STATE OF TASMANIA v MARK GORDON BIRD 27 FEBRUARY 2020
COMMENTS ON PASSING SENTENCE BRETT J
Mr Bird, you have pleaded guilty to the following crimes:
(a) In September 2007, you unlawfully set fire to property, in particular a motor vehicle, and then dishonestly acquired a financial advantage by making a fraudulent insurance claim in respect of the damage to the vehicle.
(b) In December 2012, you committed arson in respect of your house at Blackman’s Bay, and then dishonestly acquired a financial advantage by making a fraudulent insurance claim in respect of the damage to the house.
(c) Finally, in January 2017, you committed arson by setting fire to another house at Geeveston. Your actions were unlawful because you set fire to the house with the intention of making a fraudulent insurance claim in respect of the damage caused by the fire.
In respect of the 2007 crimes, you set fire to the motor vehicle on 11 September of that year. The vehicle was a VW Combi van. It was parked in the driveway of your home. You placed a kettle on the gas stove in the van, turned the gas on and lit it. The kettle was placed in a position intended to cause a curtain to catch fire. You left the van and waited for the fire to take hold. When it did, you called the fire brigade. Firefighters extinguished the fire but the van was completely destroyed. You had previously insured the van for an agreed value. You made the insurance claim on the same day as the fire, telling the insurance company that the fire was accidental. They believed you, the claim was accepted and you were paid the sum of $7,700.
You purchased the house at Blackman’s Bay in 2005. You then resided in the house with your family. You insured the house and its contents at the time of purchase, and that insurance was still in effect when you set the fire on 17 December 2012. Approximately six weeks before you did so, there had been an accidental fire at the house, which had caused some smoke damage. As a result, you and your family had moved to temporary accommodation, so that repair work could be undertaken. On 17 December, while the repair work was still underway, you went to the house in the early hours of the morning, poured fuel around the interior and then started a fire by lighting the gas burners of a portable barbecue. You deliberately damaged the locking mechanism of the front door to make it look as if someone else had forced entry to the house. You then returned to your accommodation. A neighbour saw the fire after it had taken hold, and called the fire brigade. Again, firefighters attended and extinguished the fire but the house suffered extensive damage. You made a claim on the insurance company two days later. When you did, you asserted that another person, a neighbour with whom you were in dispute, had started the fire. The insurance company believed your claim that you had nothing to do with commencing the fire, and paid you the sum of $557,265.83.
The house to which the final crime relates was purchased by you on 24 March 2016, again as your principal residence. You insured the house prior to settlement of the purchase, and the contents before you took up occupation. The contents were insured for a sum which was considerably in excess of their value. You set the fire on the morning of 6 January 2017. Your partner has already left the home and you lit the fire as you left the property. However, you left locked within the house two cats and four kittens. A number of other animals, eight baby chickens, 10 finches and a goat were in cages immediately surrounding the house.
The fire was reported by neighbours and passers-by, and police and the Fire Service attended. They could not bring the fire under control and the house and contents were completely destroyed. All of the animals with the exception of the goat, died in the fire, and the goat was so badly burned it had to be destroyed later. You told investigators that you were not responsible for the fire.
You admit that you set fire to the house because it was your intention to make a fraudulent insurance claim. It is this intention that makes your conduct unlawful. You stood to gain up to $705,000 from a potential insurance claim. However, you have not been charged with, and of course, must not be punished for, actually making such a claim.
The State’s assertion is that you were financially motivated to commit these crimes because of a long standing pattern of heavy spending. This is not disputed by you but you have provided little information to me as to how you spent the money. The funds acquired by you from the successful insurance claim in respect of the Blackman’s Bay house were used, in part, to provide some support to your children, and a substantial portion was used to rebuild the home. The home was rebuilt with major changes to lay out and floor plan, and there is a suggestion that this crime was motivated in part by your attempts to resolve differences with your then partner, which arose in part from her dissatisfaction with the home. From the purchase of the house in 2005 until her death in 2010, you lived in the home with your wife. You commenced a relationship with your partner at the time of the fire, after your wife’s death. This history is said to have contributed to your partner’s dissatisfaction with the home. She had moved out of the home before you committed the arson. You may also have gained some financial benefit from renovating the home after the fire, in terms of the increase in value of the home. It was purchased by you in 2005 for $235,000 and sold in 2016 for $505,000. I was not, however, given any detailed information about that question.
Whatever your motive, your actions on all three occasions in setting the fires was financial gain. The fraudulent insurance claims resulted in significant financial loss to the insurance company concerned. None of the money has been recovered from you, and, although I will make an order for compensation, I been given little information about your financial circumstances and your capacity to comply with that order. It seems that you have spent most, if not all, of the money which you acquired dishonestly, together with any other money in your possession, and you completely destroyed your asset, being the Geeveston house and its contents. It is a reasonable assumption that the prospects of either insurance company recovering any compensation from you are poor.
You are now 57 years of age. You have no prior convictions. The material with which I have been provided sets out your background in some detail. You emigrated from the UK to Australia in 1995. In 2000, you spent four months in East Timor as a member of the Australian Army, and in particular, as a volunteer with the Australian contingent of the international peacekeeping task force, known as Interfet. Upon your return, you were diagnosed by a psychiatrist, Dr Ratcliff, with severe post-traumatic stress disorder with secondary alcohol abuse. You have been under Dr Ratcliff’s care ever since. Primary causal factors in respect of your development of this disorder, according to Dr Radcliffe, include two traumatic experiences during your service in East Timor. Your life since has been difficult because of a number of factors, including the ongoing symptomology of the disorder and your problem with alcohol. You have also experienced further trauma. Your wife’s death in 2010 resulted from her taking her own life by hanging. You found her and unsuccessfully attempted to revive her. You have three children. I have no doubt that your children relied on you heavily for support after their mother’s death. One of those children has since developed a significant mental health illness, and another has a problem with alcohol. I am told by your counsel that you and your children have a close bond and that time spent by you in custody will impact heavily upon them.
I have been presented with a report prepared recently by Dr Ratcliff. His opinion is that you continue to suffer from chronic post-traumatic stress disorder with some complications arising from alcohol and prescription medication abuse. There is nothing in the report that would support the proposition that that there is a causal or other relevant link between your mental health and your criminal conduct. Accordingly, the existence of this condition does not reduce your moral culpability in respect of the conduct with which I am dealing. Your counsel does not submit otherwise. Of course, your life circumstances, including the post-traumatic stress disorder, provide the context in which you committed these crimes and assist to explain why a person with an otherwise faultless record decided to perpetrate such serious and dishonest conduct. Further, Dr Ratcliff’s opinion is that you do not have any continuous impairment of mental functioning. Despite this, Mr Barnes submits that I can conclude that the conditions described by Dr Ratcliff will cause imprisonment to weigh more heavily on you than someone without your condition, and further imprisonment may have an adverse effect on your mental health. Although Dr Ratcliff does not comment specifically on these propositions, I do note a comment made by him in respect of prognosis, which is as follows:
“The prognosis is therefore for continuation at his current level of function or moderate improvement over time, unless affected by other adversity such as a term of imprisonment.”
I think that it is obvious, and in accordance with common sense, that a person suffering post-traumatic stress disorder will find the experience of prison more onerous than otherwise. I infer also from Dr Ratcliff’s comment that there is at least a risk that that experience will impact adversely on your prognosis with respect to the diagnosed condition. I will take these matters into account, but they of course must be balanced against the objectively serious aspects of your conduct.
I have already commented on your moral culpability. Your counsel also submitted that your condition might be relevant to the third aspect of the Verdins considerations, that is, whether general deterrence should be moderated or eliminated as a sentencing consideration. In my view, there is no basis for such a conclusion. The conduct committed by you was deliberate and premeditated. It was repeated over a long period of time. It was aimed directly at the acquisition of money. It may well be that your mental health and other life factors provided circumstances in which you felt a desperate need for that money, but the experience of this need is not uncommon, and can occur because of a wide variety of factors in the lives of many people. That need provided your motive to commit the crimes, and you acted on that motive by the deliberate and repeated commission of serious criminal conduct. Your decision to do that was not caused or contributed to by your mental health. General deterrence therefore remains a significant consideration.
As will be obvious from my comments so far, I consider the objective seriousness of your criminal conduct to be high. Although you destroyed and damaged your own property, lighting fires, in particular in residential houses, creates significant risk to firefighters and passers-by, and a risk that the fire will spread to other property. The dishonest acquisition of the insurance proceeds is also an extremely serious matter. Insurance companies are particularly vulnerable to this type of insurance fraud. In respect of the Blackman’s Bay property, you acquired a very significant sum and then spent that money. You set fire to the Geeveston property, knowing that there were animals confined in and around the house, and the fire was responsible for what must have been considerable suffering and death. The prosecution have not proceeded with the charge of aggravated cruelty to these animals and you cannot be punished for conduct which would constitute that crime. However, the presence of the animals is, in my view, a feature which aggravates your moral culpability in respect of that arson. A further matter of aggravation, in my view, is your attempt to blame another person for the Blackman’s Bay fire. However, it was not suggested that this caused any actual hardship to the person concerned.
You are entitled to some mitigatory benefit for your plea of guilty. Although it came at a relatively late stage of the proceedings, it was entered soon after the prosecution had agreed not to proceed with other charges contained in the indictment. I would therefore accept that the plea has been entered at an early opportunity. The pleas also have considerable utilitarian benefit, as they have avoided a trial which would have been complex and lengthy. I will also take into account in your favour that you have no prior convictions and, prior to the commission of these crimes, seemed to be a person of otherwise good character. Your military service is relevant to this conclusion. I will also take into account your psychological history in the manner which I have already described.
Finally, the question of totality has a significant role to play in the formulation of sentence. It is necessary to have regard to the sentence to ensure that it is proportionate to the overall criminal conduct and is not crushing, having regard to your record and prospects. However, in relation to the first of these considerations, I note that these were separate acts of criminality committed in different circumstances and separated by significant gaps in time. The second consideration clearly has a role to play.
Mark Bird, you are convicted of the crimes to which you have pleaded guilty. You are sentenced to a global term of 4 years’ imprisonment, which will be backdated to 17 February 2020. I order that you not be eligible for parole until you have served one half of that sentence.
I order that you pay compensation as follows:
(a) To AAI Limited trading as Shannons Insurance in the sum of $7,700.
(b) To Commonwealth Insurance Limited trading as Comminsure in the sum of $557,265.83.