District Court New South Wales Medium Neutral Citation: R v Bolger [2018] NSWDC 285 Hearing dates: 24 April 2018 Decision date: 26 April 2018 Jurisdiction: Criminal Before: Judge S Norrish QC Decision: Full time custodial sentence. For orders see [120]-[123] Catchwords: CRIMINAL – sentence - dishonestly damage by means of fire – dishonestly attempt to obtain a financial advantage - no evidence of contrition - totality of offending - without regard to public safety - degree of planning - special circumstances Legislation Cited: Crimes Act 1900 Crimes (Sentencing Procedure) Act 1999 Cases Cited: Cahyadi v R [2007] 168 A Crim R 41 DPP(Cth) v De La Rosa [2010] NSWCCA 194 Isaacs v R (1997) 41 NSWLR 374 Kearsley v R [2017] NSWCCA 28 Nasser v R [2017] NSWCCA 104 Pearce v R (1998) 194 CLR 610 Porter v R [2008] NSWCCA 145 R v Ahmad Hassoun [2016] NSWDC 409 R v Allpass (1993) 72 A Crim R 561 R v Bradley Alan Smith [2018] NSWDC 18 R v Daetz [2003] NSWCCA 216 R v Dinos [1999] NSWCCA 208 R v Eagan [2013] NSWCCA 196 R v Elzakhem [2008] NSWCCA 31 R v Hammoud [2000] NSWCCA 540 R v Hanney [2014] NSWDC 13 R v Markarian [2005] NSWCCA 264 R v Olbrich [1999] HCA 54; 199 CLR 270 R v Pitt [2001] NSWCCA 156 R v VAA [2006] NSWCCA 44 R v XX [2009] 195 A Crim R 38 R v Zamagias [2002] NSWCCA 17 R v Zerafa [2013] NSWCCA 222 Savvas v R [1995] 183 CLR 1 Category: Sentence Parties: Regina Paul Anthony Bolger Representation: Counsel: Ms Lydiard (Crown Prosecutor) Ms Phelps (Offender) File Number(s): 2013/00226968 Judgment 1. HIS HONOUR: Paul Anthony Bolger appears today for sentence in relation to two counts for which he was found guilty by a jury in late March of this year. He was tried between 30 January 2018 and 20 March 2018 in respect of five counts on the indictment, two counts relating to a fire at his premises at 93 Johnston Street, Tamworth on the evening of 16 March 2003 and a further three relating to a further fire at the same residence on 2 April 2013. 2. The first fire partially destroyed premises that he owned, in the sense that he was the trustee of a trust, as I understand it, of which he and no doubt others were beneficiaries that controlled premises that he had occupied for a number of years beforehand. The second fire caused almost the total destruction of the building and whatever contents were within it at that time not either destroyed, damaged or removed after the first fire. The contents of the premises were his possessions. 3. The two counts the offender was found guilty of relating to the first fire were, firstly, a count that he on 16 March 2013 dishonestly damaged by means of fire the house and contents at 93 Johnston Street, Tamworth with a view to making a gain, namely payment of insurance money for himself. This offence has a maximum penalty of 14 years imprisonment. The second count alleged that he, between 15 March 2013 and 25 July 2013 by deception, namely by falsely reporting a fire to be accidental and claiming damage on an insurance policy, dishonestly attempted to obtain a financial advantage for himself. This offence carries a maximum penalty of ten years imprisonment. 4. I will come back to the way in which the two counts, both by reference to the facts and the elements pleaded overlap with one another. 5. Count 1 is an offence contrary to section 197(1)(b) Crimes Act 1900. 6. Count 2 is an offence contrary to section 192E(1) Crimes Act 1900. 7. Having regard to the fact that the offender pleaded not guilty, there is obviously no discount to be given for any utilitarian benefit of the character of the pleas and obviously there is no evidence of contrition or any taking of responsibility by the offender for his actions that may operate as mitigating factors if found. 8. The offender was born, as I understand it on 28 December 1968. He was 44 at the time of the offending conduct and as I would understand it he is now 49. I do not propose to go into the precise detail of the relevant facts of the matter, but quite a number of aspects of the evidence need to be referred to in my judgment. The Crown has sought to summarise the evidence at trial, relevant to proof of guilt in its submissions and the offender's counsel indicated the day before Anzac day, today being the day after Anzac day that that summary was largely accurate, save for some matters which I have noted and taken into account. 9. The trial in a sense was a sprawling, complicated one and the proof of guilt of the offender was ultimately based upon a range of circumstantial evidence. I do not propose to summarise that evidence as I have said, but categorising the character of the circumstantial evidence there was evidence of opportunity, the offender was present in the house when the fire started, there was evidence of motive, his obvious financial difficulties at the time of the fire and there was evidence of his increase of insurance cover on the property in August and then again in October 2012. There was also evidence of his conduct before and after the fire including matters pertaining to his attempts to claim upon the insurance policy he held with the insurance company which I will refer to as NRMA insurance, or "NRMA". In this evidentiary material there was some inconsistencies in his accounts as to the circumstances of the first fire starting and some partial admissions, but clearly not sufficient to establish guilt, his relocation of a hard drive for a closed circuit television system he had operating within the house at the time of the fire to a friend's address and a related untruth told to an NRMA investigator about that particular matter. There was also the expert opinion that was given in the trial as to the cause of the fire which I will come to shortly. 10. The relevant central fact in the matter required to be established beyond reasonable doubt was that the offender started the fire that caused the damage on the occasion of the first fire in circumstances that were not accidental. Accidental commencement of the fire was the essence of his various versions, although there were some differences in peripheral detail given by the offender. 11. The other matters pleaded in the two counts with which I am now concerned that is "with a view to making a gain, namely payment of insurance money" (in relation to count 1) and "falsely reporting a fire to be accidental and claiming damage on the insurance police and thus dishonestly attempting to obtain a financial advantage for himself" (count 2), followed upon proof of the central fact that I have identified. That is proving that the offender deliberately started the fire. There was no doubt that the offender sought financial gain by payment of insurance monies and attempted to obtain a financial advantage for himself, but that conduct would not have been criminal had the circumstances of the fire been covered by the insurance policy. If the fire was deliberately lit then naturally it could not be covered by the relevant insurance policy. Although the issue of the terms and conditions of the contract of insurance were never revealed in any detail in the trial. There was no issue in relation to these latter matters of the trial and as I said the conditions of the policy was very much a matter that seemed to have been taken for granted without any criticism of the parties of course. 12. The first fire, in respect of which the offender has been found guilty of the two counts, started in the a front bedroom at the home of the home of the offender on the late evening of Sunday 16 March 2013. The evidence at the trial revealed that the offender had returned home earlier in the evening, having spent the previous week in Sydney in relation to litigation over his father's estate which I will relate later. After cooking himself a meal the offender was eating in a rear entertainment area shown in the CCTV "footage" that was admitted in the trial, having a beer and relaxing apparently when an alarm went off and the house started filling up with smoke. There was CCTV film coverage from a number of camera angles in the period of time leading up to the commencement of the fire. During that period of time, that is in the period of time of approximately an hour before the fire started, one can see the offender coming back and forth from the rear area, or the entertainment area of the house into various rooms of the house tending to candles that were seen in the film that was shown to the jury. A part of the exhibit of the relevant CCTV footage showed from a particular camera angle, pointing away from the front area of the house the offender in the reflection of a doorway moving in the vicinity of one bedroom to another, apparently as it was suggested to the jury and was capable of being accepted by the jury, "creeping" into the bedroom in which the first fire started. 13. There was body of expert evidence as to the circumstances in which the first fire started as I said. Clearly it started in the vicinity of the front window of a bedroom. One live issue was whether it started by a candle standing in, what was described as "oil burner", located just approximate to the windowsill burning in effect its way through the oil burner and thus commencing the fire that ensued. Or whether the fire started at a lower level, in fact on the floor area, which was the preferred view of the Crown's expert. That particular expert Mr Munday and the defence expert Mr Café differentiated in emphasis in relation to these fundamental matters. 14. Mr Munday believed that it was more probable that the fire in the bedroom started in what was described as the north-west corner, that is the corner of the room closest to the doorway, at a low level, approximately 40 to 50 centimetres from the location of the oil burner where it was last seen by the offender. He was of the opinion that the fire was commenced by an ignition source such as a naked light, but without any accelerant. This the two experts agreed upon. His reasons for concluding that it was more probable that this is the place at which the fire started were largely concerned, as I summed up to the jury, significant burn marks in that area at floor level. He conceded in his evidence that fires have considerable unpredictability and the contributing factors to what he described as areas of intense burning at low level, could have included the falling of a burning blind that was attached or connected to the front window, the melting of plastic from an upright fan, ventilation from the open door between the bedroom and the hallway, the burning of timber panels of that door that led from the bedroom into the hallway and the falling of a clothes stand with the resultant burning of clothing or other items that were on that stand. All these items that I have just identified were readily seen in the photographs that were taken after the first fire. He could not exclude in his opinion the reasonable possibility that the fire started from the oil burner in the position in which it was described to be standing when he last saw it by the offender. In other words starting in circumstances that were consistent with an accidental ignition. 15. Mr Café was of the reverse view to Mr Munday. He believed the fire started in the oil burner with the effect of the burning candle within the burner igniting the vaporised oil caused by the heat of the candle. He was of the view that the decisive evidence was a 'ring', clearly seen it must be said in the photographs of the oil burner or what was left of it, caused in the glass oil burner by the burning of the oil where the candle had been positioned before the glass oil burner was destroyed by fire. The circular ring is shown in the photograph exhibit 22 and also in exhibit Z (exhibits Z27 and Z33) photographs taken by Mr Munday. He was of the opinion that the matters that Mr Munday indicated intensity of burning consistent with the source of the fire were not the source of the fire, but were a consequence of the fire developing with the falling of the blind, the melting of the fan and the other matters that were properly raised with the Crown's "expert". 16. In essence the offender told police and others, including NRMA investigators and assessors that he believed the fire started from the "candle" as it was sometimes described, positioned in the vicinity of the blind. It would appear as though on his version the blind was not fully pulled down. It was slightly raised and the oil burner with the relevant candle inside it was sitting on top of a speaker, slightly below the level of the raised blind near the windowsill. 17. In relation to the matter, having regard to the totality of the evidence of expert opinion and noting the relevant qualifications within the opinion expressed by the Crown's expert, I am not persuaded that the fire had two sources. At one point that expert suggested there may have been two sources of the fire. My view of the evidence is that, even having regard to the Crown's expert evidence, it is clear that the primary source of the fire, that is the initial source of the fire which clearly spread from that position, was underneath the window. 18. Of course both experts had difficulties with their opinions in the way in which they were examined and cross-examined. The defence expert had in part acted upon information provided from the offender which was not accurate or correct. The Crown's witness who was in my view far from neutral, having come to the matter days after the fire to protect NRMA's interests, gave unconvincing explanations, in my view, and then rather begrudging concessions to matters consistent with the fire starting near the windowsill and being spread by the collapse of various items within the vicinity of the window. Thus contributing to the intense burning that the expert claimed was the source of the fire. I found it very difficult to understand, with the greatest of respect to Mr Munday, how he could prefer one opinion to the other, particularly having regard to the matters that he conceded in his cross-examination I believe it was very, regrettable that the Crown was left to rely upon a person who had come to the matter to protect the commercial interests of a party who was not well disposed to the offender, as the evidence made abundantly clear. 19. The fire caused considerable damage, as I have noted, largely through smoke damage. But also by, within the front bedroom and nearby rooms, destruction of ceilings, doors and the like. Particularly within the front bedroom and the en suite. That damage being caused primarily by fire which was apparently very intense. Again there was some dispute between the experts as to the extent to which the front room was consumed by fire and in that respect I did prefer the evidence of the Crown's expert. But it did not make much difference to the effect or the basis of the primary opinions they held. 20. There was a great deal of smoke damage to possessions of the offender, as I would understand it, including clothing, furniture, artworks in the character of sculptures and the like, there was an upstairs loft and storage area where many items were stored, which were clearly of value to the offender, some of great sentimental value. It was a very strange affair when one thinks about it that the alarm, having gone off, the offender having contacted triple-0, that the offender stayed in effect to fight the fire and it would appear on the evidence, it seems almost incontrovertible, that the offender had not removed any items before the fire started. He raised the alarm by calling triple-0 immediately or promptly, sought to be of assistance to the fire fighters, to the point where he in fact was entering the building and warned off by the more professional fire fighters, he used a hose at one point to try and douse the fire, at one point he tried to make it to the front door, where the fire was at its most intense to try and assist the fire fighters to get through the doorway which was locked. He suffered, as I understand it, some minor smoke inhalation, his conduct immediately after the fire was relied upon by him through his counsel in aid of his denial of guilt as being conduct inconsistent with an intention to deliberately start the fire. 21. The offender did not give evidence at the trial but he had given extensive versions of events, relating to the first and second fires to a range of people, both informally and formally. An electronic interview was conducted by police with him on the occasion or just immediately after the second fire. He gave a walk-through of the destroyed building which was videotaped. He made a number of telephone calls to agents of the NRMA giving accounts of the fire. He was interviewed extensively on at least two occasions by the NRMA's senior investigator. Some of those interviews, excruciatingly long it must be said, giving the offender every opportunity to contradict himself and to say things which frankly clearly would not have assisted him in the eyes of the jury. 22. I accept that the offender was upset by the extent of damage. Although it is the case that there was evidence in the trial that after the first fire, when the full extent of damage was understood by the insurer and it was thought that he would be just paid monies for the repair, the offender was disappointed that a full payout on the insurance for the building would not be made. The issue of what he would have been paid out if the house was destroyed, as it was on the second occasion, was a matter never explored. It is correct to say the Crown was entitled to rely upon the events of August and October 2012 to show increases in the value of the property. But without being an expert on insurance law and without any other evidence to assist me, I would have understood house insurance did not work the way in which an agreed policy on a motor vehicle would work. The fact that the house was insured up to $850,000 at the time of the fire did not mean that the offender would necessarily be paid $850,000 for the structure if it was fully destroyed. One would assume the insurance company would undertake some assessment of what was required to restore or repair or replace what had been destroyed. There are insurance policies I know, some I held many, many years ago with the GIO, that were claimed to be 'replacement policies'. But I heard no evidence that such was the case with the NRMA insurance policy. This was in fact the subject of a question from the jury at one point. However they determined they did not want the answer to the question and returned their verdicts before an answer needed to be given. 23. There was the suggestion that the offender had tried to hide the server for the closed circuit television system from investigators particularly the insurance investigators. However it is correct that on the night of the fire and shortly afterwards he told the people that he did have closed circuit television coverage of the events immediately before the fire started and to my mind it would have been self-evident to anyone who inspected the site after the event that the presence of the various cameras around the property would show that there must have been some closed circuit television system in place. Yet it is correct that he moved the server to a friend's place. But I cannot conclude that he did so with the intention of hiding what was recorded on the closed circuit television from police or NRMA investigators. Then again he did tell a lie which did not assist his case, to the NRMA's principal investigator, as to actually what happened to the server. Claiming falsely that it had been stolen in one or other of some breaking and enterings of his property that occurred when it was not secured. The server was recovered by police on a tip-off from an NRMA employee who was the husband or the ex-husband of the friend whose residence was where the server had been taken to by the offender. 24. Initially the fire brigade thought the fire was accidental. I am referring of course to the first fire. The second fire was clearly deliberately lit. It would appear to the police who attended upon the scene that this preliminary view expressed by fire personnel had been conveyed to them. I must say that the fire fighters should be commended for their courage and professionalism in containing the fire. The proven conduct of the offender obviously created potential danger for any person attempting to fight the fire. However in circumstances that I will dwell upon when I deal with the Crown's submission, I am not satisfied that the offender foresaw or indeed desired to place anyone in danger. I do not believe, or accept that in fact he had addressed his mind to any potential risk. Fortunately no fire-fighting personnel were injured. Again whether that was due to good fortune or their professionalism, or both, or the character of the fire, I am unable to say. Although the damage was extensive, it was relatively localised. However it appears to me that there is no doubt that the conduct of the offender after the event began to attract suspicions both amongst Tamworth police and also with NRMA representatives. The dramatic raising of the cover by the offender on two occasions, five to seven months before, would have also been an alert sign for the insurer. Within a very short period of time after 16 March, and I take that to be within a matter of a week, or within a week, some assessors already had attended the fire from the local NRMA agency. 25. The fire was regarded by the NRMA as suspicious. It is clear that the offender did not fully understand that that sort of suspicion would remain until the NRMA was positively satisfied that the fire was not suspicious. The initial expert opinion in relation to the first fire, that the fire was probably deliberately lit, in my view sealed the fate of the offender's insurance claim. That opinion having been formed by Mr Munday who attended upon the scene within a week or so of the fire occurring. Of course the NRMA's attitude to the matter may have needed to be the subject, or could need to be the subject, of litigation on the part of the offender. But the onus will no doubt be on him in that regard, should that be pursued. 26. The matter did not end there. The offender 's conduct in his various dealings with NRMA Insurance representatives, assessors, investigators and the like over the next couple of months would have done nothing to allay their suspicions of his conduct and his motives. Every time the offender spoke to the principal investigator he would have done nothing to deflect the investigation that was occurring. One of the striking features in my view of the many conversations he had that were recorded, some by telephone call to operators for the NRMA, some in recorded interviews conducted by the NRMA's investigator and in interviews such as the walk-through of the premises conducted by police, was the way in which, if I may use the expression with no disrespect to the offender, he tried to "talk himself up" or to put it another way "big note himself" in a range of ways. Frankly, by talking so much and repeating things so much he constantly, either contradicted himself or with respect to him, made himself either look silly or suspicious or both in the eyes of the insurer and the police. That the house subsequently burnt down on 2 April approximately two weeks and a few days later would have only strengthened the attitude of the insurer to the point where later in 2013 any claims that were outstanding under the insurance policy in respect of both the first and the second fire, were refused by the insurance company. 27. The acquittal of the offender in relation to the last three counts in the indictment relating to the second fire was entirely within the right of the jury having regard to the evidence. But it did not assist the offender either in relation to his insurance claims or financially that the second fire occurred. Without any insurance payment the offender's criminal conduct in respect of the first two fires has cost him dearly financially and the second fire, as one would expect, has exacerbated the damage financial, emotional and otherwise to him. 28. The estimated cost of the repairs required for the damage from the first fire, as I understand it estimated by the NRMA, was just over $142,000. There was obviously as I said, also damage to contents of the house, both furniture and chattels. But what could have been gained in relation to the first fire, or properly claimed under the insurance policy is not capable of estimation with precision. Any successful claim for insurance payment would have involved a payout one would have expected that exceeded $142,000, but it would not have exceeded that amount in my view in the hundreds of thousands of dollars, or even the tens of thousands of dollars, one would have thought. Perhaps the figure may have been around $200,000 but that would be speculation on my part. 29. The second fire, as I said destroyed not only the building but destroyed or damaged the bulk of the contents therein remaining, some of the contents of the house had been removed after the first fire as fire damaged or taken to safe places as was the server. The precise extent and amount of contents that were damaged I do not know. The offender did submit detailed claims or details of his claim in relation to the effect of the two fires, through an agent. It is clear that much of the loss beyond the buildings, both in furniture, artworks and household items, clothing and the like were of great sentimental value to the offender, being artworks and the like from his travels. I understood from an account he gave that amongst the things that would have been lost, if it was, I do not know, was a saddle that had belonged to his father. 30. An aspect of the evidence in the trial, highly relevant in a range of ways to the findings of guilt were the financial circumstances of the offender at the time of the fire and of course his related emotional state. 31. The offender's father died in 2009. When he died he had an estate as I understand it comprising two farming properties and other assets including, as I would understand it, a substantial sum of money. The precise relationship of the estate to what was described as a "partnership" that included the offender, his three siblings and the estate of his father was not entirely made clear during the course of the trial. But it would seem as if, after the father died, before the offender's claim upon the estate could be resolved by the Supreme Court, the family had gone about, either divvying up, if that is the correct expression, or at least making use of the assets of the estate in a range of ways. 32. The offender had commenced legal action before 2013 in the Supreme Court, it would seem to me to get more than the roughly one quarter of the estate that he had inherited. The merits of that claim are of no concern to me. The evidence and, as I understand it, the submissions of the parties to that litigation ran to 14 March 2013. That is, as I would understand it, the Friday before the first fire started. The learned Judge hearing the matter had reserved the Court's decision. It is clear that the case had not gone well for the prisoner. The offender obviously knew this because he is recorded saying this after the fire. At one point to one of the NRMA representatives, in a conversation that was recorded, he contemplated that he would lose the case, but in some way it would be fixed upon an appeal. These comments were made, as I would understand it on the chronology, before the judgment was actually handed down. It showed, allowing for the fact that he may have received advice to this effect, a naïve approach to the significance of fact finding at first instance in litigation in the Supreme Court and the District Court. 33. The offender was liable potentially, although costs at that point had not been ordered, to a considerable cost for running this litigation. The costs of the respective parties were estimated to be in the hundreds of thousands of dollars. On 14 March 2013 two of the members of the partnerships withdrew $315,000 from an account, a bank account in the name of the partnership of which the offender was a member with his siblings. The rights and wrongs of this withdrawal I do not know. But it certainly greatly affected the offender because he was very concerned about it. Immediately after the fire it seemed to occupy his thoughts as much as the effect upon him of the fire. 34. He has produced in the sentencing proceedings, a reference from a brother that seems to make it a little clearer as to the fate of the money. He claimed in his letter that was tendered in this Court that the $315,000 withdrawn by two siblings, who apparently are not on good terms with the offender even up until the present time, went into "an interest bearing account on behalf of the partnership". So the money was not lost to the offender. But he did not see it that way or at least that is what he claimed to a number of people. The amount of money that he believed that had been taken out, varied in his claims, showed, with the greatest of respect to him, the erratic character of the representations that he made from time to time about his position. 35. It is clear to me however that on 16 March the offender was aware of the withdrawal and understood it to be potentially a threat to his financial security, as was the fate or the course of the proceedings in the Supreme Court. He had at least two corporations that conducted businesses which apparently ran their business from his home. Although one of the corporations, or both corporations, used a property particularly at Werris Creek in relation to their work. One corporation had some role in road construction and its title represented that, the other corporation was concerned with metal recycling. His home office from the photographs of it, taken before the fire show it to be quite a professional set up as I would see it. He conducted some of his business directly from the house that was damaged by fire, buying and selling scrap metal. He had, up until the time of the fire, concerns for his security and he certainly had great concerns for the security of the property after the first fire. He had at least one secure safe. The CCTV system had been augmented late in 2012 to give him a greater peace of mind in relation to his security and increased the coverage of the house and its environs which was extensive. This was obvious from the footage available to the jury in the exhibits that were tendered. But it seems to me in the period of time through 2012 up until March 2013 his business affairs were in disarray. The EPA was threatening a prosecution in respect of a clean-up on the Werris Creek property that was apparently owned by the father's estate but to which the offender obviously had access. I do not accept, as was suggested by the Crown in its final submissions, which were very helpful I hasten to say, that any of his companies were necessarily liable for the cost of a clean-up as cited by the Crown in its submissions. In any event as I think I pointed out last Tuesday afternoon, two days ago, now without the benefit of transcript, there did not appear to be any evidence in relation to the matter identified by the Crown of any moment. What was before the jury was the potential cost of a breach notice, issued by the EPA which is expressed in the hundreds of dollars. Not in hundreds of thousands of dollars. 36. I also do not accept that the offender had, or believed that he, had any reasonable cause of action against the Adelaide based principal contractor which had created the difficulties for him and his company by the dumping of some of the material on the Werris Creek property that was the subject of a clean-up notice from the EPA. He had written through his solicitors a letter of demand claiming compensation in the hundreds of thousands of dollars, having been involved in performing a cleaning operation on the railway sidings at Werris Creek for which his corporation charged the Adelaide company something in the order of $12-14,000. The letter of demand was sent quite a number of months before March 2013 and there was no evidence of any follow-up to the letter of demand. 37. His filing system and company affairs appeared to be in disarray in the months leading up to March 2013. Two office workers gave evidence of their temporary employment with him over this period of time to try and sort out his "paper work". In fact one or other of them in her evidence revealed that his insurance policy for the house, that is contents and building insurance policy, or policies, were not up to date. They would seem to me to have lapsed. Thus, in August 2012 he first contacted the NRMA. We heard the recording of his conversations with the agent. He increased the coverage for the building policy to $800,000. In October 2012 it was increased to $850,000. The discussions with the agent for the NRMA I need not dwell upon. But it seems, as was submitted to me by the offender's counsel, that part of the settlement of the figure was done on the basis of some representations made to him by the agents and also based upon some information the offender had been given, I accept in good faith, about the fact that his property may be under insured. Or had been under insured and the more realistic cost of replacing the building, which was substantially renovated over many years, was closer to the $800,000 mark than the original insurance policy coverage which was several hundred thousand dollars less. 38. I accept, of course, that the Crown had available to it that evidence as part of its evidence of motive in the context of the offender's financial difficulties. But there were also a number of reasons to believe that there was not anything necessarily sinister about the increase in coverage. I go back to the matter I raised earlier. It was unclear precisely what the insurance company would be required to pay, even if the insurance company was absolutely satisfied that the building had burnt down accidentally. 39. The offender, however, in January and February 2013, as demonstrated in recordings of his conversations with representatives of a mortgage company, tried to increase his borrowings on the property from that mortgage company, which was a non-bank lender as I would understand it, although it may have been underwritten by a bank. He did so however without success. The recordings of those conversations, showing him trying to increase those amounts, reflect the circumstances of a person, in my view, in substantial financial trouble trying to increase the borrowings on his major asset, if it could be described as that, given that he held it as a trustee of a trust owning the house in which he lived and from which he carried out his business. The building was already highly geared in my view, given even the most optimistic valuation of the property. In fact the mortgagee was not prepared to extend to the offender any further money under mortgage, as the offender knew before 16 March. 40. His financial affairs were assessed by the forensic accountant who gave evidence in the trial. Whilst limited in its scope, that evidence, not fully reflective of the assets of the offender, showed a considerable amount of credit card debt and other debt and very little equity. By March 2013 the road construction and metal recycling business as I said, appeared to me to have been either inactive or not particularly productive. It seems to some extent this may have been because he was distracted by litigation in the Supreme Court, which I can understand. 41. One of the referees who worked with him in one or other of the businesses, spoke of the success of the business in earlier years before 2013. That I do not doubt. But whatever profit the offender himself made out of the success of the business could not be found very well in the financial records available of the offender. 42. The offender claimed to various people that he held thousands of dollars in the house at the time of the first fire. There is no evidence that those sums of money existed. In fact he gave contradictory accounts at various times of how much money he had in the house, where it was held and what happened to it. I do not understand that the contents of the safe, that was shown in one of the photographs tendered in the trial were in fact damaged. There was never any independent evidence of the existence either of the cash, said to be in the house, or of its fate. It certainly did not find its way into the offender's bank accounts it would seem. The offender, as at 16 March 2013 was very much optimistic about his financial circumstances, as his pre fire representations stated but was in truly significant financial difficulty at that time. 43. In respect of this sentencing exercise I understand and accept that the financial difficulties of the offender have been greatly exacerbated by the intervening destruction of the house on 2 April for which the offender is not criminally liable. I doubt that this will assist the offender in relation to any future claims upon his insurance policy as I said. 44. The offender was, I accept, very house-proud. He had many things within the house, to him of great value or of sentimental value and it is clear that many of his subsequent claims about the value of items from the property were made in circumstances where he placed value upon things somewhat greater than others would. I do not propose to go into all the detail of the items that he was claiming for, or sought compensation for, after the first fire. Much of that was subsumed into the character of the ultimate claim, given the total destruction of the building and whatever contents were there. 45. But in the context of what has been proven beyond reasonable doubt the desire of the offender to obtain financial advantage or financial gain was a sustained effort. I have not ignored the fact, as it emerged in the evidence in the trial, that whilst the home was the offender's in a real sense: he lived there, he made it available to friends and the like, he had been responsible for supervising additions and the like as well as renovations, over a period of time, there were other people, it would seem to me, to have at least an equitable interest in the property who have obviously been affected by the destruction of the building and with that the conduct of the offender, in relation to counts 1 and 2, although the extent of that loss I am unable to say. 46. The offences with which I am concerned involved, when one has regard to the pleading and the facts of the case, essentially the same conduct in each count. I propose, subject to recognition of the differing maximum penalties and the relative seriousness of each offence by regard to the maximum penalty impose sentences that will be concurrent, making due allowance for the need to have regard to the totality of the criminality involved. In this regard, without having to delve into authority I, firstly, note what was said by the majority of the High Court in the decision of Pearce v R (1998) 194 CLR 610 particular at [45]. 47. Since that judgment there have been a number of judgments of the Court of Criminal Appeal that have dealt with the issue of totality of criminality, these include the decision of the Court of Criminal Appeal in 2000 of Hammoud, the decision of Howie J in the decision of Cahyadi (2007) 168 A Crim R 41 at [47], the judgment of Hall J in the decision of XX (2009) 195 A Crim R 38 at [52] in which his Honour summarised a range of authorities previously decided by the Court of Criminal Appeal as to the proper approach to sentencing offenders charged with multiple offences in the context of the concept of totality of offending. 48. I appreciate the Crown put a submission that there should be some partial accumulation. I appreciate that when one looks at the particulars, count 1 is concerned with events on one day and count 2 is concerned with events occurring over a range of dates between 15 March and a date in July. But when one analyses it, what is essentially the guilt of the offender in relation to count 1 is also, in the context of seeking to obtain a financial gain, covered by the conduct of the offender pleaded in relation to count 2 in respect of dishonestly seeking to obtain a financial advantage therein particularised. 49. I cannot determine when the offender took the decision to start the fire. However in the context of the event occurring two days after the conclusion of the proceedings in the Supreme Court, in the context of the fact that the offender had become aware at the time of the conclusion of the proceedings, or shortly afterwards, of almost the entirety of the funds of the partnership's bank account being transferred, having regard to the conduct of the offender immediately after the fire, it is clear to me that on the basis of the jury verdict, whilst the jury was satisfied beyond reasonable doubt that he had started the fire, the offender's attempts to quell the fire and his other post-fire conduct is consistent with a person, in effect, having, what can be called "second thoughts" about the matter. That, of course, is a comment to be made only in relation to count 1. When one has regard to the consequences of the effect of the fire, one then has to have regard to the offender's conduct after the fire, up until mid-July when the particularised claim was forwarded to the insurance company seeing the determined way, in which he did seek to obtain financial advantage from the insurance company it could be thought that the act of the offender in deliberately starting the fire might be thought to use the colloquialism to be "a momentary madness" or a rather thoughtless act of "self-destruction" by the offender, but once the damage had been done to the building the offender was trapped in his own deceptions and continued the deceptions inherent in his claims for the insurance company in the hope that he could get financial compensation. 50. With regard to the offender's criminal history in the context of s 21A(3) Crimes (Sentencing Procedure) Act 1999, the criminal history is not significant. Noting the age of the offender, I note his appearance in 1982 in relation to an offence for which he was placed on a bond to be of good behaviour for 12 months with no supervision. According to the criminal history I have it was an offence of dishonesty but is very remote in time to the events with which I am concerned when the offender was very much younger than he is now. He has a finding of guilt in relation to common assault in 2012 and findings of guilt in 1999 in relation to failing to store a firearm safely and having a unregistered firearm of which he was dealt with pursuant to then s 556A Crimes Act 1900. The common assault matter in 2012 being dismissed pursuant to s 10 of the Act with which I am concerned. In my view, in the context of the character of this offending, the offender's criminal history is minor and as I said, not significant. 51. In his case, there was a report tendered from Mr Neil Ballardi dated 12 April 2018 relating to an assessment of the offender and there is a psychiatric report from Dr Andrea Borios-Lavack dated 10 April 2018. That report being concerned primarily with the condition of the offender's partner, whose name I will not read onto the record but who, in one sense, was a crucial witness in respect of particularly counts 3, 4 and 5. A statement she gave to police was tendered without any objection or requirement for her to give evidence, given her health at the time of its tender, which went to the issue of whether the offender could have lit the second fire. I will come back to the detail of Mr Ballardi's report and the psychiatrist's report and its relevance to this matter shortly. 52. I have references from a brother, Michael, who apparently has a plumbing business in Tamworth and no doubt has the real estate interests which he would have inherited from his father. I have a reference from Graham Ryan who was employed by Mr Bolger over a number of years and has known him for 22 years. I have a reference from Fiona Walsh who lives at Barwon Heads Victoria, which from my best memory would understand to be near Geelong. Ms Walsh is a longstanding friend of the offender. She happens to be the daughter of a retired Judge of the County Court, who I know and have met. In fact, I have been to several conferences with him in the early part of the twentieth century. When the new County Court was built and I was in Melbourne, Judge Walsh QC, a distinguished judicial officer in Victoria, personally showed me around the building and showed me, very proudly, his chambers. I have a reference from a James Carmody, a qualified valuer, who has known the offender for 15 years and a reference from Kerry Porter, who was a secretary to the offender but retired due to ill health. 53. What emerges from this material without going into the matter in detail is as follows. 54. His brother, Michael, is not as ill disposed towards him as it would appear his and the offender's other siblings. He confirms, amongst other things, positive aspects of the offender's character. He regards the offender as having "high morals" which are not entirely reflected in the facts in this matter, but I accept existed before the fire and before the offender found himself in dire financial difficulty. The offender has been generous in his support of charitable causes including the Flying Doctor Service and the Salvation Army. The offender was a devoted son to his mother and greatly cared for her through her illness and has been a devoted partner to his current partner with her health problems. He noted the offender's pride in his home and the impact upon the offender of the fire and, no doubt, the publicity about his charging. 55. Mr Ryan's reference speaks of the offender's dedication to his family and also his generosity. The way in which the offender had been diligent to improve and increase the value of the property that was destroyed by fire. He also confirms that the business interests that I have earlier referred to, at one point, were very successful it seems some years before 2013, and that the offender was greatly affected by the adverse effect upon his financial circumstances of the fire and the business. 56. Ms Walsh's reference confirms aspects of the offender's character, generosity and his pride in his home. She has been a beneficiary of his generosity and she also spoke of the impact upon him of the consequences of the fires. While she said the attempt by him to gain profit "from this situation is completely out of character" it is the case the jury determined that he did what was alleged. It was open to the jury to return that verdict, of course, and the offender must be sentenced consistent with that verdict. A matter about which I will make some comment in a moment. But I accept that she confirms the adverse effect upon the prisoner of his conduct and the conduct of others who have contributed to the destruction of the house. Likewise, Mr Carmody's reference confirms aspects of the offender's distress of the damage to his property and the pressure upon him of the events arising out of the fires. 57. His secretary's reference speaks of his concern for his employees up until 2007, the relationship of the offender with his family and, particularly, the relationship of the offender with his mother, his donation to charitable causes and the assistance the offender has given to members of his family in the past. She described him as, "The most generous, fairest, respectful, honest, considerate, ethical person I know," and mentions the pride that he had in his home. 58. Obviously, his conduct not just, I hasten to say, in relation to the two counts, but the obvious conduct of the offender after the event in his dealings with the NRMA, fell short of these standards that Ms Porter observed in the offender. 59. As to mitigating matters arising under s 21A(3) of the Act, having regard to the totality of the evidence, I am prepared to find in the context of a not significant criminal history, generally speaking the offender was a person of good character. I mean, this is a matter of degree, I hasten to say. There was much about the offender's conduct recorded after the event that does not reflect favourably upon an assessment of his character. But that is to be seen, in my mind, as a sequelae of the conduct that he has been found guilty for. 60. With regard to the submissions made by the parties, the Crown correctly submitted that I am required to determine facts adverse to the interest of the offender beyond reasonable doubt and matters favourable in mitigation on the balance of probabilities citing the High Court judgment of Olbrich (1999) 199 CLR 270. 61. I am also required, in the context of sentencing the offender after trial although I am entitled to form my own view of the facts, to form my own view of the facts so far as it does not conflict with the jury's verdict (Savvas v R (1995) 183 CLR 1 at p 8). I also note an authority on this topic cited by the defence, Isaacs v R (1997) 41 NSWLR 374 particularly at 377-378. 62. The Crown submitted that an aggravating factor was that the loss was substantial pursuant to s 21A(2)(g). Ultimately I have concluded that this is not an aggravating feature in this case because it seems to me with respect that the loss incurred in a loss largely suffered by the prisoner and not directly by anybody else, noting as I have said earlier the evidence of some beneficial interests of others in the property. The estimated cost of repairing the damage so far as the building is concerned is not to be met by the NRMA. It has never paid any money to the prisoner. The insurance company has not paid any money for the loss of any property arising out of the first fire. There would have been loss to the community through the use of the resources of the fire brigade and the police. There was loss to the insurance company in its investigations. But I don't believe the section or the subsection contemplates that in this matter. So ultimately I have concluded that that is not a relevant aggravating factor in this case. 63. The Crown also submitted that the offence, particularly in relation to count 1 given its dependence upon proof of the deliberate lighting of the fire was committed without regard to public safety. I have given anxious consideration to this matter. I note that it is correct that the premises were in a built-up area, however, the property was on a large flat block. The premises were a freestanding house in the middle of the block. Whilst there were other buildings nearby, including a retirement village part of which was damaged by the second fire, and whilst it was possible that other persons may be at risk other than fire fighters and possibly other buildings were at risk, in my view these possibilities were very remote. Given, firstly, the localised character of the fire, the presence of the prisoner at the scene of the fire, his quick contact with triple-0 to get assistance and some attempts made by the prisoner, albeit ineffectual, to douse the fire with a garden hose. 64. I have noted the obvious risk to fire fighters in performing the magnificent duties that they undertook, but it was never suggested in the evidence of the fire fighters that they regarded themselves at any particular appreciable personal risk beyond that inherent in performing the duties that they are well trained to do. 65. As it turned out no fire fighter or police officer or bystander was injured and I cannot conclude in the circumstances that the offence is aggravated by being committed without regard to public safety. The person most at risk in my view was the prisoner himself, bearing in mind the fire fighters had to give him warnings to get away from the fire and stop trying to assist them or stop trying to go back into the building to rescue property that he could have removed before the fire started. 66. I note in the context of the Crown submission in this regard there was no accelerant used that could have led to rapid spread of the fire or an explosion. There was nothing in the area where the fire started to suggest any risk of an explosion as might occur if a fire was lit near LPG bottles and the like. 67. The Crown in its submissions, adopted by counsel for the prisoner, noted a number of authorities including Porter [2008] NSWCCA 145 particularly per or the Honourable Justice Johnson, concerning the assessment of the objective seriousness of the offending. Those factors that his Honour identified, self-evidently correct, include: the extent of the damage caused which I have taken into account; the potential risk of injury to other people, which I essentially deem minimal save for the risk to fire fighters of course; the possible spread of the fire, which ultimately was not a great possibility save for the spread to other areas of the building causing more damage, and the degree of planning and premeditation. I will come back to that issue although I have addressed it in passing earlier. 68. The Crown has provided the Court with a number of judgments that confirm these matters as relevant in sentencing for arson offences. Some of the cases of principle are also said to be comparative cases to consider the appropriate penalty in this particular matter. Such cases as Dinos [1999] NSWCCA 208 at [8] - [10] and BAA [2006] NSWCCA 44. 69. It was noted in Porter as the Crown cited in its written submissions (at [81]) that the crime of arson may be committed in a variety of circumstances, that it is of itself an extremely serious and dangerous crime, that it is very easy to commit usually with destructive consequences, it is often difficult to detect and general deterrence is an important element in sentencing for such offences. 70. The Crown also says that destroying or damaging property by fire "encompasses a vast array of criminal behaviour". This case is a good example of that. In this regard I note s 3A of the Crimes (Sentencing Procedure) Act 1999 and I agree that elements of general and person deterrence are relevant in this sentencing exercise. The appropriate and adequate punishment of the prisoner is a relevant purpose of sentencing. Making the prisoner accountable for his conduct is a relevant matter to take into account. Also relevant to take into account is the promotion of the rehabilitation of the prisoner notwithstanding the fact that he is now 49. I do not believe the prisoner is a danger to the community. 71. Whilst I accept the fire was a substantial fire, in the context of what followed on 2 April, I would not regard it as "a large fire". It certainly had the potential to spread to become a truly "large fire" but the action of the prisoner himself assisted to ameliorate the damage. I do not agree in the circumstances as I have said earlier that there was risk of further damage to other properties. 72. The Crown submitted there was a "substantial" degree of planning in the context of the prisoner having found himself in a difficult financial position exacerbated by the proceedings in the Supreme Court. Of course, one of the matters referred to in this respect is the timing of the increase of the insurance coverage in August, then October of 2012, of both the building and the contents. 73. I pointed out before that the Supreme Court proceedings, which created in my mind the immediate concern for the prisoner, were reserved on 14 March 2013 and that was the date as I said earlier he became aware of the sum of money transferred out of the partnership's account. There was a great deal of concern to him about these matters as his subsequent statements made clear. I am not satisfied that the prisoner increased the insurance on the house and contents with a particular plan to destroy the house by fire or damage it in the way he did on 16 March 2013. 74. That was a fact obviously left to the jury as a matter of motive in conjunction with the prisoner's financial circumstances. But ultimately, on all the facts and circumstances of the first fire, I could not conclude the increase in insurance was directed at that ultimate conduct. As I said earlier his various conversations with NRMA representatives reflected that he was not precisely sure as to how much he could increase the insurance for or how much he should and he was somewhat encouraged by the agents in that regard. 75. I have not referred to the various valuation evidence available at the trial. Whilst the mortgagee's valuer was not optimistic about the replacement value or the real value of the property, there was some material available to the prisoner provided to him in good faith to suggest the property was worth more than for example the mortgagee believed. If he had increased the insurance within weeks of setting the fire a clear link in this respect, as it was relevant to the assessment of planning, may have been established. In the context of the pleadings for the charges for which he was found guilty, the issue of the adequate insurance of the property is a matter that would have been within his knowledge. It may have contributed ultimately to his decision to do what he did but in my view it does not weigh upon the issue of planning as contended by the Crown. 76. The outcome of the civil proceedings and also the loss of the money from the account were matters in my view that were the catalysts for his conduct for which I am sentencing him. I am not suggesting in any way, shape or form that his brother or sister had no right to withdraw the money or anything of the sort. It is really a matter of looking at it from the perspective of the prisoner. Any planning that was involved in setting the fire was in my view confined to the period from 14 March until the evening of 16 March and most probably formulated on that day he having returned home after a period away from Tamworth. The prisoner was at home ruminating that evening about his financial predicament. His partner at the time was staying at a motel or a residence attached to a motel nearby that was owned by her sister. 77. Of course, the way I have expressed this might reflect some degree of speculation on my part. There are many explanations from the prisoner in interviews of recorded conversations about his circumstances. But the analysis I have undertaken is in the context of the prisoner denying being responsible for the fire. The fact is, as the Crown pointed out, in order to determine the planning was an aggravating factor under s 21A(2) of the Act one has to be satisfied of this beyond reasonable doubt. I bear in mind in the context of assessing the degree of planning the fact that the prisoner rang triple-0 as quickly as he did, sought to put out the fire the way he did, did not use an accelerant even based on the opinion of the Crown's "expert". This points to some relatively ill-thought out or, on reflection by him, ill-considered conduct on his part. 78. I also note it would appear that he made no arrangements to remove items of value to him, either sentimental or otherwise, from the house before the fire started. In fact he had not sought to remove items from his home office that would have been vital to his personal and business affairs even allowing for the state of his businesses at that time. 79. Then there is the mechanism of starting the fire which I have already referred to, the absence of accelerant, the use of perhaps a naked light in circumstances where there was very little fuel it would seem piled up in order to spread the fire. The very execution of the fire itself did not speak of planning or much thought as to how the fire should spread. These were the relevant aggravating factors identified by the Crown. 80. The aggravating factors in this matter are matters to be found in s 21A(1) of the Act. I have already dealt with some of the mitigating factors, the absence of significant prior criminal convictions, the issue of character. I have come to the conclusion the prisoner notwithstanding his conduct in the months after the event pursuing his insurance claim, as no doubt he was locked into doing, and the manner in which he spoke to people and the like, still has good prospects of rehabilitation. 81. I am mindful of the seriousness of the offending and the cavalier nature in which the prisoner dealt with the NRMA and others and the way in which he in a cavalier way sought to avoid responsibility. The complex web of untruths, exaggerations and misrepresentations that he made to various people including police, NRMA investigators and representatives of other organisations. Bearing in mind there is no evidence of remorse in the matter that is obviously not a mitigating factor here. I make the point in relation to his prospects of rehabilitation, I have taken into account his criminal history but I have also taken into account the positive aspects of his life, although thin the material is, set out in the references by people who know him well. 82. He was not subject to conditional liberty at the time of the offending. There is material in the submissions of his counsel relating to the consequences of his action which are not the subject of evidence but no doubt are correct. Whether there has been a resultant collapse of his business interests in a particular way I cannot say in a defined way. But I bear in mind that even allowing for the limitations of the psychologist's report which was tendered on his behalf, there is no suggestion in the psychologist's report, allowing for it self-serving and limited value, nor in the objective facts, that the circumstances of the fire reflect a personality or conduct that is reflects or suggests future dangerousness in this particular prisoner. 83. I am very mindful of the fact in arson cases that there are many people who are prone to arson, either because of the personal satisfaction or some other psychological satisfaction or fascination the person has with the fire and/or the mechanisms of putting out fire. I have actually represented on a number of occasions when I was at the bar, and sentenced a number of people over the years, who have set fires solely for the psychological thrill of seeing them burn or seeing them put out by fire fighting authorities. There is nothing in this matter that speaks of that conduct being present. The expression "pyromania" and "pyromaniac" which are bandied about usually in lay terms, do represent real conditions and personality types that I cannot find here. 84. Coming back to the submissions I need to deal with Mr Ballardie's report, the psychologist who assessed the prisoner after the trial, and also deal with the report of the psychiatrist treating the prisoner's partner. With regard to Mr Ballardie, whilst I accept his assessment of the presentation of the prisoner at the time he interviewed him (his report is dated 20 April 2018) I could not find a date for the interview and whilst I note that he sought to focus upon the prisoner's mental condition and the circumstances in the period leading up to the offending and whilst he undertook psychometric testing of him, I cannot find on balance that his opinions or findings reveal evidence that is reliable in its assessment of the prisoner's mental state at the time of the offending. 85. I note that his clinical formula assessment was that the prisoner was of average literacy and normal intellectual functioning so there is no obvious mental disability in terms of intellectual capacity. I must confess I got the impression from things that the prisoner said in the course of his many recorded discussions and interviews that there was some level of dyslexia or possibly even illiteracy in the prisoner. In fact, one of the referees on character talks about the prisoner being dyslexic, being not computer literate and other matters. Mr Ballardie makes no such assessment. 86. I accept the history of the prisoner growing up in a farming family, having attended a private school, having a well- developed sense of purpose and moral standards. His father was a pharmacist and then a landowner and farmer. His parents were successful in business and/or farming it would appear. His siblings have been successful in their careers. The prisoner, as I said, went to a boarding school, apparently Woodlawn at Lismore. 87. There is nothing remarkable about his upbringing. He provides a history of a partner who he met in 2007 as reacting badly to the death of her mother in that year and being "depressed and suicidal" and also being depressed and suicidal "in the period prior to the index offences." It is claimed through the history given to Mr Ballardie that her deteriorating mental condition "very negatively impacted him resulting in (his) depression". He said to the psychologist that after the offences with which I am concerned she had attempted suicide and was admitted to a psychiatric ward and was given rigorous electro-convulsive therapy since then. 88. This chronology by the prisoner needs to be understood in the context of the report by Dr Lavack who has treated the partner since August 2015. She gives a history from the patient before the doctor met her of the patient having a chronic disabling illness as a result of or triggered by her mother's death. Why this is so I do not know. However, this doctor has only been treating the patient since August 2015. That is, the prisoner's partner. That is two years and four months after the fire with which I am concerned. The treatment reflected upon in Mr Ballardie's history taken by the prisoner is referred to by the doctor as occurring "since that date". 89. It is said in that report from the psychiatrist that the prisoner's partner is now "totally invalid relying on Paul" and the treatment has affected her memory and cognitive function. I accept that the prisoner is great support for her and she is to a degree dependent upon him, but I would require a lot more evidence, and direct evidence, of the extent to which she was totally dependent upon him. The doctor expresses the opinion that Mr Bolger, if he was "not in Heather's life her safety and quality of life would (be) seriously compromised". The prisoner is said by the doctor to "being a main protective factor against suicide". I set out this material from the doctor's report in some detail because it is relevant to understanding some of the history given to Mr Ballardie and it is also relevant to this sentencing exercise. But as I said, without further evidence of greater detail of her precise circumstances, it is difficult to conclude, on balance, that the material identifies the relevant "exceptional case". 90. It was submitted by the prisoner's counsel that the hardship that may be caused by the prisoner's partner should he go into custody fell within the category of "highly exceptional circumstances". I accept the submission from the defence so far as I can take it, but the observations in the decision of Zerafa [2013] NSWCCA 222, at [117], arise for consideration. That passage of that judgment is the formulation relating to the consideration of the interests of third parties as expressed in the reported judgment of Edwards, the citation provided in the submission, that only in exceptional circumstances will hardship to third parties be taken into account to reduce the otherwise appropriate sentence, is a formulation that "leaves open the possibility that the otherwise appropriate sentence is one in which hardship to third parties falling short of exceptional circumstances is considered part of the process of instinctive synthesis" even if it cannot be considered as a "distinct matter to justify any substantial modification of an otherwise appropriate penalty". The reference to instinctive synthesis of course being reference to a 2005 judgment of the High Court in Markarian. So I take that material in that way. 91. A number of matters were raised by counsel for the prisoner, arising out of the circumstances of the fire, leading to the need for a finding of extra curial punishment in this case. Two decisions were cited. Firstly, the 1993 decision of Allpass. This was a man alleged to have committed child sexual assault offences whose house was damaged by vigilantes in the Penrith area. The decision of Daetz [2003] NSWCCA is cited. This is a case of a man allegedly sexually assaulting or injuring a young girl where the girl's father attacked him outside a police station or near a courthouse and broke his jaw. These are classic examples of the character of extra curial punishment. Here the extra curial punishment is the smoke inhalation sustained during the fire which was, to my understanding, slight and did not require hospitalisation, and that the prisoner's home was destroyed ultimately by persons unknown or in circumstances where the prisoner was not criminally responsible. I do not believe the smoke inhalation, as I said, reflects any form of 'extra curial' punishment. 92. I have taken into account the effects of the second fire upon the prisoner and the loss to him for which he is not criminally liable. But I cannot conclude that it is relevantly "extra curial punishment". It followed upon the partial destruction of the house by his own act. If it was deliberately lit, as the experts appear to agree, and started by persons unknown they were not necessarily directing their actions towards the prisoner. However, as I said, I have taken into account the significant loss to the prisoner arising out of this affair and the impact upon his businesses as a consequence. 93. The purpose of referring to that material at this point, returning to Mr Ballardie's report, is that the chronology within the medical report of the psychiatrist does not sit easily with the suggestion that the condition of the partner was so bad in 2013 that it had some impact upon the prisoner's mental health at that time. Of course mental disability or mental illness does not necessarily have to have a causal connection to the offending. This matter was discussed in the decision of Kearsley [2017] NSWCCA 28 and earlier in the decision of Haney [2014] NSW DC 13. In Kearsley McFarlan JA and Harrison J agreed in their usual erudite manner that the relevance of a mental condition or a mental disability in a sentencing process, by reference to those matters discussed by McClellan J in the decision of DPP v De La Rosa [2010] NSWCCA 194, particularly at [177] - [178], was not confined to where there was causal connection. The issue of the causal connection was relevant more to the assessment of the moral culpability of the offender. But if proven mental illness or disability is established on balance that would be a relevant matter to a range of aspects of the sentencing exercise as was discussed by McClellan CJ at CL. 94. Referring back to the discussion I had with learned counsel for the prisoner and the Crown about this matter, rather than relying upon any timeline or chronology provided by the prisoner, or description of his symptoms, or his partner's symptoms at a time contemporaneous with the offending, one would need in this particular matter some evidence of contemporaneous reliable observations of the mental state of the prisoner and if possible assessment and diagnosis of symptoms at the relevant time and/or some history of treatment that related to the relevant time of the offending. In this matter I do not believe the psychometric testing provides any real assistance. 95. The DASS (Depression, Anxiety and Stress Scale) - 21 instrument, used by the psychologist which is self-reporting, that was administered to the prisoner, reflected a present mood and functioning, sometime in March or April 2018, reflecting "high scores" in the range of depression and moderate range for anxiety. This is in the context of the prisoner having been found guilty of these offences and facing a gaol sentence and also in the context of the disastrous financial consequences for him, of a number of events, including the fires, the subject of trial. He was also instructed to complete the measure based on his mood and functioning during the period prior to the offending. Mr Ballardie said that he scored "in the moderate range for depression and stress and in the low range for anxiety". 96. I can accept that he reported matters to Mr Ballardie of symptoms at the period of the offending such as "depressed mood, social withdrawal, difficulty relaxing, reduced ability to deal with pressure or lack of initiative and motivation". But the reliability of this history is not guaranteed and in any event these "symptoms" are just as easily be assessed as reactions to the external stresses upon him that motivated him to commit the offences. 97. Whilst the prisoner said at the time that he felt "overwhelmed, inadequate, that he had nothing to look forward to and his life was meaningless", which are symptoms that met criteria for a major depressive disorder pursuant to DSM 5, Mr Ballardie somewhat contradictorily reported that the prisoner was quite "self-directed and motivated, normally he has a mostly positive cognitive style, does not catastrophise, reports an average level of confidence, has reasonably self-esteem, good impulse control and good social support network". Those matters I would have thought were applicable at the time, or prior to, the time of the fire. Mr Ballardie also said that the prisoner "usually finds it easy to relax and commented that he does not particularly try to impress others or seek their approval". 98. This observation of the prisoner does not appear reliable in light of the material that is available from the interviews and statements made by the prisoner after the fire. I must say, on the evidence in this trial of his conduct immediately after each of the fires, nothing could be further from the truth in fact. Apart from cases involving extensive telephone and listening device intercepts, I have never had a case where a person had so many interviews conducted of him, or conversations with relevant authorities, so extensively recorded. Electronic interviews with the police, video tape walkthrough, tape recorded conversations with selling agents at the NRMA, tape recorded conversations with the mortgagee, long interviews with the NRMA's investigator and of course the lone telephone intercept material that was tendered. Some of these recordings run for hours. 99. In so far as they represent his mood over a period of time at about the time of the offending, or shortly afterwards, they reveal him in my view to be confident, with very high self-esteem, constantly bragging about his means, the property he owns, and his financial circumstances. These are all representations somewhat short of reality. 100. Of course I appreciate that the prisoner's partner may have been suffering some mental illness that may have some impact upon him. But it would it seem in the context of the available evidence that she was not incapable of giving an account to police which was received in the trial without her being called, that it in effect gave him an alibi in respect of counts 3, 4 and 5. She was not subject at the relevant time of the first fire to intensive medical treatment as I would understand it. She was at that time, as I have said earlier, working in her sister's motel and going about her business while her sister and her husband were apparently taking a break from the business. 101. So far as the prisoner's presentation of himself can be seen in an video recordings and sound recordings, he may well have been, if I could use the expression "cracking hardy" under the strain, as I have no doubt he was at various points. But there was absolutely no evidence in the recordings of the prisoner's incapacity to think rationally or reasonably, to speak for himself, albeit it on occasions in contradictory terms, and express himself in a way, admittedly in a voluble way, and sometimes strewn with expletives consistent with Tourette's syndrome, that make the history given the psychologist less than convincing. On the topic of the prisoner's mental health at the time of the subject offences, it may well be that the claimed symptoms of the present time meet the DSM-5 requirements for a major depressive order. I accept, however, that the prisoner at the present time is more likely to be affected in the manner described Dr Ballardie in his assessment, although the assessment falls short of a diagnosis. 102. There has been no attempt by the prisoner to seek medical treatment, nor evidence that the prisoner is receiving any medication or treatment. I accept the prisoner needs to obtain at some point a Mental Health Care Plan on this basis and that he should receive counselling sessions, which are provided for under such a Plan, but which, as I would understand, is generally available only in the community. 103. The absence of any attempt by Mr Bolger to seek assistance when he has the opportunity to do so, for example since the trial, is a matter of concern. One would have thought the prisoner would have, given the treatment provided to his partner, have had a better understanding of the fact that if his symptoms were as bad as Mr Ballardi said he would need to seek assistance. 104. The submissions of the defence were ultimately that I should consider a term of imprisonment, the threshold pursuant to s 5 of the Act having been passed quite obviously, but should suspend it or should fix an ICO. 105. In that regard I was taken to a number of authorities. One of the authorities as to the appropriate approach in this matter is the judgment of Howie J and the decision of Zamagias [2002] NSWCCA. The defence cites the decision of Eagan [2013] NSWCCA 196. There are a number of other decisions, including Blackburn and Walters v The Queen cited by the defence. 106. In my view ultimately when one considers the character of the offending in count 1, and the extended period of the conduct relevant to assessing the criminality of count 2, whilst a term of imprisonment is appropriate, a sentence of less than 2 years does not adequately reflect the seriousness of the offending with which I am concerned given due weight to all mitigating factors, I have already dealt with the issue of totality. 107. All such crimes of course involving the deliberate lighting of fires and the sequelae of them are matters of seriousness. This was made clear in the decision of Porter. But absent relevant planning, having regard to the character of the damage and loss, absent aggravations of disregard for public safety, demonstrated usually by starting a fire with an accelerant and then abandoning the scene, I did not regard this as the most serious offence of its type. Clearly that is so. But it is serious enough to require the imposition of a term of immediate imprisonment, taking into account as I said the objective circumstances and the mitigating factors. 108. Although count 1 is the more serious offence, and count 2 in terms follows from the setting of the fire, considering count 2 by itself, it is clear the prisoner pursued the attempt to obtain financial advantage with vigour, and apparently without shame in the context of the jury satisfaction that the prisoner had set the fire himself. He sought to take full advantage of what he believed to be his insurance protection. 109. This included, as I said earlier, many exaggerated claims for loss which no doubt contributed to the vigour or rigour with which the NRMA protected its interests. Thus in fixing a sentence for count 2, although the maximum penalty is substantially less than the maximum penalty for count 1, the total sentence for count 2 is close to the sentence I impose for count 1. 110. In considering the appropriate sentences I had regard to the comparative sentences that were held up for my consideration. Two decisions of the District Court were provided by the defence and one decision from the ACT Supreme Court. 111. I do not propose to give the citations for those cases but one case, that of Bradley Smith decided in February 2018 by Mahony J, concerned with the same offence as in count 1 here, with an offence on a Form 1, I note, involved a prisoner who was 19 years of age, who acted impulsively, and had pleaded guilty. 112. The decision from the ACT of Brymer, although the offence involved a slightly greater maximum penalty than count 1, led to Penfold J suspending sentence in July 2016. Again, however, this was an impulsive offence. It was described as "low-level arson". There was very little damage. It was damage done in the heat of a domestic dispute when emotions were running high. 113. The third decision referred to by counsel for the accused of Hassoun, a decision of her Honour Judge Tupman in 2016, is of little assistance. Bearing in mind the different mitigating factors that arose in that matter and the fact that the sentencing occurred after what has been described as considerable unexplained delay. 114. Here, of course, there has been delay as was discussed with the parties. But largely delay caused by the character of the litigation, the estimated length of the trial, the fact that the matter had be transferred down to Sydney from Tamworth, the fact that some charges were brought a number of months after some other of the charges had been brought. Also, the first trial started over a year ago in front of another judge that was aborted because of further evidence coming to light. Thus, the delay was "explained". 115. The Crowns case referred to some of the judgments I have already cited as providing some assistance on a comparative basis, plus three others; the decision of Pitt [2001] NSWCCA 156, a decision of Elzakhem [2008] NSWCCA 31 and Nasser [2017] NSWCCA 104. 116. I have had regard to the facts and circumstances of these matters as they relate to the common offence with this offender. There are many differences between the respective offenders and the offending. Nasser involved the setting alight of commercial premises with the use of an accelerant causing an explosion. There were a number of residents in four separate premises above where the fire started. Some of the residents were forced to jump from balconies. Four families were displaced by the fire, including children. A number of people were affected by smoke inhalation and there was a $950,000 claim for payment with a found awareness of risk albeit a recklessness to that risk by the offender. The offending was described as "very serious" and "above the midrange" although the offence did not carry a standard non-parole period. In relation to that matter, I note particularly what was said about the character of arson offences and sentencing for them at [30]. 117. In the matter of Dinos, where the offender was sentenced to four years imprisonment for the similar offence, or the same offence, in count 1, there was $1.2 million damage done. The finding of the sentencing judge was "a miracle no one was killed or seriously injured" where people poured petrol around the shop. I note what Simpson J said at [31]. 118. The decision of Elzakhem that I noted had, seven counts on the indictment, five of setting fires, two of conspiracy to set fires. Pitt was a case involving a person who damaged public housing, that is, housing that belonged not to that person, in a fit of spite against his partner. That person was sentenced to six years imprisonment and although there was only about $20,000 damage done, that person's criminal history was extensive and that person had spent a considerable time in gaol beforehand. It was an act in spite. VAA was concerned with a number of organised arson attacks and whilst the sentences were an effective sentence of three years for separate fires there were pleas of guilty and some cooperation with the police. 119. I have determined, ultimately, that there are special circumstances. There is a need to adjust the relationship of the non-parole period to the balance of sentence amongst other reasons, to give the offender professional assistance to adjust to community living on his release, to give him professional assistance as to organise his financial affairs and also, perhaps to give him some counselling and direction in relation to matters arising out of the effect upon him of his partner's condition. I note it is the first time in custody for the offender, that of itself is not a special circumstance, but the combination of matters that I have identified amount to special circumstances pursuant to s 44 of the Act. 120. Thus, if you could stand up please, Mr Bolger. In relation to count 1, you are convicted. You are sentenced to a term of imprisonment of 18 months by way of a non-parole period to commence today, there having been no previous time in custody, expiring on 25 October 2019. I direct that you be released to parole on that date. I fix a balance of sentence of 18 months imprisonment expiring on 25 April 2021. 121. In relation to count 2, you are convicted. You are sentenced to 18 months imprisonment by way of a non-parole period to commence on 26 April 2018, expiring on 25 October 2019. In respect of that sentence, I fix a balance of sentence of one year imprisonment, expiring on 25 October 2020. 122. In other words, for the offence carrying the lesser maximum penalty, you are sentenced to two and a half years imprisonment as opposed to three years for the other offence but I have made comments about the relationship of those two sentences given the different maximum penalty. 123. The total sentence imposed upon you is a period of three years imprisonment with a non-parole period of 18 months to date from today's date. ********** 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 2018