R v Smith[2001] QCA 476

COURT OF APPEAL

McMURDO P

McPHERSON JA

AMBROSE J

CA No 207 of 2001

THE QUEEN

v.

DARREN ANTHONY SMITH Applicant

BRISBANE

DATE 02/11/2001

JUDGMENT

THE PRESIDENT: The applicant pleaded guilty on 29 March 2000 to the offences of three counts of arson, one count of attempted arson, five counts of break, enter and steal, one count of burglary and stealing, one count of entering a premises with intent, one count of injuring an animal at night and four counts of stealing. 

These offences were contained in three indictments and occurred over a 10-month period from 29 April 2000 to 11 February 2001. The sentence was adjourned to enable the defence to prepare psychological material. On 8 June 2001, the learned sentencing Judge ordered the presentence report and psychiatric assessment under section 201, Corrective Services Act 1988, Queensland.

On 13 July 2001, the applicant pleaded guilty to further counts of unlawful use of a motor vehicle, unlawfully entering a motor vehicle with intent to commit an indictable offence and another count of stealing. He was sentenced to an effective term of four years' imprisonment, with a recommendation for parole after 18 months.

The applicant, who represents himself today, claims the sentence was manifestly excessive. He was 18 at sentence and 17 at the time of the commission of the offences. He had previous convictions in New South Wales as a child for malicious damage of property, driving without a licence, using a prohibitive weapon without a permit and common assault.

The most serious conduct involved in the offences for this Court's consideration is as follows. The applicant stole a turf roller from under a church building to break into a nearby mower shop. He and his accomplice lit a fire in a shed associated with the shop, destroying the shed and contents, the total value of which was $191,250. They were then responsible for smashing a shopfront window with a brick. Later that night, they set fire to three wool bales and some sweets display containers at a convenience store. 

The applicant initially denied committing the offences but, after his fingerprints were found, made some admissions. 

On 26 May 2000, he committed further offences including breaking into sheds and setting fire to a ride-on mower in one of the sheds, causing damage of $1,600.

On 30 May 2000, he broke into a building belonging to Education Queensland and stole electrical equipment and other property valued at about $7,500, none of which was recovered. 

On 9 June 2000, he broke into a storage shed at the Claremont Special School, took a ride-on mower, broke into the school bus, which was modified for disabled children and set fire to and destroyed it. The bus was valued at $83,559.  The ride-on mower was valued at $4,390 and was never recovered.  Again, the applicant's fingerprints were found at the scene. 

On 12 June 2001, the applicant and his accomplices, Manly and McCarg, made petrol bombs by lighting a wick in soft drink bottles filled with petrol and threw them at the entrance to the complainant's home, where she was living with her 13-year-old son. The complainant had previously told the offenders not to go through the unit complex and had spoken firmly to them over the prior two months.

Fortunately, the complainant noticed a flicker of light at the edge of her front door and was able to extinguish the flame with buckets of water.  A neighbour's hose was burnt and damaged. The area surrounding the front entrance was concrete and the unit itself did not catch fire.

On 19 June 2001, the applicant, together with Manly and Donlan, set fire to the bedroom of Mrs McCarg, the mother of the co-offender in the attempted arson offence. They severely burnt Mrs McCarg's pet cat and trashed every room in her house. They lit a fire in her freezer, urinated on furniture, threw glue and a brown substance on walls and doors, cut the telephone cable, put sugar and glue on a computer keyboard, wiped human faeces on doors, defaced pictures with glue and textas and destroyed treasured family photographs. Police were called and the applicant and his co-offenders were apprehended in or near the house. 

On 11 February 2001, a 1999 white BMW sedan was stolen from Mermaid Beach. The applicant admitted to the father of a friend that he stole the car and that he had organised a buyer in Sydney for $7,000 but the deal had fallen through.

The car, which was valued at $72,600 was recovered in good condition. 

The presentence report indicated that the applicant's parents separated when he was 10 years old. He lived with his mother but resented her authority over him and blamed him for the breakdown of the marriage. He boasted, in the presentence report, of a dislike for women who tried to exercise authority over him. The applicant's father has been supportive and believes the period the applicant has spent in custody before his sentence had changed the applicant's outlook. The applicant attended high school in the Blue Mountains but left school at about 13 or 14 because he did not get on with his mainly female teachers. He has worked at the meatworks at Dinmore and hopes to regain that employment.

The applicant claimed, in the presentence report and, again, in this Court, that he was not an active participant in the offences. According to the author of the presentence report, he has shown little remorse for his victims or insight into the emotional trauma he has caused them and he claimed to have become involved in the offences to maintain his newly found friendships.

Registrar in psychiatry, Dr Mark Schramm, provided a report for the Court. He was of the opinion that the applicant is particularly subject to the influences of his peers but is not suffering from any major mental illness nor diagnosable as having an antisocial personality disorder. His father's recent leniency has done little to help his ability to regulate his behaviour. 

The offences which I have detailed have very serious aspects to them. The most serious were rightly described by the learned sentencing Judge as "despicable".

The offence of attempted arson occurred whilst the applicant knew the unit was occupied. A number of the offences were committed out of revenge and seemed to have involved the applicant's admitted antipathy towards women who purport to exercise any authority or control over him.

He was responsible for hundreds of thousands of dollars worth of damage to the community and to personal property. He has shown no remorse or insight, although this may well be because of his immaturity. Although he pleaded guilty at an early stage, the evidence against him was compelling.

In his favour are his youth and his early plea of guilty. He claims in Court today that there is an unjustifiable discrepancy between the sentence imposed upon him and that imposed upon his co-accused, Manly and Donlan.

Manly pleaded guilty to two counts of stealing, one count of burglary, one count of wilful damage and one count of injuring an animal at night time. He was 17 at the time of the offences and 19 at the sentence. He had spent 50 days in custody.  His only prior convictions were two minor street offences.

Donlan pleaded guilty to one count of burglary, one count of wilful damage and one count of injuring an animal at night and was sentenced to two years' probation and 100 hours' community service. His precise age and criminal history have not been placed before the Court, but it is plain that Manly and Donlan's offending, or at least the offending of which they were convicted, was not nearly as extensive or as serious as this applicant's. They pleaded guilty to three offences whilst he pleaded guilty to over 20 offences, some of which were very serious indeed.

It is not surprisingly, difficult, indeed impossible, to find sentences comparable to the unusual facts of this case and the number and combination of offences committed by one so young.

The applicant emphasises today that he is one of the youngest prisoners in the community correction centre and that he finds this hard. Courts, of course, have no pleasure in sentencing young offenders to prison but on the facts of this case there was simply no alternative.

The sentence imposed adequately reflects the serious nature of the offending. The head sentence has been moderated and an early recommendation for parole given to recognise the mitigating factors of youth and the early plea of guilty.  It was by no means manifestly excessive.

I would refuse the application for leave to appeal against sentence.

McPHERSON JA: I agree.

AMBROSE J: I agree.

THE PRESIDENT: The order is the application is refused.

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