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.
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:
 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.
 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.
 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  VR 168 at 172, R v Boxtel  2 VR 98, 103–4, and DPP v Cook (2004) 141 A Crim R 579 at .
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.
 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.
 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’.
 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.
 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  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  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.
 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.
 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.