STATE OF TASMANIA v IAN ANDREW MACKENZIE 9 MAY 2022
COMMENTS ON PASSING SENTENCE JAGO J
Ian Mackenzie you have pleaded guilty to aggravated burglary, wounding and arson. On 21 November 2021 you walked from your unit in Wynyard to the Beach Retreat Tourist Park on the Old Bass Highway in Wynyard. You took with you a bucket and a bottle of accelerant. Your plan was to set fire to the tourist park, and cause harm to one of the owners, essentially as an act of revenge, because you believed they had wronged you. The background to the matter was that you had resided at the tourist park for a period of approximately 18 years. You owned the unit you lived in at the tourist park but rented the land on which your unit sat. You were of the understanding that the owners of the tourist park, Mr and Mrs Gilmore, had promised you a life tenancy when you built your unit on the land. This claim is disputed by Mr and Mrs Gilmore. It is not necessary for me to determine whether such a tenancy had in fact been granted. I will sentence on the basis that you believed, rightly or wrongly, you had the benefit of a life tenancy. In early 2019, Mr and Mrs Gilmore told you they intended to develop the land and that eventually you, and the other tenants, would have to vacate the tourist park. You were very unhappy about this. A number of the other residents of the tourist park were also unhappy about this decision, and it seems that a view that Mr and Mrs Gilmore were responsible for causing considerable pain and financial loss to a number of people festered amongst the tenants. You certainly developed this mindset. In approximately October/November 2021 you secured alternate accommodation at a unit in Wynyard. You believed this accommodation was second rate compared to what you had enjoyed at the tourist park. Throughout October and November, you were in the process of moving your possessions from the tourist park to your new accommodation. On 21 November you left your new unit and returned to the tourist park under the guise of collecting more of your property. As noted, you took with you a bucket and bottle of accelerant and you were planning to set fire to the tourist park. You attended your unit within the park and spent some time collecting items. You then went to your shed and collected a wheelbarrow and packed it with a variety of accelerants. You also took with you an axe and hammer. You covered the items in the wheelbarrow with your laundry and went to the laundry room which was accessible to park residents, and as I understand it, conjoined to the residence of Mr and Mrs Gilmore. Because however it was after 6pm, the door to the laundry room was locked. You knocked on the door of Mr and Mrs Gilmores’ residence. Mrs Gilmore answered. You asked her to unlock the laundry so you could attend to some washing. As she was standing at the laundry door unlocking it, you removed the hammer from your wheelbarrow and struck Mrs Gilmore about three times to the head and once to the face. It caused a number of lacerations which began to bleed. Mrs Gilmore wrestled with you trying to remove the hammer. During the struggle, Mrs Gilmore asked you what you were doing. You replied “you bitch…you making me move”.
Mrs Gilmore managed to get the hammer from you and was screaming for her husband to come and help. When he came to the door she ran inside. Mr Gilmore attempted to close the door to the residence but you jammed the axe into the doorway to stop it closing. There was a struggle. Eventually, Mr Gilmore was able to close the door. You hit the door handle several times with the axe trying to gain entry. You then went to another door of the residence and tried to force entry. You were unsuccessful in doing so. Meanwhile Mr and Mrs Gilmore fled the residence, entered their motor vehicle and drove away, contacting police and ambulance services as they drove. You returned to the laundry. You emptied the contents of the wheelbarrow, including a variety of clothing onto the floor and poured a number of different accelerants on top of the items. You then poured fuel from the clothing pile to an area outside, creating a fuel trail. You lit that fuel trail with a match. A fire took hold. It is fortunate that it does not appear as though the fire became particularly intense or spread very far. Fire damage was limited to the laundry, although there was also smoke and water damage throughout the main residence, as a consequence of a burst pipe. I am told that at present damage is estimated at approximately $104,000.00, although at the time of the sentencing hearing the assessment was not complete.
Police and ambulance arrived. The Tasmania Fire Service attended and extinguished the fire. Mrs Gilmore was taken to hospital. She had three lacerations to her head. There was a 1.5 x 1.5 cm jagged open wound on the upper left back of her scalp; a 2 cm straight laceration on the upper back of her scalp and a 2 cm straight laceration on the lower back of her scalp. Additionally, there was a 1.2 x 1 cm “skin breach” over the left lower jaw and an 11 x 2 cm superficial graze on her right forearm. The lacerations were cleaned and closed with sutures. CT scans of the brain, skull and facial bones showed no internal injuries but there was bruising below each of the open wounds.
You presented yourself to police at the scene. You were arrested. You subsequently participated in a record of interview. You made a number of substantial admissions to police. You told police that up until recently you had been good friends with Mr and Mrs Gilmore. You told police about the plan to develop the tourist Park and the consequential need for the tenants to vacate the park. You told police you believed it was an injustice and that the tenants were losing “thousands of dollars”. You told police that you had found some new accommodation and when you advised Mr and Mrs Gilmore of this they had said words to the effect of “sad to lose you”. You told police that this upset you, because it was their fault you had to leave. You said you dwelt on this and the injustice you believed had occurred for all of the tenants. You thought about wanting to hurt Mr Gilmore and “teach him a lesson to not be so greedy”. You told police that on the day you walked from your unit to the tourist park intending to set fire to the residence. You agreed with police that your actions were “premeditated”. You told police that you were mainly after Mr Gilmore and were planning on hurting him. You said you wanted to “dent his skull” with the hammer but had no intention of killing him. Instead you told police you “saw the opportunity” when Mrs Gilmore was opening the laundry and you struck her to the left side of the head, hitting her above the temple. You agreed you hit her three to four times. You said the first blow was “5 out of 10 for power” and the balance of the blows were “not hard”. You told police that you tried to gain access to the main residence because your want was to burn that. When you were unable to get in you went to the laundry and set fire to it. You told police you had observed Mr and Mrs Gilmore drive away from the property as you lit the fire so you knew they were “clear”. When asked what you were hoping the fire would achieve you said “burn the fucking place down”. You told police that you were embarrassed and ashamed by your behaviour, and that it was very much out of character for you.
You are now 81 years of age. You have no relevant prior convictions. The only matter on your record of prior convictions is a matter under the Road Safety (Alcohol & Drugs) Act in 2012. You are a retired dentist. You have lived a most successful and industrious life. You moved to Tasmania in 2002 following the break down of a marriage. You took up residence at the tourist park and spent a large amount of money on building your unit there. I am told that when you were advised in 2019 that you would have to relocate from the tourist park you felt betrayed. As noted, it was your belief that Mr and Mrs Gilmore had promised you a life tenancy at the tourist park, and because of that, you built your unit in a manner that meant it was not relocatable. You believed you were going to lose all of the money you had invested in your unit. You felt very aggrieved by this situation. Additionally, one of your neighbours at the tourist park, who was also a good friend, had recently passed away leaving his wife to deal with the problems associated with the relocation from the tourist park. It seems her stress and upset about the situation enhanced your sense of injustice and wrongdoing. I am told you are ashamed and disgusted by your behaviour. You struggle to understand why you behaved in the manner that you did. I have read and considered the character references tendered on your behalf. Leaving aside some of the comments about your criminal behaviour itself, which I ignore, the references are testament to your otherwise loyal, kind, genuine, professional and law-abiding character. Because your reaction did appear to be an extremely disproportionate response to your perceived grievance, I acceded to a request to obtain a forensic mental health pre-sentence report. I take into account the contents of that report generally. In summary, the report indicates there is no evidence that you are suffering from any mental health illness. There is no evidence to indicate you are suffering from any cognitive decline or cognitive impairment. Indeed your cognitive abilities are greater than 94% of your peers. The report indicates that you have a long standing diagnosis of depression but that your mood has been adequately managed for a number of years by virtue of you adhering to your antidepressant medication regime. With reference to the principles of Verdins, the report indicates none are enlivened. The author of the report opines your behaviour appears to be “an isolated, abhorrent and out of character…disproportionate response to a perceived personal and collective injustice.” He suggests there is nothing from a clinical standpoint to explain your actions.
This is a very serious case. Because you were angry with Mr and Mrs Gilmore and believed they had treated you unfairly, you went to the tourist park intending to set fire to their property and hurt Mr Gilmore. You in fact wounded Mrs Gilmore when she tried to assist you by opening the laundry. It was an intentional wounding. Your actions were completely unjustified and had the potential to cause serious harm. Obviously, blows to the head and face area can easily result in serious injury. The consequences can often be debilitating and sometimes even life threatening. It is most fortunate here that the complainant did not suffer a more severe injury and that in a physical sense the wounds appear to have resolved without complications. Nevertheless, I have no doubt it was a horrifying experience for Mrs Gilmore. There is also no doubt that your behaviour has had a seriously debilitating impact upon both Mr and Mrs Gilmore. I have read the victim impact statement. It is not necessary to repeat the full extent of what has been outlined. It is sufficient to say that beyond the obvious physical impact and property damage, both Mr and Mrs Gilmore have been effected emotionally, financially, socially and psychologically.
Arson is a very serious crime. It is easy to commit and it has the capacity to cause serious damage to property and to expose others to risk of death and injury, including the firefighters who are called upon to extinguish the fire. In this case it appears as though the damage was only moderate, but there is no question there was potential for the fire to spread to the neighbouring buildings and possibly even further. Fire can be unpredictable and you were not to know how the fire might behave, or the ferocity it might reach, once you had ignited it. Arson is considered such a serious crime because the potential for damage to both life and property can be catastrophic. It is of course relevant that here the fire damage does seem to have been contained. Resort to violence against both person and property to settle grievances, real or perceived, is never acceptable and such behaviour must be condemned by the courts. This was a planned, destructive and revengeful act. You intended to cause harm to both person and property. Your actions were entirely unjustified and motivated by your resentment. Your criminal conduct must be met with a strong sentencing response.
General deterrence and denunciation are most important sentencing considerations, but given your lack of prior convictions and the fact that I accept this is very out of character behaviour, and appears to be limited to the circumstances that existed between you and the complainants, I do not consider that personal deterrence features prominently in the sentencing exercise. I take into account your early pleas of guilty and your co-operation with police. They entitle you to a reduction in your sentence, and the sentence I impose reflects that. I also take into account your age and accept that you will find imprisonment difficult.
Ian Mackenzie, you are convicted of all crimes on the indictment. I make compensation orders in favour of Graham and Cheryl Gilmore and QBE insurance and adjourn the further terms of those orders to a date to be fixed. I will impose one sentence. You are sentenced to a period of imprisonment of 2 years, backdated to commence on 21 November 2021. I order that you not be eligible to apply for parole until you have served one half of that sentence.