R v Weyers[2001] QCA 311

COURT OF APPEAL

DAVIES JA

WILLIAMS JA

BYRNE J

BRISBANE

DATE 02/08/2001

JUDGMENT

DAVIES JA:  The applicant was convicted after a trial in the District Court on 5 February this year of arson.  He was sentenced to three years imprisonment.  He seeks an extension of time within which to appeal against that sentence and he applies for leave to appeal.  He, on 6 March this year, appealed against his conviction only.  His notice of appeal was three days out of time.  In any event, his counsel informed us that he does not wish to proceed with his appeal against conviction and it was struck out.

However, counsel indicated for the first time, in his written outline, that the applicant wished to appeal against sentence and it was submitted that some indication of this was given in the grounds of appeal against conviction and this seems right.

It does seem that the notice of appeal against conviction should have been or included an application for leave to appeal against sentence.  In those circumstances, I think it appropriate to grant an extension of time to today and this Court proceed to hear the matter as if it were an application for leave to appeal against sentence.

On 23 November 1999, the applicant set fire to the complainant's bus, which was parked in a caravan park also occupied by the applicant.  The applicant had, in fact, sold the caravan to the complainant some time earlier for $1,000. The lighting of the fire rose out of acrimony which had arisen between the applicant and others on the one hand and the complainant on the other.  There had earlier been a physical fight between a man, Bradley, a friend of the applicant, and the complainant.

The fire destroyed the bus which had been used by the complainant as a dwelling and its contents, which included all of the complainants goods and effects.  This left the complainant destitute.  Moreover, although it does not seem to have been suggested that the complainant or anyone else was in or likely to have been in the bus at the relevant time there was potential for harm because gas bottles, with their potentiality for explosion, were inside the vehicle.

Even allowing for the fact that the act of arson arose out of prior acrimony which had existed between the parties, it was, it seems to me, a malicious and vindictive act.  Moreover, by contesting this trial, the applicant demonstrated a complete lack of remorse and there is no suggestion that he has any capacity or even willingness to recompense the complainant.

The applicant has a history of criminal offences from 1985 to only shortly before this offence.  Although none of them appears to have involved substantial violence or other very serious aspects, they resulted twice in sentences of six months imprisonment and both of these cases have involved driving offences whilst under the influence of alcohol.

Mr Moynihan for the applicant submitted that, while the sentence is within the permissible range for similar offences, it was at the very top of the range and that this offence merited no more than a sentence about the middle of the range which he submitted was one of two years imprisonment.

Mr Kelly for the respondent submitted that the appropriate range for an offence of this kind was two to four years. Mr Moynihan, however, submitted that offences meriting three years imprisonment involved features of premeditation, the possibility of persons being in occupation of a dwelling, the destruction of property of substantial pecuniary value, an intention to defraud an insurer or other third party or damage or destruction to a police station or other public building.

I do not think that that submission is correct.  Indeed, sentences such as the sentence actually imposed by this Court in Barling, CA No 304 of 1998, shows that to be incorrect.  In that case, this Court imposed a sentence of three years imprisonment upon a young man who had burnt a caravan of a value of about $10,000.

The act appears to have been an impetuous one and one which he demonstrated substantial remorse, even attempting suicide after committing the offence and seeking medical and psychological help for his emotional problems.

These problems arose out of the breakdown of his relationship with his former girlfriend who, with him, had been the joint-owner of the caravan, although, as Mr Moynihan points out, it does appear that he may have surrendered his interest in the caravan to her prior to the act of arson.

In that case, the applicant was only 22 years of age with a minor criminal history.  No doubt his youth and his plea of guilty contributed to the fact that a recommendation was made that he be released after serving 12 months of his sentence.  The comparison of that sentence with this demonstrates, in my opinion, that although the sentence here was a high one, it was not manifestly excessive.  I therefore refuse the application.

WILLIAMS JA:  I would merely add that the offence occurred on 23 November 1999 at which time the applicant was subject to a recognisance to be of good behaviour which had been imposed in the Maroochydore Magistrates Court on 18 July 1999.  I agree with the reasons of the learned presiding Judge and the orders he proposes.

BYRNE J:  I agree with the other members of the Court.

DAVIES JA:  The application is refused.