R v Porter[2014] QCA 14

SUPREME COURT OF QUEENSLAND

[1] CHIEF JUSTICE:  I have had the advantage of reading the reasons for judgment of Gotterson JA.  I agree that the application should be refused, for those reasons.

[2] FRASER JA:  I agree with the reasons for judgment of Gotterson JA and the order proposed by his Honour.

[3] GOTTERSON JA:  On 27 March 2013 at the District Court at Toowoomba, the applicant, Scott James Porter, pleaded guilty to a number of offences for which he was charged by way of two separate indictments[1] and to some five other offences for which he was charged summarily.  He was sentenced in respect of all offences that day.

[4] The offence charged in one of the indictments[2] was that on 6 September 2011, he committed arson by way of wilfully and unlawfully setting fire to a house at Toowoomba.  For this offence, the applicant was sentenced to three years imprisonment.

[5] The other offences charged by way of indictment[3] all occurred between 3 and 8 October 2011.  For the offence of burglary and stealing a set of car keys, the applicant was sentenced to imprisonment for one year, cumulative upon the three years for the arson offence.  He was also sentenced to six months imprisonment on each of the three other offences so charged which involved unlawful use of a motor vehicle and stealing fuel during this period.  These terms are to be served concurrently with the one year term of imprisonment.

[6] The offences for which the applicant was charged summarily also arose out of his conduct between 3 and 8 October 2011.  For each of two of them, namely, the dangerous operation of a motor vehicle whilst speeding and the stealing of fuel, he was sentenced to six months imprisonment, also to be served concurrently with the one year term.  He was disqualified from holding or obtaining a driver’s licence for two years.  For the other offences, he was admonished and discharged with no conviction recorded.

[7] Cumulatively, these sentences impose a term of four years imprisonment.  A declaration that the applicant had served 39 days pre-sentence custody was made.  A parole eligibility date of 18 June 2014 was fixed.

[8] By order made in this Court on 3 September 2013, the applicant was granted an extension of time until 28 August 2013 to file an application for leave to appeal against sentence.  His Application for Leave to Appeal,[4] filed on 27 August 2013, sets out one ground of appeal.  It is that the sentence was manifestly excessive in all the circumstances.

Circumstances of the offending

[9] The arson offence occurred at the house of the applicant’s father.  During the morning, his father had refused the applicant’s request for a loan of $1,000.  At this time, the applicant’s sister was also at the house.  During the day, the applicant made threats that he would kill himself or his sister.

[10] Sometime later, the applicant went to the main bedroom in the house with a can of petrol and a dagger.  He doused the room with petrol.  He lit his cigarette lighter and, on three occasions, stooped down close to the petrol.  On the third occasion, the petrol fumes ignited.  A serious fire ensued causing property damage to the value of about $126,000 to the house.  The applicant sustained some burn injuries in the fire.  Fortunately, neither his father nor his sister were injured.

[11] About one month later, and while he was on bail for the arson offence, the applicant broke into another residence, stole a set of car keys and stole the car from the residence.  He drove the car for the following few days, filling it with fuel for which he did not pay.

[12] On 8 October 2011, police observed the applicant driving in the stolen car.  The lights and sirens of the police car were activated.  The applicant accelerated heavily, overtaking a vehicle travelling in the same direction by crossing the centre line and narrowly missing a utility travelling in the opposite direction.  The pursuit was terminated.  A short time later, police observed the applicant driving through an intersection without stopping at the stop sign.  Again, the applicant accelerated heavily when police activated the lights and sirens.  He abandoned the car which was found that evening at a location renowned for the dumping of stolen cars.  The wheels had been removed and there was damage to the interior, exterior and the engine amounting to about $17,000 for which the learned sentencing judge regarded the applicant as “directly or indirectly responsible”.

Applicant’s personal circumstances

[13] The applicant was examined by Dr R E Phillipson, a consultant psychiatrist, on 9 January 2012.  Dr Phillipson’s report dated 10 January 2012[5] was admitted into evidence at the sentence hearing.[6]  As Dr Phillipson noted, the applicant has had a long substance use history.  He began drinking alcohol at 10 years of age, using amphetamines in his mid-teens, and smoking cannabis.  He engaged in anti-social behaviour.  From 13 years of age, he would break and enter houses, steal, set fires alight and joy ride in cars.[7]

[14] Dr Phillipson expressed the following opinion of the applicant in his report:

“Scott Porter is a 23-year-old man, the father of four young children.  He is currently on bail and receiving regular psychiatric care.  In my opinion he has symptoms consistent with a drug induced psychosis.  From the material available to me and my assessment of Mr Porter, I am of the opinion that he was not of Unsound Mind at the material times.  He is fit for trial, and has not disputed the basic facts in relation to these charges.  He needs to remain under psychiatric care for the foreseeable future.  There is some doubt as to his reliability in terms of compliance.  However, he has expressed the desire to stay off illicit substances in an attempt to rekindle the relationship that he has with his partner and to have more input into the lives of his children.”[8]

Dr Phillipson also expressed the view that for the relevant offending, including the arson, it “may well be that [the applicant] was impaired in his ability to control his actions by intoxication or withdrawal from amphetamines at the material time.”[9]

The applicant’s submissions

[15] The applicant advanced two propositions in support of the ground of appeal.  One was that the sentence of three years for arson failed to reflect the criminality of his conduct.  The second was that the cumulative sentencing had resulted in an unduly harsh overall sentence.

[16] The applicant also stated in written submissions that despite the parole eligibility date set, he was of the belief that he would not in fact be eligible to apply for parole until some time in 2015.  This is so because, as he understands it, he would be required to undergo a “Pathways” program first and this program would not be available to him until 2015.  This submission must be rejected.  No evidence of facts which might justify the applicant’s understanding was put before this Court.  Moreover, the applicant’s apprehension that his application for parole will not be dealt with on its merits when he becomes eligible to apply for it is not a basis on which the sentence imposed can be called into question.[10]

The arson sentence

[17] The applicant’s submission that the three year sentence for arson did not reflect the criminality of his conduct is based upon several propositions.  They are that the standard sentence for arson is three years imprisonment; that where an offender suffers a mental disorder, the criminality of the offending is reduced; and that the reduction in criminality is to be reflected in a mitigation of the sentence.  From these propositions, the applicant submits, by way of deduction, that the sentence imposed, being the standard, did not, or did not sufficiently, mitigate for his mental disorder.

[18] The observations of the learned sentencing judge reveal that she was conscious of the second and third of these propositions.  Her Honour said:

“It’s also against a background of serious mental illness, which appears to be essentially drug-induced, and I accept that at the time of this offending, you were in a state of vulnerability because of your mental illness. Whilst it’s been found by the psychiatrist who assessed you that you weren’t deprived of your capacity to know what you were doing and what was right and what was wrong, nevertheless your capacity was impaired, and I accept that, and that does reduce the criminality, overall, of your behaviour.”[11]

[19] These observations also reveal that her Honour clearly did intend to mitigate the sentence for arson on account of the applicant’s mental disorder.  In my view, the validity of the deduction made by the applicant that there was no or insufficient mitigation on account of his mental disorder is very much dependent on the first of his propositions, namely, that the standard sentence for arson without mitigation for mental disorder, is three years.  I now turn to examine that proposition.

[20] In R v Johnson[12] this Court upheld a head sentence of four years for arson, holding that in appropriate cases, a head sentence of more than three years is justified for this offence.  In that case, the applicant relied heavily on the observations of Jerrard JA in R v Johnson[13] that “…where there is no question of fraud and where the safety of others is not a consideration, the appropriate head sentence for the offence of arson is about three years”.[14]

[21] In Johnson 2007 both Williams JA and Jerrard JA referred with approval to an analysis by the third member of the Court, Mullins J, of a number of decisions of this Court concerning sentences for arson which tended to show that while the head sentence for arson may usually be around three years, a variety of factors not limited to fraud or imperilling the safety of others, can result in a higher sentence.

[22] Jerrard JA was moved to qualify what he had said in Johnson 2005 in the following terms:

“[6]In this matter I have read the reasons for judgment of Mullins J, and agree with those and with the order proposed by Her Honour. I add that in R v Collins[15] (a matter involving the arson of a motor vehicle) I quoted from the judgment of Mackenzie J in R v Cramond[16] where His Honour wrote:

‘Support can be found in the authorities for the view that where there is no suggestion of fraud and where the safety of others is not a consideration, a head sentence of up to three years may appropriately be imposed as for example in Henderson, CA No 198 of 1993 and in Sharkey, CA No 28 of 1994.’

[7]The sentence of four years was reduced in Cramond to one of three years, similar to that imposed in R v Weyers,[17] a matter of the arson of a bus, and to the three years imposed in Barling,[18] the arson of a caravan causing $10,000 worth of damage. I added later in R v Collins that:

‘The effect of the judgments in Henderson, Sharkey, Cramond, Weyers, and Barling is to establish a degree of consistency in head sentences for arson that does not involve potential fraud or possible injury to others.’

[8]Mullins J has demonstrated in her reasons in this matter, in her analysis of other decisions of this Court in matters of arson, that that statement by myself in Collins, and repeated by me in R v Johnson[19] (“...where there is no question of fraud and where the safety of others is not a consideration, the appropriate head sentence for the offence of arson is about three years”) should, for accuracy, be limited to those matters where the extent of the damage caused by the fire is not a significant factor. In Henderson it was $20,000, in Barling $10,000, in Cramond a motor vehicle valued at $16,000, and in Weyers the bus was of modest value. A sentencing judge dealing with a matter in which there has been a significant amount of damage caused to another person’s property, such as in this matter, is clearly entitled to take that into account as a relevant factor when imposing sentence, as the learned sentencing judge did, and likewise a sentencing judge should consider the antecedents of the offender, and any other relevant matters. I agree with the judgment of Mullins J.”

[23] The reasons of each of the members of the court in Johnson 2007 demonstrate that the applicant’s first proposition advanced here is both inaccurate and incomplete.  Significantly, two factors specifically identified in Johnson 2007 as displacing a head sentence for arson of three years are present in this case.

[24] Firstly, the damage caused by the fire by the applicant was extensive.  Emergency services succeeded in containing the blaze to the front of the house.  Nevertheless, a number of rooms were fire damaged and those that were not, sustained smoke and water damage.  As I have noted, the amount of damage was of the order of $126,000.

[25] Secondly, the fire did put at risk the safety of others, namely, the applicant’s father and his sister.  Apparently each was awake at the time and able to escape from the house.  The risk was mitigated to some extent in the case of the sister whom the applicant had warned to stay out of the house.

[26] Further, as the preceding remarks of Jerrard JA indicate,[20] the applicant’s antecedents, to which I have referred, were also relevant to his sentencing.  They, it will be recalled, constituted a “fairly serious” criminal history.

[27] The applicant’s offending was very serious.  But for his mental disorder, a sentence significantly in excess of three years would have been appropriate for it.  In my view, the sentence of three years imposed mitigated for the reduction in criminality attributable to his mental disorder, and did so adequately.  I am quite unpersuaded that the sentence for the arson offence was manifestly excessive.

The cumulative sentence

[28] The offending which occurred between 3 and 8 October 2011 was separate in time and markedly different in character from the arson offence.  It was clearly open to the learned sentencing judge to impose a separate punishment for it by way of a cumulative sentence.  The applicant’s submission that that sentence has resulted in an overall sentence that is manifestly excessive having regard to the totality of his criminality has little to commend it.

Order

[29] As the grounds on which this application has been argued have not succeeded, it must be refused.  I would propose the following order:

1. Application for leave to appeal against sentence refused.