Loading...
Queensland Judgments

beta

Authorised Reports & Unreported Judgments
Exit Distraction Free Reading Mode
  • Unreported Judgment
  • {solid} Appeal Determined (QCA)

R v AAT

 

[2014] QCA 41

 

SUPREME COURT OF QUEENSLAND

 

PARTIES:

FILE NO/S:

DC No 719 of 2013

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

DELIVERED ON:

11 March 2014

DELIVERED AT:

Brisbane 

HEARING DATE:

21 February 2014

JUDGES:

Muir and Gotterson JJA and Douglas J

Separate reasons for judgment of each member of the Court, each concurring as to the order made

ORDER:

Application refused.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – the applicant pleaded guilty to one count of arson and one count of attempted arson – the applicant was sentenced to five years imprisonment for the count of arson and to three years imprisonment in respect of one count of attempted arson – both sentences were suspended after six months – the applicant owned a security business – the applicant burned down a townhouse in the final stages of construction – the company building the townhouse owed the applicant money – the arson was an act of revenge – the applicant had no prior criminal history – the applicant entered a plea of guilty before trial and cooperated extensively with the authorities – whether the sentencing judge erred when applying s 13A of the Penalties and Sentences Act 1992 (Qld) – whether insufficient weight was given to the extensive nature of the cooperation with the authorities

Criminal Code 1899 (Qld), s 461(1)(a), s 535

Penalties and Sentences Act 1992 (Qld), s 9, s 13 , s 13A

R v FN [2005] QCA 113, distinguished

R v Hanlon [2003] QCA 75, considered

R v Moenoa (1995) 80 A Crim R 255; [1995] QCA 208, distinguished

R v Walsh [2008] QCA 391, considered

COUNSEL:

The applicant appeared on his own behalf

P J McCarthy for the respondent

SOLICITORS:

The applicant appeared on his own behalf

Director of Public Prosecutions (Queensland), for the respondent

[1] MUIR JA:  I agree that the application for leave to appeal against sentence should be refused for the reasons given by Douglas J.

[2] GOTTERSON JA:  I agree with the order proposed by Douglas J and with the reasons given by his Honour.

[3] DOUGLAS J:  The applicant was sentenced to five years’ imprisonment suspended after six months on one count of arson and to three years’ imprisonment also suspended after six months on a further count of attempted arson.

[4] He deliberately burnt down a townhouse that had been under construction and was at the “lock-up” stage as one of 30 buildings being planned or built on a development site at Deception Bay.  The charge of attempted arson related to the builder’s site office.  The townhouse that was virtually completely destroyed was less than 80 metres from a large number of other occupied units.

[5] Mr AAT, the applicant, who appeared in person, owned a security business and his co-offenders, Mr B, and Mr C, worked for him in that business.  Mr AAT’s security business was owed $36,148.66 by the company building the townhouses and her Honour, the learned sentencing judge, summarised the evidence by concluding that he deliberately burnt down the townhouse and tried to destroy the site office as a form of payback for the debts he was owed by the builder.  It was also submitted to her Honour by the prosecution that, in addition to that element of revenge, Mr AAT may have seen arson in the proposed housing estate as good for his security business.

[6] He and his co-offenders planned the offence over a number of days and committed it in the middle of the night after taking a car to the site that could not be traced to them.  Mr AAT smashed the window of the townhouse and threw accelerant about inside it before igniting it.  The explosion from the ignition could be seen from 400 metres away.  The flames were very significant and caused burns to one of the co-offenders, Mr C.  Although the townhouse was completely destroyed by the fire and equipment stored in it lost, the site office was damaged but not destroyed.

[7] The insurance paid out for the fire was $285,265.10 but the loss, as her Honour found, could have been much greater because the townhouse was surrounded by other buildings that could also have been consumed.  Mr AAT made no attempt to contain the fire or to protect people living nearby.  The fire services, however, brought the fire under control very quickly.

[8] The events occurred in 2007 but Mr AAT’s involvement only came to light years later when his ex-wife and a disgruntled employee went to the police.  Investigators of the fire had made no link to him or his company in the past, partly because of an administrative error by the officers of the building company in failing to list Mr AAT’s company as one of the relevant creditors who were investigated by police.

[9] Further investigations included intercepted telephone calls where admissions by Mr AAT were recorded.  Initially, when spoken to by police, Mr AAT and Mr B lied to them in an effort to avoid culpability.  Mr B entered a plea well before the trial date and cooperated further with the authorities.  Mr AAT pleaded guilty closer to the trial date.  By the time Mr AAT was sentenced, Mr B had been sentenced to five years imprisonment suspended after six months.

[10] In submitting that the starting point of the term of imprisonment was six years with a parole eligibility fixed after no less than two years, the prosecutor referred to Hanlon [2003] QCA 75 where a sentence of six years’ imprisonment was not disturbed and the President also said at [22], referring to comparable decisions, that it was common ground on the appeal that the appropriate range for the arson of an unoccupied building causing substantial damage, by a person with no relevant criminal history and with no aggravating factor of racial or religious hatred was from three to five years’ imprisonment.

[11] That was a case of arson of a mosque 11 days after the terrorist attack on the World Trade Centre in New York and the Pentagon in Washington DC on 11 September 2001.  That offender was 23 years old at the time of the offence and 24 at sentence with no prior convictions.  Mr AAT was 31 at the time of the offence and 37 when sentenced.  He had no prior convictions either and had not offended since this event and otherwise appears to have had a good personal history.

[12] At the hearing before the learned sentencing judge, the applicant’s counsel submitted that her Honour should impose the same sentence on Mr AAT as was imposed on Mr B, namely a term of imprisonment of five years suspended after six months on the arson charge.  That was the sentence her Honour imposed.

[13] The consequence of the decision in R v Walsh [2008] QCA 391 at [23], when the sentence imposed accords with the position taken by the offender before the sentencing judge, is that it becomes difficult to sustain the submission in this court that the sentence imposed was manifestly excessive.  As Keane JA said in that decision:

“The applicant’s submission is one to which effect could be given only in special circumstances sufficient to warrant the conclusion that the applicant should not be regarded as bound by the conduct of his case in the court below.”

[14] The result arrived at by the learned sentencing judge was also clearly influenced by considerations of parity with the sentence imposed on Mr B.  His circumstances were very similar as her Honour decided.  She could draw no material distinction between Mr AAT’s case and that of Mr B and therefore decided that the sentence imposed should be the same.

[15] In this court, Mr AAT appeared for himself and argued that a sentence lesser than that of his co-offender should have been imposed.

[16] The respondent in this court pointed out that Mr B had entered an earlier plea and had cooperated significantly with the authorities.  Her Honour had also accepted that Mr AAT’s conduct was an aberration in the life of an otherwise respectable members of the community, took into account his plea of guilty but pointed out that the conduct was a serious example of the offence of arson requiring a stern sentence to mark the gravity of his crimes, the community’s denunciation of them and the need to send a message of deterrence.

[17] As was submitted for the respondent, this was a planned arson, motivated by vengeance for outstanding debts where there was considerable financial loss and the potential for a threat to the lives of others.  The decisions referred to by the applicant in his submissions of R v FN [2005] QCA 113 and R v Moenoa [1995] QCA 208 were validly distinguished by the respondent.  In R v FN the offence was unplanned and without motivation, the offender was youthful and more immediately co-operative with the prosecuting authorities and the damage to the unoccupied home was less than the damage caused by the applicant and his co-offenders in this case.  Again in R v Moenoa the offender was youthful and his culpability less as his participation in the offending was limited to that of a “lookout”.

[18] In my view, nothing has been shown by the applicant to justify any conclusion that the sentence imposed was manifestly excessive or outside the range permitted by the exercise of a sound sentencing discretion.  The application should, therefore, be refused.

Close

Editorial Notes

  • Published Case Name:

    R v AAT

  • Shortened Case Name:

    R v AAT

  • MNC:

    [2014] QCA 41

  • Court:

    QCA

  • Judge(s):

    Muir JA, Gotterson JA, Douglas J

  • Date:

    11 Mar 2014

Litigation History

Event Citation or File Date Notes
Primary Judgment - - Criminal
Appeal Determined (QCA) [2014] QCA 41 11 Mar 2014 -

Appeal Status

{solid} Appeal Determined (QCA)