R v Amante [2019] NSWDC 222

District Court New South Wales

Medium Neutral Citation: R v Amante [2019] NSWDC 222 Hearing dates: 1 May 2019 Decision date: 01 May 2019 Jurisdiction: Criminal Before: Colefax SC DCJ Decision: Full time imprisonment of 3 years 9 months wit a non-parole period of 2 years. Catchwords: CRIME - SENTENCE - intentionally damage property by fire (domestic violence context) - special circumstances. Legislation Cited: Crimes Act 1900 (NSW), s.195(1)(b) Category: Sentence Parties: Regina (Crown)

Michael Amante (Offender) Representation: Ms Saddington (ODPP)

Mr Pace (Solicitor for the offender)

File Number(s): 2018/106512 Publication restriction: Non publication order made of the name of the victim.

Judgment 1. Michael Amante, you appear for sentence today in relation to one offence, that is, intentionally damaging property by fire in a domestic violence context. 2. This involves a contravention of s 195 (1)(b) of the Crimes Act. The maximum penalty for that offence is 10 years imprisonment and there is no standard non-parole period. 3. The facts surrounding your offending are substantially contained in a document entitled "Agreed Facts on Sentence" which, slightly recast by me as to style but not substance, are as follows. 4. In 2018, you were either 41 or 42 years of age and as at January of that year you had been in a turbulent domestic relationship with the victim. The victim was the resident of a Department of Housing apartment block in the suburb of Harris Park. The unit in which she lived was on the top floor of the building. 5. For a time, you also lived in that apartment block with her. The situation between the two of you had deteriorated to a point where, as at 6 January 2018, she had obtained an apprehended violence order against you - and one of the terms of that order was that you were not to go within 200 metres of her home. 6. On 6 January 2018, you went to those premises in breach of that order. It is not to the point, Mr Amante, that the victim may or may not have agreed to that occurring. You were the subject of an order which said you should not go there. 7. During the course of that evening, not only did you breach the order by going to those premises, you and the victim and her brother were engaged in some form of conflict, the details of which are set out in the agreed statement of facts. It is not insignificant to note, in particular, that during the course of the arguments which you had with the victim on that night, having made other threats to her, you specifically said "If the police come, they won't be able to come through, they would have a murder scene". 8. At around 10 o'clock on the morning of 7 January 2018, you came back to those premises. You were seen by one of the residents of the apartment building to be standing next to the window of the victim's unit - and, according to your evidence today, you spent the whole day either at or in that home unit. 9. You have said today that you were living there at that time. If you were, that is a further breach of the AVO. But, in any event, the victim's brother had told you to leave those premises the night before. 10. The facts are silent as to where the victim was during the course of the day of 7 January 2018. The only rational inference from the facts is that she was not present. 11. At about 5.30pm, a neighbour of the victim saw you picking up something from the ground in an outdoor car park. She attempted to talk to you but you just waved her away. 12. From about 6.30pm, a series of text messages passed between you and the mobile phone of the victim's brother. Some of the messages were addressed, it would seem, to the victim. (The reason they may have been sent to her brother's phone was because you had destroyed the victim's phone the night before.). Some of the messages, on the other hand, are clearly not directed to the victim but her brother. 13. One message that you sent at 8.23pm concerned a threat to light a fire. You have said today that that text message was sent whilst you were in the premises. 14. Some 12 minutes later, you were observed, by the neighbour to whom I earlier referred, to enter the apartment building and walk up the stairs, presumably to the unit of which the victim was the lawful occupant. 15. Five minutes later, you were seen walking back down those stairs and, 30 seconds after that, the neighbour heard what is described in the agreed facts as a loud boom and the sound of breaking glass. The neighbour ran to a window and saw grey smoke. Another occupant of the building heard what is agreed to have been an explosion and saw flames coming from an upstairs unit. The Fire Brigade were contacted. 16. What those neighbours heard and saw was the consequence of a fire, which you had set, in the unit of which the victim was the responsible occupant. 17. Somewhat disappointingly for my purposes, the parties chose not to place before the Court in the agreed statement of facts any information about the cause of the fire - other than it was you who set it. There is no material of an expert kind from the Fire Brigade as to whether or not accelerants had been used or anything else about how swiftly the fire, once set, would have taken to take off so as to produce the quantities of smoke and the noise which the witnesses heard. That is a surprising and disappointing omission of what I would view as being important facts for the Court to know in assessing the seriousness of your offending behaviour. 18. You have given an explanation today in the witness box which I do not accept. You have said that you set the fire by using some nail polish remover that had been in the flat; you ignited it on a bed; you lay down on the floor intending to be killed in the fire; and, when the quantity of smoke became a certain level, you panicked and you ran out of the building. 19. That version of events, Mr Amante, is not consistent with what you agreed in paragraph 10 of the agreed statement of facts. 20. But beyond being unable to accept your evidence, I cannot, given the manner in which the sentence hearing has proceeded, make any definitive finding as to what your role was in the setting of this fire beyond the simple fact that it was you who caused it. 21. The emergency services attended the unit block and a number of residents were evacuated. How many is not revealed in the agreed statement of facts. You have told me today that there are 3 storeys and that there were 12 units. The fire occurred on a Sunday evening at about 8.35. There has been some quibbling today about how many people were threatened by your conduct. Clearly, at least the lives of the 2 neighbours I have referred to were put at risk, as were the lives of the firemen who came. 22. Significantly, by the time the Fire Brigade arrived, the fire had spread into the roof void. Although there is no expert evidence before the Court as to the consequences of a fire entering a building's roof void, the Court can take judicial notice that that posed a serious structural risk to the integrity of the building. 23. The Court has not been given any real detail by the parties as to the damage done to the unit owned by the people of New South Wales and which was made available to the victim through the Department of Housing, beyond being told that, as a consequence of what you did, that unit was uninhabitable. No proper explanation has been given to the Court as to why there was no more detail as to the extent of the damage. Certainly when the Court enquired as to how much it cost to repair, no-one had obtained that information, nor was the Court told for how long this valuable resource was excluded from those who desperately need accommodation in this State. 24. The Court has been given some information about the other residents. They were excluded from the building until 9 January 2019. Where these other occupants of desperately needed (but in short supply) social housing went in the meantime is not revealed. 25. But what you did was to seriously damage valuable property; and you destroyed the limited personal belongings of your former partner who was in a sufficiently parlous financial position to require Housing Commission accommodation. 26. The victim has not provided the Court with a victim impact statement. All that the agreed facts told me was that she had moved to a rural town. It was only when the Court made some enquiries that the Court was informed that she had permanently left Sydney to live with her family. What impact your conduct has had on that lady's life is completely unknown to the Court. 27. Both the Crown and your experienced advocate today have submitted that the objective seriousness of your offending, for an offence of its kind, is a mid-range offence. Unassisted by submissions, I would have said it was above the mid-range but, because of the attitude of the parties, I will make that finding that it is a mid-range offence for an offence of its kind. 28. It is additionally aggravated by the fact that you were on bail. A further additional aggravating factor is that the property damaged was the home of the primary victim. 29. Your subjective circumstances, that is your background in life, have mainly been placed before me through the reports of Dr Furst (who assessed you as to whether or not you would be fit to stand trial) and Mr Borkowski, who provides the Court with many reports. 30. Without being exhaustive, you were born in Germany where you started your primary education. That, however, was disrupted when your family moved to Portugal when you were 8. You came to Australia when you were 12. 31. You have two siblings, a brother and a sister. 32. It would seem that, in at least one respect, there was a serious problem in the house when you were growing up in that your father, it is said, was a violent man towards your mother when he was intoxicated. Not only was he violent towards her but also the children. 33. There is also a history in the psychologist's report of your brother sexually abusing you and your sister - as a result of the disclosure of which he was removed from the family home. 34. During the course of the hearing today, I have heard submissions from your advocate as to why that material was disclosed to one expert but not another. Upon reflection, I accept that there is a rational explanation for that; and, on the balance of probabilities, I accept the reliability of that aspect of the history. I note you were not cross-examined on it. 35. I therefore accept that by reason of the violence in the house from your father, and from the sexual abuse of you by your brother, and your knowledge of the sexual abuse of your sister by your brother, you have had a dysfunctional upbringing and that, in consequence, there is a reduced moral culpability for your offending. 36. You have had two marriages, both of which ended badly. The first marriage broke down when you were 26. It seems at about that time you started using excessive amounts of alcohol and more, significantly, illegal drugs, including the scourge of the 21st century, methylamphetamine. That drug usage continued for about 7 years until you formed your next substantive relationship. During that relationship, you sought drug and alcohol counselling but that was only for a short period of time, certainly not long enough to address the condition you had arrived at. When you were in your late thirties, you returned to using these illegal drugs and, amongst other things, that resulted in the loss of your second marriage. Following the break-up of that marriage, your use of drugs continued and increased. 37. You have told the authors of the reports that your use of drugs was aggravated and increased when you met the victim and that you were using up to 1.5 grams of methamphetamine a day. You will understand, Mr Amante, that the victim has not had the chance to be heard in relation to that allegation. I will accept for the purpose of sentencing you that what you said was correct, but that is not to be understood by anybody that I am actually making a finding of misconduct or criminal conduct by her. 38. You are a man, Mr Amante, obviously of considerable intelligence, not least because you were able to complete the Higher School Certificate when you were only 16. 39. You used your intelligence shortly after leaving school. You successfully completed an apprenticeship in motor mechanics. You started your own business and you expanded that business to the point where you were employing 17 people. But all that "went down the chute" after your first marriage broke up and you started using drugs and the business was lost. 40. Because of your drug use, you have been unable to maintain stable employment since that time. You have worked intermittently for your brother-in-law, who has come to court today and who has told me that he is prepared to employ you when you are released from custody. 41. The reports that are in front of me tell me about your mental health issues - which I accept are real - and which are either aggravated or caused by both your background as a child and your use of drugs. 42. Your mental health problems and your excessive consumption of methylamphetamine directly contributed to the commission of the offence. No rational person would react to a break-up by setting fire to another person's house, thereby threatening the lives of other people. 43. I said I did not accept your evidence today - and I do not accept that you tried to kill yourself in that home unit. But there was a point shortly after the offence when you did have serious issues concerning suicide and your parents took you to an institution for that purpose. 44. Because of your mental health issues, you are not an appropriate vehicle for the full application of general deterrence, that is imposing a sentence which discourages other from committing such an offence. But, because of your mental health issues, which are largely unresolved and largely untreated, considerations of specific deterrence and the need to protect the community are considerations which are fully engaged. 45. An important factor to consider in this sentencing process, Mr Amante, is that this was a domestic violence offence. 46. You pleaded guilty at the first available opportunity and you will be given a discount of 25 per cent for the plea. That plea, I am satisfied, had both utilitarian value and elements of remorse. 47. I have approached with some caution your expressions of remorse, Mr Amante, because of what you said in the witness box today. But, as your experienced advocate said, because I reject some parts of your evidence, it does not mean I have to reject it all and, having considered what you said to the experts, considering what happened to you immediately after the events (when you were taken to the hospital) and what you said to the people in the hospital, I am satisfied that you are genuinely remorseful for what you did. 48. Remorse is an important factor in assessing a person's prospects of rehabilitation, Mr Amante, but it is not the only factor. Another important factor is that you have really received no effective treatment for your underlying mental health issues or your underlying drug addiction issues. 49. In that context, I have noted that you have not been the subject of any disciplinary action whilst you have been in the custodial setting. It is a notorious fact that illicit drugs are readily available in the custodial setting, but you have not been found to have infringed those rules. 50. You have a long criminal history. Many of the offences are driving offences, as has been emphasised by your advocate. But there are also numerous offences of dishonesty, which is another reason I have had some hesitation in accepting what you said today (apart from the fact that what you said today in the witness box was inconsistent with the agreed facts). Plus there are other offences of violence and there are drug supply offences. You are not entitled to the leniency which, in appropriate circumstances, is given to first offenders. 51. On the one hand, you have a history of offending, unresolved drug abuse issues, and unresolved psychological issues. On the other hand, as I said, you are a man of intelligence, who has been able to work hard; and you have the support of your immediate family. On balance, I think your prospects of rehabilitation, should you receive appropriate treatment, is reasonable. It would certainly be enhanced by a longer period on parole. 52. For that reason and because you are currently in protection (and, on the material before me, likely to remain in protection) I am going to find special circumstances to vary the ratio of the head sentence to the non-parole period. 53. You have been recently serving a term of imprisonment for 6 of those offences of dishonesty to which I have earlier referred: 4 offences of dishonestly obtaining a financial advantage; 1 of stealing property from a dwelling house; and having goods in custody. That sentence commenced on 4 April 2018 and expired on 3 January 2019. You were arrested in relation to this present matter on 5 April 2018. The start date of the sentence will be 4 October 2018. 54. Except for your plea of guilty, I would have sentenced you to a term of imprisonment of five years. Because of the plea of guilty, the term of imprisonment is 3 years and 9 months. 55. Because I have made a finding of special circumstances to vary the ratio of the head sentence to the non‑parole period, the non-parole period is a period of 2 years to date from 4 October 2018 and which will expire on 3 October 2020. 56. I fix a balance of one year and nine months to date from 4 October 2020. 57. Whether you are admitted to parole, Mr Amante, on 4 October 2020 will be a matter for the Parole Board. It will largely depend on how you address your issues whilst you are in custody. 58. If you are eligible, I refer you to the Compulsory Drug Treatment Programme. 59. Thank you, Officers, you may now take Mr Amante with you. 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: 04 June 2019