STATE OF TASMANIA v BENJAMIN RONALD STIRLING 12 DECEMBER 2019
COMMENTS ON PASSING SENTENCE BRETT J
Mr Stirling, I am dealing with you for two separate crimes. The first in time is the crime of arson, which was committed by you at Queenstown on 9 May 2017. You have pleaded guilty to that charge. The second is the crime of dangerous driving causing grievous bodily harm which was committed on 6 September 2017. You were found guilty of that crime by a jury after a trial.
The crime of arson was constituted by your deliberate act of setting fire to the house of a man who had been your friend but with whom you had recently had a falling out. It is clear from the Crown statement of facts that you set fire to the house when the man was in police custody for another reason, with the clear intention of destroying the house and thereby forcing the man to move away from Queenstown. In fact, it seems that, on the night in question, you made more than one attempt to set the fire. When the first attempt did not cause a fire to take hold, you returned to the house and started it again.
The fire brigade attended, but the fire did result in the total destruction of the house. The owner was insured. The total cost to the insurance company was $211,606.75.
I regard this has a serious example of the crime of arson. You deliberately burnt down another person’s home, motivated solely, it would seem, by ill-feeling between you and he. There is evidence to suggest that you were under the influence of illicit drugs at the time, but this does not provide you with any mitigation. You certainly had sufficient control of your faculties to set the fire at a time when he was absent, and then to monitor the fire to ensure that it took hold. I accept that you believed that nobody was inside the house at the time that you set fire to it. However, you committed this crime in a residential area. Accordingly, although there was no actual injury caused to any person, there was considerable risk to other persons. In a residential location, there is always a risk that the fire will travel to other buildings. There is also risk to persons in the vicinity, particularly if there is concern about the possibility of somebody being inside the burning house. Further, with any fire, there is also risk to firefighters and other emergency service personnel. Finally, the fire caused the complete destruction of the house and considerable loss to the insurance company. Although I have not be given any specific information as to impact on the occupant, it is reasonable to infer that the destruction of his home would have caused significant impact to him, notwithstanding the insurance.
The dangerous driving took place on Argyle Street in Newtown at about 3:30 am on the day in question. Approximately two hours earlier, you had been apprehended drink-driving by the police. The breathalyser result at that time was 0.153. You were issued with an excessive drink drive notice and thereby disqualified from driving immediately. Despite this, and despite the fact that you understood this, you agreed to drive Mr Lewis and another man to Mr Lewis’s home in Newtown. As a subsequent blood test established, you still had a very high level of alcohol in your body when you were driving. The reading taken at 5.12am was .176. I have no doubt that the effect of the alcohol contributed to your speed and manner of driving, and your eventual loss of control of the motor vehicle.
I am satisfied that as you travelled through a sweeping left-hand bend, which exited from Newtown Road onto Argyle Street, you were travelling at a speed which was excessive in the circumstances, in particular having regard to the road and the road surface. The effect of the alcohol in your body reduced your capacity to identify and react to the loss of traction between the tyres of your vehicle and the road surface. I accept the evidence of Senior Constable Cordwell that when she travelled around the same bend shortly before the trial, that even at a low speed, she experienced the sensation of losing traction. Of course, she was attentive to her driving, and not under the influence of alcohol, and therefore was able to identify that problem and maintain control by decelerating. It is obvious to me that you did not do this, and were travelling at an excessive speed. As you admitted in your police interview, rather than reducing speed, you responded to the urging of Mr Lewis to increase acceleration. All of this is consistent with the objective evidence of what then happened to your vehicle. It is consistent with losing control, associated with over-correction and the vehicle skidding for a significant distance, ending with the collision with the power pole. Having regard to the evidence of Senior Constable Cordwell, I think it is unlikely that the bald rear tyre had a significant contribution to the causation of the collision and Mr Lewis’s injuries. The collision was a direct result of your speed and manner of driving, in particular, travelling at an excessive speed through the bend and because of the effects of alcohol, having a reduced capacity to properly control the motor vehicle.
The collision resulted in Mr Lewis suffering grievous bodily harm. He was, of course, seated on the side of the vehicle that came into collision with the pole. I was not given much information about his injuries, but it is clear that he suffered fractures to his pelvis and collarbone. I have been provided with his victim impact statement. However, given the absence of any detailed medical evidence, and what I regard as Mr Lewis’s false testimony at trial, in particular relating to the identity of the driver, I treat the impact statement with a considerable degree of circumspection. Notwithstanding this, it is conceded that he suffered serious injury and I am sure that these injuries had a considerable impact on his physical and mental health. Having viewed the photographs of the scene and the consequent damage to the power pole and the vehicle, it is not surprising that Mr Lewis was severely injured.
This is a relatively serious case of dangerous driving. I accept that a number of aggravating features which characterise more serious cases are absent. For example, I am not satisfied beyond reasonable doubt that the dangerous manner of driving extended beyond the events described above. In particular, I reject Mr Lewis’s evidence concerning the vehicle travelling at high speed earlier in the journey. Further, it is not a case where you were evading police. However, the crime is aggravated by the level of alcohol in your body, the fact that you drove despite being disqualified two hours before and having been informed of a high reading, and the fact that the manner of driving exhibited by you when taking the corner involved a high degree of danger. You have not been convicted yet of the charges of drink driving or disqualified driving which arise out of these events, and I have not been asked to deal with those matters. Accordingly, you are not being sentenced for those offences. However, those aspects of your conduct are factors properly taken into account in aggravation of your culpability for this crime. They are matters which in combination with the other circumstances of the crime, require an emphasis on general deterrence. Further, the sentence must, of course, take into account the serious consequences of the dangerous driving. I will, however, also take into account what I have been told about the retribution exacted against you by Mr Lewis. I note that he admitted as much during the course of his evidence. Finally, it is a matter of aggravation that at the time you committed this crime, you must have been on bail in respect of the arson.
You are now 35 years of age, and were 33 at the time that you committed both crimes. You have a significant record of prior convictions, which includes many traffic offences. There are numerous speeding infringements and several convictions for drink-driving. You have not been convicted before of dangerous driving nor of arson. You have not been previously sentenced to imprisonment. Your counsel informs me that in 2017, when you committed both crimes, your life was chaotic, and that situation arose largely from the impact of a long-standing illicit drug problem. Apparently, you had had a good upbringing, but in your youth had been heavily influenced by members of your extended family who were, and still are, involved in the illicit drug culture. Despite this drug problem and your limited education, you have been a hard worker, being largely fully employed since you left school after grade 8.
Your counsel submits that since 2017, you have been able to turn your life around and achieve a considerable measure of rehabilitation. You have done this with the assistance of your partner and with the motivation of your responsibilities to your children and stepchildren. You did leave Tasmania in breach of bail and have been in custody since your extradition from Queensland. I am told that your time in Queensland was a period of stability that assisted your rehabilitation, and that you and your partner intend to return there upon your release from prison.
I accept that you have achieved a measure of rehabilitation since committing these crimes and that you are motivated to lead a law-abiding life in the future. However, in order to move ahead with your life, you must deal with the consequences of the serious criminal offending constituted by these crimes. While the question of your rehabilitation is an important sentencing factor, in both cases, general deterrence, denunciation and vindication of the victims are also important sentencing considerations. In sentencing for the arson, I will give you some credit for your plea of guilty, notwithstanding that it came at a relatively late time in the proceedings. I accept that it does have some utilitarian benefit. The final question affecting the formulation of the overall sentence is the question of totality. Of course, these are completely separate crimes and each deserves appropriate punishment. However, I will take care to ensure that the final aggregate sentence is not crushing, having regard to your personal circumstances and future prospects. I will also have regard to this question and your prospects of rehabilitation generally in determining the appropriate non-parole period.
The orders I make are as follows:
1 You are convicted of both crimes.
2 For the crime of arson, you are sentenced to imprisonment for a period of two years and six months. That sentence will be backdated to 28 September 2019. You are not eligible for parole until you have served one half of that sentence.
3 In respect of that crime, I make a compensation order in favour of Allianz Australia Insurance Ltd in a sum to be assessed and I adjourn the assessment of that sum sine die.
4 For the crime of dangerous driving causing grievous bodily harm, you are sentenced to imprisonment for a period of two years. That sentence will be served cumulatively upon the sentence imposed for the arson. You are not eligible for parole until you have served one half of that sentence. Further, in respect of that crime, you are disqualified from driving for a period of two years and six months which will commence on the date of your actual release from prison.
5 For the purposes of s 92A(3) of the Sentencing Act, I specify that:
(a) The total term of imprisonment which you are liable to serve in respect of all of the above sentences is four years and six months commencing on 28 September 2019.
(b) The total period that you must serve before you become eligible for parole is the aggregate of the non-parole periods relating to the said sentences, which is a total period of 27 months.