R v FN[2005] QCA 113

SUPREME COURT OF QUEENSLAND 

1. THE COURT:  On 7 April 2005, the Court made orders granting the application for leave to appeal and allowing the appeal for reasons to be published subsequently.  These are the reasons for the orders which were made on 7 April 2005.

2. On 8 February 2005, the applicant pleaded guilty to charges that on 29 December 2004 at Gladstone he entered a dwelling house with intent to commit an indictable offence on the premises and that he wilfully and unlawfully set fire to that dwelling house. The dwelling house in question was destroyed by fire.

3. The applicant was born on 8 November 1986. He was 18 years of age at the time of the offences and at the time of sentence.

4. The applicant was sentenced on 10 February 2005 to nine months imprisonment and three years probation. The learned sentencing judge declared that two days of pre‑sentence custody, being 8 and 9 February 2005, should be taken into account in relation to a term of imprisonment.

Circumstances of the offence

5. On the afternoon of 29 December 2004, the applicant, who lived at a youth shelter near the house which was burned down, and two other young people were under the unoccupied house. One of his companions, a young female, suggested that they burn the house down. The other male person who was with the applicant tried to dissuade them but, having failed, left them.

6. The applicant and the young female then went upstairs into the house. The applicant went into a bedroom which contained a bare mattress. His companion went into another room. He lit a small fire on the edge of the mattress. His female companion then came into the room with some crumpled paper that she added to the small fire causing it to become larger. She then asked the applicant to come out into the front room where he saw a box full of burning paper. Curtains hanging from a window were draped into this box.

7. The applicant could see the fire getting larger. He said, "We shouldn't be doing this", and suggested that they leave. They ran out of the house. After walking around the block, they returned to an area near the fire. The applicant was spoken to by police at the scene.

8. Over the next two days, the applicant spoke to a youth care worker and, as a result of those discussions, he voluntarily went to the police on the morning of 31 December 2004 to give a statement about what had happened.

9. The applicant's female companion has been charged but, at the time of the applicant's sentence, her matter had not proceeded through the lower court. The applicant was dealt with on an ex officio indictment.

10. The house was valued at between $60,000 and $70,000.

11. In sentencing the applicant, the learned sentencing judge noted:

1. the applicant's early plea of guilty;

2. that the house was unoccupied;

3. that within 24 hours, the applicant had given a statement to the police explaining his own role and that of others in relation to the destruction of the house;

4. that the offence was unplanned;  and

5. that no financial advantage was received by the applicant for the offence.

12. The learned sentencing judge noted that the applicant had no criminal history. The learned sentencing judge referred to the applicant's youth and his personal circumstances, including an unsettled life drifting between youth shelters and his parents.

13. The learned sentencing judge also referred to the seriousness of the offence of arson and observed that, had the applicant not shown the level of co-operation and remorse which had been demonstrated, the sentence would have been "a good deal heavier".

The application

14. The learned sentencing judge noted the applicant's ready co-operation with the authorities, including his willingness to give evidence against his female accomplice. The applicant submits that the learned sentencing judge should have, pursuant to s 13A(7) of the Penalties and Sentences Act 1992 (Qld) ("the Act"), indicated the sentence which he would have imposed but for the promise of future co-operation.  In this regard, it is submitted that his Honour was led into error by the parties' indications that compliance with s 13A of the Act was not necessary in the circumstances.  It is said that this failure to comply with the requirements of s 13A of the Act caused the sentencing process to miscarry.

15. This submission must be accepted. Section 13A(7) is cast in mandatory terms. In R v Webber^[1] McMurdo P and Chesterman J said:

"In the District Court the applicant sought to have his sentence reduced pursuant to s 13A of the Penalties and Sentences Act 1992 (Qld) by reason of the co-operation he had promised, and in fact provided, to aid the prosecution of those who had assisted in, or benefited from, the dishonest receipt of moneys.  The sentencing judge appears to have taken that co-operation into account and the sentence of eight years reflects a discount upon what would otherwise have been imposed.  Unfortunately his Honour did not comply with s 13A(7) in that he did not state what sentence he would have imposed but for the co-operation.  To this extent the sentencing process has miscarried and it is necessary for this court itself to impose an appropriate sentence."

16. Accordingly, this Court must quash the sentence imposed and sentence the applicant afresh. It is submitted that a sentence such as that imposed below does not give sufficient weight to all the mitigating circumstances of the case including the applicant's youth, his clean record, the past co-operation of the applicant with the authorities and the future co‑operation which has been promised, particularly in relation to the prosecution of his accomplice.  The Court received the applicant's written undertaking to give evidence in relation to that matter if required to do so.^[2]

17. The applicant referred in his written submissions to a number of decisions of this Court.^[3]  It is to be noted that in none of these cases has the Court sanctioned a sentence that did not involve a period of actual imprisonment of at least six months.  No doubt this reflects the serious concern with which the community has always regarded arson and the need for strong deterrent sentences.^[4]

18. The decisions of this Court to which we have referred show that in the less serious cases of arson, and particularly in cases where no question of financial advantage or the safety of others arises, the appropriate head sentence is about three years. In this case, it is argued for the applicant that the recognition of the level of the applicant's co‑operation with the authorities, particularly that promised in the future, should lead to a sentence which involves a head sentence of two years imprisonment wholly suspended or two years probation.

19. The unthinking irresponsibility of the applicant's conduct was, in our view, such as to make the suggestion of a wholly suspended sentence untenable. On the other hand, the applicant's youth and other personal circumstances suggest that the prospects of rehabilitation should be encouraged by a term of probation.

20. That leaves the question whether a term of actual imprisonment should be imposed. In that regard, counsel for the applicant points to the special risks to which a young person in custody for the first time is exposed, especially if it became known that he was prepared to give evidence for the Crown against his accomplice. This is a mitigating factor which must be specifically considered, and which was not present in the earlier decisions of this Court to which we have referred.

21. On the other hand, the criminality of the applicant's co-offender is not radically greater than his. She suggested burning the house down but he seems readily to have fallen in with the suggestion and then acted with a degree of independent enthusiasm to bring it to fruition. Further, while the applicant did not act for financial gain, the callousness of his conduct is a matter of grave concern, particularly when the applicant's co‑offender's suggestion that they burn down the house was flatly rejected by the other member of their party.  If the applicant's only problem is that he is easily led, it is difficult to see why he would not have followed this person's lead.

22. The difficult question in this case is whether the strong need to deter this kind of conduct means that a sentence of actual imprisonment must be imposed. There is always a strong reluctance on the part of the courts to impose a short period of actual imprisonment on a young offender where the prospects of rehabilitation are otherwise good. The courts are acutely conscious that a short period of actual imprisonment may do more harm than good in allowing a young person to associate with hardened criminals.

23. A striking feature of the decisions of this Court to which reference has been made so far is the absence of a decision which did not involve the imposition of a term of actual imprisonment. It would be wrong, in our opinion, to conclude that six months actual imprisonment is the minimum term sufficient to give proper recognition to the consideration of deterrence which is of special importance in relation to the crime of arson.

24. In this regard, we note that in Perrone^[5] the Victorian Court of Criminal Appeal, by majority, dismissed an appeal by the DPP against the non-custodial sentence of an arsonist who had arranged for his own house to be burnt down in order to claim the insurance money.  He was a 60 year old migrant of exemplary character who had hitherto been a responsible member of the community and an excellent family man.  Crockett J, with whom O'Bryan J agreed, said:

"The Director has contended that the offences charged, particularly that of arson, were particularly serious offences, a fact which the judge himself recognised when passing sentence.  On behalf of the appellant, however, it was submitted that the degree of seriousness of the offences was such that imprisonment is a penalty which should follow almost as a matter of course.  For that proposition reliance was placed upon a decision of the Full Court of the Supreme Court of Western Australia in the case of Dowell (1982) 6 A Crim R 113, and the passage to be found at 116 was that upon which reliance was particularly placed.

I did not myself understand the case as being authority for the proposition that in the case of the offence of arson a custodial penalty was inevitable.  Nor could such a proposition I think be sustained.  It cannot be possible categorically to state there might never be circumstances which would justify leniency to the extent of imposing a sentence which was not custodial in nature.

At all events, in connection with the offence of arson, resulting as it does in property damage, Murphy, J in the case of Halden (1983) 9 A Crim R 30 at 38-39, said:

'It is a crime which may be committed in a very wide range of circumstances.  The property damaged may vary from a book to a mansion and no doubt the penalty to be imposed will be tempered according to the nature of the property and the damage done.

The penalty may also vary according to the circumstances in which the crime is committed ... '"^[6]

25. More recently in Mazur^[7] the Victorian Court of Appeal expressed its strong disapproval of the decision in Perrone.  Brooking JA, with whom Winneke P and Chernov JA agreed, said:

"Mr Langslow referred the judge to the decision of the Court of Criminal Appeal in Perrone (1989) 43 A Crim R 366, where the imposition of a fine in a bad case of arson survived a Director's appeal against the powerful dissent of Gray J.  Counsel did not refer - although the judge did in his reasons for sentence - to the decision in Haddara (1997) 95 A Crim R 108, where this Court said that the actual decision in Perrone was an unfortunate one.  More bluntness is necessary, or the actual decision in Perrone will be relied on again, with unfortunate results.  I think we should now say distinctly that the actual decision in Perrone was wrong.  To say this is, of course, not to touch the proposition, accepted in Perrone, that in cases of arson a custodial sentence is not inevitable.  That proposition requires no authority to support it.  Accordingly, Perrone is a decision which, in my respectful opinion, is better not cited to sentencing judges in view of the danger that it will lead them into error."^[8]

26. Winneke P said:

"I agree with Brooking JA that courts imposing sentences for offences of arson will, except in the most exceptional circumstances, regard a sentence of immediate imprisonment as being appropriate.  I agree with him that the case of Perrone should not be used as a citation of authority to the opposite effect."^[9]

27. We would agree that a term of actual imprisonment for arson is not inevitable and that it can be argued that the present case is an example of exceptional circumstances because of the applicant's youth, his remorse, and his co-operation with the authorities. There is precedent in this Court for the non-imposition of a custodial sentence for arson in R v Collins^[10] and R v A,^[11] which were both cases where the offender's youth was identified as an important factor tending against the imposition of a period in actual custody.  This case, however, is distinguishable on its facts.  In Collins, the arson involved the burning of a motor vehicle and the offender was able and willing to make restitution. In A the offender was 16 years of age at the time of the offence and the maximum term of detention was 10 years.

28. In this case the applicant did not act from considerations of financial gain. Nevertheless, it seems to us that the need for a deterrent sentence is at least as significant in a case such as this, where there was callous indifference to the harm likely to be caused to others, as in a case where an otherwise decent citizen succumbs momentarily to financial or emotional pressures. Sometimes the most serious cases of arson, in terms of their effect on the community, can be motivated by unthinking thrill-seeking as, for example, in the case of those who light bush fires in the dry season.

29. At this point, it should also be emphasized that, as Pincus JA said in R v Webber:^[12]

" … it is positively necessary to make it clear that co-operation, in the sense of incriminating other persons, will be likely to produce a significant discount in sentencing, quite apart from the discount obtained by pleading guilty."

30. Having considered these matters, we came to the conclusion that a sentence of actual imprisonment was required to bring home to the applicant the seriousness of his conduct and to deter others, but that it was not necessary that it be prolonged beyond the time actually served from 8 February 2005 until 7 April 2005.

Conclusion

31. We conclude that the sentence of actual imprisonment should be reduced to the period already served and the period of probation thereafter reduced to two years.

32. It is not clear that s 13A(7) of the Act requires this Court to state in closed court that the sentence is being reduced under that section and to state the sentence that the Court would otherwise have imposed. In light of the cautionary suggestion of this Court in R v M,^[13] these statements will be contained in further reasons for judgment made available only to the parties with another copy to be placed in a sealed envelope not to be opened save by order of the court or upon an application under s 188(2) of the Act.

33. For these reasons the Court made the following orders on 7 April 2005:

1. the application for leave to appeal against sentence be granted;

2. the appeal be allowed;

3. the sentence below set aside and replaced by a sentence of imprisonment from 8 February 2005 until 7 April 2005 to be followed by two years probation;

4. the Court further orders that the applicant's undertaking and the written submissions in support of this application today, and the further reasons of this Court, to be published pursuant to s 13A of the Penalties and Sentences Act 1992 (Qld), be placed in a sealed envelope that is to be opened only by order of the Court, or upon an application under s 188(2) of the Penalties and Sentences Act 1992 (Qld).