New South Wales Court of Criminal Appeal CITATION : R v Kinsela [2003] NSWCCA 92 HEARING DATE(S) : 17/03/2003 JUDGMENT DATE : 4 April 2003 JUDGMENT OF : Santow JA at 1; Buddin J at 30; Smart AJ at 31; DECISION : (1) Leave to appeal against sentence granted; (2) Appeal against sentence allowed in part; (3) Dismiss appeal against sentence of 3 years imprisonment commencing on 2 May 2002 and expiring on 1 May 2005; (4) Appeal allowed against non parole period of 2 years. In lieu thereof fix a non parole period of 15 months to expire on 1 August 2003 on which day the Applicant is to be released to supervised parole. The parole conditions are to include that the Applicant subject himself to the supervision and guidance of the Probation and Parole Service and obey all reasonable directions in relation to psychiatric treatment and/or counselling including in particular to starting of fires, including the taking of medication prescribed by a medical practitioner. CATCHWORDS : SENTENCE APPEAL - offence under Rural Fires Act 1997 - offender diagnosed with psychiatric conditions - "special circumstances" under s44(2) of the Crimes (Sentencing Procedure) Act 1999 - length of non parole period - the existence of "special circumstances" justified further shortening the non parole period. LEGISLATION CITED : Crimes (Sentencing Procedure) Act 1999 (NSW) s44(2) Rural Fires Act 1997 (NSW) s100(1)(a) PARTIES : Regina James Henry KINSELA FILE NUMBER(S) : CCA 60288/02 COUNSEL : P Segal (Applicant) L M P Lamprati (Crown) SOLICITORS : Brock Partners (Applicant) S E O'Connor (Crown) LOWER COURT District Court JURISDICTION : LOWER COURT 01/11/0942 FILE NUMBER(S) : LOWER COURT Hosking DCJ JUDICIAL OFFICER : IN THE COURT OF CRIMINAL APPEAL CCA 60288/02 DC 01/11/0942 SANTOW JA BUDDIN J SMART AJ 4 APRIL 2003 REGINA v James Henry KINSELA Judgment 1 SANTOW JA: INTRODUCTION This appeal was originally against conviction and sentence. But at the commencement of the appeal, the Applicant indicated, through Counsel, that he would not proceed with the appeal against conviction but only with the application for leave to appeal against sentence, for which he receives leave. 2 The offence for which he was convicted was under s100(1)(a) of the Rural Fires Act 1997 (NSW) ("the Act"). It creates an offence with a maximum penalty of imprisonment for five years if a person without lawful authority "sets fire or causes fire to be set to the land or property of another person, the Crown or any public authority …" 3 The salient facts can be stated in short compass, given that conviction is no longer in issue but only sentence. On 5 October 2002, the Applicant was in the Garigal National Park adjacent to Bantry Bay. He was walking towards Seaforth Oval after having had an argument with his brother with whom he lived. He was seen by a number of witnesses on boats moored in Bantry Bay. He was seen standing in a close vicinity to a fire in bushland near the shore. He was then seen to commence a second fire. The onlookers telephoned the Police and Fire Brigade. Water Police spotted the offender watching the fire which had now spread and conversed with him. He was then taken into custody. 4 The witnesses who observed him gave evidence that led to the Judge rejecting the Applicant's initial claim that I "accidentally knocked the candle over and the fire started"; see statement of Senior Constable Allman dated 11 October 2000, paragraph 4; Part A at page 5.4. That evidence, which contradicted any claim of an accidental lighting, included statements from several passengers on nearby vessels who saw a man on the shoreline repeatedly bend over and set fire to the bushland; see in particular statements of Poppy Anne Richard of 8 October 2000, paragraphs 12 to 13, and Anthony Iain Richard McPhail of 8 October 2000, paragraphs 9-10. None of the eyewitnesses saw the man attempt to put out the flames, which is again inconsistent with his version of the "candle falling over". 5 The Applicant also said on a number of occasions on board the Police launch "there has been no fire go through here for 30-40 years and nothing will grow without a fire"; statement of Senior Constable Allman, dated 10 October 2000, paragraph 4; Part A, page 5.8. From this it may be inferred that the Applicant in fact approved of the burning of the fire and comes close to impliedly admitting that he lit it. 6 Thus the clear inference from the witness' statements, which were unchallenged (being admitted by consent), is that far from trying to extinguish the flames at the outset, the Applicant merely watched them. That evidence is reinforced by the fact that "repeated" fires were started; see the statements of Poppy Anne Richards and Anthony Iain Richard McPhail at para 13. 7 The outcome of all of this is that the Applicant committed serious offences whereby he deliberately and repeatedly set the bush alight. He made no effort to put out the fires and instead watched the flames, with potentially disastrous consequences for people and property, as the evidence makes clear. 8 Thus during the fires, an area of at least 400 hectares was destroyed and 250 homes in the district were placed in danger and 88 people were evacuated. Numerous Fire Brigades were deployed as were Police and SES. This was at great cost. Energy Australia is seeking compensation from the offender for the damage caused to a number of telegraph poles. The fire raged for approximately two and half days. 9 One of the grounds of appeal is that the Sentencing Judge erred in assessing culpability in having regard to these consequences of the fire, because intention to cause those consequences, or foresight of those consequences, was not an element of the offence; see Ground 2(b). However, in a supplementary submission, Counsel for the Applicant withdrew that untenable submission, that consequences should not be considered on penalty. The submission became that the Applicant should not be punished for having any intention to cause, or foresight of, those consequences. 10 The Applicant was sentenced to three years imprisonment with a non-parole period of two years, commencing on 2 May 2002 and so expiring on 1 May 2005. This means that the non-parole period expires on 1 May 2004. 11 Importantly, the Judge directed that on 1 May 2004, when the non-parole period expires, that his release to parole was on condition that he subject himself to the supervision and guidance of the Probation and Parole Service and "to obey all reasonable directions in relation to psychiatric treatment and/or counselling in relation to the starting of fires". The Judge recommended to the Department of Corrective Services "that such treatment be given to the offender as is appropriate to his psychiatric state" with copies of the reports of Dr Westmore and the reports by Dr Wojnarowski accompanying the offender so that Corrective Services "will know what sort of psychiatric treatment is appropriate for him". 12 The reports in question were first by the forensic psychiatrist, Dr Bruce Westmore. He, in his report dated 12 January 2001, records that the Applicant was diagnosed with manic depression or bi-polar disorder in 1982 and had, for some years at least, off and on, been in receipt of a disability support pension on that account. 13 Dr Westmore records in his reports under the heading "Diagnostic Issues" that "On the history provided, he suffers from two principal psychiatric conditions: a bi-polar affective disorder and alcohol abuse". 14 The Judge properly acknowledged the necessity to consider the accuracy of the history given to Dr Westmore by the Applicant or on his behalf and to consider the connection, if any, between the condition Dr Westmore says the appellant suffers from and the commission of the offence; see AB, 29 and subsequently at 41-2; the earlier transcript I infer, has erroneously transposed the word "context" for the word "connection". 15 In Dr Westmore's report of 12 January 2001, the Judge notes that Dr Westmore records the following: "I asked him more about the fire and he said that a fire occurred in a National Park or a national reserve. I asked him what was his involvement with the fire and he said, 'I'm not exactly sure. I'm charged with lighting the thing. I certainly didn't intend to.' He told me he was not aware of any person being injured in the fire. He stated again, 'Not even sure I lit it and I certainly didn't light it intentionally, but I didn't go there with the intentions (of lighting a fire). I had a candle in my little box of tricks, apparently I told them a candle fell over.'" 16 The Judge correctly notes that that assertion is quite inconsistent with his plea of guilty as the accidental starting of a fire does not constitute setting a fire within the meaning of s100(1)(a) of the Act. He reviews the statements by the various psychiatric witnesses; Judgment, AB, 30-32 and the account by Dr Wojnarowski, the Senior Psychiatric Registrar at the Queenscliff Community Health Service who also records the suffering of a bi-polar disorder first diagnosed in 1982 and alcohol abuse periodically as a secondary diagnosis. 17 The Judge then records and comments on Dr Wojnarowski's evidence which I quote below (Judgment AB, 35-36): "Dr Wojnarowski said: 'While the symptoms of bipolar disorder are usually well controlled by medication, Mr Kinsela suffered from multiple exacerbation of his illness often requiring hospitalisation. Often a non-compliance with medication was a precipitating factor in such episodes. I am afraid that I can only offer limited information regarding Mr Kinsela's mental state at the time of the alleged lighting of the fires at Bantry Bay." Later, in the same report, Dr Wojnarowski said that he had contact with the offender before the fires and after the death of the offender's mother in July 2000. He said that he next saw the offender after the fire on 12 October 2000. He said that when he asked the offender about that incident: 'His account of events was rather disjointed. He told me that he was 'hazy' about what happened, however he said that at the time he felt 'like someone or something was trying to control (me), like I didn't own myself.'. He also expressed some regret bout what happened, 'I wish it didn't happen but I can't change it'. On direct questioning Mr Kinsela said, 'I probably went off my medication … I felt very high at times … I got too erratic … then I packed my bags and went bush.' In the opinion of Dr Wojnarowski in that report he concluded that it is likely that the offender suffered from a relapse of his mental illness, that is to say his bipolar disorder, in the form of manic or possibly mixed affective episode at the time when the alleged offences were committed. He said: 'I am unable to comment to what extent he knew what he was doing and to what extent his intention/awareness was diminished, however, I have no doubt that both of these functions were impaired to a significant degree .' [emphasis added by me] In a second report of 16 November 2001, Dr Wojnarowski said this: 'An additional information became available to me after listening to the tape of Mr Kinsela's interview with the police in Newtown on 6 October 2000. On the basis of what I heard, I believe Mr Kinsela was likely to be in a manic state, manifested by unco-operative attitude, poor judgment and persecutory ideation. However, I could not exclude the possible effects of alcohol intoxication at that time.' Pausing there, that of those three manifestations, it appears to me that the only one of any possible real significance to this sentence is the matter of the offender's poor judgment or possible poor judgment at the time of the commission of this offence. I do not doubt that at the time of the commission of this offence there is a very real possibility that the offender was suffering from poor judgment. …" 18 What emerges from the foregoing is that the Judge did not here reject either (a) the Applicant's "intention/awareness" was impaired "to a significant degree" in relation to the relevant offence (Dr Wojnarowski) or (b) following his hearing of the police interview with the Applicant that he was "likely to be in a manic state, manifested by unco-operative attitude, poor judgment and persecutory ideation". 19 But the Judge concludes that the only manifestation "of any possible real significance to this sentence is the matter of the offender's poor judgment or possible poor judgment at the time of commission of this sentence". Indeed later (Judgment, AB, 42) the Judge refers to the Applicant as "suffering a mental illness and whose judgment I accept may have been impaired to some degree". That may be accepted; indeed when it came to sentencing the Judge did take that factor, to an extent, into account while properly emphasising the importance of deterrence. This was a factor which lessened, to some degree, the custodial sentence (Judgment, AB, 41-2). But it was not regarded as one of the potential "special circumstances" in setting a non-parole period under s44(2) of the Crimes (Sentencing Procedure) Act 1999 (NSW) (in its form as applicable to offences, like this one, committed before 1 February 2003). 20 The Judge also referred to a statement by the Applicant's sister Miss Karen Farrell from which he quotes as follows: "I am aware of the charge Jim is facing and I find the same charge to be completely out of character for him. Jim has always had a great love of nature, in particular bushland and its native inhabitants. I find it impossible to believe that, in a normal state of mind, Jim would ever knowingly commit an act that would consequently damage and destroy any part of native bushland that he loves so much." 21 The Judge also refers to a similar statement by the Applicant's brother, Mr Christopher Kinsela where he says, amongst other things "Jim's never been a fire bug" (see statement 10 October 2000). 22 However here the Judge did discount the evidence of Miss Farrell and Mr Kinsela, preferring that of the Applicant's former wife, Dawn Kinsela, from which the Judge quotes as follows (Judgment, AB, 38): "On 12 May 1973 I married James Henry Kinsela. We were together about three years before we were married. We lived at Harbord in Sydney until about 1976 or 1977 when we moved to Silverwater on Lake Macquarie. James always had an awareness of fires before moving to Silverwater, however, he became more actively involved in the lighting of fires due to the large amount of burning off we had to do. James lit a lot of fires around then and made the children sit outside and watch the fires. He actually put mattresses near the fires so the children would have to sit there and watch them. This usually occurred late at night and could lat until the early hours of the morning. James' fascination with fires continued during our married life. If he wasn't lighting fires at home, he was at a mate's house either lighting or watching them." She said, "Our marriage deteriorated over the years and we separated in 1984." 23 The Judge is criticised by the Applicant in his Counsel's written submissions for concluding that "It is clear to me from what you have said that the offender has had what I would describe as a morbid preoccupation with fires for a very long time". The criticism is on the basis that the witness did not use the term "morbid". Even if that be accepted, the characterisation by the Judge of what she said was certainly not unfair. However, the Judge then goes on to note "that no attempt has been made on the part of the Defence to demonstrate that the offender is, in fact, a pyromaniac, that is to say that he has some psychiatric condition which compels him, against his will, to start fires. The point I make is that, from that material, it appears to me, … that his longstanding preoccupation with fires can fairly be described, and contrary to what his brother and sister said, as a morbid one" The Judge concludes that " his lighting of these series of spot fires on this night were a series of conscious, willed acts ". He refers to the fact that the Applicant does not appear to have been intoxicated or at least to any significant degree at the time he lit the fires. He refers also to his false assertion to the Police that the fire began because the candle fell over as compelling " of the conclusion that he knew very well that it was very wrong to deliberately ignite this series of fires and that his false explanation to the Police was a very conscious attempt by him to exculpate himself from the consequences of his actions". 24 The Judge's conclusion that these were conscious, willed acts can be accepted. However, what is also relevant is that there was evidence not rejected in terms by the Judge, save by implication, that the functions of intention and awareness were impaired to a significant degree, and that this was a mitigating factor for which some greater weight should have been given. The Judge appears to distinguish between affecting judgment adversely, which he accepts, and affecting intention/awareness which it appears he does not, at least by implication. 25 Nonetheless the Judge carefully lists the factors he did take into account so as to clearly indicate the weight he gave them. I shall attempt to summarise those factors as follows. (1) the offender had a longstanding preoccupation with fires and was aware of the nature of his actions when he started these fires, knowing that it was wrong to do so while accepting " that his condition may have clouded his judgment to a degree and may have caused him to do what he would not otherwise have done ". (2) lighting of these fires in these circumstances on any objective view is an offence of considerable seriousness with the magnitude of the consequences or potential consequences being exacerbated by the fact that the National Park was surrounded on three sides by residential suburbs requiring the evacuation of a large number of people as a result of these fires. I should say at this point that I consider these consequences were properly to be taken into account in sentencing though not of themselves elements of the offence, it being axiomatic that the Judge may take into account the gravity of an offence in that way. (3) the community costs from the damage to the fire and averting greater damage were very considerable indeed. (4) the offender must have foreseen that these fires could have spread and caused real damage and the offender's psychiatric condition was not such as should leave him to escape a custodial sentence; what it does mean is that the custodial sentence should be less than it would otherwise be. (5) Even with a person such as the offender, consideration of the principle of deterrence is by no means irrelevant. (6) Though the Applicant had a longstanding morbid preoccupation with fires, personal deterrence is of great importance and this offence being of such seriousness, a substantial custodial sentence was the only appropriate penalty. (7) The offender's criminal record was not an extensive one though there was an offence committed shortly before this offence, dealt with afterwards, of maliciously destroying or damaging property for which he received a six months' good behaviour bond. (8) The Applicant according to testimonials tendered on his behalf, was a kind and caring person who has struggled with his psychiatric condition and who, because of his mental disability diagnosed in 1982 has since that time worked spasmodically as a fencer but been on a disability benefit. (He had been unable to pursue his profession as a chartered accountant.) (9) The Applicant submitted that from time to time he did not take his medication or at least in the proper doses and sometimes forgot to take it particularly if drinking alcohol but said that he did not think he had been abusing alcohol at the time of the offence. (10) The Applicant's plea of guilty, although not made necessarily at the earliest possible opportunity, was entered at a relatively early opportunity and certainly after the Crown indicated a willingness to accept a plea of guilty to this offence rather than a more serious offence with which he was originally charged, indicating remorse on the Applicant's behalf, entitling him to a 25% discount on sentence that would otherwise have been imposed. (11) His psychiatric condition was taken into account first by noting that it was this offender's first time in custody and that he needed psychiatric treatment with an extended period of supervision to receive counselling. (12) All of these factors properly justify the substantial custodial sentence imposed, in my judgment. This includes the consequences, actual and, subject to what follows, potential. 26 However his capacity of foresight, is a matter of judgment and the latter, as the Judge held, was impaired. The same could fairly apply to the related capacity of foresight, more especially of the Applicant suffering mental illness and in a manic state. What remains to be considered is the length of the non-parole period and whether there were special circumstances justifying any shortening of the non-parole period from the statutory one-quarter of the term of the sentence. 27 The adjustment made by the Judge, between the normal one-quarter ratio of non-parole period to overall term was, as he said, not a large adjustment. Thus the Judge in sentencing started from the maximum penalty of five years. He treated the appropriate starting point taking into account the Applicant's mental state, as four years. Then, with the discount of 25% which can be taken to reflect the plea of guilty, his sentence was reduced to three years with the non-parole period being set of two years or two-thirds of the sentence. That can be compared to the maximum non-parole period that could have been set under the then applicable s44(2) of the Crimes (Sentencing Procedure) Act 1999 (NSW) which is 75% of the head sentence, that is to say two years three months. The Judge thus gave only three months less than the maximum non-parole period. 28 I consider, as I have said, that in all the circumstances the sentence itself must remain reflecting the important aspects of deterrence both general and particular so far as the Applicant is concerned. But I consider that the non-parole period should be reduced. The special circumstances which should have been taken into account in setting the non-parole period more generously to the Applicant is his mental illness and his resulting need for psychiatric treatment best done outside a prison. The Judge wisely laid down a regime for continued psychiatric help during the parole period. To my mind that is likely to be most effective during an extended period of supervised parole whilst in the community. I would propose that the non-parole period be reduced to fifteen months but otherwise that the sentence should not be disturbed. The effect of such order would be to see the Applicant released to parole on 1 August 2003. ORDERS 29 I propose the following orders: (1) Leave to appeal against sentence granted. (2) Appeal against sentence allowed in part. (3) Dismiss appeal against sentence of 3 years imprisonment commencing on 2 May 2002 and expiring on 1 May 2005. (4) Appeal allowed against non parole period of 2 years. In lieu thereof fix a non parole period of 15 months to expire on 1 August 2003 on which day the Applicant is to be released to supervised parole. The parole conditions are to include that the Applicant subject himself to the supervision and guidance of the Probation and Parole Service and obey all reasonable directions in relation to psychiatric treatment and/or counselling including in particular to starting of fires, including the taking of medication prescribed by a medical practitioner. 30 BUDDIN J: I agree with Santow JA. 31 SMART AJ: I agree with Santow JA ********** Last Modified: 05/05/2003 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.