STATE OF TASMANIA v ROBERT PETER MATTHEWSON 12 AUGUST 2021
COMMENTS ON PASSING SENTENCE MARTIN AJ
You have been found guilty by a jury of three crimes of unlawfully setting fire to vegetation. The maximum penalty for each of those offences is 21 years’ imprisonment. You are convicted of those three offences. You have also, in this Court, pleaded guilty to two offences of aggravated assault on complaint 447/2021, and you are convicted of those two offences. And you have pleaded guilty to four offences on complaint 448/2021, concerned with a Gell Blaster pistol. You are convicted of those four offences. I will come back to those later. But I will first deal with the crimes of setting fire to the vegetation.
I am required to sentence you in accordance with the verdicts of the jury, and on the basis of facts that I find proved beyond reasonable doubt.
The crimes were committed on 8, 18 and 30 December 2019. You set fire to vegetation on a remote bush property near Mangana, approximately 15 to 20 kilometres from Fingal. The property address was 1 Calder’s Gully Road, Mangana.
As I said, the property was remote. It was a bush property of approximately 60 acres, and it was occupied by you under a vendor finance contract of purchase dated 16 March 2017. You were purchasing the property for a total of $102,000, and the purchase was due to be completed on 31 march 2022. Under the contract the title was retained by the owner. There were a number of conditions and some restrictions on what you could do.
Apparently you were hoping to establish a community, as it is said, “off the grid”, and you were relying on people coming to live on the property and paying rent. You intended to use the rent as providing the means to enable you to meet your weekly commitment of $150. There was also a $30 per fortnight commitment to cover the rates.
After the fires when you were interviewed on 4 January 2020, you told police that you had to start making extra repayments on top of the current $330 per fortnight, or come up with a balance of $62,000. If you were unable to do that, in your words, “I lose it all”. The precise figures do not matter, but it appears that in December 2019 you had paid a little over $20,000 pursuant to that contract. As at December 2019 you were facing the real risk of losing the property and all the money you had paid, because the owner was making moves to evict you from the property.
Quite frankly, Mr Matthewson, it appears that from the start your project was unlikely to succeed. At the least you were faced with significant difficulties and, as your counsel put it, those difficulties were to be considered in conjunction with your heavy consumption of alcohol, which made it more likely that you would not succeed. It appears that you were never able to attract sufficient people to live and pay rent, although at one stage there were approximately 30 people living on the property. By December 2019 only you and a family of two persons were on the property.
Irrespective of any issue of reality, when you and the owner fell out, you were facing, from your perspective, the loss of everything you had worked for. By December you were angry with the owner, and desperate. It would appear also that you were in despair of your future and losing everything.
So, Mr Matthewson, this was your highly charged emotional state coming toward the end of 2019. Precisely what you hoped to achieve by lighting the fires in December is not clear. No doubt your emotional state contributed to your motivation. But I cannot be sure whether you simply wanted to damage the property as a way of getting some form of revenge against the owner, or whether you hoped, if you damaged the property, that the owner might relent and allow you to remain, or whether it was neither of those reasons which caused you to act as you did, and you just gave way to frustration and a mixture of emotions, and in this way venting your anger. I will come to your prior offending shortly, but there is also the possibility that something in your mental state about fire also played a role. Whatever your reason for lighting the fires, it is not of critical importance. It is the fact of the crimes, the damage caused, coupled with the potential for great to harm to lives and property, which is predominant. It is the gravity of your total criminal conduct that is the predominant consideration.
The December fires were preceded by fires on the property in February and November 2019. Those fires did not escape the property and were not investigated. So causes other than deliberate lighting by you were never investigated; nor were they excluded. As suspicious as those fires might seem, there is no proof that you lit them, and I put them aside for the purposes of sentencing you. They are background only, and irrelevant to determining your appropriate sentence.
As I said earlier, as at December 2019, only two other persons lived on the property, namely Jason Cook and his son, Jesse. You had built what might be described as a rough dwelling, and they lived in a similar dwelling a short distance away.
On 8 December 2019 Mr Cook and his son left the property during morning, leaving you alone on the property. At that time you had no means of transport. You did not hold a licence, and Mr Cook senior was not paying any rent because he regularly drove you when you needed to leave the property to get supplies and so on.
On 8 December, while the Cooks were absent, you set fire to vegetation, and I have no doubt that you did so intentionally. I can jump ahead to the other two fires and say quite plainly that I have no doubt that you lit those fires intentionally as well. You lit the vegetation in at least two locations and predominantly to the right of the driveway approximately 150 metres below the two dwellings. It appears that you lit the fires in areas previously damaged by the November fires. Fortunately the fires you lit on 8 December did not extend very far, but they required the assistance of fire crews, bulldozers and helicopters to contain and extinguish them. That fire was dangerous. It had the potential to cause widespread damage and harm. It took significant resources to contain it and extinguish it.
Throughout all this, it should never be overlooked that every time fire crews and other persons such as operators of bulldozers and pilots, are called out to fight fire, their wellbeing is placed at risk. And that is the case every time it happens.
On 18 December 2019 the Cooks left the property in the morning and again you were the only person present. This time you intentionally lit at least two spots in the vegetation. It appears that the primary area of fire started about 150 metres up the road leading to your driveway. It was above your dwelling, and the fire travelled across the slope above your dwelling. Again, fortunately, the fire did not escape the property, but again considerable resources and personnel were needed to control it and extinguish it.
While the firefighting efforts were in progress, you were sitting at your residence drinking heavily. When police arrived at approximately 6pm, you were sitting outside your dwelling in a highly intoxicated state. You denied lighting the fire, and you claimed that a mark on your arm was caused by you not showering since September. Having regard to all of the evidence, I reject that explanation. In my view the police were correct in their assessment that it was a burn mark, but again that particular mark is not of any particular significance in the exercise of the sentencing discretion.
You lit the third fire on 30 December 2019, again after the Cooks left the property, leaving you alone on the property. 30 December 2019 was a day of extreme fire danger. It was hot, there were strong winds, and a total fire ban had been issued. The Cooks left early in the afternoon and, within about half an hour, you lit that fire. This time you used accelerant to get the fire going. You lit the fire in the lower area of the property and it took off up the hill where it jumped the road and the wind took hold, swinging the fire around, causing it to head across the hill towards Fingal. Later, when interviewed by police, you falsely tried to distance yourself from the fire by claiming that it had started at the top of the hill and came quickly down the slope. I have no doubt the jury rejected that claim, as I do.
While travelling between Fingal and Avoca, Jesse Cook noticed smoke. At about the same time, Constable Ferguson was the other side of Fingal and he noticed smoke. That occurred at 3.12pm. Jesse rang you, and they turned around. After that call you rang 000 at 3.15pm. The Cooks and Constable Ferguson arrived at the property at about the same time. Put bluntly, they rescued you. And they put themselves at risk in doing so. When they arrived at the property the fire was on their left hand side of the road only, but some few minutes later when you all left the property, the fire had jumped the road and was burning fiercely.
Mr Matthewson, it should not be underestimated how much danger you caused. You lit this fire in extremely hazardous conditions, on a day of a total fire ban, and you used an accelerant. You lit it in an area where it was inevitable, in those conditions, that the fire would be propelled quickly up the hill and would, inevitably, escape the property into heavily wooded bushland. It would have been obvious to you that, given the conditions and the terrain, and the use of accelerant, such a fire was extremely dangerous to property and life, and extremely difficult to control.
I do not make a finding that you intended that the fire would escape and cause the damage that followed. But I do make a finding that it was obvious to you, in those conditions and using the accelerant, that the fire was highly likely to escape the property into the bushland and to spread from there far and wide, as it did. You knew that that was an almost inevitable result of what you had done in lighting the fire in those conditions and using accelerant.
The immediate area of the fire, which has been referred to as the Mangana fire, covered 13,911 hectares, with a perimeter of 107 kilometres. The fire later spotted over Fingal, and it has been referred to as the Mount Malcolm fire, which covered 8,364 hectares, with a perimeter of 52 kilometres. A total of 22,275 hectares was burnt out. It was a mixture of private property and State forest. It was a very large area indeed.
I read from an incident summary which gives some idea of the difficulties attached to trying to control the fire, and I quote:
“Due to the difficult terrain, it took several weeks to construct containment lines around the fire with up to 19 dozers working with fire crews from the Tasmania Fire Service (TFS), Sustainable Timber Tasmania (STT), Parks and Wildlife Services (PWS) and a number of small private timber companies. During the peak of fire activities, there were around 150 firefighters on the ground daily, supported by dozens of other people in the incident management team and logistics support, including personnel from Tasmania Police, and the State Emergency Service (SES). The fires were declared contained on 18 January 2020, but additional outbreaks occurred over the next week due to erratic fire behaviour igniting previously unburnt pockets of fuel between the containment line and the fire boundary. Shortly after the outbreaks were again contained, the fire was handed back to land management control, with oversight from STT. PWS and STT crews continued to monitor and patrol the fire ground until the end of February, and a final observation flight occurred on February 24. The incident was closed on March 10 after two weeks of inactivity and heavy rainfalls.”
The damage bill from that fire, put simply, was enormous. Across numerous organisations adversely affected, the damage was in the order of $30 million. To the damage bill must be added the cost of fighting the fire over such a long time and such a large area. That cost was also in the millions.
Mr Matthewson, you should be under no illusion about the huge risks to life and the wellbeing of the wider community which you created. There were personnel immediately involved and in support of those who were actively involved. The wider community was adversely affected, and that includes all the people in the localities who were, for a considerable period, under the stress and uncertainty of not knowing whether they would be burnt out. It includes people in the townships and on rural properties. Fires like the one you lit cause great distress and trauma to many people across the community.
I make compensation orders in favour of a number of people and entities, and I adjourn the assessments of each of these sine die.
Compensation orders are made in favour of Zachary John Mead, Jason Leigh Cook, Timberland Pacific Pty Ltd ABN 58074313401, Forico Pty Ltd ABN 33169204059, and Sustainable Timber Tasmania, Level 1, 99 Bathurst Street, Hobart.
Significantly from the sentencing point of view, at no time have you accepted responsibility. On 4 January when you were interviewed by police you denied lighting any of the fires. You claimed, and I find falsely, and I quote: “I fucking hate fire”. That was a false statement. You continue to deny responsibility as you just did in a comment made to me. In February 2021, you tried to flee the jurisdiction. I have no doubt that you were trying to get away because of your consciousness of guilt and your fear of being convicted.
Now, as I mentioned at the outset, in addition to the three crimes dealt by the jury, you pleaded guilty in the Magistrates Court to a number of offences, and that plea has been maintained here. There are two aggravated assaults committed on 26 October 2020, involving pointing a firearm at two officers and threatening to shoot them. There are four firearms offences relating to that firearm which was a Gell Blaster pistol. I have already indicated that you are convicted of all those offences. I accept that at the time you committed the offences you were depressed and had ceased taking your antidepressant medication. You were suicidal and highly intoxicated. As to what happened on those occasions, the Crown facts were read into the record today, and I will repeat them briefly.
On 26 October 2020, you contacted Tasmania Police radio despatch services through 000. At that time you were living in a caravan at the rear of a property in Rockingham Drive, Clarendon Vale. You told the 000 operator that you were in possession of a firearm, and you intended to walk up the street and shoot persons in the area before challenging police to shoot you so that you would, in your words, “die by suicide”. Police were tasked to attend and in the meantime you told the operator that you had been referring to a firearm, but it was not a real firearm. Both officers entered the yard of the premises and were advised that you had said the firearm was not real, but from their perspective it certainly looked real. You were seen standing near the caravan and, when the officers identified themselves as police, you began to threaten to shoot them, while raising and pointing toward the officers with what appeared to be a Glock pistol. The officers took cover and they both called upon you to drop the gun multiple times. Initially you were reluctant, but finally you relinquished the firearm by dropping it on the ground in front of you. You were then directed to lay down on the ground, and you complied while you were handcuffed. It was at that time the police became aware that what you had pointed at them was a Gell Blaster replica Glock pistol. It is the same size as a Glock, and it was constructed from polymer receiver, with a metal slide. It is branded and marked similarly to a police issued Glock. At the time of your arrest, you appeared to be highly intoxicated and smelt strongly of alcohol. You were cautioned and you said a number of times that you intended to challenge police to the point where they would shoot you. In your words, and I quote, “I know it’s selfish but I am too gutless to do it myself.”
Initially it was determined that you were not suitable, in terms of your intoxication, for interview. Later you were interviewed after you had sobered up and you spoke about ceasing your medication and having thoughts of self-harm. You spoke about drinking heavily since about 12 noon on that day, and you admitted telephoning 000. You recalled saying something about brandishing a firearm and walking down the street. You thought you might have said that you intended to shoot people, but you could not remember the specific words. During the interview you agreed that you pointed the Gell Blaster at the police, but said you could not remember what you said. You told police that you used your body language to make it look like it was a real gun. Finally, you decided to drop the Gell Blaster because you did not want the officers “to have to go through that shit”. According to your statement to police you wanted the police to believe the weapon was real so that they would shoot you. And you also talked about the purchase of the Gell Blaster via Facebook and paying $250 for it. You agreed that you were not the holder of a current firearms licence which is count 1 on the complaint concerned with these offences. Count 4 relates to you committing the crime of aggravated assault and that by committing the crime of aggravated assault, you did not take all precautions to ensure that the Gell Blaster was kept safely.
The second charge on that complaint concerns you requesting another person to send the firearm by mail. That attracts a fine only. The other offences attract sentences of imprisonment. In due course, I will impose one sentence in respect of the three fires, the two aggravated assaults, and counts 1, 3 and 4 on the complaint. But on count 2, which attracts a fine only, I will not be imposing an additional penalty.
I come to matters personal to you. You were born on 13 September 1984. You are now 36. You were 35 at the time of the offending in December 2019. There are features of your background as a child that attract a degree of sympathy. You did not know your father who played no role in your life as a child, and you were a troubled child being raised in a dysfunctional family. Your mother suffered mental health issues, and problems with substance abuse. From the age of about 7 you were in and out of State care where you suffered abuse. You managed to complete year 10 while you were in detention.
In 2003 when you were sentenced for a number of offences, the sentencing judge made some observations which assist in understanding your background. The sentencing judge said:
“You present the Court with a very difficult sentencing problem. Four days ago you turned 19 years of age. Mr Mackie has supplied the Court with a bundle of psychiatric reports about you for you have been the focus of much attention from psychiatrists, psychologists, counsellors and State Agencies since you were 11 years old. It appears that you got a bad start in life for you were born 12 weeks premature and weighed only three pounds. Your mother suffers from mood disorder and your father, whom you only met once when you were aged seven, was a violent alcoholic criminal. You have an older half-brother who has a record for drug related offences and offences of violence.
The clinical picture is complicated by social factors. You started to show violent anti-social behavioural disturbances when you were at school in Grade 7. You have exhibited signs of bizarre behaviour such as claiming to have been taken bound and gagged to an empty house and left there while your tormentors set fire to it. These signs have led Dr Sale to make a possible diagnosis of Munchausen Syndrome. An early diagnosis was made of Attention Deficit Hyperactivity Disorder and medication prescribed for that. You disagreed with that diagnosis and I understand that it is now the psychiatric opinion that whatever may have been the position in the past, you do not now suffer from that disorder.”
The sentencing judge observed, having regard to your prior convictions for arson, that it appeared “that wherever you go there is a fire, often one that does damage to the property of one of your relatives”. His Honour went on to say:
“There have been many admissions to hospital. Despite all the attention that you have received from the experts your condition and the cause of you offending are unknown. Your intelligence falls within the average range for both verbal and performance abilities. You suffer from no diagnosable mental illness. Dr Reid writes that fire setters are obviously disturbed psychologically, but often do not have discrete psychiatric illnesses. In your case the best label that can be applied is a rather vague ‘conduct disorder’. The opinion is united that there is no specific treatment for your conduct and the prospect of you re-offending is high.”
As an adult, you have held jobs in retail, marketing and as a storeman. But substance abuse was, and until recent years, remained a problem, as well as alcohol abuse which was ongoing until you were taken into custody in February 2021.
Of particular concern is your record of prior offending. It was a concern back in 2003 to the sentencing judge. Your offending began in December 1995 when you were aged only 11 years. From other material supplied to me, it appears likely that you began by setting fire to the car of your stepfather with whom you had been arguing. From 1995 until 2003 it appears that you lit something in the order of 17 fires. That may not be a precise figure. There were houses involved. For example, you set fire to a meter box of your mother’s home. At other times you set fire to clothing, bedding and curtains. Two of the houses to which you set fire were destroyed, the first belonging to your mother. Toward the end, you set fire to a couple of hedges.
The last of your fire lighting appears to have occurred in March 2003. Your counsel told me that me the lighting of fires was not due to a fascination with fire. You wanted others to suffer as you had suffered.
In addition to offences relating to fire, over the years you have been constantly in trouble for offences of dishonesty, including burglaries and stealing. There are breaches of court orders, and there is some minor violence and a demonstration of poor attitude toward police. For example, you threatened a police officer in May 2015, and on the night of the fire of 30 December, you used abusive language to police. Your counsel has told me that on that occasion you were drunk. In addition there are a number of driving offences, the last of those being in January 2018.
In 2003, the sentencing judge said that you were to be regarded as a danger to the public. He was right, and your danger to the public continues to this day. Personal deterrence, that is deterring you from offending again is a very important consideration in the exercise of the sentencing discretion.
I come back to the possible relevance of your history of lighting fires to the reason why you lit the fires in December 2019. As a youth, according to what you told counsel, you wanted others to suffer as you had suffered. It is apparent that you saw fire as a means of achieving the causing of suffering to other people. That raises the possibility that you wanted Zac Mead to suffer, and you saw fire as a means of achieving that end. I cannot make a definite finding in this regard, but all of these possibilities, and the other possibilities I spoke about earlier, exist in terms of explaining why you lit these fires. Whatever the particular reason, you are, as I said, a danger to the community.
Mr Matthewson, I have already commented upon some aspects of the seriousness of your criminal conduct, but I need to reflect on the gravity of your total criminal conduct, and that includes the other offences which are less serious. All the fires were potentially very dangerous to property and persons. The potential for damage to property came to fruition with the third fire in a very large way. As I said, the cost to the community in various ways is, quite simply, enormous. It is pure good fortune, coupled with the extraordinary efforts of the firefighting personnel, that loss of life was prevented and the destruction of at least two townships was prevented. As I said earlier, it is not just the resources used and the danger to the community, but it is also the danger to the firefighting personnel.
Not satisfied with one or even two fires, you lit the third fire on 30 December on the most dangerous of days from the point of view of fire. In addition you added accelerant to ensure that the fire took hold. As I said earlier, I am satisfied that at the least you must have been aware that the escape and the growth of the fire was almost inevitable. What you did carried with it the great risk of not just property damage, but harm to individuals in the community and those who were to set about fighting the fire. These were three crimes of extreme seriousness committed in the space of three weeks. But in that process you did your best to ensure that yours and the Cooks’ dwellings were not destroyed. In that, you succeeded.
The gravity of your total criminal conduct is readily apparent. There are no mitigating circumstances attaching to the objective circumstances of the crimes. Your reasons do not amount to mitigation. I am satisfied that you are a danger to the public. You have demonstrated a willingness to put lives and property at risk to achieve your goal. Deterring you from offending again is a very important factor in sentencing. So too is deterring others who are minded to light fires for whatever reason, particularly as they are known “firebugs” who become active during the summer months. For whatever reason people who are tempted to light fires must understand the very grave concern that follows the lighting of fires across our community. Understandably the community is greatly disturbed by these types of crimes, and the sentence must reflect that concern and condemnation, and it must reflect the need for what is called in the law, general deterrence, that is deterring others who are minded to behave in that way.
As I said earlier, you continued to deny responsibility. It follows that you are not entitled to the benefit of a plea of guilty, and it also follows that in attempting to assess your prospects of rehabilitation, it cannot be said in your favour that you have recognised your responsibility and that you have made any steps whatsoever toward rehabilitation. At this time all that can be said is that your prospects of rehabilitation are extremely poor.
I indicated earlier that there is no penalty on count 2 on complaint 442/2021. I am going to impose a single sentence, and that requires me to stand back and look at your total criminal conduct. It is not a case of just adding up the individual sentences for the individual crimes. I must look at the total criminal conduct, but then endeavour to avoid a crushing sentence that would follow if you simply added up the sentences for individual crimes. So it is an overall single sentence. It is not an easy task to arrive at an appropriate sentence. There is nothing that anyone has been able to find that is comparable to the circumstances of your criminal conduct.
Your sentence will commence on 16 January 2021 to take into account the time you have spent in custody. I impose a single sentence of imprisonment for seven years, and I fix a non-parole period, that is a period during which you will not be eligible for parole, of four years and six months.