R v Gwilliams[2008] QCA 40

SUPREME COURT OF QUEENSLAND

FRASER JA:  I will ask Justice Atkinson to deliver the first judgment.

ATKINSON J:  Lonnie Michael Gwilliams was convicted on 27 October 2007 after a trial by jury in the District Court at Ipswich of wilfully and unlawfully setting fire to a dwelling on 16 March 2007.  He has appealed against the conviction on the ground that the verdict was unsafe and unsatisfactory and applied for leave to appeal against sentence on the basis the sentence was manifestly excessive.

The applicant was sentenced on 11 December 2007 to three years' imprisonment with 10 June 2009 fixed as the parole release date.  That was after he had served 18 months of the three years' imprisonment.  The sentencing Judge said this reflected an effective sentence of four years and two months taking into account that the applicant had effectively served seven months' imprisonment before the sentence was imposed which could not be declared because he was also in custody for other reasons.

Appeal against conviction

The appellant's ground of appeal is that having regard to the whole of the evidence the jury's verdict was unsafe and unsatisfactory.  As was held by the High Court in MFA v The Queen [2002] HCA 53, the question an appellate Court must consider to determine whether a verdict of guilty is unreasonable or cannot be supported having regard to the evidence is whether, upon the whole of the evidence, it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty.  There was no suggestion in this case that there was any misdirection by the Judge.  Rather the appellant, who appeared for himself in this Court, said he now regrets not giving or calling evidence.  He was called upon at his trial and chose not to give or call evidence.

The house in question was on a rural block at Borallon.  The house was owned by the appellant's former wife.  She had purchased the home with the assistance of a bank loan about four months before she met the appellant.  She met him about eight years before the fire which destroyed the house when they had both worked together.  He moved into the house and they both contributed to paying off the mortgage.  They married and eventually the appellant took over the payment of all of their bills.  The mortgage had been wholly paid out at the time of the fire.

The appellant's wife moved out of the home in August 2006 and changed her telephone number to prevent him from continuing to call her.  The appellant was responsible for paying all of the bills, including the insurance, but had not done so.  By the beginning of 2007 he would have been aware that he would have to leave the house due to legal proceedings on foot between him and his ex-wife.

Evidence was given by neighbours that placed the appellant at the scene.  One neighbour was woken up at about midnight on 16 March 2007 seeing lights on in the house and hearing the sound of music coming from the house.  Shortly after 2 a.m. she heard a vehicle and looking out and noticed that the house was on fire.  She called triple "O" and heard a car which sounded like it had driven into the driveway.  She heard the appellant or a voice she said she recognised as the appellant say, "Turn your fucking lights off."  She heard it once or twice and she heard it coming from the neighbouring property.  She gave evidence as to how well she knew the appellant which was relevant to whether or not she was able to recognise his voice.

Her husband gave evidence that he heard the sound of crackling and braking glass at about 2.30 a.m.  He looked out and saw a car stop at the gate to the appellant's property.  He heard the appellant's voice saying twice loudly and clearly, "Turn your fucking lights off."  This was immediately after he saw a car pull up in the appellant's driveway. The vehicle's headlights went off.  It stayed for a couple of minutes before it drove off towards the Brisbane Valley Highway.  The neighbour then saw a Commodore that the appellant had been diving the previous month reverse down the driveway, stop for a couple of minutes and then drive off.  He similarly gave evidence as to how well he knew the appellant.

Another neighbour who lived across the road gave evidence that he woke up when he heard sounds like hearing stones on a roof.  He went outside when his wife told him the house was on fire.  He saw a vehicle come down the road and pull up in the appellant's driveway and he heard the appellant twice yell out, "Turn the fucking headlights off."  After some minutes he saw the vehicle drive off and then another vehicle reversed on the driveway and travelled towards the house, stopped for a minute or so, and then drove off in the same direction as the first vehicle.  Both vehicles drove off quickly.  He too gave evidence as to his knowledge of the appellant which was relevant to the question of identification.

Evidence was given by Fire Brigade personnel and a police officer skilled in fire investigation which suggested that there were at least two seats of the fire, one at the front of the house near the lounge room and one in a bin at the rear.  Further evidence was given that valuable property from inside the house, including white goods such as a fridge, freezer and a washing machine, as well as a television, had recently been moved into a shipping container near the house.

Evidence was given as to mobile phone calls made from the appellant's mobile phone including immediately prior to the fire to relatives of the appellant's wife.  The appellant did not phone triple "O" or raise any alarm about the fire. 

As Mr Copley, counsel for the Director of Public Prosecutions, helpfully summarised in his written submissions, it was open to the jury to conclude that it was the appellant who set the fires.  He was the person who ordinarily occupied the house, he was potentially facing removal from the home, personal property of some value had recently been placed in the shipping container.  There was direct evidence from three persons that the appellant was at the house at the time of the fire, he failed to call triple "O".  The remark he twice made was consistent with a wish to conceal something.  He left the house and did not stay to fight the fire.

Having regard to the number of fires, the distance between each, the location of the fires, and the fact that those at the premises failed to call the Fire Brigade, it was open to the jury to conclude that whoever set the fires did so wilfully.  And it is clear that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the appellant was, as the jury found, guilty of the offence.

Application for leave to appeal against sentence

The appellant indicated during his oral submissions that if he was not successful on his appeal against conviction, he did not wish to continue with his application for leave to appeal against sentence.  Nevertheless, in reply he did address the question of his sentence again, so in my view it is necessary to give a judgment on the application for leave to appeal against sentence.

It could not, in my view, be said that the sentence was manifestly excessive.  The applicant was convicted by a jury and so did not have the advantage of a plea of guilty.  The house which he destroyed through arson was the matrimonial property.  It was in the name of his former wife but he made substantial payments towards the mortgage so both he and she suffered loss because of it.  The fire did not endanger anyone's life and many of the possessions had been removed from the home before the fire occurred.  There was no aspect of insurance fraud but the motivation lay in the property dispute between the former couple. 

The loss to the complainant was in the order of $170,000.  As the house was not just damaged, but burnt to the ground, the land had to be sold with the knowledge that there would be a cost to demolish what was left of the burnt-out shell of the house.  It was sold for $250,000 after the fire.

The applicant who was aged 35 when the offence was committed had a lengthy criminal history dating back to 1990 when he was convicted of various offences including aggravated assault of a female and given two years' probation.  He had also been convicted over the years since then of possession of a dangerous article, obscene language, resisting police, wilful and unlawful damage to property, unlawful assault, breach of a bail undertaking, dangerous driving, being found in an enclosed yard without lawful excuse, possession of property suspected of being unlawfully obtained, unlawful use of a motor vehicle intended to be used for the purpose of facilitating the commission of an indictable offence, break, enter and steal, break and enter place with intent, possession of a pipe used in connection with smoking a dangerous drug, breach of community service order, stealing, going armed in public in a manner to cause fear, possession of a weapon whilst not being the holder of a licence as specified in schedule 2 of the Weapons Act, breach of leave of absence, possessing dangerous drugs, obstructing police, disqualified driving, driving a motor vehicle whilst under the influence of liquor or a drug, stating false name, failure to provide a specimen of breath for analysis, possessing tainted property, possessing and acquiring restricted items, possessing a magazine for a category C, D, R or H weapon and committing a public nuisance.  His offending continued relentlessly between 1990 and 1999 when he was imprisoned and then commenced again in 2006.

In those circumstances, as can be seen from the Court of Appeal decision R v Johnson [2007] QCA 249, and the many cases therein considered, an effective sentence of what was said by the sentencing Judge to be of four years and two months was not outside the proper exercise of sentencing discretion.  In fact the head sentence imposed was three years' imprisonment and so the applicant was able to be given a fixed parole release date after he had served 18 months of that imprisonment. 

Given the difficulties that his criminal history and his previous breaches of bail and the other Court orders would have provided for any prospect of his release on parole otherwise than as fixed by the Court it could not be said that that parole release date was manifestly excessive.

In my view the orders should be that the appeal is dismissed and the application for leave to appeal the sentence is refused.

FRASER JA:  Yes, I agree with the orders proposed and the reasons given for those orders by Justice Atkinson.

MULLINS J:  I agree.

FRASER JA:  The orders of the Court are that the appeal against conviction is dismissed; the application for leave to appeal against the sentence is dismissed.