STATE OF TASMANIA v DAVID SHAW AND MICHAEL JOHN BENJAMIN WELLS 10 DECEMBER 2019
COMMENTS ON PASSING SENTENCE GEASON J
You appear for sentence today upon your conviction for arson and attempting to dishonestly acquire a financial advantage. In accordance with the verdicts returned by the jury I find as follows.
Sometime prior to 27 June 2016, a plan was hatched whereby you, Mr Wells, decided that Mr Shaw’s property should be destroyed by fire and a claim made upon the policy of insurance over that property and its contents. Mr Shaw you became a party to that plan. It seems to me that the plan was intended to extricate Mr Shaw from the financial burden of servicing the mortgage on the property after he had lost his job. I find that each of you, and a third person, were present at 131 Mockridge Road at the time the fire was lit by Mr Wells pursuant to that agreement between you. I find that the progress of the fire was assisted by the use of an accelerant. I find that the arson was committed with a view to procuring financial benefit.
The plan was that the fire should look as though it had been accidentally lit, and to that end it was lit just before you all left the property. It took hold very quickly attracting the attention of a neighbour in minutes. In the end the fire self-extinguished due to lack of oxygen. The total cost of repairs has been estimated in excess of $260,000.
The plan was not a sophisticated one. Its execution was straightforward, however it was necessary in order to give effect to the plan that the policy of insurance be current and that is the reason for the transaction on the 17th of June. The subsequent involvement of each of you with the insurer evidences very clearly the joint nature of the plan, one that which was persisted in by both of you over a number of interviews with police and insurance investigators.
In the result, in consequence of the insurer’s suspicion that the fire was not an accident, no payment has been made, the property is significantly damaged and each of you has been convicted. Mr Shaw, you have lost nearly everything as a result of your crimes.
This is a serious matter and one which requires a sentence in which general deterrence is afforded a significant emphasis. Fire left uncontrolled creates a real risk to other properties, to the safety of neighbours and those who might try to deal with that risk and of course fire officers.
Mr Shaw, your agreement to participate in this crime, even though you were not responsible for actually lighting the fire, enabled this offending to occur. In sentencing you I accept that you have not previously been before the Court for offences of dishonesty or arson. You have served a term of imprisonment before, though it appears to me, as was submitted by your counsel, that you utilised that time productively, participating in a number of programs directed towards your personal improvement. I note too that previously you have been gainfully employed, and for a time, self-employed. I accept the submission made to me by your counsel that this offending occurred at a point where your mental health was declining. I have no doubt that you will always regret taking the course you did.
Mr Wells you appear with some prior matters of a similar nature, although I accept that that prior offending occurred some time ago. I note your age and your personal history and that you have no dependents. I note that you have been the victim of crime in the past and that those matters have had a significant impact upon you. I accept the submission that some of your past offending occurred in the context of drug abuse that followed the trauma of those experiences.
Why you believed this offending would bring a benefit to anyone, with its limited chance of success, is beyond me. I suspect that in a totally misguided way you believed that if you got away with this, the benefit would be real and would serve your longer term personal interests and Mr Shaw’s.
There is however very little that can be said in mitigation. I note your current health conditions and the effect that those will have upon you. Prison will be an uncomfortable place for you.
This was, and I am addressing these remarks to both of you, serious criminal behaviour carried out with little thought. It goes without saying that those who make unlawful claims on their insurance policies and do so successfully, add to the financial burden of everyone else who purchases a policy of insurance. The time and expense that has been expended in investigating these matters is a significant community cost.
I have regard to the sentence imposed on your co-offender. She received a sentence of 15 months’ imprisonment, wholly suspended for a period of 18 months. However, her involvement was of very short duration, though she allowed the dishonesty to continue. I also note that she pleaded guilty and, as such, was entitled to a reduction in her penalty for doing so. Whilst I am required to have regard to the parity principle that principle does not require courts to ignore differences in the circumstances of the offenders or impose an inadequate sentence. There are relevant differences in terms of prior offending and the degree of participation and behaviour undertaken by each of you as compared to hers.
In the circumstances there is a basis for imposing a longer sentence on Mr Wells than that which ought be imposed on Mr Shaw. Principally because of his antecedents, but in part his role in this offending as instigator of the plan.
Mr Shaw, I sentence you on the indictment. I sentence you to two years’ imprisonment. That sentence is to run from the date you were taken into custody. I am required to consider whether any of that sentence should be suspended but I have determined that it is not appropriate to do so. I order that you be eligible for parole after having served half of that sentence.
Mr Wells, I have determined that for you a sentence of two years and nine months’ imprisonment is appropriate in the circumstances. I have also determined that suspending any part of that sentence would not be appropriate in your circumstances. I direct that you be eligible for parole having served half of that sentence. That sentence is to commence on the day you were taken into custody.