R v Pike[2002] QCA 242

COURT OF APPEAL

WILLIAMS JA 

WHITE J

WILSON J

No CA 132 of 2002

THE QUEEN

v.

GLEN PIKEApplicant

BRISBANE

DATE 15/07/2002

JUDGMENT

WILLIAMS JA:  The applicant pleaded guilty on the 4th of April 2002 to a charge of arson which was committed on the 22nd of May 2001.  The property in question was what had been, for some time previous, the home in which the applicant and his wife resided.  It appears that his wife was the owner of the land, and that both of them were the mortgagees with respect to the house. 

It is clear from medical reports which were placed before the sentencing Judge that for some time prior to the events in question the applicant had suffered from alcoholism and depression.  Probably because of that there had been some matrimonial disharmony, though other evidence does suggest that for quite a lengthy period the applicant and his wife had got on tolerably well.  He had apparently, from time to time, made threats to burn down the house but so far as is revealed by the evidence those threats had not previously materialised. 

On the morning in question there was some indication that the applicant was particularly depressed about the matrimonial relationship.  He did not give the psychiatrists who examined him after the incident any particular reason for his behaviour.  Before his wife left for work he warned her that he was going to burn down the house and he suggested that she take her clothes and the dog with her when she left to go to work nearby.  A little while later she was informed that the house was on fire.  This was not a case where the arson was committed for financial gain.  In this Court the applicant has queried some of the estimates of damage which were placed before the sentencing Judge.  To my mind those figures are in no way decisive; it is clear that significant property damage was occasioned by the fire.  As the offence was not committed for financial gain, it appears to be explicable only by the background of the matrimonial relationship.  It is also in the applicant's favour that he knew that no-one was home at the time he set the building alight. 

In the course of his sentencing remarks the learned sentencing Judge said:

"Although you were suffering from alcohol dependence and depression at the time you clearly had an insight into what you intended to do as you told your wife when she was leaving that there would be nothing there when she returned."   

Again that observation appears to be supported by the material placed before the sentencing Judge and it was not challenged on the hearing of this application.

The applicant was born on the 8th of November 1963 making him 37 years of age when the offence was committed and 38 years when he stood for sentence.  He did have a criminal history but it could be regarded as of minor significance so far as the present circumstances are concerned.  There were two offences of stealing, one in 1980 and one in 1982, and an assault in 1985.  All of those matters had resulted in a non-custodial sentence being imposed. 

It was against that background, particularly having regard to the alcoholism and depression, that the learned sentencing Judge imposed a head sentence of three years imprisonment but suspended that sentence after the serving of nine months.  He fixed the operational period as the period of four years.  Mr Copley who appeared for the Crown referred to four cases which on his submission supported the sentence in fact imposed:  The Queen v. Henderson CA 198 of 1993; the Queen v. Sharkey CA 28 of 1994; the Queen v. Barling CA 304 of 1998 and the Queen v. Weyers CA52 of 2001.

The first three were pleas of guilty.  In Henderson and Sharkey the sentence was identical with that imposed here whilst in Barling it was three years imprisonment to be suspended after 12 months.  The sentence in Weyers, after a trial, was simply three years imprisonment.  There is a deal of similarity between the facts of Henderson and Barling with those of the present case.  In Henderson the marriage had deteriorated because the applicant had a drinking problem and it was against that background that he set fire to the former home.  He had a more extensive criminal history than the present applicant.  Again it was a situation where when the fire was set the applicant knew that the house was unoccupied. 

In Sharkey the applicant was affected by the consumption of a considerable quantity of alcohol and the offence was directed at his wife from whom he had recently become separated.  Again the fire was set when it was known that the house was unoccupied.  Sharkey's criminal history was comparable to that of the present applicant.

Barling was younger.  He was aged 22, and after a dispute he set fire to the caravan in which his partner was living.

In that case, the initial sentence imposed was that of five years' imprisonment, but that was reduced on the hearing of the appeal to three years.

Those comparable cases indicate that the sentence imposed here was well within range.  I have had regard to all that has been said today by the applicant, who has appeared on his own behalf.

Those submissions have, in the main, concentrated on his history of depression and alcoholism.  But whilst those are matters which must be taken into account in determining the appropriate sentence, I am not persuaded that they demonstrate that the sentence imposed was manifestly excessive.

In all the circumstances, the application for leave to appeal against sentence should be refused.

WHITE J:  Bearing in mind the sentences imposed in the comparable cases to which Mr Copley, for the Crown, has referred, it is clear that the sentence imposed below was an appropriate sentence. 

Bearing in mind, also, the further submissions which have been made by the applicant today, in addition to those which were made on his behalf below, I too would refuse the application.

WILSON J:  Neither the depression nor the alcohol dependence from which the applicant suffered, nor those conditions taken in combination, gave rise to unsoundness of mind which would have relieved him of criminal responsibility.

The sentence imposed was clearly within range, and in my view, there is no warrant for interference by this Court. 

I would dismiss the application.