Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: Cameron v R [2013] NSWCCA 224 Hearing dates: 25 September 2013 Decision date: 09 October 2013 Before: Hoeben CJ at CL at [1] Bellew J at [38] Barr AJ at [39] Decision: Leave to appeal granted. The appeal is dismissed. Catchwords: CRIMINAL LAW - sentence appeal - break enter and commit serious indictable offence - offender broke into brother's home and lit fire - house severely damaged and family possessions destroyed - offender suffering from depression at time - whether specific deterrence relevant - whether a finding of "a considerable element of planning" was open to sentencing judge - appeal dismissed. Legislation Cited: Crimes Act 1900 Category: Principal judgment Parties: John Maxwell Cameron - Applicant Regina - Respondent Crown Representation: Counsel: Mr D O'Neil - Applicant Ms S Herbert - Respondent Crown Solicitors: SE O'Connor - Legal Aid NSW - applicant S Kavanagh, Solicitor for Public Prosecutions - Respondent Crown File Number(s): 2012/62811 Decision under appeal Date of Decision: 2012-11-27 00:00:00 Before: Payne DCJ File Number(s): 2012/62811 Judgment 1HOEBEN CJ at CL: Offence and sentence On 23 June 2012 the applicant pleaded guilty to one count of break and enter and commit a serious indictable offence (destroy property by fire), contrary to s112(1)(a) Crimes Act 1900, committed on 25 February 2012. The maximum penalty for the offence is imprisonment for 14 years. 2On 27 November 2012 the applicant was sentenced by Payne DCJ to imprisonment with a non-parole period of 3 years, commencing 25 February 2012 and expiring 24 February 2015, with a balance of term of 1 year and 10 months, expiring 24 December 2016. 3The applicant seeks leave to appeal from that sentence as follows: Ground 1: Her Honour failed to reduce or eliminate the significance of specific deterrence due to the applicant's depression. Ground 2: Her Honour's finding that there was "a considerable element of planning" was not open to her, and undermined her Honour's finding as to the "disinhibiting effect" of alcohol upon the applicant. Factual Background 4The applicant was born in 1958. His family owned several farming properties in the Tamworth area. The properties were run as a partnership until 1984 when the applicant left after receiving a large amount of money. 5The applicant moved interstate before returning to Tamworth in about 1997 where he was employed by the family partnership as a farmhand. After the death of the applicant's father, the properties were administered by the applicant's brother, David, and his wife. 6Since about 2005 the applicant increased the amount of alcohol which he was drinking. By early 2012, he had not been working properly and was often intoxicated or badly hung over when at work. As a result, David terminated his employment as a farmhand on 4 January. Since that time, the applicant continued to reside on the family properties and was provided with food etc by the partnership. As the applicant did not have a driver's licence, he would be driven into town when necessary by David's wife. 7In February 2012 the applicant was living on one of the family partnership properties called "Glenore" with his mother. David, his wife and their three children lived on another of the partnership properties called "Ferntop". The two properties were separated by several properties, all of which were owned by the family partnership. Access to the houses on the properties could be gained through internal gates without having to traverse public roads. 8At about 11am on 24 February 2012, David's wife drove the applicant to the home of Paul Herden in Calala. From that time until about 8pm, the applicant and Mr Herden consumed a quantity of beer. On 25 February the applicant commenced drinking alcohol at about 7am. At 12.30pm Mr Herden drove the applicant to the "Glenore" property and the applicant purchased a carton of beer on the way. 9At about 1.30pm on 25 February David, his wife and their children left "Ferntop" towing a recently purchased motor boat intending to go to the local dam for the afternoon. They went to the house at "Glenore" to fill the boat with petrol. As they were leaving, they encountered the applicant and Mr Herden and a confrontation took place. The applicant got out of Mr Herden's car and said "Who owns this fucking boat? Who paid for it?" His brother told him he did not need to know and the applicant said "You two can go to hell. Get off this fucking property". There was some further conversation of a similar kind culminating in the applicant's brother driving away. 10At about 2pm, the applicant called his brother's mobile telephone but there was no answer. The applicant then went inside the house at "Glenore", drank some more beer and had a short sleep. When he awoke he made several telephone calls and left a message for his brother and sister-in-law saying "You'll be sorry you didn't answer this call". 11The applicant then went to a shed, obtained a container of petrol, put it on a quad bike and drove to his brother's house "Ferntop", through the paddocks of the adjoining properties. Once at "Ferntop", the applicant knowing the keys would be in it, went to a ute parked in the carport and removed those keys. He then went to the back door where he called out to see whether anybody was home. Receiving no response, the applicant opened the back door of the house and went inside with the container of petrol. 12Once inside the house, the applicant again called out to see if anybody was home and receiving no response, went to the main bedroom where he poured petrol on the bed. He then went to the family room where he poured a further amount of petrol around the room. He then lit the petrol in the family room and left the house, locking the back door and putting the keys back in the ute where he had found them. 13The applicant rode the quad bike back to "Glenore", went inside the house, got a beer and made some telephone calls. Between 2.30 and 3pm Mr Herden received a telephone call from the applicant. He later told police that the applicant sounded very intoxicated, distressed and was rambling. During the conversation the applicant said "I'm going to gaol". Shortly afterwards, the applicant rang again and told Mr Herden "I burnt David's house down". Mrs Herden called triple O and reported what she had been told. She then called the Tamworth Police. The applicant also rang triple O on two or three occasions. 14At 5.45pm two police officers went to "Glenore" where they found the applicant who was crying. He said repeatedly "I've done something terrible". The applicant was holding a bottle of beer and smelled of alcohol. The applicant said "I did something terribly wrong sir, I burnt my brother's house down, I just want to die, I can't do this anymore". The applicant said he did not know whether his brother was still in the house or not. 15The two police officers took the applicant to "Ferntop" where they observed the house to be on fire and that the fire brigade was in attendance. The applicant said "I told you sir that I done it". 16The applicant was taken to Tamworth Police Station and formally interviewed. The applicant described his level of intoxication to the police as "okay to drive but about 3 or 4 on a sale of 1 - 10 of intoxication". The house was severely damaged by the fire and the estimate of the cost of repairs was $296,000. The contents of the house were totally destroyed and their value was estimated to be in excess of $80,000. Sentence proceedings 17The Crown submitted that there were aggravating features associated with the offence. It submitted that the fact that the victim and his family were also members of the applicant's family, made the offence more serious. The Crown submitted that because the house was part of a rural property, which was isolated, the response time for the fire brigade was longer. The Crown also emphasised that being a weekend, the children's schoolbooks and school belongings were lost in the fire. The Crown noted that all family keepsakes, trophies, photographs and personal belongings had also been destroyed. The Crown submitted that these were important matters, despite the fact that no-one had suffered any physical injury as a result of the fire. 18Counsel for the applicant accepted that there was some planning involved in the offence. She also accepted that he was fully aware of his actions, but that it was a matter for the Court to determine the extent of his ability to make sensible and reasoned decisions and the extent to which that was affected because of his depression. 19In evidence, the applicant said that he had been depressed but qualified the contents of a psychological report which was tendered in his case by saying that he did not try to kill himself before the offending. He said that he was certainly thinking about it and had taken certain actions but then did not go through with them. 20The thrust of the applicant's case was that at the time the offence occurred and for some time previously, he had been severely depressed. Counsel for the applicant submitted that this was a significant matter in favour of the applicant, when the Court came to consider moral culpability and general deterrence. Counsel also referred to the effect of the alcohol which had been consumed by the applicant before the offence. Remarks on sentence 21Her Honour accepted the opinion of a psychologist that at the time when he committed the offence, the applicant was clinically depressed. She accepted that this depression had some impact on his moral culpability and said: " ... I certainly take it into account in that way but there is no evidence that this behaviour was other than purposeful and indeed there was an element - indeed quite a considerable element of planning." (ROS 8.9) 22Her Honour particularised the element of planning. She noted that the applicant had telephoned his brother's wife and left a message. Her Honour said: "He then had to leave his home, go and get the petrol, put it into a can or top it up, put that on the front of the quad bike, get onto the quad bike, drive the quad bike for a distance of in the order of 15 minutes or so through paddocks that would have involved the opening and shutting of something in the order of three to four gates, got to the house, had to get into the enclosed yard, went to the motor vehicle and got the keys out of the ignition, then went into the house and then spread the petrol, then went back out of the house and returned the keys to the vehicle. ... but as the Crown emphasises, that is quite purposeful behaviour involving, as it did, a number of steps, at any point in which he could have changed his mind and not continued." (ROS 7.7) 23In relation to the effect of his depression on the offending, her Honour said: "I have already said that in the circumstances of this case I give weight to it in terms of an impact in his favour in relation to moral culpability. It is also a subjective consideration but, as the Crown said, it cannot be given great weight and nor should general deterrence be completely put to one side in this case and I accept the Crown's submission. Equally, he was affected by alcohol at the time and I accept that this would have had a disinhibiting effect on him. In that connection, the Crown said there was no issue that he was depressed but as I have noted the Crown said, and I accept, that this should have a limited effect in the circumstances of this case on the requirement for general deterrence and he was, as is clear from the steps that I have just stated, functioning quite well." (ROS 9.3) 24By reference to the message which he left for his sister-in-law, her Honour concluded that anger and resentment which he felt in relation to his brother and sister-in-law, resulting from matters that he perceived or he was aggrieved by, formed a part of his motivation for committing the offence. This was no doubt a reference to that part of the psychologist's report (p 9) which said: "It appears his action was triggered when he met his brother and sister-in-law leaving the property earlier that day, towing a new speed boat. John was angered as he had recently asked his brother who has owned the family property outright since their father's death seven years ago, to pay for necessary improvements for his mother's home for her safety and wellbeing and David refused. This occurred against a background of other irritants over the family company and finances, including John's salary situation, his recent dismissal by his brother, consequent lack of employment and his lack of financial security compared to his brother." 25In relation to the applicant's subjective case, her Honour noted that the applicant would shortly turn 54 and had never previously been in fulltime custody. There had been some minor previous offences, but nothing as serious as this offence. His criminal record indicated continuing difficulties with alcohol abuse. There were three separate offences of driving affected by alcohol. 26Her Honour found that the applicant had good prospects of rehabilitation. She also found that he showed general contrition and remorse for his offending and that he was to be given credit for volunteering the information which he did to police and in the triple O call. He was entitled to a 25 percent discount for his early plea of guilty. Ground of Appeal 1: 27The applicant submitted that consistently with her Honour's finding that the applicant suffered from depression at the time of the offence, her Honour should have found that this effectively eliminated the significance of specific deterrence, or at least reduced it significantly, in the sentencing process. He submitted that her Honour's failure to take this matter into account was an error and that this Court should intervene to re-sentence. 28This ground of appeal has not been made out. Her Honour took into account the applicant's depression when considering his moral culpability and general deterrence. Those findings favoured the applicant, although they were qualified by her Honour's finding as to the extent of the planning and that the applicant was fully aware of his actions. 29In some cases, a failure by a sentencing judge to refer to a principle may be taken as indicating that the Judge did not take that matter into account. In other cases, it may be clear from the reasoning that although no reference is made to the principle, it was in fact taken into account. 30In this case, her Honour made no reference to the applicability or otherwise of specific deterrence. From that and from the general tone of her Honour's remarks on sentence, I infer that her Honour did not consider specific deterrence had any relevance to the matter before her. If that be so, she was certainly justified in reaching that conclusion. 31The evidence was overwhelmingly to the effect that the applicant was remorseful for what he had done and was somewhat shocked by the devastating consequences of his actions. There was no suggestion anywhere in the evidence that he would ever contemplate committing such an offence again. 32Even if that were not implicitly part of her Honour's reasoning, the fact that her Honour did not refer to specific deterrence allows an inference to be drawn that her Honour did not take it into account as a consideration which would operate unfavourably for the applicant. Accordingly, there was no basis for a submission that her Honour's failure to mention specific deterrence operated unfavourably for the applicant. Ground of Appeal 2: 33The applicant submitted that her Honour had incorrectly characterised his actions leading up to the offending as involving "a considerable element of planning". The applicant submitted that a more appropriate characterisation was that his actions were spontaneous in circumstances of severe depression and affectation by alcohol. 34I do not agree. It is tolerably clear that at least from the time when the applicant telephoned his sister-in-law, he had formed an intention to break and enter "Ferntop" and set fire to the house. Thereafter, as her Honour particularised, he took a number of purposeful and methodical steps over a reasonably significant amount of time, i.e. well in excess of the 15 minutes it would have taken him to travel from "Glenore" to "Ferntop". Ultimately he achieved the task which he had set himself, i.e. to break into and burn down the home of his brother and his family. It is difficult to see how that sequence of events could be appropriately characterised as involving "spontaneous" conduct on his part. 35As was conceded by the applicant in the sentencing proceedings, there was an element of planning involved in the offence. It is apparent from the applicant's actions and his interview with the police, that he was fully aware of his actions. Against that background and having considered the actions taken by the applicant leading up to the offence, it was well open to her Honour to make the finding that there was "a considerable element of planning". 36This ground of appeal has not been made out. Conclusion 37The orders which I propose are as follows: (1) Leave to appeal granted. (2) The appeal is dismissed. 38BELLEW J: I agree with Hoeben CJ at CL. 39BARR AJ: I agree with Hoeben CJ at CL. ********** 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: 09 October 2013