STATE OF TASMANIA v ERIC LEONARD UNGERHOFER 22 AUGUST 2024
COMMENTS ON PASSING SENTENCE MARTIN AJ
Mr Ungerhofer, you have pleaded guilty to three crimes, commonly referred to as arson or attempted arson. First, on 20 May 2021 you unlawfully set fire to a cabin in the Mornington Discovery Park. Secondly, on 30 November 2023 you attempted to unlawfully set fire to the Ampol Service Station situated on Westbury Road at Prospect Vale. Thirdly, on the same day, you unlawfully set fire to vegetation at the Ampol Service Station.
In addition, you have asked me deal with a number of offences charged on complaint 35388/2023. Through your counsel you have pleaded guilty to unlawfully possessing a dangerous article in a public place, namely, a kitchen knife; to recklessly discharging a missile to the danger of another person, namely, alcoholic cider; to trespass, namely, entering the petrol station without the consent of the owner; and to breaching bail conditions. These were counts 2, 3, 5, 6 and 7 of the complaint. I have accepted your pleas of guilty and the sentence for those offences will be encompassed in the single sentence I will impose for all your offences. You are convicted of all the offences.
The first crime was committed during the evening of 20 May 2021. Apparently you had broken up with your girlfriend and consumed a significant quantity of alcohol. Later you told police you had been drinking for two days straight and were “really drunk”. You also told police that you had been locked up in hospital on the previous Saturday night because you were going to jump off a bridge and kill yourself.
In your distressed state, on Thursday 20 May 2021 you made a telephone booking at the Discovery Caravan park in Mornington for that evening. You and an unknown male arrived at the park at approximately 3pm and the unknown male paid cash for the booking.
At about 9pm you and the unknown male were seen to throw a mattress and pillows onto the roof of the cabin. You climbed onto the roof, put the mattress and pillows together and set fire to them with a lighter and toilet paper. The bedding burnt its way through the roof of the cabin and the fire entered the cabin where it caused significant damage to the extent of nearly $90,000. Ultimately the cabin was a write off.
While the fire was burning, you remained on the roof. You were heavily intoxicated and armed with a knife. Notwithstanding the presence of Tasmania Police and the Fire Service, you refused to come down from the roof and threatened self-harm. You were drinking alcohol and appeared to be speaking on your mobile. After about 90 minutes you came down from the roof and police took you to the Royal Hobart Hospital in protective custody under the Mental Health Act. After a mental health assessment, you were released from hospital and arrested.
During your interview with police, you said you did not have a plan and thought of putting the material on the roof and setting fire to it about 20 seconds earlier. You said you wanted to die. You described yourself as a suicidal mess and said that you had been juggling suicidal thoughts for the previous 12 months. You told police you were unable to obtain appropriate help. You also said you regretted what you did and needed help.
In November 2023, while you were on bail and subject to a curfew, you travelled from Hobart to Launceston to visit your parents. Later when interviewed by police you said you had an argument with your girlfriend a few days earlier and had been drinking heavily since. You said you had been locked up in Hobart the previous night, and when released on the Wednesday morning you travelled to Launceston with your support worker.
After arriving in Launceston you purchased a carton of alcoholic cider and drank a considerable quantity of it at a park before attending at the home of your parents. At the home of your parents, you kept drinking while you wrote a letter to your girlfriend.
Between about 7pm and 10pm, you took a jerry can containing 2-stroke petrol from your father’s shed and placed it in a Woolworths bag to conceal the can from your parents. Later you told police you went to visit your uncle and then returned to the park where you kept drinking.
At some point, you walked to a Woolworths supermarket where you purchased a large kitchen knife and razor blades. You smashed up the razor blades and placed them into your underwear. Later you told police you were not really planning on doing anything with the petrol and had it for looks. You claimed police in Hobart did not go near you when you have petrol, and this gives you time to think. You told police you were not intending to burn anything. You said you were “going to get pissed and kill yourself.” You commented that when things get too hard you do not get help.
Shortly after 10pm you called police at the police radio room and spoke in an abusive and threatening manner. As a consequence the operator terminated the call. In total you made six calls to the police radio room.
During the evening your parents called Tasmania Police to advise of the situation.
At about 11pm you arrived at the Ampol Service Station at Prospect Vale and climbed onto the top of the service station where you called Tasmania Police on four occasions. You told police where you were and said you had a petrol can and a knife and were going to set fire to yourself. You said that they should bring all police to the service station. You told the police you were not joking and that you were going to set yourself on fire. You said you had a knife and that they had better hurry up.
Tasmania Police and Fire Service and Ambulance personnel arrived at the service station at about 11.35pm and began negotiating with you in an attempt to persuade you to get down from the roof. While speaking with police, you ripped your shirt, dipped it in petrol and put it into a can of alcohol that you filled with 2-stroke petrol from the jerry can. In other words, you made a molotov cocktail. You lit the Molotov cocktail with a lighter and threw it toward police. The cocktail landed in bushes setting them on fire. The fire was easily extinguished by police using a hand held fire extinguisher.
Your act in setting fire to the vegetation was the third crime to which you have pleaded guilty. Although it was easily extinguished, nevertheless the act of throwing the molotov cocktail at police, in the vicinity of petrol bowsers and gas bottles, was a dangerous act with the potential to cause harm to individuals on the ground and significant damage to property.
A little over half an hour after the police and other personnel had arrived, you began dousing the roof of the petrol station with petrol from the jerry can. You used a lighter to set the petrol on fire. As the roof began to burn, you poured more petrol from the jerry can onto the flames causing the fire to intensify and spread. Tasmania Fire Service were able to extinguish the fire by spraying water onto the roof. They were forced to do this from ground level.
You the began throwing cans of alcohol from the roof at members of the Tasmania Fire Service as they were extinguishing the fire. You also threw the jerry can. I have seen the body worn camera footage of your actions and the missiles you threw could easily have caused significant injury to those on the ground who were trying to put out the fire and diffuse the dangerous situation.
After about twelve minutes, following repeated requests by Tasmania Police, you agreed to come down from the roof. You threw the knife down and jumped, following which you were arrested.
Your conduct in setting fire to the roof of the petrol station is the essence of the second crime to which you have pleaded guilty, namely, attempted arson.
In a later interview you spoke about the argument with your girlfriend and drinking heavily since. You said you did not have a plan. Apparently, you vaguely remembered pouring petrol on the roof but did not really know why. However, you said you realised that if you poured petrol on the petrol station it was likely to “go boom”. You claimed that you were not thinking correctly and did not want anyone else to get hurt. You realised that you were in breach of your curfew and your bail. You told police you suffer from autism, ADHD and a frontal lobe injury from your childhood, but had not been seeing your psychologist recently.
Mr Ungerhofer, as it turned out, by pure luck and the good work of Tasmania Fire Service and Tasmania Police, you did not cause any physical harm to any person and caused relatively minor damage to the petrol station. However, I emphasise that this good consequence was nothing to do with you. It was all to do with the excellent work of those officers who placed their own physical wellbeing at significant risk. Your conduct was highly dangerous and could have had disastrous consequences both to those in the vicinity and, quite frankly, to you.
Each occasion of your offending occurred when you were in a distressed mental state following arguments with your girlfriend, after which you resorted to drinking alcohol heavily. What is of great concern is that on each occasion, in your distressed and drunken state, you resorted to dangerous activity involving fire. This brings me to your personal circumstances, and particularly to your psychological condition which is not an excuse, but helps provide an explanation for your conduct.
You are now aged 28. You have a very supportive family, but you experienced significant difficulties in your formative years, which have been explained to me two helpful reports from a psychiatrist. I do not regard it as necessary to discuss the details of the conditions which made your childhood and formative years difficult.
Eventually you were diagnosed with ADHD and treated with medication. You suffer from a number of conditions, including borderline intellectual disability, cluster personality disorder traits, attention deficit hyperactivity disorder, polysubstance abuse disorder and obsessive compulsive disorder. You have demonstrated a “pattern for self-destructive behaviour in the face of personal challenges”. You act in an impulsive way and your reactions to stress are, to quote the psychiatrist, “exaggerated by features of his personality structure, in particular his inability to withstand perceived abandonment.” To some extent, your ability to understand the potential consequences of your actions was “nullified by facets related to his intellectual disability”. Your impairments in your cognitive executive functions result in impairments in impulse control and sound decision-making.
It is apparent that your relationship with a girlfriend is a stabilising factor in your life, but it must also be observed that difficulties within the relationship and arguments become a destabilising factor. To again quote the psychiatrist, “these arguments can precipitate disproportionate responses from Mr Ungerhofer, normally in the context of significant emotional dysregulation, and can be accompanied by threats to self-harm, often with him threatening to set fire to himself.”
Your background and mental state attract a degree of sympathy which ordinarily weigh in favour of mitigation of penalty, but those factors also pull in the other direction of requiring that significant weight be given to the protection of the public. Those very factors point in the direction of you being a danger to the public when circumstances create emotional stressors with which you are unable to cope. In this context it is of concern that you admitted to the psychiatrist that you can derive excitement from fire setting and property damage.
The observations of the psychiatrist tend to be supported by your record of prior offending which commenced in 2012 with the offence of destroying property, an offence committed when you were aged only 11. Over the years you have committed the crime of arson and numerous offences of destroying property both as a youth and an adult. You have previously committed two offences of setting fire to vegetation and four offences of discharging missiles. You have also committed other offences which it is unnecessary to canvass.
As I mentioned your parents continue to provide great support for you. You also have the benefit of assistance from a disability support worker through the NDIS scheme. There are signs that perhaps for the first time, you have gained an insight into your conduct and you are very apologetic for it. There are also signs that you wish to turn your life around. You are now worried about the effect of being in custody on your family and girlfriend. The major problem, in your view, has been alcohol and you are determined not to fall into that trap again. You want to arrange plans with your NDIS worker for your future and treatment. I will give you an opportunity to proceed with your rehabilitation following your release from prison.
I have obtained a home detention suitability and pre-sentence report which describes you as unsuitable, for various reasons, for a home detention order. In any event, I regard the offending as too serious to warrant a home detention order. In my view, personal deterrence is a particularly important factor, as is denunciation and protection of the public. General deterrence remains a factor, but your mental state, in my view, renders the importance of general deterrence less than it otherwise would be for this type of offending.
I will impose a single sentence for all of your offending. I have had regard to totality and the need to impose a sentence which adequately reflects the gravity of your criminal conduct. However, the length of the sentence has been modified by reason of your psychological issues and the influence of those psychological issues on your conduct and on your culpability.
Had it not been for your plea of guilty, I would have imposed a sentence of imprisonment for two years and six months. After allowing for your plea of guilty, I impose a sentence of imprisonment of two years commencing on 24 November 2023. That sentence will be suspended after you have served 15 months, commencing on 24 November 2023. So, Mr Ungerhoffer, you have to serve a period of 15 months, which commenced on 24 November 2023. At the expiration of that period, you will be released on probation. The operational period of the order is 12 months, during which time you are not to commit an offence punishable by imprisonment.
So, you will be on probation for 12 months and now I am going to make another order, I make a Community Corrections Order. That is a technicality that the law provides us to make such an order, but it means you are on probation for 12 months and there are a number of conditions.
You are under the supervision of a probation officer and you must submit to the supervision as required by a probation officer.
These are all conditions that apply for that 12 month operational period.
During that period you are not to consume alcohol or any illicit drug, and you are to submit to testing for the presence of alcohol or drugs as directed by a probation officer or a police officer.
You must obey all reasonable directions of your probation officer, including directions as to your place of residence, employment and associates.
You must not leave or stay outside Tasmania without the prior permission of a probation officer.
Next, you must attend educational and other programs as directed by a probation officer and undergo assessment and treatment for alcohol and drug dependency, and psychological issues, as directed by a probation officer. You must submit to medical, psychological or psychiatric assessment or treatment as directed by a probation officer.
You must report to a probation officer at 75 Liverpool Street, Hobart, within 24 hours of being released from custody.
I make a compensation order pursuant to s 68(1) of the Sentencing Act 1997 in favour of the proprietors of Mornington Discovery Holiday Park at 346 Cambridge Road, Mornington, in an amount to be assessed.
I make a compensation order in favour of the proprietors of Eg Ampol Station at 360-374 Westbury Road, Prospect Vale, in an amount to be assessed.
I make a confiscation order pursuant to s 11(1)(a) of the Crime (Confiscation of Profits) Act 1993 with respect to the knife, jerry can, and jerry can lid possessed by the accused.