In a previous post (R v Sokaluk [2012] VSC 167 – 17 Years and 9 months gaol for Black Saturday arsonist) I reported on the sentencing of Mr Sokaluk who was convicted of lighting the Churchill fire on 7 February 2009, “Black Saturday”; a fire that caused the death of 10 people.

The Crown appealed to the Court of Appeal arguing that the “judge gave insufficient weight to the gravity of the offending and to the need to protect the community against the respondent” DPP v Sokaluk [2013] VSCA 48, [3] and too much weight to the offender’s intellectual disability as a mitigating factor [Paragraphs 18 and 19].

Maxwell P, Neave JA and Kaye AJA sitting as the Supreme Court of Victoria, Court of Appeal has rejected the Crown’s appeal.   They said:

When an offender causes a terrible event such as a bushfire, members of the affected community and the relatives of those who died often consider that only a very high sentence can adequately recognise the gravity of the offending. The gravity of the offences is a very important sentencing consideration. But our law does not treat an offender with an intellectual disability or other mental impairment in the same way as an offender who does not have such a disability. Sentencing principles require the court to consider the offender’s mental condition for a number of purposes, including determination of the effect which his or her mental condition had on his or her moral culpability… [Paragraph 4].

And later:

The judge was faced with an extremely difficult sentencing task. On the one hand, the respondent’s intellectual impairment and autism spectrum disorder reduced his capacity to appreciate the likely seriousness of his actions… On the other hand, the sentence imposed had to reflect the extreme dangerousness of lighting a fire in the conditions which prevailed on Black Saturday, the terrible loss of life caused by the respondent’s offending and the lasting effects of the victims’ deaths on their families. [Paragraphs 46-47].

The judges of the Court of Appeal do not, and did not, express a view on whether they would have given the same sentence had they been sitting as the judge at trial; that is not their job, nor is it their job to simply re-sentence the offender.  Their job is to consider whether the trial judge made an error of law and gave a sentence that was ‘manifestly inadequate’.  If the sentence is within the ‘acceptable range’ no error is shown and the appeal will be dismissed.  In summarising their view on this case the judges said:

There is nothing in the individual sentences or the total effective sentence which requires the conclusion that his Honour erred in balancing these factors [discussed in paragraphs 46 and 47, see above]. In our view, the sentences imposed cannot be regarded as falling outside the range of sentences which could be imposed in the reasonable exercise of the sentencing discretion.  For these reasons we would dismiss the appeal. [Paragraph 48].

Michael Eburn

12 March 2013