criminal history; c. The offending was out of character; and d. He has accepted the reality of full-time gaol. (Emphasis added). 1. In the course of the sentence hearing, the following exchange took place between the sentencing judge and counsel then appearing for the applicant: [38] Counsel: Your Honour will be well versed in relation to the law that exists in terms of the voracity [sic] of a submission as to remorse in the absence of that evidence being tested. I accept [the applicant] has not given oral evidence and has not had his attitude to the offences tested in any way. There is some information set out in the affidavit as to his feelings about the offending. It's a matter for your Honour as to whether or not you are satisfied that that is sufficient to warrant any finding that there is a demonstration of remorse. But I accept that he has not been cross-examined and that he does not say that he is sorry. If your Honour can nonetheless take into account the expressions of I would submit insight that are contained in his affidavit in relation to his prospects of rehabilitation if your Honour does not find that there is, even if your Honour doesn't find that there is remorse as a mitigating factor. His honour: There are two conditions for any such finding and one of them is an acceptance of responsibility for his actions, the other is a ..(not transcribable).. extent of harm and the damage caused. Counsel That's correct. His Honour: Do you say the material in the affidavit establishes both? Counsel: Well I say that he makes statements that indicate an insight into the extent of the fires once he viewed the footage in Court before your Honour earlier this year, an insight into the impact of his offending on his family. I don't submit that they are fully formed statements of insight and regret, they often aren't. His Honour: And sometimes they are. Counsel: Sometimes they are but they are not in this case and I accept that they have not been tested and I appreciate the submissions my friend will make on that point. I do say though that those characterisations of his feelings towards what he did that are set out in the affidavit are relevant to the findings of prospects of rehabilitation. (Emphasis added.) The reasons of the sentencing judge 1. The sentencing judge said the following: [39] The offender expressed in his affidavit shame for the offences and regret regarding the position he had put his family in. He said he will never forgive himself for it. He said he did not think about it at the time but now understood lives or property could have been lost. He said watching the news footage of the fires in court made him feel sick. He gave an undertaking to give evidence against the other named firefighter and provided statements to police. However, for reasons shortly to be stated, it is apparent that his account was not wholly truthful. The evidence adduced, even together with the offender's pleas, does not establish on the balance of probabilities that he has genuinely accepted responsibility for his actions or acknowledged their consequences, such as to warrant a finding of remorse. 1. Later, in addressing the applicant's assistance to the authorities, his Honour said: [40] [The applicant's] assistance also comprised provision of statements to investigators. It addressed the involvement of the other named firefighter. However, it was not considered useful to authorities, having regard to an investigator's assessment of it. Nor was it wholly truthful. He minimised his responsibility for the encouragement of [the co-offender] to light the 18 January 2017 fires and denied any responsibility for encouraging [the co-offender] to light the 24 January 2017 fire. He said he did not know [the co-offender] was going to light that fire. This is contrary to agreed facts, stating that he encouraged [the co-offender] to light it and advised him where to do so. Submissions of the applicant 1. The applicant submitted that the applicant's plea of guilty was, of itself, a sufficient basis on which to find that the applicant had accepted responsibility for his offending. It was further submitted that his Honour's conclusion was inconsistent with the fact that the applicant had accepted in his affidavit that his offending meant that he was unable to support his wife and children. It was submitted that this was indicative of an acceptance of responsibility. Submissions of the Crown 1. The Crown pointed out that none of the testimonials tendered in the applicant's case on sentence, including those from his wife and his mother-in-law, made any reference to the applicant having expressed remorse, an acceptance of responsibility, or an acknowledgement of the consequences of his actions. The Crown submitted that on a proper reading of the applicant's affidavit, it was clear that he did not unreservedly accept responsibility for what he had done and that in all of these circumstances the finding reached by his Honour did not reflect error. Consideration 1. Section 21A of the Crimes (Sentencing Procedure) Act 1999 (NSW) (the Sentencing Act) provides (inter alia) that in determining the appropriate sentence for an offence, the Court is to take into account the mitigating factors referred to in ss 21A(3) that are relevant and known to the Court. Section 21A(3)(i) addresses the mitigating factor of remorse in the following terms: … (i) the remorse shown by the offender for the offence, but only if— (i) the offender has provided evidence that he or she has accepted responsibility for his or her actions, and (ii) the offender has acknowledged any injury, loss or damage caused by his or her actions or made reparation for such injury, loss or damage (or both). 1. As I have noted, the applicant's affidavit was read without objection and the Crown specifically indicated to the sentencing judge that he did not wish to cross-examine the applicant on its contents. Before this Court, neither counsel for the applicant nor the Crown could assist as to the circumstances which resulted in that position being taken before the sentencing judge. 2. However, it will be evident from both the written and oral submissions made to the sentencing judge that counsel then appearing for the applicant stopped well short of submitting that his Honour should find that the applicant was remorseful. In written submissions, counsel specifically put that it was "a matter for the Court" as to whether such a finding was made. Moreover, when directly asked by the sentencing judge whether it was submitted that the pre-requisites set out in s 23A(3)(i) of the Sentencing Act were established, counsel responded by saying that the applicant's statements "indicated insight". Counsel specifically disavowed the proposition that what the applicant had said in his affidavit amounted to "fully formed statements of insight and regret". The overall effect of counsel's submissions was that such statements were relevant to an assessment of the applicant's prospects of rehabilitation, but fell short of establishing genuine remorse. 3. In these circumstances, the position taken by counsel for the applicant before this Court is inconsistent with that taken by counsel who appeared on sentence. As a consequence, the same issue arises in respect of this ground as that which arose in ground 1. 4. Further, the fact that the applicant's affidavit was unchallenged did not mean that his Honour was bound to accept it and concluded that the applicant was genuinely remorseful. His Honour was entitled to evaluate what the applicant had said in his affidavit in the context of other relevant evidence. This is particularly so given the position which was taken by counsel then appearing for the applicant and which, in part, invited the sentencing judge to consider the applicant's affidavit in light of the statements he had made to the police. It is evident that his Honour took that course and, having done so, concluded that the applicant had not been truthful in those statements. He then took that into account in concluding that the applicant was not genuinely remorseful. 5. This was not a case in which, solely in the face of unchallenged evidence, his Honour concluded that there was no genuine evidence of remorse. [41] Rather it is a case in which no submission was made to his Honour that he should find that the applicant was genuinely remorseful, and in which his Honour's conclusion was based on an evaluation of the entirety of the evidence. That evaluation reflected his Honour having adopted the approach which was urged by counsel then appearing for the applicant as being appropriate. 6. This ground is not made out. Ground 3 – The sentencing judge erred in awarding a discount of 5% to reflect the applicant's pleas of guilty The sentence proceedings 1. Evidence tendered before the sentencing judge established that the co-offender made a statement inculpating the applicant in February 2019 which was then served on the applicant's solicitors. [42] It was following service of that statement that the applicant indicated that he would plead guilty. 2. The written submissions of counsel for the applicant in the court below expressly accepted the Crown's assessment of a 5% discount to reflect the utilitarian value of the applicant's plea of guilty. [43] That concession was confirmed in oral submissions. [44] The reasons of the sentencing judge 1. The sentencing judge set out the history of the proceedings which included the following: [45] 1. the applicant and the co-offender were both arraigned on 29 March 2018; 2. a joint trial was listed to commence on 11 March 2019; 3. the co-offender entered a plea of guilty on 31 January 2019; 4. the applicant instructed his lawyers that he would enter pleas of guilty on 8 March 2009, which was the last business day before the scheduled commencement of his trial. 1. The sentencing judge concluded: [46] The utility of the offenders' pleas of guilty differs. [The co-offender's] guilty pleas were not entered early but neither were they particularly late, having been entered well before trial. The timing of his pleas is such that they retain significant utilitarian value warranting a discount of 15 per cent. [The applicant's] very late guilty pleas warrant a discount of 5 per cent. Submissions of the applicant 1. Counsel for the applicant submitted that the sentencing judge had erred in his conclusion that the applicant's plea was entered at a time which was significantly later than that of the co-accused. It was submitted that the difference in timing did not warrant the disparity in the discounts which were applied and that in circumstances where the applicant's plea facilitated the administration of justice, its utilitarian value had not been recognised. Counsel submitted that in these circumstances, the discount applied in the applicant's case should also have been 15%. Submissions of the Crown 1. The Crown emphasised the express concession made by counsel for the applicant in the court below. That aside, the Crown submitted that the difference between the timing of the respective pleas of guilty was significant. The Crown also pointed to the fact that the first indication of the applicant's pleas of guilty came on Friday 8 March 2019, in circumstances where his trial was listed to commence on Monday 11 March with an estimate of 2 to 3 weeks. The Crown submitted that by the time the applicant indicated that he would enter pleas of guilty, all of the necessary pre-trial preparation had been completed. This, it was submitted, meant that the utilitarian value of the applicant's plea was minimal. Consideration 1. I have already made reference, when addressing ground 1, to the effect of concessions made on sentence, and the difficulties faced when a contrary position is sought to be adopted before this Court on the hearing of an application for leave to appeal. Nothing put to this Court in support of this ground by counsel for the applicant was in any way exceptional, or would otherwise cause this Court to revisit the issue on the basis that there was a miscarriage of justice. That is sufficient to dispose of this ground. 2. I would only add that there was no error in his Honour's assessment of the utilitarian value of the applicant's pleas of guilty, particularly given that the first indication of the applicant's plea was conveyed on the eve of his trial. [47] Bearing in mind that the assessment was a discretionary one for the sentencing judge, there is not the slightest indication that his Honour's discretion miscarried. 3. This ground is not made out. Ground 4 - His Honour erred in not applying the same discount for assistance to authorities The sentence proceedings 1. The material tendered before the sentencing judge included two statements made by the applicant dated 13 March 2019 [48] and 14 March 2019 [49] in the course of which the applicant identified another firefighter as being involved in the offending. The applicant's assistance in this regard was assessed by Detective Lawson who provided two statements which were tendered before the sentencing judge. In the first of those statements dated 17 June 2019, [50] Detective Lawson questioned the veracity of some of the statements made by the applicant. In her second statement dated 20 June 2019, Detective Lawson said: [51] … I do not consider the information to have been given to me by [the applicant] to have been either significant or useful in nature. The information provided could not be corroborated and therefore did not assist me in my investigation. 1. Detective Lawson, who was not cross-examined, also expressed the view that the applicant had deliberately attempted to "coach" another person in relation to that person's recollection of relevant events. [52] She also took into account, in assessing the truthfulness and reliability of the applicant's assistance, the fact that he made assertions which were at odds with independent CCTV evidence. [53] She also expressed the view that the material provided by the applicant was largely self-serving in nature. [54] The reasons of the sentencing judge 1. The sentencing judge said the following: [55] The value of the offenders' assistance to authorities also differs. [The co-offender's] assistance comprised provision of a statement to investigators detailing the involvement of [the applicant] and the other named firefighter. It was very useful to authorities, having regard to an investigator's assessment of it. It added direct evidence to an otherwise circumstantial case against [the applicant]. It was not suggested nor is it apparent that it was untruthful in any way. It implicated not only co-offenders but a family member. It was timely as it led to [the applicant's] guilty pleas, coming as they did after its service. He has not gained any other benefit from it. His experience of custody will likely be harder because of it, given the other named firefighter's former occupation. It concerns the very offences for which he is to be sentenced. In all these circumstances, it warrants a discount of 20 per cent. The combined discount for pleas and assistance in his case will, therefore, be 35 per cent. [The applicant's] assistance also comprised provision of statements to investigators. It addressed the involvement of the other named fire fighter. However, it was not considered useful to authorities, having regard to an investigator's assessment of it. Nor was it wholly truthful. He minimised his responsibility for the encouragement of [the co-offender] to light the 18 January 2017 fires and denied any responsibility for encouraging Craig Lambkin to light the 24 January 2017 fire. He said he did not know [the co-offender] was going to light that fire. This is contrary to agreed facts, stating that he encouraged [the co-offender] to light it and advised him where to do so. However, it remains that he did provide information regarding the other named fire fighter's involvement and undertook to give evidence in any proceedings against him. It is unclear whether any such proceedings may eventuate. His assistance was not timely. He has not gained any other benefit from it. His experience of custody will be likely harder because of the other named firefighter's former occupation. His assistance concerns the offences for which he is to be sentenced. In all the circumstances, it warrants a discount of 5 per cent. The combined discount for pleas and assistance in his case will, therefore, be 10 per cent. Submissions of the applicant 1. Counsel for the applicant submitted that "greater weight" should have been given to the applicant's assistance notwithstanding the inconsistencies between his statements and the agreed facts because "the applicant's plea of guilty had enabled the administration of justice against the other named firefighter in a more expedited and efficient manner". [56] It was further submitted that the fact the proceedings against the other named firefighter may not eventuate should not "weigh against" the applicant's undertaking to give evidence, and that there was a "parity issue", in terms of assistance, between the applicant and the co-offender. 2. It was submitted that in these circumstances the discount for the applicant's assistance should have been 20 per cent. Submissions of the Crown 1. The Crown submitted that the extent of any discount to be applied in recognition of the applicant's assistance was a matter for the exercise of the discretion of the sentencing judge. The Crown submitted that there was no error in the exercise of that discretion and that there was an obvious, and marked, difference between the assistance provided by the applicant and that provided by the co-offender which was reflected in the assessment of the sentencing judge. Consideration 1. Section 23(2) of the Sentencing Act is in (inter alia) the following terms: 23 Power to reduce penalties for assistance provided to law enforcement authorities (1) … (2) In deciding whether to impose a lesser penalty for an offence and the nature and extent of the penalty it imposes, the court must consider the following matters— (a) (Repealed) (b) the significance and usefulness of the offender's assistance to the authority or authorities concerned, taking into consideration any evaluation by the authority or authorities of the assistance rendered or undertaken to be rendered, (c) the truthfulness, completeness and reliability of any information or evidence provided by the offender, (d) the nature and extent of the offender's assistance or promised assistance, (e) the timeliness of the assistance or undertaking to assist, (f) any benefits that the offender has gained or may gain by reason of the assistance or undertaking to assist, (g) whether the offender will suffer harsher custodial conditions as a consequence of the assistance or undertaking to assist, (h) any injury suffered by the offender or the offender's family, or any danger or risk of injury to the offender or the offender's family, resulting from the assistance or undertaking to assist, (i) whether the assistance or promised assistance concerns the offence for which the offender is being sentenced or an unrelated offence, (j) (Repealed) 1. Bearing in mind the submissions of counsel for the applicant, and in circumstances where no other person has been charged with an offence arising out of the two fires, it is difficult to understand how the administration of justice has been expedited, or rendered more efficient, as a consequence of any assistance the applicant has given to the authorities. 2. Further, the effect of at least some of the submissions of counsel for the applicant before this Court was that the sentencing judge had failed to give sufficient weight to matters bearing upon the applicant's assistance. This Court has observed on a number of occasions that questions of weight are matters for a sentencing judge, and that the circumstances in which such matters will justify intervention are narrowly confined. [57] Nothing put to this Court would warrant such intervention in the present case. 3. Quite apart from those matters, and bearing in mind that an assessment of a discount for assistance involves a discretionary judgment, there is nothing to suggest that his Honour's discretion miscarried. It is evident that in reaching his conclusions, properly his Honour took into account the provisions of s 23(2) of the Sentencing Act, and the unchallenged views of Detective Lawson as to the utility of the applicant's assistance. 4. This ground is not made out. Ground 5 – His Honour erred in respect of the applicant warranting that his mental condition would make his imprisonment more onerous The sentence proceedings 1. In his affidavit, the applicant made reference to suffering depression at the age of 24 and being prescribed antidepressant medication for a period of 12 months. [58] Beyond those matters, the applicant made no reference to his mental state. Neither the written nor the oral submissions made to the sentencing judge by counsel appearing for the applicant contained any reference to his mental state. No submission was put to the sentencing judge that the applicant's mental state had any role to play in the determination of an appropriate sentence. 2. In light of the submissions of counsel for the applicant before this Court, it is necessary to note that in the course of an exchange concerning the issue of whether the applicant's conditions of custody would be more onerous as a consequence of his assistance, the following exchange took place between the sentencing judge and the Crown: [59] His Honour: But does the Crown concede I would therefore find that there is in all likelihood going to be an element of hardship? Crown: I don't wish to be heard against such a finding. The reasons of the sentencing judge 1. The sentencing judge said the following: [60] [The applicant] has no apparent history of substance abuse. He has some history of experiencing symptoms of depression. He attended a psychologist with symptoms at about 24 years of age. He was prescribed anti-depressants for a period of about one year. There is no evidence in these proceedings that he suffers any mental condition contributing to his offending, such as to reduce his moral culpability for it or warrant less weight for general deterrence. Nor is there any evidence warranting a finding that his mental condition will make his experience of imprisonment more onerous. Submissions of the applicant 1. Counsel for the applicant specifically relied upon the exchange between his Honour and the Crown set out above in support of the conclusion that the sentencing judge had erred. It was submitted, in effect, that the conclusion of the sentencing judge was at odds with the concession made by the Crown. 2. Counsel for the applicant also sought to rely upon an affidavit of the applicant's solicitor, Gregory Murphy, annexed to which was a mental health assessment of the applicant dated 5 August 2020. That assessment was obviously conducted after the applicant had been sentenced and taken into custody. Submissions of the Crown 1. The Crown emphasised that there was no psychological or psychiatric report tendered in the applicant's case on sentence, much less any evidence which supported a conclusion that the applicant's custodial conditions would be more onerous as a consequence of his mental state. The Crown submitted that in these circumstances, no error had been established. Consideration 1. The reliance of counsel for the applicant on the exchange between the sentencing judge and the Crown in support of this ground was wholly misconceived. It is plain from the transcript of the sentence proceedings that such exchange occurred in the context of submissions as to the applicant's assistance. The concession made by the Crown was entirely unrelated to the applicant's mental state. The Crown certainly did not concede that the applicant's mental state would render his conditions of custody more onerous. 2. There was no evidence whatsoever before the sentencing judge regarding any aspect of the applicant's mental state and the suggestion that his Honour erred in this respect is untenable. Obviously, the mental health assessment annexed to the affidavit of the applicant's solicitor could only be relied upon by the applicant in the event that this Court found error and proceeded to re-sentence. For the reasons stated there was no such error. 3. This ground is not made out. Ground 6 – The totality of the sentence imposed taking into account the Form 1 offences is manifestly excessive 1. Counsel for the applicant was granted leave in the course of the hearing before this Court to amend this ground to the form set out above. The reasons of the sentencing judge 1. The sentencing judge said the following: [61] The 18 January 2017 offences comprise several acts but represent effectively one discrete episode of offending. In [the applicant's] case, a sentence is to be imposed on one count for this with the other offences of this date to be taken into account on a Form 1. 1. His Honour then continued: [62] The sentence to be imposed on count 1 in each case requires a significant increment to reflect the additional weight the further offence or offences on the Form 1 warrant for specific deterrence and retribution. Submissions of the applicant 1. The written submissions of counsel for the applicant before this Court included the following: [63] How Form 1 counts are to be dealt with was the specific subject of the Attorney General's Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No. 1 of 2002 (2002) 56 NSWLR 146. Spigeleman [sic] CJ at [10]: [10] If the italicised phrase is taken to suggest that, in punishing for the substantive charges, the court can punish additionally for the Form 1 charges, in my respectful opinion it is inconsistent with the principle for which AG's Reference number 1 of 2002 stands. The "total criminality revealed by the offender's conduct" of course includes all the offences including those on the Form 1. It was necessary, as Hall J explained, for the primary judge to have regard to the "elements of personal deterrence and retribution in relation to the Form 1 offences". In my respectful opinion, it is simply not open to punish for the criminality involved in the Form 1 offences, nor to increase the sentence otherwise necessary in respect of the substantive offence to deter the offender from committing offences such as the substantive offence nor to extract retribution for the Form 1 offences. The Form 1 offences inform both the objective nature of the criminality involved in the substantive offence and the subjective features such as remorse and the prospects for rehabilitation and may therefore justify or even require a heavier penalty than would have been imposed had that offence stood alone. But, with respect, that sentence cannot in any sense exact retribution, that is to say, punish, for the Form 1 offences. (Emphasis in original). 1. By reference to this passage, the written submissions of counsel for the applicant went on to state the following: [64] His Honour's finding and sentence is at significant odds with the ruling in the Attorney General's Application and as such the sentences given to the Appellant [sic] should be adjusted accordingly. In particular his Honour's specific inclusion of "retribution" as an increment to be additionally applied in the sentence imposed with respect to Count 1, as noted on page 14 of the Sentence Judgment on 19 September 2019, specifically contravenes the Chief Justice's decision in the Attorney General's Application. Submissions of the Crown 1. The Crown submitted that there was no error in the manner in which the sentencing judge had addressed the Form 1 offences. The Crown pointed out that the offences on the Form 1 were, of themselves, serious, and provided a sound basis upon which to find that a significant increment in the sentence was warranted. In terms of any more general complaint of manifest excess, the Crown pointed to the objective seriousness of the offending, and the applicant's significant moral culpability. Consideration 1. In considering this ground is it necessary to firstly address the content of the written submissions of counsel for the applicant before this Court. 2. As I have outlined, a series of propositions in counsel's written submissions were advanced by reference to what was said to be an extract from the judgment of Spigelman CJ in Attorney-General's Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 (No 1) of 2002 (2002) 56 NSWLR 146; [2002] NSWCCA 518 (the guideline judgment). A number of observations must be made in that respect. 3. To begin with, the passage attributed to Spigelman CJ by counsel for the applicant forms no part of the reasons given by the Chief Justice, or by any other member of the Court for that matter, in delivering the guideline judgment. The passage cited by counsel for the applicant in his written submissions, and wrongly attributed to Spigelman CJ, was part of the judgment of Adams J in another case entirely, namely Dionys v R. [65] The other members of the Court in Dionys, McClellan CJ at CL and Hoeben J (as his Honour then was), expressed no agreement with the views of Adams J which were set out in the passage in question. 4. In a subsequent decision of R v Calcutt [66] Adams J confirmed, and expanded upon, the views that he had expressed in Dionys. The other members of the Court in Calcutt, Whealy J (as his Honour then was) and Latham CJ, took a different view to Adams J. 5. In Abbas v R [67] a five judge bench of this Court disagreed with the views which had been expressed by Adams J in Dionys and Calcutt. [68] It follows that the primary basis of the written submissions of counsel for the applicant in support of this ground was entirely misconceived and based on a false premise. 6. That aside, the principal complaint in respect of this ground centred upon the sentencing judge's reference to having applied an "increment" when dealing with the Form 1 offences, and which was said to have resulted in the imposition of a manifestly excessive sentence. In the guideline judgment Spigelman CJ said the following: [69] The position, in my opinion, is that, although a court is sentencing for a particular offence, it takes into account the matters for which guilt has been admitted, with a view to increasing the penalty that would otherwise be appropriate for the particular offence. The Court does so by giving greater weight to two elements which are always material in the sentencing process. The first is the need for personal deterrence, which the commission of the other offences will frequently indicate, ought to be given greater weight by reason of the course of conduct in which the accused has engaged. The second is the community's entitlement to extract retribution for serious offences which there are offences for which no punishment has in fact been imposed. These elements are entitled to greater weight than they may otherwise be given when sentencing for the primary offence. There are matters which limit the extent to which this is so. The express provision in s33(3) referring to the maximum penalty for the primary offence is one. The principle of totality is another. 1. The reference by the sentencing judge to an increment does not disclose error and did not result in the imposition of a sentence which was unreasonable or plainly unjust. [70] In particular, his Honour's reference to an increment could not possibly be construed as an inappropriate attempt to quantify the effect on the sentence and taking into account the Form 1 offences. [71] The approach taken by the sentencing judge in relation to the Form 1 offences was wholly in accordance with the observations of Spigelman CJ in the guideline judgment. 2. This ground is not made out. ORDER 1. In my view the grounds of appeal on which the applicant sought to rely were entirely without merit. I propose the following order: 1. Leave to appeal against sentence is refused. 1. CAMPBELL J: I agree with Bellew J. ********** Endnotes 1. AB 4. 2. AB 7-8. 3. AB 25. 4. AB 25. 5. AB 9-10. 6. AB 9-10. 7. AB 10. 8. AB 10. 9. AB 10. 10. AB 10-11. 11. AB 11. 12. AB 11. 13. AB 11. 14. AB 11. 15. AB 11. 16. AB 12. 17. AB 12. 18. AB 12-133. 19. AB 12-13. 20. AB 13. 21. AB 13. 22. AB 170. 23. AB 68. 24. AB 14. 25. Written submissions at [8]-[9]. 26. (2000) 121 A Crim R 302; [2000] NSWCCA 419 at [76]. 27. At [8]. 28. Zreika v R (2012) 223 A Crim R 460; [2012] NSWCCA 44 per Johnson J at [81] citing Romero v R (2011) 32 VR 386; [2011] VSCA 45 at [11]; Keane v R [2011] VSCA 156 at [13]; [18]; Bayram v R [2012] VSCA 6 at [28]-[29]. 29. (2004) 149 A Crim R 343; [2004] NSWCCA 332 at [38]. 30. [2010] NSWCCA 87; (2010) 266 ALR 598 at [81]-[83] per Basten JA. 31. (2005) 154 A Crim R 40; [2005] NSWCCA 175. 32. At [55](e). 33. At [55](f). 34. AB 50.46 – AB 50.48. 35. AB 51.3 – AB 51.8. 36. AB 155-156; [18]; [20]; [23]. 37. AB 171; [15]-[16]. 38. AB 63. 39. AB 20. 40. AB 23. 41. As to which see Van Zwam v R [2017] NSWCCA 127 at [6]. 42. Exhibit B. 43. AB 170; [13] See also Crown's written submissions in the court below at AB 163 under the heading "Mitigating factors". 44. AB 69.42 – AB 69.44. 45. AB 13. 46. AB 22-23. 47. As to which see R v Thomson; R v Houlton (2000) 49 NSWLR 383; [2000] NSWCCA 309 at [154](i). 48. AB 118. 49. AB 126. 50. AB 140. 51. AB 145; [5]. 52. AB 146; [6]. 53. AB 146; [6]. 54. AB 146; [7]. 55. AB 23–24. 56. Written submissions at [19]. 57. See for example R v Baker [2000] NSWCCA 85 at [11] per Spigelman CJ; Ryan v R [2009] NSWCCA 183 at [33] per Johnson J; Tiknius v R (2011) 221 A Crim R 365; [2011] NSWCCA 215 at [58] per Johnson J; R v DP [2019] NSWCCA 55 at [35] per Fullerton J. 58. AB 153; [9]. 59. AB 69.6-69.9. 60. AB 20. 61. AB 21. 62. AB 22. 63. At [27]. 64. At [28]. 65. (2011) 217 A Crim R 280; [2011] NSWCCA 272 at [10]. 66. (2012) 221 A Crim R 505; [2012] NSWCCA 40 at [41]-[44]. 67. (2013) 231 A Crim R 413; [2013] NSWCCA 115. 68. Bathurst CJ at [22]-[24]; Basten JA at [64]; Hoeben CJ at CL at [68]; [72]; Garling J at [154]; Campbell J at [258]. 69. At [42]. 70. Dinsdale v The Queen (2000) 202 CLR 321; [2000] HCA 54. 71. See Spigelman CJ at [44]. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 11 December 2020