Coghlan J of the Victorian Supreme Court has sentenced Brendan Sokaluk to nearly 18 years gaol for starting the Churchill fire on 7 February 2009 (Black Saturday).  You can read His Honours comments and reasoning in R v Sokaluk [2012] VSC 167  (27 April 2012).   Ten people died as a result of this fire.

The maximum penalty for this offence was 25 years imprisonment.    There were issues at trial as to Sokaluk’s mental state (he was diagnosed with autism spectrum disorder) and whether the fire was started accidentally or deliberately.  Sokaluk’s was convicted by a jury which meant that they had decided that all of the elements of offence, including that he either knew his actions would, or he intended that his actions would, damage property.  The court was satisfied that he intended to set fire to eucalyptus plantations but that he ‘did not intend to kill anyone’ (if the Crown had been able to prove an intent to kill, the relevant offence would have been murder).

Although there were 10 charges, relating to each death, the defendant (in accordance with normal criminal law principles) was not sentenced for each one but on a cumulative basis, taking into account the circumstances of his offending and the offence.  His Honour noted and recognised the effect that the defendant’s actions had on the families of the deceased.  He said:

Death from natural disaster would be bad enough, but their suffering is significantly increased from knowing that the fire which caused the death was deliberately lit. Because of the peculiar nature of these matters and the wide ranging effect of them, there were great delays in the finalisation of identification, with everything which flowed from that, which increased the hurt for the victims.

For the victims, these were and are life changing events, and no sentence that I impose can in any way compensate for their loss, but it does bring to an end one part of the process.

The law does not allow a sentencing judge to actually value a life by the impact upon others, killing a homeless person with no family is as much an affront to the law as killing a person who is the centre of a large and loving family and community. His Honour asked that this ‘be borne in mind in particular when I deal with the accumulation of sentence.’

In determining the sentence His Honour noted that the defendant had ‘an autism spectrum disorder and [is] … intellectually disabled of “reasonably mild degree”’.  Troubles with school, work and social relationships were noted including a reference to his time in the CFA which ‘was also difficult. I doubt that people intended to be hurtful to you, but your own social skills are and were inadequate, which made your dealing with others very difficult.’

His Honour took into account Mr Sokaluk’s impairment but also noted that as he had been convicted of a serious offence, he, the sentencing judge, was required to consider the protection of the community as the paramount consideration.  He also took the view that it was important to make sure that Mr Sokaluk got the message that his conduct was unacceptable (what is called specific or personal deterrence, that is a sentence to deter this offender from further offending, rather than general deterrence which is intended to stop others from offending).

Taking into account all the factors (and if you want to see how that was done, do go and read the judgement) Sokaluk was sentenced to 11 years gaol for each offence.  The first 10 years and 3 months of each sentence was served ‘concurrently’ that is at the same time, and thereafter consecutively so his first 10 years and 3 months in gaol is for all the offences, and then he has 9 months for offence 1, at the end of that time he has to serve 9 months for offence 2, then 9 months for offence 3 and so on.  The end result was a sentence of 17 years and 9 months, backdated to the time he was first arrested and taken into custody.   A non-parole period of 14 years was set.  A non-parole period is often controversial but is important.  Without a non-parole period, the offender stays in custody until the end of his sentence and is then released into the community without supervision.  With a non-parole period there is an incentive to comply with the prison regime and to take advantage of opportunities to increase the chance of actually getting parole, and when released the offender is subject to supervision for the remainder of their sentence (in this case 3 years and 9 months) when they can be directed on how to behave and supervised in the community with the option of going back to prison if they don’t comply.   It is much better for the community to have a phased and supervised release rather than just open the gaol doors and let people out, after a long time in gaol, and ask them to fit back into a community they are unfamiliar with.

Finally, for the benefit of the emergency services, I repeat what His Honour said about the volunteer firefighters involved in the response to this fire.  He said (at paragraph 36):

The crime of arson always exposes the emergency services personnel to risk, but this fire did so quite dramatically. Three of the fire appliances that we know about, with their crews inside, were burnt over in the Glendonald  Road area. The self-sacrifice and courage of all those involved in fighting the fire, but in particular the volunteers, cannot pass without comment, and I acknowledge the debt owed by our community to all of you.

Michael Eburn
10 May 2012