STATE OF TASMANIA v MICHAEL WAYNE KELB 29 OCTOBER 2021
COMMENTS ON PASSING SENTENCE PEARCE J
Michael Kelb, you plead guilty to attempted arson. During the evening of Saturday 12 June 2021 you walked into the Bridport Hotel, in Main Street Bridport, carrying a jerry can containing petrol, a measuring cup and some newspaper. You believed that a man with whom you were having an ongoing argument was staying in a room on the first floor of the hotel. You had been there earlier in the evening looking for him. You poured petrol from the can into the cup and then onto the door of the room you believed he was staying in and around the floor. You were seen by three people who were sitting in the lounge area on the first floor. They smelled the petrol. You twice said to them that they were “not going to be lucky.” You left the measuring cup at the top of the stairs but, as you walked out, you left the jerry can on the stairs, towards the base, and lit a piece of paper in its spout. One of the men in the lounge saw what you had done, ran down the stairs, removed the burning paper and threw it outside where it immediately extinguished. You were seen driving away in a vehicle which had been parked outside, in the course of which you struck a metal pole. For some reason you did a U-turn and drove back to the hotel at which time you were spoken to and recognised by the licensee.
You were quickly found by the police. You were very drunk. Analysis of your breath disclosed the presence of alcohol in the concentration of 0.154 grams in 201 litres of breath. You were interviewed the next day after you had sobered up and admitted much of what you had done.
You and the man you believed was in the hotel were friends, but had a bitter falling out. Threats were exchanged over the course of about a year. He threatened to burn down your mothers’ house. By your plea you admit that you acted deliberately, and you either intended to set fire to the building or were aware that it was a likely consequence. Your actions were motivated by your antagonism towards the man. Through your counsel you acknowledge that your intention was to set fire to the building, not to harm him, but to scare him.
You are 43 years old. You live with your mother in Bridport. You have led a relatively industrious life. You receive social security benefits supplemented by occasional manual employment. Your record is mostly for driving offences. You have three prior convictions for driving with an excessive amount of alcohol in your body but the most recent is in 2009 when you were given a short suspended sentence. There are some convictions involving dishonesty but none for violence or property damage. Before this crime you were preoccupied with the issues between you and this other man, and after you had consumed a lot of alcohol, your antagonism towards him overcame you. When you were still drunk you told the police that you wanted to burn the hotel down to kill him and burn him alive, and that you planned to return. I accept that those statements may have been exaggerated as a result of your intoxication but the fact remains that you had already acted on your intention. While alcohol may have resulted in a failure to properly reflect on your conduct at the time, excessive consumption of alcohol is not a circumstance of mitigation, and it cannot be said that your return to the hotel with the petrol and paper was unplanned or impulsive.
It is relevant that the building was not set on fire, and no damage occurred, but it takes only a moment’s reflection to understand how serious your conduct was. But for the actions of a quick thinking person, who put himself in danger by approaching a petrol can containing a burning wick, the consequences could have been terrible. You did not light or attempt to light the petrol poured on and around the door, but had the petrol in the can ignited there was a high risk of significant damage to the hotel and of death or serious injury to its occupants. You told the police you thought the jerry can was half full. I have not been told how many other people were in the hotel at the time. It was 10.00 pm on a Saturday night and so it is likely that there were patrons in the bar. You knew of the presence of at least three people in the lounge in the upstairs accommodation section. The comment you made to them can only mean that you were prepared to put them in danger to achieve your aim. You also acted without regard to the possibility that there may have been others in hotel rooms, although it has not been asserted that there were any such people.
It is in your favour that you entered an early plea of guilty. I accept that you are sorry for what you did and that you quickly came to realise how serious the situation could have been. You are taking steps to address your excessive alcohol consumption. I think it is unlikely that you will do something like this again although some element of specific deterrence remains necessary. The only appropriate sentence is one of imprisonment. Your counsel submitted that I should impose a wholly suspended sentence, but I have concluded that the need to punish you and deter others from acting in such a manner requires a sentence which requires you to actually serve some of the term. You have spent two days in custody before today.
Wayne Kelb, you are convicted on complaint 33016/21, count 2. You are sentenced to imprisonment for 18 months. Taking into account the days already served that sentence will commence on 27 October 2021. I suspend 12 months of that term for two years from your release. It is a condition of that order that, while it is in force, you commit no offence punishable by imprisonment. If you breach that condition a court must activate the suspended part of the sentence unless that is unjust.