Monday, 2 July 2012

Eade v The Queen [2012] VSCA 142: unintended arson doesn't deserve jail

Last week the Court of Appeal held that Benjamin Eade and Brent Vanstone were not guilty of destroying a building by fire when they deliberately lit plastic wrapping on milk crates in that building, and that fire subsequently burnt down the Camperdown Milk and Cheese Factory.

Eade v The Queen [2012] VSCA 142 considered Crimes Act 1958 s 197 as it relates to arson. The section relevantly provides:
197. Destroying or damaging property

(1) A person who intentionally and without lawful excuse destroys or damages any property belonging to another or to himself and another shall be guilty of an indictable offence and liable to level 5 imprisonment (10 years maximum).


(4) For the purposes of subsections (1) and (2) a person who destroys or damages property shall be taken as doing so intentionally if, but only if—
(a) his purpose or one of his purposes is to destroy or damage property; or

(b) he knows or believes that his conduct is more likely than not to result in destruction of or damage to property.

(6) An offence against this section committed by destroying or damaging property by fire shall be charged as arson.

(7) A person guilty of arson is liable to level 4 imprisonment (15 years maximum) despite anything to the contrary in this section.

Eade and Vanstone were charged that they 'intentionally and without lawful excuse destroy by fire a building namely the Camperdown Milk and Cheese Factory...'. They pleaded guilty to that offence. They were sentenced at first instance to 2 years and 4 months detention in a Youth Justice Centre.

They appealed the severity of their sentence.

And then something unusual happened...

The DPP filed supplementary submissions almost completely opposite to his position at the sentencing, and the application for leave to appeal. (I wonder if this is perhaps a reflection of the new Director's influence? I do not know him, but know his appointment was widely lauded and he is well regarded as fair and temperate, which seems apparent in his first published speech earlier this year.)

The Court of Appeal described this unusual but reassuring change of tack:

[7] The appeals came on for hearing on 28 November 2011. By that time, a supplementary submission had been filed on behalf of the Director of Public Prosecutions. As will appear, that submission conceded that the sentencing discretion had miscarried and that each of the appellants should be resentenced to a lesser sentence. This represented an almost complete reversal of the Crown’s previous position as advanced, first, on the plea before the sentencing judge and, secondly, in the written case as originally filed in response to the applications for leave to appeal. The supplementary submission contained thoughtful, clear and principled analysis, which was of great assistance to the court.

But it turned out this was just a curtain raiser for what was to follow. Three issues decided in this case will make it one of those seminal appellate cases (IMHO) that will become a mainstay of criminal practice.

The proper intent to prove arson

The Court of Appeal went on to analyse the intent required to prove arson.

[19] As a matter of ordinary language, the conduct which s 197(1) criminalises is the intentional bringing about of a result, that is, the destruction of or damage to the property the subject of the charge (the ‘subject property’). It follows, in our view, that s 197(4) must be read as requiring proof that the offender:

(a) had the purpose of destroying or damaging the subject property; or

(b) knew or believed that his conduct ‘was more likely than not to result in’ the destruction of or damage to the subject property.


21 We recognise, however, that the language of s 197(4) is not so specific. Thus, s 197(4)(a) speaks of the offender having a (generalised) purpose ‘to destroy or damage property’. Read literally, the subsection would have the result that a person who destroyed particular property would be taken to have done so intentionally, even though he/she had no purpose to destroy or damage that property and no awareness that his/her conduct was likely to destroy or damage that property.

Put another way, to prove arson, the offence section should read as if it says the person intended to destroy or damage, or knew or believed that their conduct was more likely than not to destroy or damage, the property that was actually destroyed or damaged.

The Court noted the significant difference this made to determining what crime the appellants had committed.

[23] The present case illustrates the point well. As the judge accepted, the appellants intended only to damage the milk crates. They had neither the ‘purpose to destroy or damage’ the milk factory, nor any awareness that its destruction was ‘more likely than not to result’ from their conduct. On a literal reading of s 197(4), however, the fact that they had the ‘purpose to destroy or damage property’ (ie the milk crates) would be enough to establish that they had intentionally destroyed the factory. But, as the Crown’s submission stated unequivocally, ‘they are two quite different crimes’. Subsection (4) cannot have been intended to convert a minor crime into a major one.

As if this wasn't enough, the Court also went on to provide two further clear statements of principle, these ones for sentencing.

Relevance of unintended consequences for sentencing

The common law position is that consequences of offending that were not reasonably foreseen by the offender are not relevant to sentencing. But if they were foreseen or reasonably foreseeable — which sounds to me pretty much like intentional and reckless — then the consequences are relevant to sentence, but ought not 'swamp' all other sentencing considerations. As authority for this, the Court of Appeal cited R v Boyd [1975] VR 168 at 172, R v Boxtel [1994] 2 VR 98, 103–4, and DPP v Cook (2004) 141 A Crim R 579 at [17].

However, Sentencing Act 1991 s 5(2)(da) and (db) provides that a sentencing court must have regard to:

(da) the personal circumstances of any victim of the offence; and

(db) any injury, loss or damage resulting directly from the offence.

Victim is defined in s 3 as:

victim, in relation to an offence, means a person who, or body that, has suffered injury, loss or damage (including grief, distress, trauma or other significant adverse effect) as a direct result of the offence, whether or not that injury, loss or damage was reasonably foreseeable by the offender;

The Court held the effect of these statutory provisions was to overcome the common-law unintended consequences doctrine.

[34] In 2005, s 5(2)(daa) of the Sentencing Act 1991 (Vic) was inserted, obliging the sentencing court to have regard to ‘the impact of the offence on any victim of the offence’. In our view, the introduction of s 5(2)(daa), which explicitly links the ‘impact’ suffered to the broad definition of ‘victim’ in s 3(1), puts beyond doubt Parliament’s intention to displace the common law requirement that unintended consequences of an offence must be ‘reasonably foreseeable’.

This certainly seems logical. I went to my copy of Fox and Frieberg on Sentencing: State and Federal Law in Victoria, and — as usual — it had a wealth of information on the topic. They said at [3.612], "Although a purely subjectivist approach would require the courts to focus solely upon an offender's mental state, the courts at sentencing are for more pragmatic, seeking to strike a balance between subjective and objective elements in assessing the gravity of the crime." To demonstrate this, they referred to several cases holding that offences resulting in death are more serious when more people die, and not as serious when fewer die, citing Pettipher (1989) 11 Cr App R (S) 321 at 323 — approved in R v Middap (1992) 63 A Crim R 434 at 449; and R v Wilkins (1988) 38 A Crim R 445 at 449 - 50.

So precisely how does a court take into account the consequences of offending when it was not intended by an offender? Simply as part of the intuitive sentencing synthesis described by the High Court in Markarian v The Queen (2006) 228 CLR 357. But, though the Sentencing Act requires a sentencer to take this into account, it seems if the consequences were unintended or unforeseen that the proper punishment must be much less than it otherwise would have been.

It's particularly relevant to general deterrence, and even more so for young offenders, as was the case here.

The relevance of general deterrence

I can't improve on what the Court said here, and it's worth quoting verbatim.

[40] On the plea, the prosecutor submitted that ‘considerations of deterrence and denunciation are of very great importance in this matter, despite the apparent youth of the offenders.’ The sentencing judge agreed, holding that general deterrence was ‘a significant sentencing consideration’.

[41] In the supplementary submission, the Director again conceded error:

Plainly, and with regret, the prosecutor’s submission was misconceived. And in the circumstances of this case, while general deterrence was a relevant consideration ..., the judge has erred to the extent of allowing deterrence to outrank rehabilitation as the dominant sentencing purpose.

[42] Once again, the Director’s submission is plainly correct. The appellants were sentenced under the provisions of the Sentencing Act 1991 (Vic), which expressly includes general deterrence amongst the purposes for which sentence may be imposed. Citing this Court’s decision in DPP v S J K [2002] VSCA 131 the Director submitted that while general deterrence was not to be viewed as excluded altogether, what was of critical importance is the relative weight to be attached to the sentencing purpose of general deterrence. And, with respect, the decision in C N K v The Queen [2011] VSCA 211 simply highlights what a careful analysis of the authorities reveals; namely, it is a rare case in which a judge is permitted to materially increase sentence imposed on a young offender by dint of general deterrence.

[43] In the light of the appellants’ individual circumstances (referred to below), the Director conceded that neither appellant was an ‘appropriate vehicle’ for general deterrence. In relation to Mr Eade, for example, the Director said:

Quite simply, it would be inhumane of the criminal justice system to put this young man up on a sentencing pedestal and impose a sentence designed to send a salutary message to other would-be offenders. His plight is something that deserves mercy rather than aggravated punishment.

A like submission was made in relation to Mr Vanstone.

[44] As we said earlier, these were exemplary submissions, notable for their fairness and for their proper acknowledgment of the particular circumstances of the case. In our view, the Director was right to concede that the emphasis placed on general deterrence was erroneous.


Jeremy Gans said...

I think the VCA's holding on 'forseeable' victim impact is arguable, but not especially compelling and certainly not overwhelming. (I think your heading about 'unintended' consequences and your reference to intent or reckless are misleading. The common law doctrine still permits a court to take account of reasonable forseeable impact, even if it was not actually forseen.)

The weakness in the VCA's argument is that the definition of 'victim' plays multiple roles in the Sentencing Act 1991, including in the provisions for victim impact statements and victim injury compensation. It is clear enough why those regimes should not be limited to reasonably forseeable injuries. But that doesn't mean that the s5 factors should not be so limited. That really depends on the meaning of 'injury, loss or damage' and 'personal circumstances' and 'impact', not 'victim'. Arguably, the specification in s3's definition of 'victim' that injury in that definition is not limited to reasonable forseeable injuries caries an implication that the term injury in s5 is so limited. (Fox & Freiberg put exactly that argument in the last sentence of [3.613].)

The multiple death cases strike me as distinguishable. In those cases, the accused will be convicted in relation to each death (albeit, in car cases, without necessarily any proof of forseeability, reasonable or otherwise), so 5(c) would apply. But, outside those scenarios (at least), s5(2)(d) would suggest that questions of culpability/responsibility should matter a lot.(Anyway, most of those cases will at least involve reasonable forseeability, right?) And this is the kind of common law rule that surely needs clear words to rebut it. Contrary to what the VCA says, new s5(2)(daa) does not 'explicitly' link anything to the 'definition' of victim.

All up, I think this holding is very vulnerable to challenge in the HCA. The HCA is clearly not all that impressed with the VCA's statutory interpretation these days, and rightly so. What is less clear, though, is whether the HCA would uphold the common law rule about reasonable forseeability in any case. I don't think there are any prior HCA rulings on this question.

Jeremy Gans said...

One thing missing from the VCA's analysis is any analysis of legislative history (despite the judgment purporting to rely on that history.)

It looks like the crucial definition of 'victim' was added in 1994, which is also when s5(da) and (db) were added. That arguably supports the VCA's position. However, the provisions on victim impact statements were also added in the same Bill, which arguably detracts from the VCA's position. So, I think that's a draw. Nothing in the EM casts light either way. However, it may be that there's something in the 2R speech. I haven't checked that.

One interesting thing to note, though, is that the same Bill added the same definition of victim to the Children and Young Persons Act 1989. But that Act (and its 2005 successor) has no provisions like ss 5(da) and (db), just victim impact statement provisions. That might seem to suggest that the definition is directed more to VISs than to s5, though it's not an overwhelming argument.

Section 5(2)(daa), which the VCA thinks made the link between the definition and the factors 'explicit', was introduced in 2005. Here's what the 2R speech says:

"...the bill amends section 5(2) of the Sentencing Act 1991. That provision currently requires a court sentencing an offender to have regard to various matters, including:

the personal circumstances of any victim of the offence; and

any injury, loss or damage resulting directly from the offence.

However, these matters which the legislation requires the court to have regard to may not fully encompass all aspects of the impact of a crime on a victim. For example, impacts such as a victim's eroded sense of safety, inability to form social relationships or inability to hold down a job may not be regarded as falling within the matters to which a court currently must have regard. A court may consider such things as part of the impact on the victim but is not currently required to.

In order to emphasise the relevant impact on a victim, this bill will introduce an express requirement into section 5(2) that courts must have regard to the impact of the offence on the victim when making sentencing decisions. The purpose of this amendment is not to fetter judicial discretion. Rather, this will reinforce the longstanding position that it has always been relevant for a sentencer to have regard to the impact of an offence on the victim. "

I don't see anything in there to back-up the VCA's reading. Arguably, the last setence is to the contrary, though again that's not overwhelming.

What is clear is that the VCA should have discussed this legislative history before making such a significant call.

Elucubrator said...

Jeremy, always a pleasure to read your thoughts.

I read the Court of Appeal as saying, effectively, that the whole reasonably-foreseeable issue under the common law to be ousted by the current statutory provisions: not actually abrogating it, but still rendering it irrelevant.

I don't follow your point about limiting the considerations in Sentencing Act s 5(2): I can't think of a circumstance under s 5(2)(db) concerning 'any injury, loss or damage resulting directly from the offence' where there won't therefore be a victim. Sure, there might be cases where the identity of the victim is unknown, but logically an injury, loss or damage can only be suffered by a victim. And it's there that the definition tells us that foreseeability is irrelevant, so long as a direct result — causation? — is established. Section 5(2)(d) modifies the otherwise strict operation of this, because it directs a sentencer to consider the offender's culpability and degree of responsibility for the offence.

I thought the multiple-death cases were a good example of what the common-law was trying to grapple with at a doctrinal level, where (again harking back to Fox & Freiberg), the original common law position was to look solely to the intent of the offender and not the result, and the courts found that approach wanting. It seems to me that the Court's decision in Eades produces a similarly pragmatic doctrinal result that can be applied across offences. The more I look at it, the more I wonder if there's really any difference between the common-law and statutory approach, at least in their effect?

You're right that most driving cases resulting in death or serious injury will involve reasonable foreseeability, because the offences themselves contain that element to one degree or another. I think the greater significance of this decision will be in offences where foreseeability is not an element. For example, what about a fail to give way charge that results in the death of another road user? Foreseeability might be zero; culpability low; but the consequences at the most serious end of the scale. The common law would say therefore that those consequences would not be relevant to sentencing. That seems difficult to justify at a policy level.

But it seems to me that the changes discussed in this case do change this. I thought that s 5(2)(da) does expressly link the meaning of victim to consequences of an offence. We are talking about the provision that reads 'the impact (sic) of the offence on any victim of the offence', aren't we? (I'm horrified that our legislation is using 'impact' instead of 'effect' or even 'result', and that the Court even seemed to uncritically use this corporate-speak without batting an eyelid.) Sounds like a link to me. More to the point, I don't see that there's any inconsistency about the use of 'victim' in the victim impact statement provisions — either the previous Part 6, Division 1A, or the re-enacted provisions now found in Part 3, Division 2A — and the provisions in s 5(2). Do you say there is a different meaning depending on the provisions we're looking at? To me, it seems that a 'victim' retains the same meaning everywhere — which seems logical, given the purpose of the interpretations provisions in s 3 — but the hurdle that might cause a sentencer to not take into account the things you mention like eroded sense of safety etc is the need for injury, loss or damage to directly result from the offence.

Jeremy Gans said...

Hi Elucubrator,

I agree that 'victim' has the same meaning in all provisions in the Sentencing Act. And I also agree that those victims (including those who suffer 'direct' but unforseeable harm) are the same ones who suffer the various calamities described in ss 5(2)(daa)-(da).

But what I'm unconvinced about is the Eades holding that each of ss 5(2)(daa)-(da) should be read as if they contain the additional words 'whether or not that injury, loss or damage [or 'impact' or 'personal circumstances'] were reasonably foreseable by the offender'. Parliament could have added those words if they wanted to. That would have abrogated or replaced (not sure of the difference?) the common law (if there is one) that limits consideration of consequences at sentencing to ones that are intended, foreseen or reasonably forseeable by the offender.

Your and Eades's argument is that Parliament achieved the result in a different way, by adding those same words to the definition of victim, which implicitly changes the meaning of (at least) 'impact'. While that may be true, the problem I see is that there's an alternative explanation of Parliament's purpose in including unforeseeable injuries within the definition of victim: to ensure that victims of direct but unforeseeable injuries are still counted as victims for the VIS, compensation orders and the like. (A similar definition is in the Victims Charter Act.)
Unlike you, I don't see any compelling policy merit in punishing offenders for the unforeseeable consequences of their crimes, so my inclination is to read the s3 as not altering the meaning of 'injury, loss or damage' or 'personal circumstances' or 'impact in s5, which instead should be interpreted as subject to the common law's limitations on what can be considered (assuming there are any such limitations.)

I agree that there's not much at stake here as a matter of practice. It's rare for there to be serious and 'direct' consequences of a crime that are not also at least reasonably forseeable. For instance, I'd say that a death is a reasonably forseeable outcome of a failure to give way. However, there could be a difference for cases where there are very surprising victims or injuries. I dunno: maybe a person whose crime is possessing heroin in her home, and that heroin kills a child who breaks into her house and samples it? Under Eades, that would be taken into account against the offender in the sentence for possession, right? But not at common law.

But the issue for me is one of clear legislation. I'm all for Parliament abolishing the common law whenever it wants to. But I think it should do so clearly and with express discussion at the time the Bill is enacted, especially when the common law sets out a protective, principled limitation on punishment. As the 2R speech I set out above shows, it doesn't seem like that that is what happened when s5(2)(daa) was inserted.

One query: is reasonable forseeability a factor (or a limit) in orders under s85B and s86? If so, does Eades change that? (Also, a vaguely related legislative note: a Bill introduced last session removes the need for a 'victim' of property damage to request compensation and allows the court to make a compensation order of its own motion.)

Elucubrator said...

Ah, well, that makes sense: I follow now what you're saying.

I just don't see that the argument Eades JA put, and you put, are 'alternatives'. I think they're the same thing: you're a victim any time you suffer a direct injury, loss or damage, and the Court can take that in to account for sentencing, and also for other purposes like compensation, restitution, issuing identity certificates, and victim impact. All it means is that the sentencer can still take in to account the consequences of offending as part of the intuitive synthesis, even if those results weren't intended, foreseen or reasonably foreseeable. I read them as complementary, and so the conflict you point to doesn't really occur.

I reckon it makes good sense, because there is (IMHO) merit in 'taking in to account' results that were unforeseen and unforeseeable. The real question is precisely how a sentencer does that. I disagree that it's rare to see serious and direct consequences of crimes that aren't at least reasonably foreseeable. There are shit-loads (technical legal term) of cases finalised every day in our Magistrates' and County Courts where there are serious consequences that weren't foreseen and weren't reasonably foreseeable. Failing to give way is a classic example, because it is an absolute liability offence: Osman v Police (SA) (2007) 48 MVR 426. So, even if a motorist doesn't perceive a car, motorbike or bicycle approaching, they are still obliged to give way to them when relevant. But is it reasonable for them to foresee death resulting from breaching an obligation they don't even perceive they need to comply with? Surely not. But to suggest to a grieving family that the resulting death is irrelevant and can't be taken into account — even if the penalty is a maximum of five penalty units — seems to me to be pretty hard to justify. That's the point made in the driving-causing-death cases: that most people do consider it relevant. From a strict orthodox legal analysis focussed purely on mens rea, it might not be. But, the whole point about our legal system is that it's a collection of rules designed to achieve justice: a means to an end, not an end in itself. (Of course, it's not always perfect, but we work with what we've got.) So that can properly result in the position that the result, even if unforeseen, can be taken in to account, and the person punished for that consequences, because the law does recognise that we weigh offending causing death or serious injury more seriously than offending that does not.

Of course, the resulting sentence might be no different, because the sentencer then says the culpability is low. I still think it's justifiable, because part of the process is not just the strict legal analysis, but also the cathartic and ritualistic effect for those involved to hear the Courts say, "We acknowledge your loss, and say that it matters." That can be pretty powerful sometimes, and it's the sort of thing that adds to public confidence in our courts and legal system, in contrast to a system that doesn't take those sorts of things into consideration. (Now that I look, I realise I've been on this hobby-horse before, in this post on victim impact statements.)

Elucubrator said...

I don't think reasonable foreseeability is relevant to compensation orders under s 85B or restitution orders under s 86. The only requirements there are that an offender is found guilty, and a person suffers direct 'loss' (my paraphrase) as a result. Indeed, the provision don't expressly mention 'victims' at all. I reckon this works against your reading, because it sets a clear scheme where directness of loss is the touchstone of being a victim — and entitled to restitution or compensation, while reasonable foreseeability and culpability only plays a role in determining the appropriate sentence.

Jeremy Gans said...

I'm beginning t suspect that our disagreement is due (at least in part) to contrasting takes on 'reasonable forseeability' under common law sentencing. I take it to mean the same thing as it means in negligence law, which covers a lot of things (like risk of death from failing to give way at an apparently quiet street), but maybe you're reading it in a more restrictive way (factoring in the accused's knowledge and maybe the crim law 'gross falling short' standard?) If it means the latter, then I share your view on the policy issues, at least.

By the way, s85B(2) does expressly mention victims and indeed limits 85B to injuries, etc of victims. Interestingly, s86 doesn't AND it also doesn't seem to include any requirement that the damage to property be a 'direct' result of the offence. That makes me wonder what, if any, limits there are on s86. For example, if a murder next door devalues my house, can I sue for the fall in value? That's interesting, in light of the change in process in the Bill before Parliament, which removes the requirement for the 'victim' to actually apply...

(P.S. I'm really struggling lately to do your Turing Test. I think a robot would do better than I have been!)

Elucubrator said...

Yeah, that would explain our different approaches! That's what too much crime does to ya — I didn't even think of the notion of civil negligence and its understanding of foreseeability!

I won't say much about s 85B and s 86: it's a whole 'nother post really, which its own range of law. Plus there's a Bill before Parliament looking to make some changes. (BTW, there's a recent Supreme Court case that dealt with s 84, but despite some detailed argument on both sides about its scope and purpose, the Court resolved the controversy pretty succinctly, mainly on the basis of statutory interpretation.)

I'm glad to hear it's not just me having trouble with the Turing Test. The thing is done by Google as part of the Blogger platform, but just recently it's become bloody fiendish to do. I find it takes 3 or 4 goes sometimes!