R v Ball[2001] QCA 201

COURT OF APPEAL

McPHERSON JA

MUIR J

ATKINSON J

BRISBANE

DATE 28/05/2001

JUDGMENT

McPHERSON JA:  The applicant for leave to appeal was convicted on his own plea of guilty in the District Court at Toowoomba.

The offences of which he was convicted and the sentences imposed on each of them are as follows:

Count 1, breaking and entering a dwelling house with intent to commit an indictable offence, 16 months imprisonment.

Count 2, arson, five years imprisonment, suspended after 16 months for a period of five years. 

Count 3, resisting a police officer in the execution of his duty, 16 months imprisonment.

Simple offence, breach of a domestic violence order, three months imprisonment.

The sentences were concurrent, with the result that an effective overall head sentence of five years was imposed, suspended after 16 months for a period of five years.  There was 14 days of presentence custody which was declared to be time already served under the sentence.

The grounds advanced in support of the application are that the sentence is manifestly excessive, as to which it is said that comparable cases do not support a sentence of the duration imposed in the circumstances of this case; and also that in having regard to the offence or its effect on the complainant, the learned sentencing Judge had failed to give adequate weight to mitigating factors that were personal to the applicant.

The circumstances of the offences can be summarised in the following way.  On 24 January 2001, the applicant went to the complainant's residence.  He and she had been married in June 1999, but in October she had left him and shortly thereafter obtained a domestic violence order against him.

The marriage having broken down, the applicant continued to communicate with the complainant and to proffer declarations of his love, despite the prohibition imposed by the domestic violence order.

The order did, however, contain a provision which stated that the complainant was to allow the applicant access to her house for the specific purpose of recovering his property on or before 30 November 2000.  It seems that correspondence was sent by solicitors acting on behalf of the applicant in an effort to make an arrangement for this property to be retrieved but no response was received from the complainant or her solicitors.

At all events, at about 4.30 in the afternoon of the day on which the offences occurred, namely 24 January 2001, a neighbour saw the applicant arrive at the complainant's home and begin to load property from the garage at the house into a trailer attached to his car.  At about 6 that night, the complainant received a call from the applicant who, when he spoke to her, made her realise that the call was being made from the telephone at her home.  She immediately rang the police, and some 15 minutes later rang the neighbours, but by that time the house was on fire.

The police arrived about 10 minutes after receiving the complainant's call.  Senior Constable Proudlock noticed that a rear window in the house was smashed and he saw the applicant coming out of the rear of the house.  He introduced himself to the applicant who gave him a shove in the chest.  The police officer, who had been involved in previous dealings with the applicant and the complainant, then informed the applicant that he should leave.  The applicant responded by saying "Get the fuck out of my face" and returned to the building.

Constable Proudlock walked to his car to call for assistance, when he heard what was described as two "whooshing" type noises and saw that the house was ablaze.  He returned to it to see the applicant sitting in the back room of the house holding a television set.  The applicant refused to come out of the house, so the police officer entered the house, grabbed him and tried to drag him from the burning building.  The applicant was eventually removed from the building by the officer.  It may be added parenthetically that, as a result of his efforts, Constable Proudlock suffered from smoke inhalation and experienced coughing fits for about two hours afterwards.

The house itself, which appears to have been valued at about $200,000, was completely destroyed by the fire.  It belonged to the complainant wife, she having inherited it from her deceased former husband.  It was her home where she lived with her sons and, in addition to losing the house itself and its contents, a number of memorabilia were destroyed of a kind that had a strong sentimental value for her and were irreplaceable.

During the investigations that followed this incident, two 20 litre jerry cans were found inside the house.  They were containers that belonged to the complainant, and had been taken, evidently by the applicant, from the garage.  The inference seems clearly enough to be that they had been used to set or enhance the fire.

The personal circumstances of the applicant are that he was 32 years of age at the time of sentencing and that he has a prior criminal record involving an assault occasioning bodily harm in September 1993, an unlawful assault in July 1994 (which involved his being sentenced to 12 months probation), and an obscene language conviction of only slight moment.

Other matters that need to be mentioned in the context of his personal circumstances are that he is qualified as a fitter and turner and as a welder.  He has, however, in the past had some psychiatric difficulties which have led to his examination in custody for short periods of time without it seems requiring treatment for any prolonged period.  His problems appear, in part at least, to be related to heavy drinking.

The maximum penalty for the offence of arson is life imprisonment.  In practice, however, sentences of a considerably lesser duration have been imposed.  In The Queen v. Pitt, CA No 38 of 1991, an offence of arson attracted a sentence of five years imprisonment without any recommendation for parole.  It was a case in which the applicant deliberately set fire to a boarding house after warning the occupants of his intention to do so and giving them time to leave.  Among the more serious aspects of the matter were that the applicant had an extensive criminal history of violent offences and, in the instant case, was also convicted of the accompanying offence of wounding a police officer.  In Pitt's case, only some $40,000-$50,000 worth of damage was done, and it appears to have been taken into account that he was intoxicated at the time.

Another case on which some reliance was placed before us was The Queen v. Henderson, CA No 198 of 1993, which, like this, was one in which the applicant's marriage had broken down. He had been asked to leave home by his wife but continued to visit the family home.  At the time he was suffering from a drinking problem.  To avoid him, his wife decided to move away and she left her belongings packed up waiting to be removed, when the applicant visited the home again.  As an act of revenge, he decided to burn his wife's belongings and, for that purpose, tipped fuel from a lawnmower onto the smouldering fire which he had tried to start.  It exploded and caused damage estimated at a little under $20,000 to the rented house which his wife had been occupying.  He was sentenced to a term of four years imprisonment with a recommendation for parole after 12 months. 

In the Court of Appeal, it was said that the authorities suggest that "where there is no question of fraud to gain insurance money, and where the safety of others is not a consideration, the appropriate head sentence for the offence of arson is about three years".  It is, of course, not correct to regard this as intended to be a binding determination; but, in any event, there are features of the present case that are capable of being regarded as justifying a higher sentence. 

In any event, as was pointed out by Pincus J in R v. Henderson, the circumstances in which a heavier penalty might be called for include the possibility of danger to individuals in the building set alight, and the possibility that there might be extremely heavy property damage, which was not the case there.  In that instance,  the applicant claimed he had been reckless, but not intentional, in causing the damage to the house.

In R v. Henderson the applicant was a 35 year old man and, despite a very extensive criminal record, it had been 14 years since his last serious offence.  Some emphasis was placed on this, and on the fact that his criminal record had started when he was very young.  The decision of the Court of Appeal was to allow the appeal and reduce the sentence to three years imprisonment, with a recommendation after nine months, in place of the sentence of four years with parole after 12 months which had originally been imposed.

In that case, therefore, the effect of the sentence having regard to the recommendation was nine months for a simple arson.  Here, the effective sentence was to be suspended after 16 months.  It was, however, imposed not simply for a single offence of arson, but also for the other serious offences to which I have referred; that is, breaking and entering with intent, resisting a police officer in the execution of his duty, and breach of the domestic violence order.  Those circumstances are such as to take the case outside the ordinary penalty, if that is what it is, that was identified by the Court of Appeal in Henderson's case.

Before us, there were some submissions on the question of whether the Judge was right in regarding the offence in the present case as one that was deliberate and carefully calculated.  Unlike the offence in Henderson's case, it was not committed in a fit of rage.  Rather, it was suggested on the part of the applicant in the Court below that it was really the product of a sudden surge of emotion brought on by revisiting the former matrimonial home.  His Honour said he was satisfied that the applicant was not remorseful.  In my view, on the facts as they appeared in the Court below, it was open to the Judge to make a finding of that kind. 

It was also submitted on behalf of the applicant that there was evidence of a mental disturbance on the part of the applicant which might have helped to precipitate the offence in his case.  But, so far as that is concerned, there is nothing to suggest a state of mental illness or even of severe depression at the time the offence was committed. 

Dr Barkla, a psychiatrist who examined the applicant shortly after the event, said he was suffering from an adjustment disorder with a depressed mood which might, but had not, degenerated into a major depressive illness in certain circumstances.  It seems to me, therefore, that it was not open to the defence below, or to the applicant in this Court, now to make much of his mental condition as a reason for his committing this offence in circumstances which, as I have said, he deliberately broke into the house and set about burning it down.

The fact that in the course of these proceedings at the house he went to the trouble of telephoning the complainant is, in the end, the decisive fact that tends to confirm the impression that he was deliberately taunting her and intending to hurt her in a calculating way. 

In all events, it was legitimately open to the Judge to take that view of the matter.  In the circumstances, the combined sentence, although certainly not low, was not excessive having regard to all the offences involved.  The applicant's actions were vindictive and vengeful, and showed a callous disregard for the complainant's and her children's home and the personal items of property, of very real value to her, which were destroyed in the process.

In the result, I would refuse the application for leave to appeal, except in one particular.  In the course of imposing the sentence on count 2, his Honour addressed the applicant in these terms:

"You are sentenced to imprisonment for five years, such to be suspended after 16 months for a period of five years conditioned that you do not commit any offence punishable by imprisonment..."

To that point, his Honour's statement of the sentence being imposed conforms with the provisions of s.144(4) of the Penalties and Sentences Act.

However, his Honour then went on to add after the words "conditioned that you do not commit any offence punishable by imprisonment" the further paragraph, "and otherwise keep the peace and be of good behaviour".  I can see nothing in the terms of the section, and particularly of s.144(4), that would justify that addition if, as appears to have been intended, it was to form part of the sentence imposed.

In the result, I would grant the application for leave to appeal against sentence and allow the appeal, but only to the extent of omitting the words "and otherwise keep the peace and be of good behaviour" which appear in relation to the sentence on count 2.  Otherwise the application for leave to appeal is dismissed.

MUIR J:  I agree.

ATKINSON J:  I agree.

McPHERSON JA:  The order of the Court is that the application for leave to appeal is granted and the appeal is allowed only to the extent of omitting the words "and otherwise keep the peace and be of good behaviour".  Otherwise the application is dismissed.