R v Leslie[2016] QCA 15

SUPREME COURT OF QUEENSLAND

[1] MARGARET McMURDO P:  I agree with Morrison JA’s reasons for joining in this Court’s orders on 2 December 2015.  I emphasise that while the offence of arson of a dwelling or a building resulting in substantial property damage or risking human life is a most serious crime warranting condign punishment, as the Victorian Court of Appeal in R v Mazur[1] and this Court in R v FN[2] identified, a term of actual imprisonment is not inevitable in an exceptional case.  The combined circumstances of this appellant’s offending and the matters personal to him set out by Morrison JA placed this case in the exceptional category so that a sentence of imprisonment with immediate parole rather than a period of actual custody was appropriate.

[2] The appellant filed an application to adduce further evidence from a doctor concerning the extent of burns to his body suffered in 2012.  When the Court pointed out that similar information was given to the sentencing judge and was already on the appeal record, his counsel did not press the application.[3]  The further evidence sought to be adduced does not meet the admissibility test set out in R v Maniadis.[4]  It follows that the application to adduce further evidence should be refused.

FURTHER ORDER:  The application to adduce further evidence is refused.

[3] MORRISON JA:  On 1 July 2012 Mr Leslie, then 19 years old, set fire to the housing commission unit in which he lived, attempting to kill himself.  He did so by pouring 200 ml of acetone into a cupboard near the bathroom, and up the cupboard wall, then lighting it.

[4] A friend, with whom he had been drinking earlier that afternoon, unsuccessfully tried to rescue him.  The friend alerted a neighbour who also failed in a rescue attempt.  Yet another neighbour was finally successful in dragging Mr Leslie out of the unit.

[5] The unit was one of about 15 brick units in a housing commission block. The fire was contained to the inside and doors of the cupboard. There was smoke damage to surrounding walls and ceiling.  The repair costs totalled $3,519.21.

[6] Mr Leslie pleaded guilty to one charge of arson.  He was sentenced to three years’ imprisonment, suspended after serving five months, with an operational period of three years.  The five months took into account 23 days of pre-sentence custody, which was declared pursuant to s 159A of the Penalties and Sentences Act 1992 (Qld).

[7] Mr Leslie challenges the sentence as being manifestly excessive.  In doing so the challenge was not as to the head sentence, but only as to the imposition of a period of actual custody.[5]  At the hearing in this Court, leave was given to add the following ground: “The judge erred in suspending the sentence rather than giving immediate parole, in light of the applicant’s obvious need for supervision and support.”

[8] At the hearing on 2 December, the Court made the following orders:

1. The application for leave to appeal is granted.
2. The appeal is allowed to the extent of setting aside the order at first instance that the sentence is suspended after five months with an operational period of three years and instead it is ordered that the applicant’s parole release date is fixed at 17 December 2015.
3. The sentence imposed at first instance is otherwise confirmed.
4. The Court will deliver its reasons for these orders later.

[9] These reasons explain the basis upon which I joined in those orders.

Suggested errors

[10] This Court stated the principle to be applied where the issue is whether a sentence is manifestly excessive, in R v Tout:[6]

“... a contention that the sentence is manifestly excessive is not established merely if the sentence is markedly different from sentences in other cases.  It is necessary to demonstrate that the difference is such that there must have been a misapplication of principle, or that the sentence is “unreasonable or plainly unjust”: Hili v The Queen (2010) 242 CLR 520 at [58], [59].”

[11] Mr Leslie relied upon two suggested errors that could be demonstrated.  The first was that error as understood in House v The King[7] could be shown:

“The manner in which an appeal against an exercise of discretion should be determined is governed by established principles. It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so. It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance.”

[12] The second was that the learned sentencing judge acted on a wrong principle by holding that exceptional circumstances had to be shown.  This related to the following passage in the sentencing remarks:[8]

“It is a very difficult sentencing exercise for me, Mr Leslie. In a long line of authority from the Court of Appeal, demonstrated by the decision of the Court of Appeal in R v FN [2005] QCA 113, persons who commit this offence, particularly where there is some danger to residents – as there clearly was here – ordinarily receive terms of imprisonment between three and four years and actual imprisonment is almost always ordered, although the authorities do permit of the proposition as a principle that an actual custodial sentence is not inevitable in cases of arson.

Referring to paragraph 27 of the judgment in FN of the Court, exceptional circumstances have to be shown. In that case, the court referred to the unusual circumstances of that case which involved an 18-year old with no previous criminal history who had undertaken to cooperate in relation to his co-offenders. They also referred to cases of R v Collins and R v A which are referred to at paragraph 27 of the judgment.”

Circumstances of the offending

[13] A synopsis of the offending conduct is set out in paragraphs [1] to [5] above.  Some further detail is necessary.[9]

[14] Mr Leslie had been living in a block of 15 units used to house disadvantaged persons.  He had been there for nine months.  He had ceased taking his depression medication in the two days prior to 1 July 2012.[10]

15. Mr Leslie and his friend, Mr Roberts, had been in the friend’s unit during the afternoon, drinking wine.  Mr Leslie only had two glasses.  He left and went back to his own unit, in the same block.  About 20 minutes later Mr Roberts heard a fire alarm and saw smoke billowing from Mr Leslie’s unit.  The front door and screen door were open so he went in and tried to find Mr Leslie.  The unit was filled with smoke, and he could see a fire burning inside a cupboard near the bathroom door.  He tried to open the door but could not.  He eventually opened the door part way, and saw Mr Leslie on the floor behind the door.  Mr Roberts was choking on smoke so he had to leave.

16. Mr Roberts told another neighbour, Mr Hewitt, where Mr Leslie was.  Mr Hewitt entered the unit but could not open the bathroom door.  He was overcome by the heat and smoke and left the unit.  Mr Roberts then told another neighbour, Mr McDowell, where Mr Leslie was.  Mr McDowell wrapped cloth around his face and entered the unit.  Visibility was very poor but he opened the bathroom door and found Mr Leslie propped against the bathroom wall.  He dragged him out of the unit.

[17] Once outside Mr Leslie’s condition was described differently, one saying he was disorientated, another that he was distressed, while a third said he was “fairly OK”.  When police arrived they spoke to Mr Leslie, who gave no explanation for what happened.  Residents used fire extinguishers to try to put the fire out.  That job was finished by the fire brigade.

[18] Mr Leslie was taken to hospital, but left soon after.  Police found him wandering along the highway, and he was taken into custody to be interviewed.

[19] He told police that after waking up that morning he sat on his computer for a bit, wrote some music, visited a friend and had a glass of cask wine, returned to his unit and “realised I didn’t want to do it any more”.  When asked to clarify, he said he didn’t want to do “life – this constant pain in my head, constant torturing noises that get drilled into my eardrums all the time, all the thoughts that go around in there.  Can’t drown it, can’t burn it, can’t electrocute it, can’t fry it, what can you do?”

[20] Mr Leslie said he had 200 ml of acetone for removing superglue, so he poured that into the cupboard and up the cupboard wall, then lit the top of the acetone with a lighter so as not to burn his fingers.  He had the lighter handy because he had recently given up smoking.  He watched the fire for 10 to 15 minutes and breathed in the smoke and fumes, and then went to the bathroom.  There, he turned on the hot tap in the shower so that the steam would open his lungs better and allow him to inhale more smoke.

[21] When asked why he lit the fire, he said “Just to try and burn all the shit in the cupboard, and evaporate it, and inhale it through my lungs in hope to cause premature death”.

[22] He was remanded in custody as police feared he would attempt to self-harm again.[11]

Medical evidence

[23] Medical evidence was tendered at the sentencing hearing.[12]  It revealed that on 20 July 2010 (when he was about 17 years and a half) he had consulted a doctor because he had suicidal ideation.  The notes show that:

• he reported depressed mood with hopelessness, poor motivation, self-harm, alcohol abuse, and suicidal ideation for at least the previous 12 months; further, that Mr Leslie had “no fixed plan but thinks it would be easier to be dead”, he thought his family were selfish for not allowing him to go through with it, and he had tried cutting deep into arms “to get the vein”; and
• the decision was made not to start medication until consultation with another doctor who was to review the case; that explanation was given to Mr Leslie and his mother (who was pressuring for medication due to her own experience); and
• after that consultation the aim was to see Mr Leslie twice weekly for risk assessment and therapy.

[24] On 9 November 2011 Mr Leslie was seen again (by the same doctor) for depression.[13]  He had chronically depressed mood, fatigue, poor motivation, and inability to enjoy activities.  He described having had “numerous attempts at counselling” but it had not helped.  It was noted that he had a family history of major depression and mental illness.  Anti-depression medication was prescribed, to be reviewed in two weeks.

[25]  On 28 November 2011 he was reviewed.[14]  Some improvement was noted, and the medication was increased.  Mr Leslie had suicidal ideas but no plan.  He was living with friends.  He did not want to see a psychologist.  Two weeks later he was reported to be feeling much better on the increased medication, and had no suicidal ideas.  Then, when seen on 17 December 2011, with his mother, he was reported to have not taken his medication for about four days, and was back living with his parents.

[26] Mr Leslie was seen again on 7 June 2012,[15] at which time he was depressed and anxious, with low mood.  He had poor appetite, poor memory and poor concentration, as well as panic attacks, but no suicidal ideas.  Medication was continued as before.

[27] After the arson offence on 1 July 2012, Mr Leslie was seen again because of his depression and anxiety.  He was noted to be on parole.[16]  He was reported to have low energy and appetite, impaired memory and concentration, but his mood was stable and he had no suicidal ideas.  The notes record a history of suicidal and self-harm attempts.

[28] On 18 March 2013 Mr Leslie was seen again,[17] this time in respect of severe burns which had been treated at Royal Brisbane Hospital (RBH).  He had lots of scars, and was moving to Ipswich because he needed physiotherapy at RBH.  Evidently he was taking oxycontin and endone, as four months later the notes show that he had been weaned off those drugs.

[29] Mr Leslie’s burns were sustained on 13 October 2012.  They were treated at RBH and he was discharged on 10 December 2012.  The RBH notes[18] show that he had 55 per cent of the total body surface area burned, with deep partial to full thickness burns to his chest, back, upper and lower limbs.  He had to undergo numerous debridements and grafting.  The burns were reported to have been caused when lighter fluid spilled onto Mr Leslie and caught alight.  Mr Leslie apparently denied self-harm.

[30] The RBH notes also record his previous medical history as “Depression/Bipolar Affective Disorder” and “Previous suicidal ideation and attempts”.[19]

[31] Mr Leslie spent 28 days in intensive care, and had numerous blood transfusions and skin grafts to various parts of his body.  He was taking oxycontin for severe pain.

[32] In July 2013 he was admitted to RBH again, for five days, to have surgery for graft failures.[20]  After discharge he was to have ongoing physiotherapy for mobility and prevention of scar contracture, and ongoing occupational therapy for scar management, garment assistance and assessment.[21]

Psychiatric evidence

[33] The learned sentencing judge had the benefit of a report by Dr Phillips, a forensic psychiatrist, which was principally prepared to address the question whether Mr Leslie was of unsound mind at the time of the offence, and fit for trial.  The report followed an assessment of Mr Leslie on 4 November 2013.  The detail of the report is not necessary to record, but the salient features are:  

(a) he told Dr Phillips about the onset of depressive symptoms when he was 15, and attempts at suicide when he was 18;[22] he had a history of self-harm, commencing when he was 17;[23]  

(b) from about 18 he had contact with mental health professionals, but had not been admitted to a psychiatric hospital; he reported that there had been a significant improvement in depressive symptoms with a combination of antidepressant medication and commencement of psychological therapy (in late 2013), he continued to suffer persistent depressive symptoms;  

(c) he described symptoms of Post-Traumatic Stress Disorder (PTSD) related to having suffered extensive disfiguring burns in October 2012; he described flashbacks, nightmares “a couple of times” each week, and waking in a state of hyper-vigilance and hyper-arousal, and re-experiencing phenomena of feeling the sensation of burning flesh; he described a history of anxiety in social situations, present since adolescence, but significantly more anxiety during social interactions since suffering the severe burns, which appeared to be related to self-esteem issues secondary to the disfigurement;[24]  

(d) he said his mother suffered from clinical depression, borderline personality disorder and had a history of deliberate self-harm;[25]  

(e) whilst he claimed to have no memory of having set the fire as a suicide attempt he stated “I wouldn't put it past myself”; he hypothesised that he may have made up the fact that it was a suicide attempt when talking to the Police; he stated that his next memory was being dragged out;[26]  

(f)  Dr Phillips concluded he was fit for trial, saying that: “Persistent depressive symptoms may impact on his attention and concentration and thus on his ability to follow the proceedings.  Whilst it is likely that this would have some impact, it was my opinion that this was not of the severity that it would render him unfit for trial”;[27]  

(g) medical records confirmed a previous suicide attempt in May 2011, when he tried to hang himself; he said then that there were five previous suicide attempts;[28] the records confirmed a couple, cutting his arm with razors and scissors; there were numerous records of him being seen in relation to depression;[29]

(h) the Emergency Department records from Gympie Hospital from 12 October 2012 noted that Mr Leslie had presented with approximately 50 per cent burns; it was documented that lighter fluid caught fire whilst he was re-filling it whilst camping, and this was confirmed by his father who put out the flames; he was subsequently driven to the hospital by the father;[30]  

(i)  the Emergency Department triage notes for the day of the arson offence noted that Mr Leslie was depressed, had a flat affect and had tried setting fire to the unit; the triage noted a “known Bipolar Disorder”; at 5.00 pm when he left it was noted “I spoke with patient who was crying he told me he thinks hospitals are morgues and incompetent people run them”, he refused to come back inside and he walked off after banging his head on a fence; he was noted to have numerous self-harm scars on his inner arm;[31]

(j)  Dr Phillips recorded information from the treating psychologist, Ms Thackeray: “She had made a diagnosis of anxiety, depression and that he had significant issues regarding body image and self-esteem.  It was her opinion that personality pathology was not a prominent feature of his presentation.  She did not believe that he was currently abusing substances.  It was her impression that the risk of violence was low.  She was aware of the risk of self-harm and suicide, but stated that there had been no suicidal plan or intent to act.  It was her opinion that Mr Leslie would cope very poorly with a custodial sentence”;[32]

(k) Mr Leslie describes a history of a Chronic Major Depressive Disorder present since the age of 15; depressive symptoms have included depressed mood, anhedonia, neurovegative symptoms, hopelessness, suicidal ideation and numerous serious suicide attempts; the depressive symptoms, including at the time of the alleged arson offence, were described as being in the severe range; the alleged arson offence appears to have occurred in the context of a suicide attempt;[33]

(l)  Mr Leslie presents with a range of Borderline Personality Traits including recurrent suicidal behaviours and self-mutilating behaviour, chronic feelings of emptiness, impulsivity, fears of abandonment and an unstable sense of self; he has a co-morbid major Depressive Disorder; [34]

(m)at the time of Dr Philips’ assessment there had been some improvement in symptoms of depression, anxiety and post-traumatic stress disorder, with treatment with antidepressant medication and psychological therapy; however, he continued to suffer symptoms of moderate severity that continued to have a significant impact upon his level of psychosocial functioning;[35]

(n) Mr Leslie’s presentation was not consistent with Bipolar Affective Disorder;[36]

(o) Dr Phillips expressed her opinion: “His presentation occurs on the background of a difficult childhood environment with early separation of his parents and reportedly being witness to significant domestic violence. He has a family history of depression and also borderline personality disorder in his mother.  This gives him a genetic predisposition to developing these conditions, and he may well have modelled maladaptive coping strategies such as self-harm and primitive defence mechanisms and had limited opportunity to model more adaptive coping styles.  His frequent moves during adolescence and onset of depressive symptoms appears to have impacted on his emerging sense of self and sense of identity and contributed to anxiety in social settings.  The depressive symptoms may well have contributed to losing interest in school, gravitation towards a substance abusing peer group and escalating alcohol and marijuana use as a maladaptive coping strategy”;[37]

(p) as for the prognosis, Dr Phillips said: “His prognosis will depend upon his willingness to comply with more assertive psychiatric management, continued adherence with antidepressant medication and psychological management and ability to remain abstinent from alcohol and illicit substances”;[38] and

(q) she considered that at the time of the offence he was suffering from a severe major Depressive Episode and that the arson was a suicide attempt.[39]

[34] Dr Phillips made certain recommendations concerning future treatment.  They included: more assertive psychiatric management in the community; referral for a psychiatric assessment, either to a private psychiatrist or the local mental health service; optimisation of his pharmacological therapy given his significant persistent symptoms; a regular review of his mental state and risk; continued engagement in psychological therapy, including a Cognitive Behavioural Therapy approach targeting symptoms of depression, anxiety and PTSD.[40]

Personal circumstances

[35] Born on 7 December 1992, Mr Leslie was 19 and a half at the date of the offence, and about 22 years and eight months at sentence.  At the end of 2013 he was unemployed and on benefits, and living with his mother and step-father at Ipswich.

[36] He had a reasonable upbringing, and completed schooling until the middle of year 12.  He had never been employed except for one day working as a cherry picker.  He lived at home until he was about 18.

[37] He told Dr Phillips of alcohol abuse when he was about 17 and a half years old, but ceasing before the arson offence.  He also described a history of marijuana use on occasions, but daily from when he was 19 until the arson offence.[41]

[38] He told Dr Phillips that with regards to plans for the future, he hoped that his music would progress, that he would continue to produce his own compositions and he planned to investigate options of TAFE courses to become an audio engineer.[42]

[39] Mr Leslie’s prior criminal history was rightly described by the learned sentencing judge as “very minor”, and not relevant to the arson sentence.[43]

Approach of the learned sentencing judge

[40] The learned sentencing judge took into account:[44]

• Mr Leslie’s age, and also his strong family support;
• the plea of guilty, which showed remorse;
• his cooperation with the administration of justice, in particular by making admissions in the police interview;
• the prior criminal history which was “very minor” and irrelevant;
• that it was an attempted suicide;
• the psychiatrist’s report and the medical records of attendances prior to the arson offence; the diagnosis of anxiety and depression, and previous expressions of suicidal ideation;
• his Honour said he was “prepared to proceed on the basis that, at the time of the incident, you were suffering from clinical depression for which you were being treated with antidepressants; and I think it is more probable than not that you had stopped taking your medication”;
• that the prior and existing mental health issues reduce the moral culpability for the offence;
• the subsequent “very severe burns” to 55% of the body; the course of that treatment and the skin grafts; and that Mr Leslie “is seriously disabled as a result of those injuries”; and
• further, his Honour was prepared to regard Mr Leslie’s “present physical condition, coupled with [his] depression which is being treated conservatively at the present time, as making prison a more onerous punishment for a person with that physical disability than someone without”.

[41] Counsel for Mr Leslie submitted to the learned sentencing judge that the head sentence if three years was appropriate but sought for it to be “fully suspended” or for “immediate parole”, though, for reasons which are not clear, the submission seemed to downplay the parole option:[45]

“I’d have to accept that, generally speaking, arson of a premises such as this, it brings three years, around about, and then I’ll have to accept that that would be a head sentence. Your Honour, he has done 23 days in pre-sentence custody. My submission is an appropriate sentence would either be that it’d be fully suspended or, alternatively, be on immediate parole.

Parole would be rather difficult for him, of course, to have to report in his condition. He did have some difficulty sitting in the dock, you may have seen, and that’s due to the injuries he has of being able to sit around for any extended period of time.”

[42] The learned sentencing judge referred to the decision of this Court in R v FN,[46] and in particular its requirement that exceptional circumstances must be shown in order to warrant a non-custodial sentence in arson cases: see paragraph [12] above.  His Honour identified that there was danger to residents, and continued:[47]

“The danger here, of course, was to those whom attempted to rescue you. Of course, in your mental state at the time, coupled with your intoxication, that would not have been something you would have considered. But, obviously, when someone is in danger people often respond in the way in which your neighbours responded on this occasion. So that is in the sense in which I say there was danger to residents in this case.”

[43] The learned sentencing judge imposed five months’ actual custody, saying it was “In the circumstances, doing the very best I can…”.[48]

Discussion

[44] In the amended application filed on 27 October 2015, Mr Leslie raised only that the sentence was manifestly excessive, and that the learned sentencing judge erred by adopting FN’s requirement that exceptional circumstances must be shown to warrant a non-custodial sentence in arson cases.  At the hearing the grounds were amended to include that there was error by not ordering immediate parole: see paragraph [7] above.

[45]    FN involved a charge of entering a dwelling house with intent to commit an indictable offence, and arson.  The offender was 18, had no criminal record, and had experienced an unsettled life drifting between youth shelters and his parents.  He broke into and burned down an unoccupied house.  The offence was pre-meditated.  He later went voluntarily to the police and made a statement.  The house was worth between $60,000 and $70,000.

[46] There was an error in relation to the treatment of the offender’s promised cooperation against a co-offender, under s 13A of the Penalties and Sentences Act 1992 (Qld).  Therefore this Court had to sentence afresh.  It held that a wholly suspended sentence was untenable because of the “unthinking irresponsibility” of the conduct.  However, the offender’s youth and personal circumstances suggested that the prospects of rehabilitation “should be encouraged by a term of probation”.[49]

[47] The Court then turned to the question of whether a period of actual custody should be imposed.  Having referred to decisions in R v Perrone[50] and R v Mazur[51] the Court said:[52]

“We would agree that a term of actual imprisonment for arson is not inevitable and that it can be argued that the present case is an example of exceptional circumstances because of the applicant’s youth, his remorse, and his co-operation with the authorities. There is precedent in this Court for the non-imposition of a custodial sentence for arson in R v Collins and R v A, which were both cases where the offender’s youth was identified as an important factor tending against the imposition of a period in actual custody. This case, however, is distinguishable on its facts. In Collins, the arson involved the burning of a motor vehicle and the offender was able and willing to make restitution. In A the offender was 16 years of age at the time of the offence and the maximum term of detention was 10 years.”

[48] The reference to “exceptional circumstances” was to what was said by Winneke P in Mazur:[53]

“I agree with Brooking JA that courts imposing sentences for offences of arson will, except in the most exceptional circumstances, regard a sentence of immediate imprisonment as being appropriate. I agree with him that the case of Perrone should not be used as citation of authority to the opposite effect.”

[49] The Court did impose a period of actual custody in FN, on the basis that the conduct had involved callous indifference to the harm to others, and unthinking thrill seeking.[54]  However it was limited to the time already served, in that case 58 days.[55]

[50] It was this Court’s adoption, in FN, of the need to show exceptional circumstances in arson cases if a non-custodial sentence was to be imposed, that the learned sentencing judge referred to: see paragraph [12] above.

[51] For two reasons I do not accept the contention that the learned sentencing judge acted on a wrong principle by adopting FN’s requirement that exceptional circumstances need be shown to warrant a non-custodial sentence in arson cases.

[52] First, the statement of Winneke P that was adopted in FN has also been adopted as a statement of principle in Director of Public Prosecutions v Bright[56] and Director of Public Prosecutions v Derby.[57]

[53] Secondly, the statement in FN, and that of Winneke P in Mazur for that matter, have to be understood in the context of the arsons involved.  FN was the arson of a dwelling, as were the comparable cases referred to in it.[58]  That is what the Court referred to when it said the question was whether actual imprisonment must be imposed “to deter this kind of conduct”.[59]

[54] Mazur involved a two storey building.  Derby involved the destruction of a residential dwelling, and the comparable cases referred to involved arson of similar properties.[60]  Bright was an arson of a house.

[55] At the outset of the hearing a further amendment to the grounds of appeal was sought, to add: The judge wrongly concluded that the combination of mitigating circumstances in this case did not amount to exceptional circumstances so as to warrant a non-custodial sentence.

[56] In that respect counsel for Mr Leslie raised the following main points:

• his age at the time, 19 years;
• his pre-existing mental health condition, reducing his moral culpability, and making prison life more onerous for him than for others;
• his physical condition as a consequence of the burns;
• the fact that the arson was done in an attempted suicide;
• he was not motivated by financial gain, nor was there any fraudulent intent;
• comparable cases do not support the imposition of a period of actual custody; and
• he should have been given parole rather than a suspended sentence.

[57] In my view, there is force in the contention that the particular circumstances of Mr Leslie’s combination of mental illness and physical disability amount to exceptional circumstances that warranted a non-custodial sentence.

[58] First, Mr Leslie was only 19 when he offended and there were no previous offences of this kind, or any of note at all.

[59] Secondly, the circumstances of the offending were at the lower end of those that FN was referring to as requiring exceptional circumstances.  Whilst it involved a dwelling, it was not pre-meditated, it was an attempt at suicide, relatively little damage was caused, and the method (use of 200 ml of acetone) suggested a lower level of recklessness, far removed from the sort of circumstances in FN.

[60] Thirdly, the evidence as to his mental health and physical disabilities was compelling.  There was an abundance of evidence that his mental state not only reduced his moral culpability, but meant that prison was not appropriate given the short period that was intended to be imposed.

[61] The evidence from Dr Phillips was that Mr Leslie had suffered from a Major Depressive Disorder for some years, and any improvement was dependent on taking medication and undergoing psychological therapy.  The learned sentencing judge recognised that imprisonment would be harder on Mr Leslie than on others, but in my view, the combination of the serious depressive condition and the aftermath of the severe burns leads to the conclusion that a custodial sentence was inappropriate.

[62] In particular Dr Phillips’ opinion, that Mr Leslie’s prognosis was dependent upon his willingness to comply with more assertive psychiatric management, continued adherence with antidepressant medication and psychological management, and ability to remain abstinent from alcohol and illicit substances, tells against actual custody and in favour of parole where supervision can be applied.

[63] Further Dr Phillips’ recommendations for future treatment were focused on that occurring in the community, not in custody: see paragraph [34] above.

[64] Fourthly, while the learned sentencing judge identified the danger to the other residents as the factor that prevented the finding of exceptional circumstances,[61] in my respectful view that paled in the face of the other factors I have mentioned above.

[65] Fifthly, in the three years that elapsed between the offending and sentence there had been no further offending of any material kind.[62]

[66] I am also of the view that there is force in the contention that the learned sentencing judge did not adequately consider the imposition of immediate parole, whether immediate or as opposed to partially suspending the period of custody imposed.

[67] As has been seen, counsel for Mr Leslie at the sentence hearing made a submission for full suspension or immediate parole: see paragraph [41] above.  However, the learned sentencing judge did not provide any reasons why he opted for suspension, rather than parole.  The inadequacy of the reasons in that respect was, in my respectful view, an error which means that this Court should resentence afresh.

[68] That being so, it must be borne in mind that there was no challenge to the three year head sentence.  That was appropriate as three years was supported by the comparable cases to which the Court was referred, and in particular FN.  I would not impose a different head sentence.

[69] In my view, Mr Leslie’s age, his history of self-harm and suicide attempts, his depressive illness, the recommendations for his treatment, and the need to preserve his prospects of rehabilitation, make him an obvious candidate for supervision rather than a suspended sentence.  For those reasons, I considered it appropriate to substitute release on parole for the order for suspension of the sentence.  The release date had to be set so that the parole authorities could respond in a timely way, and therefore it was appropriate that it be set approximately two weeks following the appeal.

[70] Otherwise I would not disturb the orders made on 26 August 2015.

Conclusion.

[71] For the reasons given above I joined in the making of the orders on 2 December 2015.

[72] I have read the reasons of President McMurdo and agree with her Honour’s order to refuse the application to adduce further evidence.

[73] JACKSON J:  I agree with Morrison JA.