R v Robertson[2017] QCA 164

SUPREME COURT OF QUEENSLAND

1. MORRISON JA:  I have read the reasons of Atkinson J and agree with those reasons and the orders her Honour proposes.
2. PHILIPPIDES JA:  I have had the benefit of reading the reasons for judgment of Atkinson J.  I agree with the conclusions reached in respect of the grounds of appeal other than that concerning whether the head sentence of two and half years imprisonment for the offence of attempted arson was manifestly excessive.  There was no challenge to the order fixing the parole release date at 8 September 2017 (that is after some six months).
3. In advancing the submission that the head sentence was manifestly excessive and advocating for a head sentence in the range of 12 to 15 months, reliance was placed on R v Johnson,^[1] where Jerrard JA stated that in circumstances where there was no question of fraud and where the safety of others is not a consideration, the appropriate sentence for arson is about three years.  Those remarks were qualified by Jerrard JA in (the unrelated case of) R v Johnson^[2] by limiting them to circumstances where it was also the case that the damage caused was not a significant factor.
4. Of the authorities referred to this Court, only R v Silasack^[3] and R v Rhode^[4] concerned the offence of attempted arson.  The present case was clearly less serious than Silasack, where five years was imposed for attempted arson in circumstances where the offending involved aggravated features: the corrupting of others to participate in the offending and the organising of the firebombing of the premises knowing they were occupied.
5. On the other hand, the present case cannot, in my view, be said to have extenuating circumstances such as were found to exist in Rhode, which attracted a two year sentence, described as “lenient”.^[5]  As in Rhode, it was more a matter of good fortune than management, as the sentencing judge remarked, that no one was hurt because the fire did not take hold.
6. Relevant to the seriousness of the offending is the characterisation of the applicant’s conduct.  I note the statements made by Atkinson J at [45], [48] and [128] and make the following observations.  The elements of the offence of attempted arson, to which the applicant pleaded, comprise:

1. an intention to commit the offence of arson, that is wilfully and unlawfully setting fire to a building;
2. beginning to put the intention into execution by means adapted to its fulfilment (ie beginning to carry out the intention to commit arson in a way suitable to achieving that intention);
3. manifesting that intention by some overt act; and
4. failing to fulfil the intention to such an extent as to commit the offence of arson.

7. The sentencing remarks that the applicant attempted to “torch” the landlord’s house do not reveal a finding of lack of the requisite intention.  The intention required for the offence of attempted arson to be committed is relevantly that the applicant meant to set fire to the building.^[6]  The requisite intention was not whether she intended to set fire to the premises, intending to destroy the building, partially or wholly or reckless as to that result.  The submission by the applicant’s counsel at sentence was that “the [phone book] that was thrown onto the tile floor was not intended by her to destroy the entire dwelling, and in fact didn’t.”^[7]  That went to whether the specific intention required to satisfy the elements of attempted arson, namely an intention to set fire to the building, was accompanied by a further intention, not required to be satisfied to make out the offence, to destroy the premises, whether in part or completely.
8. Even accepting the submission made at sentence on the applicant’s behalf that the applicant did not intend to destroy the entire building, it cannot be doubted that the sentencing judge was correct to characterise the attempted arson as very serious conduct.
9. While the applicant did not have a criminal history, there is a feature of the offending conduct in this case that is particularly concerning.  The attempted arson occurred in the context of a broken relationship and in circumstances where a Domestic Violence Order (DVO) had been obtained and had been breached on a number of occasions.  The attempted arson was thus an act of domestic violence.  The feature of the offending taking place in the context of a broken relationship has been rightly regarded as a serious factor, as was noted in R v Francis by McMurdo P.^[8]  That is even more so where the offending occurs where a DVO is in place.  Condemnation of offending occurring in such circumstances requires an appropriately denunciatory and deterrent sentence.
10. In my view, the cases referred to this court, including those concerning arson, indicate that the head sentence imposed was clearly within the permissible exercise of the sentencing judge’s discretion.  Given that only some six months of the sentence was required to be served, which represents a parole release date considerably below the one‑third mark that would generally reflect matters of mitigation including the plea, I am unable to find that the head sentence imposed was excessive, let alone manifestly excessive, so as to permit interference by this court.  It follows that, in my view, there is no basis for interfering with the head sentence on the ground that the sentencing discretion miscarried by the imposition of a manifestly excessive sentence.  I would refuse the application.
11. ATKINSON J:  The applicant, Lisa Robertson, pleaded guilty to a number of offences which were committed on 23 January 2016.  For an offence of attempted arson she was sentenced to two years and six months’ imprisonment.  She also received concurrent periods of imprisonment for the following offences which were transferred from the Magistrates Court under s 651 of the Criminal Code 1899: trespass, three months’ imprisonment; enter premises with intent, 18 months’ imprisonment; enter premises and stealing, 18 months’ imprisonment; and fraud, three months’ imprisonment.  Her court ordered parole release date was fixed at 8 September 2017, after she had served approximately six months of the two years six months term of imprisonment imposed.
12. The grounds of appeal were set out in the Notice of Appeal filed in this court.  They were that the learned sentencing judge made an error:
    1. In not applying the principle that a sentence of imprisonment is a last resort;
    2. In relying on an inference that the offending was more serious than it was, when this was not supported by the facts;
    3. In not considering wholly or partly suspending the sentence;
    4. In suggesting that sending a message to the community denouncing the behaviour necessitated a period of actual imprisonment;
    5. By imposing a parole release date without alerting defence counsel that he was considering such a measure;
    6. By failing to consider the need for specific deterrence was not high; and
    7. An undisclosed error.
13. In addition, leave was sought at the hearing to add the following additional ground that the learned sentencing Judge:

“erred in concluding that the applicant’s conduct constituted an unfocused, dangerous and damaging response to the break-up, and that this was worse [than perhaps a deliberate planned act], and it did not mitigate the applicant’s criminality.  Further, by sentencing the applicant on the basis that her offending was at the very serious end of an attempted arson, his Honour mischaracterised her criminality.”

The circumstances of the offending

14. The applicant was sentenced on a schedule of facts agreed between the prosecution and the defence which was made an exhibit in the proceedings.
15. The schedule of facts shows that in 2014 the owner of a house in Billabong Place, Deception Bay, rented it to the applicant and her then partner, Meleigh McKenzie.  The applicant moved out of the house in 2014 but continued her relationship with Ms McKenzie until late October/early November 2015.  On 26 November 2015, Ms McKenzie obtained a temporary protection order against the applicant which was served on the applicant on 9 December 2015.
16. Prior to the offending the subject of this application, between 9 December 2015 and 13 December 2015, the applicant fraudulently used a Visa card belonging to Ms McKenzie on 17 occasions for the purchase of items valued at $774.00.  Ms McKenzie made a complaint to police on 15 December 2015.  Between 14 and 18 December 2015, the applicant contacted Ms McKenzie by text or email in breach of the temporary protection order.  Ms McKenzie made a complaint to police on 18 December 2015, however the police did not contact the applicant until 24 January 2016.  The applicant was then issued with a notice to appear for the breach of the order.
17. The applicant was removed from the lease in January 2015.  Ms McKenzie stayed at the property at Billabong Place until 10 January 2016 when she vacated the property.
18. In the early hours of the morning of 23 January 2016, a neighbour heard crashing and the sound of breaking glass coming from the house.  Upon further inspection, the neighbour saw a white sedan reverse into the property’s driveway before driving away.  The neighbour saw fire and smoke coming out of one of the small rooms.  He telephoned 000 and reported the fire.  The circumstances of the setting of that fire constitute the offence of attempted arson.
19. A short time after the neighbour telephoned 000, police and the Queensland Fire and Rescue attended the property and the fire was extinguished.  When police entered the dwelling they saw that the fire was mainly contained to the toilet room of the house.  The toilet seat and cistern were destroyed by the fire.  The walls were covered in black soot and the police located some grass clippings and a phone book in the toilet room which both appeared to be burnt.  There was a strong smell of fuel in the room.  The insurance estimate was that approximately $18,000 damage was caused.
20. Outside the room, police located a fly screen frame leaning against the external wall underneath the toilet window and a Pump water bottle on the concrete pathway.  Forensic investigations located DNA which matched the applicant’s DNA profile on the frame.  Two fingerprints were located on the water bottle which were identical matches for the applicant’s right index finger and right middle finger.
21. The applicant was seen by police driving her white Commodore in the area in the early hours of the morning after the fire had been lit.  She was known to police due to the conflict that had occurred with Ms McKenzie.  In the circumstances, the Crown alleged that the attempted arson was an act of domestic violence.
22. The applicant was not charged until 6 March 2016 when she was located at her home address and taken to the Redcliffe police station.  She agreed to participate in a formal police interview during which she denied any knowledge or involvement in the fire.  When questioned by police about her DNA profile and fingerprints being found at the scene, she said “I just want it over and done with”.  She was charged with the offence and issued with a notice to appear.
23. The circumstances of the commission of the other offences dealt with by the learned sentencing judge were that, while she was at the address at Billabong Place on the night she lit the fire, the applicant entered a shed on that property and stole a mower and whipper snipper.  The items belonged to the landlord but it was submitted that she had taken the items believing they belonged to her ex-partner Ms McKenzie.  At approximately midday on the same day the applicant pawned both items at Cash Converters at Redcliffe.

The sentencing remarks

24. After dealing with the circumstances of the offences, the learned sentencing judge referred to the serious nature of this conduct, which was irrational and occurred after the end of a relationship.  His Honour referred to the fact that she had attempted to “torch” a house where her partner had lived which belonged to another person and, in addition, stole the landlord’s lawnmower and whipper snipper and pawned them believing them to belong to her ex-partner.  His Honour referred to the fact that there was no-one in the house and the fire did not take hold of the rest of the house although both could have been the case.  He also referred to the fact that although she had apologised she had not paid any compensation for the damage caused.
25. His Honour also referred to her current relationship and employment but that, regardless of those circumstances, there must be a substantial and appropriate penalty which directly reflected the very serious nature of her offending, which involved not just attempted arson but also breaking into the house, breaking into the shed, stealing items from the shed and fraudulently pawning them, as well as trespassing.  He referred to her difficult personal circumstances and weighed that against the seriousness of her conduct and the necessity to send very clear messages to the community and to her personally about the consequences of her behaviour.  His Honour also took into account that she had apologised, co-operated and had been dealt with by an early plea.  His Honour had regard to prior relevant decisions and said that it was not a case that could ever have been dealt with by a non-custodial sentence that did not involve some period of actual custody.

Submissions on the grounds of appeal

26. Neither the written or oral submissions made on behalf of the applicant follow precisely the grounds of appeal nevertheless it is necessary to address each of the grounds of appeal set out in the application for leave to appeal against sentence to determine whether any of them has merit.  In view of the way in which the applicant’s submissions were framed, it is convenient to group some of the grounds of appeal and deal with them in the order in which they appear to be covered in the applicant’s written submissions.

Mischaracterisation of the applicant’s criminality

27. This appears to cover ground 2: that the learned sentencing judge erred in relying on an inference that the offending was more serious than it was, when this was not supported by the facts; and the additional ground (ground 8): that the judge erred in concluding that the applicant’s conduct constituted an unfocused, dangerous and damaging response to the break-up, and that this was worse [than perhaps a deliberate planned act], and it did not mitigate the applicant’s criminality.  Further, by sentencing the applicant on the basis that her offending was at the very serious end of an attempted arson, his Honour mischaracterised her criminality.

Failure to afford procedural fairness

28. This appears to cover ground 5: that the learned sentencing judge erred by imposing a parole release date without alerting defence counsel that he was considering such a measure.

Prison a last resort

29. The written submissions appear to cover grounds 1, 3, 4 and 6 which were as follows.  Ground 1: that the learned sentencing judge erred in not applying the principle that a sentence of imprisonment is a last resort; ground 3: that the judge erred in not considering wholly or partly suspending the sentence; ground 4: that the judge erred in suggesting that sending a message to the community denouncing the behaviour necessitated a period of actual imprisonment; and ground 6: that the judge erred by failing to consider the need for specific deterrence was not high.

Manifest excess

30. To the extent that this represents a separate ground of appeal it appears to relate to ground 7: an undisclosed error.

Mischaracterisation of the applicant’s criminality

The applicant’s submissions

31. The applicant submitted that by sentencing her on the basis that she intended to “torch” the landlord’s house, or that her criminality was at the more serious end of an attempted arson due its being unfocused, the learned trial judge erred.  In support of that submission the applicant’s counsel referred to a remark made by the sentencing judge in response to defence counsel’s submission that the applicant knew that the house where she set the fire was empty and that her former partner had moved out of the house.  His Honour responded to that submission that he was not sure that it made it any better that the applicant’s partner had moved out of the house and that she had “torched” her ex-landlord’s house or at least attempted to do so.  The applicant’s counsel submitted that it was “accepted by the defence” that her conduct was reckless and the fire could easily have taken hold, but it was not her intention that it do so, and it did not in fact take hold.
32. The applicant’s counsel then referred to a submission he made before the learned sentencing judge that it was apparent that the applicant went there without any intention to light the fire.  He submitted that the sentencing judge should take account of the fact that the applicant had lived in the house and knew that the room had a tiled floor and that her act of throwing the phone book onto that floor was designed to create a mess, harass and ultimately result in financial detriment to the complainant in terms of having to pay for additional clean up fees.  It was submitted before this court that the applicant should not have been sentenced on the basis that she intended something more, such as to “torch” the house of an unrelated landlord, or that her recklessness went beyond the risk of the fire taking hold, or that her conduct would suggest that (at least in her mind at the time) that was not a probable outcome.
33. The applicant’s counsel referred to the fact that the Crown Prosecutor below had submitted that there was a spotlight at present, and rightly so, on domestic violence and to try and burn down the house her ex-partner had left was malicious and vengeful and required a strong deterrent sentence, both generally to discourage other people from behaving in this way, and personally, the applicant, whose behaviour was concerning and escalating in that couple of weeks’ period.  The applicant’s counsel submitted that the Crown submission that this was an attempt to burn down the landlord’s house was not supported on the facts and was not pursued.  It was not referred to by the Prosecutor in the submissions in reply.
34. The applicant’s counsel also pointed to another remark made by the learned sentencing judge in the course of defence counsel’s submissions below where his Honour remarked that it was lucky that the fire did not take hold and that that indicated that it was at the very serious end of an attempted arson not mitigated by its irrationality.  His Honour remarked in argument that he opined that it made it worse “because it’s an unfocused, dangerous and damaging response to the breakup of a relationship”.
35. The applicant’s counsel submitted that these matters infected the judge’s sentencing remarks when he referred to her as “attempting to torch your ex-landlord’s house where your partner no longer lives – so there’s not even a direct connection anyway.”

The respondent’s submissions

36. The respondent submitted that a cautious approach is warranted when having regard to exchanges in the course of submissions as being an amplification for the reasons for sentence: R v Hyatt.^[9]  Moreover it was submitted by the respondent that the applicant wrongly characterised or understood the nature of the judge’s remarks in the course of submissions.  The respondent further submitted that the applicant wrongly understood the words “torch” as used by the sentencing judge to mean to burn the whole house down.  Rather it should be understood in its context to mean “set fire to”.  There was no reference in the sentencing remarks to any finding that there was a specific intention on the part of the applicant to destroy the entire house.
37. It was submitted that the judge was nonetheless entitled to determine that the offending was a serious example of attempted arson given that the fire was lit inside a dwelling at night with intent to cause damage.  There was a risk of further more extensive damage being occasioned.  The motive for the applicant’s offending was vengeance and the offending was committed in breach of a domestic violence order.  It was submitted that the absence of a specific intention to kill or harm another by lighting the fire did not preclude the characterisation of the attempted arson as being to the upper end of seriousness.  Had such an intention existed it would itself have constituted the commission of further criminal offending.

Consideration

38. The learned sentencing judge, as one might expect, tested the propositions put to him by defence counsel in his submissions.  The fact that propositions are tested does not signify that a sentencing judge has formed a concluded view.  For that one must consider the sentencing remarks.
39. I respectfully agree with the remarks made by Margaret Wilson AJA in R v Hyatt^[10] where her Honour dealt with the extent to which an appeal court should have regard to exchanges between the judge and counsel during submissions.  Her Honour held:

“I think a cautious approach is warranted.  Exchanges between the bench and counsel are designed to draw out and test submissions, and remarks made by a judge during such exchanges are often at odds with a conclusion at which he or she ultimately arrives after hearing both sides and giving their submissions due consideration.  In my respectful opinion a practice of relying unduly on exchanges between the bench and counsel should not be allowed to develop.”

40. This is not to suggest that there may not be cases in which the exchanges between Bench and Bar are properly used to amplify the reasons for sentence that are given but this is not such a case.  His Honour comprehensively dealt with the circumstances of the attempted arson in his sentencing remarks which fully justify his conclusion that the applicant’s criminal conduct had to be viewed very seriously.  His Honour said of the offending:

“Now, as you’ve probably worked out in my discussions with your counsel Mr Sibley, I consider this to be very serious conduct.  Luckily, the fire didn’t take hold outside of the toilet but that’s entirely good luck rather than good management, quite frankly, and that’s what leaves you with an attempted arson rather than an arson.  But, when we step back and look at your conduct, it can only be viewed very seriously.  Now as I said to your counsel it was irrational – and I’ve got no doubt about that because you’re caught up in a relationship that’s ended and that’s sad but that’s reality.  Relationships end every day.  To respond to the ending of a relationship by torching or, at least, attempting to torch not even your ex’s house but the house out of which you say, through your counsel, you were certain that your ex has moved out with the dog means that you’re torching a completely innocent third party, the landlord, stealing his lawnmower and whipper snipper from his shed and pawning them.

Again, you say through your counsel somehow to get back at your partner because you thought they were hers but that doesn’t sit easily with working out that she’s left, but even if that is your thinking, that’s irrational as well.  And all of this is very serious criminal conduct.  I accept there was no-one in the house – there could have been.  I accept the fire didn’t take hold of the rest of the house – it could have done.  I accept that you were deeply distressed, upset and behaving irrationally – there’s no doubt about it, because when you think about it rationally, none of this makes sense.  But you’ve still committed a series of very serious criminal offences and as sympathetically as I’m able to look at them – and I acknowledge that you’ve provided an apology, but I’ve not heard anything about a single cent being paid.”

41. Did those remarks mean that the judge erred in the way in which he characterised the applicant’s criminality?
42. The offence of arson is found in s 461 of the Criminal Code:

“461 Arson

1. Any person who wilfully and unlawfully sets fire to any of the things following, that is to say —

1. a building or structure;

…”

43. The maximum punishment for an offence under s 461 is life imprisonment.
44. The applicant was however charged with attempted arson, which means that s 461 must be read with s 4 of the Criminal Code which relevantly provides:

“4 Attempts to commit offences

1. When a person, intending to commit an offence, begins to put the person’s intention into execution by means adapted to its fulfilment, and manifests the person’s intention by some overt act, but does not fulfil the person’s intention to such an extent as to commit the offence, the person is said to attempt to commit the offence.

2. It is immaterial, except so far as regards punishment, whether the offender does all that is necessary on the offender’s part for completing the commission of the offence, or whether the complete fulfilment of the offender’s intention is prevented by circumstances independent of his or her will, or whether the offender desists of his or her own motion from the further prosecution of the offender’s intention.”

45. Because of the operation of s 536(2) of the Criminal Code, the maximum punishment for attempted arson is 14 years’ imprisonment.  It is a necessary ingredient of the offence of attempted arson that the person intended to commit arson but did not.  In this case the elements of the offence were that the applicant intended to set fire to the landlord’s house whether intending to destroy it or reckless as to its destruction, carried out the overt act in furtherance of that intention of setting fire to a telephone book with accelerant added and throwing that inside a room of the house, but failed to set fire to the landlord’s house as the fire was extinguished before it could ignite the building itself.
46. There was some attention given in the submissions to precisely what the intention of the applicant was when she committed the offence.  The Crown’s submissions refer to the need for deterrence when her actions were “to try to burn down the house” where her ex-partner had lived, albeit in a circumstance when she knew the house was unoccupied and that there was no risk to any person’s safety.  The defence submission was that her actions were “an attempt to create a mess” in circumstances “that are very dangerous in terms of the potential that it could have caught fire to the rest of the house” but “was not intended to destroy the whole building”.
47. In light of the difference in submissions as to intention, the sentencing judge was entitled to make his own finding as to the applicant’s intention which he characterised as attempting to “torch” the landlord’s house.  The word “torch” is in this context used colloquially and does not have a precise meaning.  The Macquarie dictionary, which is probably the best guide to modern Australian usage, shows that as a verb used colloquially, torch can be used to mean to set fire to a building (for insurance) or to destroy a building by setting fire to it.  As noted, the respondent submitted on appeal that the sentencing judge must have meant the term “torch” to mean to set fire to the building rather than to destroy it by setting fire to it.  The applicant committed the offence of attempted arson rather than arson as she attempted to set fire to the building but failed.
48. The respondent also submitted on appeal that the sentencing judge did not make any finding that the applicant intended to destroy the house.  It would appear that when one considers the whole of the sentencing remarks, the judge concluded that the proper characterisation of the applicant’s behaviour was that she attempted to set fire to the landlord’s house not intending to destroy it but reckless as to the consequences of her dangerous, irrational behaviour.  That, together with the other criminal offending, can properly be described, as the sentencing judge described it, as very serious criminal conduct.
49. Later in the sentencing remarks the sentencing judge observed that regardless of the personal circumstances of the applicant “there must be a substantial and appropriate penalty that directly reflects the very serious nature of your offending, the cumulative nature of it because it was not just the attempted arson, it was breaking into that house, breaking into the shed, stealing the items from the shed and fraudulently pawning them and, of course, trespassing.”
50. The learned sentencing judge carefully set out in his sentencing remarks the factors which led him to the conclusion that the applicant’s offending was a serious example of the offence of attempted arson.  It has not been demonstrated that his Honour was in error and these grounds of the application for leave to appeal must fail.

Failure to afford procedural fairness

51. The applicant submitted that, before the learned sentencing judge, her counsel submitted that there was a range of options available to the judge in sentencing the defendant.  If his Honour was considering imprisonment then it should be in the range of 12 to 18 months and in all of the circumstances the discretion to wholly suspend the sentence could be exercised.  Alternatively it was submitted that the judge could consider probation with or without recording a conviction particularly given the benefit the applicant would obtain if she continued to receive counselling.
52. Relying on the decisions discussed in R v Francis,^[11] all of which referred to more serious circumstances, the Crown submitted that a sentence in the range of three to four years was appropriate with the sentence being towards the bottom end of that range.  The applicant’s submission is that the learned sentencing judge “did not alert the defence that he was considering a much higher head sentence than 12 to 18 months.”  The applicant further submitted that the judge did not alert the defence that he was considering imposing a parole release date.  Accordingly it was submitted there was a failure to afford natural justice to the applicant whose counsel could have made submissions as to why parole was not necessary.

The respondent’s submissions

53. The respondent submitted that it was consistent with the applicant’s submissions at first instance that probation, which would mean that the applicant would continue to receive assistance while she was in the community, was the appropriate sentencing regime and that, if the learned sentencing judge determined that an appropriate sentence included a term of imprisonment, then it would be of advantage to the applicant and the community if she were released on parole.
54. Further the respondent submitted that it was not incumbent upon the learned sentencing judge in the circumstances to alert the parties that he was considering requiring the applicant to be subject to parole upon her release.  The imposition of parole is one of the consequences of the application of s 160B to s 160D of the Penalties and Sentences Act 1992 (PSA).

Consideration

55. The learned sentencing judge’s approach to the appropriate penalty in this case was entirely orthodox.  A sentencing judge is not obliged to set out each and every alternative available to that judge in sentencing a defendant who appears before the judge.  Counsel who appear before judges on sentences are expected to know the provisions of Queensland’s sentencing law and to make relevant submissions.
56. Unless the judge is considering imposing a sentence which may be considered unusual or an additional penalty which is unusual, there is no obligation upon a sentencing judge to advise counsel of the sentence that may be imposed and to seek specific submissions on that.^[12]  Both the prosecution and the defence have the opportunity to make all submissions on appropriate and alternative penalties that may apply in the circumstances and that happened in this case.  A judge may remain completely silent while the submissions are made or test propositions made by counsel during their submissions, but a suggestion that the sentencing judge in this case failed to afford procedural fairness is without merit.
57. In this case, as is orthodox, the prosecution made submissions as to the appropriate sentence and then defence counsel had the opportunity to make any submissions counsel wished to make.  The sentence imposed by the learned sentencing judge was in fact below the range suggested by the prosecution.
58. His Honour imposed a sentence of imprisonment.  The provisions of Part 9 of the PSA deals with imprisonment.  Division 3 within that Part deals with parole.  Section 160A of the PSA provides that sections 160B to 160D apply if the court is imposing a term of imprisonment on an offender for an offence.  Unless the court imposes an intensive correction order, a probation order or an order that the whole or a part of the term of imprisonment be suspended, then the sentencing judge is obliged to comply with either ss 160B, 160C or 160D of the PSA, whichever is the appropriate section.  In this case the appropriate section was s 160B which applies to a sentence imposed of three years or less which is not a sentence for a serious violent offence or a sexual offence.  Section 160B(3) provides that the court must fix a date for the offender to be released on parole.  In this case the learned sentencing judge set a parole release date for the applicant much earlier than might ordinarily be expected and set out his reasons for doing so which were based on the evidence and submissions before him.
59. This ground for the application for leave to appeal is without merit.

Prison as a last resort

The applicant’s submissions

60. As mentioned earlier the submissions under this heading appear to cover not only ground 1 but also grounds 3, 4 and 6.
61. The applicant submitted that the learned sentencing judge did not appear to consider s 9(2)(a)(i) and (ii) of the PSA which provide that a sentence of imprisonment should only be imposed as a last resort and that a sentence that allows the offender to stay in the community is preferable.  As no physical harm was caused to another person and the applicant had not committed or threatened actual violence in the past, there was no fraud involved and no actual intended risk to the safety of others and the damage was minimal, that should have given rise to a consideration of a non-custodial sentence.
62. It was submitted that the sentencing judge unduly fettered his discretion by appearing not to consider suspending the sentence or considering that a different non-custodial penalty such as probation or an intensive correction order could be imposed.  It was submitted that the judge’s view that a custodial term of imprisonment was required was only explicable on the basis that his Honour sentenced the applicant as though she had in fact intended to “torch’ the landlord’s house, or that an unfocused act was at the more serious end of an attempted arson.

The respondent’s submissions

63. The respondent submitted that there is no basis to conclude that the sentencing judge did not consider the principle that a sentence of imprisonment is the last resort as part of the exercise of his sentencing discretion.  Merely because a non-custodial sentence was not imposed does not evidence error in this regard.  That his Honour considered the submission made on behalf of the applicant that a non-custodial sentence should be imposed but considered that the appropriate sentence was a term of imprisonment is expressly identified in his Honour’s sentencing remarks.
64. The respondent submitted that ground 4 of the application, which suggests that the learned sentencing judge erred by suggesting a message to the community denouncing the behaviour necessitated a period of actual imprisonment, misconstrued the statements of the learned sentencing judge.  The judge identified that one of the matters of relevance in the exercise of the sentencing discretion included, but was not limited to, sending a message to others that such serious offending would be met with “very serious criminal consequences”.
65. So far as the need for specific deterrence was concerned, the respondent submitted that this was a relevant factor in the exercise of the sentencing discretion.  The respondent submitted that the factors which suggested a need for personal deterrence were that the offending was committed out of revenge and malice, the offending was directed at causing harm to the applicant’s ex-partner, a domestic violence order was in place, and the offending for which the applicant was being sentenced was not limited to the circumstances of the attempted arson, but included the decision to steal and pawn property which the applicant believed belonged to her ex-partner.  Further the offending occurred in the context of the applicant having attended at the home of her ex-partner in the middle of the night and the offending was described as irrational.  The offending, when considered in the context of the applicant’s criminal history, also represented a concerted course of conduct on the part of the applicant and not for example a one off aberration.  Finally, that while the applicant’s employment and rehabilitation from prescription drug use were matters to be seen in her favour, those were not features which had changed since the commission of the offences such that they might need lead to a view that deterrence was less significant than it may otherwise have been.

Consideration

66. Part 2 of the PSA sets out the governing principles for sentencing.  Section 9(1) lists the only purposes for which sentences may be imposed on an offender.  One of those purposes, found in s 9(1)(c) is “to deter the offender or other persons from committing the same or a similar offence”.  In many ways this is part and parcel of the sentencing principle found in s 9(1)(d) which is to make it clear that the community, acting through the court, denounces the sort of conduct in which the offender was involved.
67. This behaviour was committed in the context of a domestic violence order and the end of a relationship.  It was committed irrationally for revenge not against the property which belonged to the applicant’s former partner but against the property of an innocent third party.  The consequences could have been more serious than they in fact were.  Using an accelerant such as petrol to set fire inside an enclosed room in a residence is a dangerous act.  It was a correct exercise of the sentencing judge’s discretion to consider that an actual term of imprisonment was necessary to punish such behaviour and to deter the applicant and others from engaging in dangerous vengeful behaviour after a relationship has ended.
68. There can be no sensible suggestion that the sentencing judge did not consider all of the sentencing options available to him before imposing the sentence he did which implicitly took into account that a sentence of imprisonment should only be imposed as a last resort.
69. These grounds of the application must also fail.

Manifest excess

The applicant’s submissions

70. The applicant submitted that the head sentence of two and a half years’ imprisonment was manifestly excessive and would only have been appropriate if there had been an actual arson and that as it was an attempted arson the head sentence should have been much less severe.  It was submitted that the cases referred to by the prosecution below were more serious and that the appropriate range for an attempted arson should be determined with reference to the statement made by Jerrard JA in R v Johnson:^[13]

“[W]here 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.”

71. The applicant also referred to the decision of Fraser JA in R v Silasack^[14] where his Honour observed:

“[B]earing in mind the facts that attempted arson carries a very much less severe penalty than arson and the related consideration that no substantial property damage or personal injury in fact resulted from the applicant’s offence, the aggravating features of the applicant’s attempted arson offence so significantly increased his criminality as to call for a sentence of five years imprisonment in this case.”

72. It was submitted that the applicant’s conduct could not be characterised as premeditated and was at the low end of an attempted arson.  It was submitted that where the circumstances do not disclose a more serious level of criminality, then attempted arson should in the normal course attract a “much less severe penalty” than actual arson.  The written submissions on this ground conclude “it is submitted that the applicant’s criminality an objective view would justify a head sentence higher than 12 – 18 months and that she was a suitable person to have a wholly suspended appointment.”

The respondent’s submissions

73. The respondent submitted that what must be considered is whether with the benefit of comparable authorities, and having regard to all the relevant sentencing factors, this court is driven to conclude that there must have been some misapplication of principle in coming to the ultimate sentence.^[15]  The respondent also pointed to decisions of this court where it has been held that it would be wrong in principle to construe Jerrard JA’s statement in R v Johnson^[16] as confining a sentencing judge’s discretion.^[17]

Consideration

74. It is appropriate to consider sentences imposed for offences of arson and attempted arson and related offences which have been dealt with in this court to determine whether or not the sentencing discretion miscarried and the sentence imposed was manifestly excessive.  In doing so it is appropriate to look both at the head sentence and at the parole release date.
75. In R v Johnson,^[18] the applicant had been convicted of one count of arson of a dwelling and was sentenced to four years’ imprisonment with a recommendation for consideration for post-prison community based release after 12 months.  The applicant contended that the sentence was manifestly excessive.
76. The applicant was located by rescue services unconscious in the upstairs rear bathroom of a house where he had previously lived with his wife and children.  The applicant had screwed shut the doors and windows of the upstairs part of the house.  A tenant lived in the downstairs area and raised the alarm.  An empty 20 litre steel jerry can containing accelerants was found and all the jets on the gas stove top in the kitchen had been turned on.  Accelerants had been poured around the carpet in the living area.  A cigarette lighter was found nearby.
77. Extensive charring and burning was caused to furniture but there was no significant structural damage as a result of the fire.  The tenant was not injured and sustained no loss.
78. The applicant told police he had been drinking heavily and was depressed because he had recently split up with his wife.  He admitted the jerry can was his.  He said he must have brought it inside but he had no recollection of this.  He agreed it was possible that he was trying to commit suicide in lighting the fire.  The applicant had told his wife he would not see her or their children again and had left money concealed in places underneath the house for them.
79. The applicant was 48 at the time of offending and had no previous convictions.  He had an excellent work history.  He had no memory of committing the offences and was seriously injured as a result of the fire.  The applicant’s wife did not suffer financially as a result of the offending and the applicant bore all of the financial loss.
80. The sentencing judge regarded the offence as a serious example of arson. This was particularly given the risk to the tenant who lived downstairs and to a neighbouring wooden house.
81. The Court of Appeal was referred to a number of decisions said to be comparable.  In R v Barling^[19], the applicant pleaded guilty to arson of a caravan and was sentenced to five years’ imprisonment.  The caravan was the property of the applicant’s partner and he set it alight after accusing his partner of having sex with others.  He ascertained that no one was inside the caravan before setting it alight.  The applicant had previously destroyed some of his partner’s property.  The applicant was remorseful for his offending.  On appeal, Barling’s sentence was reduced to three years’ imprisonment.
82. In all of the cases referred to on appeal, the safety of others was not a significant consideration in the offending.  The Court of Appeal reasoned that on this basis, the applicant’s offending could be distinguished and the sentence of four years’ imprisonment was within the appropriate range.  This was so bearing in mind the applicant’s early plea of guilty, remorse, prior good history and the fact that he was the physical and financial victim of the offence.  It was noted that it was fortunate that more serious damage to property and life did not occur and that the risks to the neighbouring property and the tenant below were significant.  McMurdo P observed that “conduct such as this, in the context of broken relationships, is not something that can be tolerated by the community.”  That observation is apposite to this case.  The early recommendation for parole adequately recognised the mitigating factors.  The application was refused.
83. In agreeing with the reasons of McMurdo P, Jerrard JA noted that “the sentencing principle declared in this court in R v Henderson [1993] QCA 336 and then repeated in R v Sharkey [1994] QCA 121 and restated in R v Cramond [1999] QCA 11, is very clear.  This is 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.”  However this statement has subsequently been seen as not confining a judge’s sentencing discretion the exercise of which will depend on the facts of the case.
84. In R v Gwilliams,^[20] the applicant was convicted after trial of wilfully and unlawfully setting fire to a dwelling.  He appealed the conviction and the sentence.  The applicant was sentenced to three years’ imprisonment and a parole release date was fixed after he had served 18 months’ imprisonment.  This sentence reflected an effective sentence of four years and two months, taking into account seven months’ imprisonment already served that could not be declared.  It was not held to be manifestly excessive.
85. The house in question was owned by the applicant’s former wife, however the applicant had also made substantial payments towards it.  The applicant’s former wife moved out of the house in 2006.  The applicant was responsible for paying bills and insurance but did not do so.  Neighbours gave evidence at the trial placing the applicant at the scene on the night of the fire.
86. The house was destroyed as a result of the fire.  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.
87. The applicant was 35 at the time of offending and had a lengthy criminal history dating back to 1990.
88. The applicant in R v Silasack^[21] pleaded guilty to attempted arson, stealing, fraud, attempted fraud and various summary offences.  He was sentenced to seven years’ imprisonment for the attempted arson and to concurrent terms of two years’ imprisonment for the dishonesty offences.  He was convicted and not further punished in relation to the summary offences.  It was ordered that he was eligible to be released on parole on a fixed date, two years after the sentence date.  In respect of the fraud offence, it was also ordered that the applicant make restitution of $24,231 to the Registrar for transmission to the bank which had sustained that loss.  In default of payment the applicant would be imprisoned for a period of six months.  The applicant applied for leave to appeal against sentence on the ground that it was manifestly excessive.
89. The relationship between the applicant and the complainant had previously broken down.  Their seven year old son resided with the complainant.  A protection order had been issued against the applicant.  In breach of that order, the applicant threatened the complainant on a number of occasions.  The applicant was apparently jealous about the complainant’s seeing other men.
90. On the evening of 1 February 2008, the applicant’s friend, K, visited the applicant.  The applicant told K that some woman had to pay, he was going to burn her house down and that he wanted K to drive him to the woman’s house.  The applicant asked K if he owned a gun.  K called another friend, L, who drove to the applicant’s house.  The applicant told L he wanted to fire-bomb a house and gave him money to buy two bottles of pre-mixed liquor and fuel for a jerry can.  L purchased the items and another bottle of liquor.
91. The applicant emptied the bottles and filled them with fuel, K tore some tea-towels into shreds and the applicant inserted the shreds into the bottles as wicks.  The applicant then wrapped the bottles in tea towels.  L drove the applicant to the complainant’s house.  The applicant said he could not go through with it and asked L to throw the bottles.  He told L to direct one bottle to the window of the complainant’s room and another under the veranda.  L left the car and lit the wicks on the bottles.
92. At that time, the complainant, the seven-year old son and the complainant’s parents were at the house.  The complainant’s father noticed L’s car driving past and went outside with a torch and asked L what he was up to.  L then threw the bottles at the veranda and the window of the complainant’s room and then ran back into the car.  The applicant then drove the car to a hotel and walked home.
93. The first bottle thrown hit the windowsill and fell to the ground and began burning.  The complainant’s father extinguished that fire and no damage was done to the property.  The second bottle smashed the window and landed inside the complainant’s room.  Curtains, a cane basket and some clothes caught fire.  The complainant attempted to extinguish the fire.  The complainant’s mother suffered some minor burns to her hand in assisting in attempts to extinguish one of the fires.  The damage caused by fire was relatively minor, including scorched paintwork, burnt curtains, a burnt cane basket and the smashed window.
94. Two days later, the applicant was interviewed by police and made full admissions.  The applicant was charged and was granted bail on conditions including that he not have contact with the complainant or her family.  About 10 days later, the applicant telephoned the complainant a number of times, abused her and told her that two other men wanted to kill her.  The telephone calls constituted breaches of bail conditions and they and the attempted arson constituted breaches of the protection order.
95. The applicant again gave full admissions to police in relation to the breaches.  While on bail in relation to the attempted arson and those breaches, the applicant committed dishonesty offences.  The applicant stole 27 blank cheques from his adoptive father and forged his signature, using the blank cheques in the amount of $24,231.
96. The applicant was 31 years’ old when he committed the attempted arson, he had no criminal history and had a good work history.  The sentencing judge observed that the applicant procured accomplices to assist in the applicant’s pre-meditated callous attempt to burn down the house in which the applicant knew the complainant and three other people were present.
97. Fraser JA, Keane JA and Wilson J agreeing, accepted that the overall effect of the sentence involved a term of imprisonment of seven and a half years, taking into account the effect of the restitution order and the likelihood that the applicant would not have the capacity to pay after he was released from prison.  It was also accepted that despite the “manifest seriousness” of the attempted arson, a seven and a half year term of imprisonment was manifestly excessive.
98. The court noted that this was clearly a very serious example of attempted arson, involving real risk of damage to property and to the safety of others.  This was aggravated by the fact that the applicant corrupted two young men to participate in the offending, organised the fire-bombing of a house he knew to be occupied and that he directed an accomplice to throw the fire-bomb at the complainant’s window.  The applicant also engaged in “appalling conduct in breach of a protection order, and he continued to offend afterwards and in further breach of the order and his bail conditions.”
99. Conversely, it was noted that attempted arson carries a much less severe maximum penalty than arson and no serious property damage or physical injury was in fact sustained.
100. The court had regard to personal and general deterrence in sentencing for “this pre-meditated, anti-social offence.”  Fraser JA noted that the aggravating features of the applicant’s attempted arson offence “so significantly increased his criminality as to call for a sentence of five years imprisonment”.  This decision is consistent with comparable cases, including R v Leigh,^[22] R v Rhode^[23] and R v Drinkwater.^[24]
101. In Leigh, a 67 year old offender was sentenced to four years’ imprisonment for attempting to procure another person to burn down an unoccupied house for a $5,000 reward.  Fraser JA regarded the features of the applicant’s offending as requiring a more severe penalty than that imposed in Leigh.
102. In Rhode, the offender was sentenced to two years’ imprisonment suspended after six months for attempted arson by fire-bombing at an occupied residence and other offences.  The offender did not commit the attempted arson in breach of a court order, he did not enlist young accomplices, did not persist in offending after the attempted arson and had other favourable personal circumstances not present in the applicant’s case.  On appeal, Byrne J noted that he regarded the sentence as lenient.
103. In Drinkwater, a 44 year old offender with a limited criminal record threw eight petrol bombs at the occupied home of his extortion victim.  No one was injured and there was no serious property damage.  The offender was sentenced to six years’ imprisonment after trial for the extortion offence, which also reflected the criminality of the arson, for which a 12 month concurrent term was imposed.
104. Fraser JA noted that the proposed five year term for the arson offence was not inconsistent with these cases.
105. The Court of Appeal granted the application and allowed the appeal, substituting for the sentence of seven years’ imprisonment for the count of attempted arson a sentence of five years’ imprisonment.  The applicant was sentenced to one year of imprisonment for the dishonesty offences, to be served concurrently but cumulatively upon the five year term imposed for attempted arson.  In relation to the summary offences, the sentence was not disturbed.  It was ordered that the applicant be eligible for release on parole on 31 August 2010 (ie after serving two years of the effective six years’ imprisonment).  The restitution order was set aside and a period of pre-sentence custody was declared.
106. That case of attempted arson was undoubtedly more serious than the attempted arson the subject of this application.
107. The next relevant decision of this court is R v Porter.^[25]
108. The applicant pleaded guilty and was sentenced to a number of offences and summary offences.  On a count of arson, he was sentenced to three years’ imprisonment.  For the offence of burglary and stealing a set of car keys, he was sentenced to imprisonment for one year, cumulative upon the three years for the arson offence.  He was also sentenced to six months’ imprisonment each for three other offences which involved unlawful use of a motor vehicle and stealing fuel.  These six months terms were ordered to be served concurrently with the one year term.
109. Cumulatively, the sentences imposed a term of four years’ imprisonment.  A parole eligibility date was fixed at 18 June 2014 and a pre-sentence custody declaration was made.  The applicant applied for leave to appeal against sentence on the basis that it was manifestly excessive.
110. The arson offence occurred at the house of the applicant’s father.  The applicant, his father and his sister were present at the time.  The applicant’s father had refused the applicant’s request for a loan of $1,000.  The applicant made threats during that day that he would kill himself or his father.  Sometime later, the applicant doused the main bedroom of the house with petrol.  He lit his cigarette lighter and stooped down close to the petrol three times, and on the third attempt the fumes ignited.
111. A serious fire ensued causing property damage to the value of about $126,000 to the house.  The applicant sustained some burn injuries but neither his father nor his sister were hurt.  About a month later, while on bail for the arson offence, the applicant committed the other offences.
112. The applicant had a long history of substance use and began drinking and using amphetamines at a very early age.  A psychiatrist’s report was provided at the sentence and it was reported that the applicant was receiving psychiatric care while on bail.  The applicant had a serious criminal history.
113. On appeal, the applicant submitted that the arson sentence did not reflect the criminality of his conduct based on several propositions.  These included that the standard sentence for arson is three years and that where an offender suffers a mental disorder the criminality of the offending is reduced.  It was submitted that the three year sentence did not sufficiently mitigate for the applicant’s mental disorder.
114. The Court of Appeal noted that it was clear from the remarks of the sentencing judge that she was conscious of the need to mitigate the sentence for the applicant’s mental disorder.  The Court of Appeal went on to consider the proposition that the standard sentence for arson is three years.  It was found that this proposition was inaccurate, and that three years has been identified as the standard sentence for arson only where certain factors are present, particularly where there is no risk to the safety of others.
115. In this case, the damage caused by fire was extensive, the fire did put the safety of others at risk and the applicant had a serious criminal history.  The Court concluded that the sentence of three years was not manifestly excessive.  In relation to the cumulative sentence, it was concluded that given the offences were of a markedly different character, it was open to the sentencing judge to impose a cumulative sentence.
116. The last relevant decision is R v Francis.^[26]  The appellant was convicted after trial of arson of a motor vehicle and was sentenced to four years’ imprisonment with parole eligibility after 18 months on 8 February 2015.
117. The appellant was 41 at the time of the offence.  He had a good employment history and a limited criminal history which commenced in 2010 when his marriage failed.  He was a respondent in a domestic violence order in the favour of F.  He was in a relationship with F for 28 years and they had four children.  Their marriage ended when F commenced a new relationship with S.  S’s mother owned the car that was destroyed in the arson offence.  S ordinarily lived with his mother and he and F were present at his mother’s house on the night the offence was committed.
118. Evidence was given at trial that S heard noises outside at night and went outside to investigate.  He discovered the appellant outside the house.  The appellant was driving away and said to S “I’m going to blow up you and your mum’s house.”  F gave evidence that later in the evening she received a phone call from a private number.  She said it a person who sounded like the appellant said “You’d better tell your boyfriend to go to his mother’s.  She might need him.”  S gave evidence that there was a second altercation between him and the appellant that night.
119. After that altercation S drove to his mother’s house.  When he arrived a fire engine and police vehicles were present and the fire was extinguished.
120. Expert evidence was given at the trial.  The fire damage was predominantly to the boot area near the left hand tail light.  There was no significant damage to the car port.  Accelerant had been poured either into the crack at the boot opening or over that part of the car and then ignited.
121. The appellant was arrested on the night of the offence and was under the influence of drugs and alcohol.  He had burns to his hands and a half centimetre laceration on his nose between his eyebrows.  The laceration was consistent with having been received during his physical altercation with S.
122. At sentence, the judge observed that the appellant set fire to the mother’s car in the middle of the night while it was outside her home.  He targeted her because S was in a relationship with his ex-wife.  It was a calculated, malicious, vengeful, callous and very dangerous attack while the mother was sleeping.  The car was under a car port that was connected to the house.  He told S he was going to blow up his mother’s house and targeted the petrol tank of the car.  The incident could have easily been much more serious.  The destroyed car was valued at about $11,100.  The appellant did not cooperate with authorities or show remorse.  He took the breakdown of his lengthy marriage badly and all of his criminal offending had occurred in the context of that breakdown.  Her Honour concluded that these factors warranted a stern sentence to punish the appellant and deter others.
123. This court concluded that the cases submitted by the appellant’s counsel, which included R v Johnson,^[27] R v Matheson,^[28] R v Gwilliams,^[29] R v Silasack^[30] and R v Porter,^[31] were not closely comparable to the present case but that they supported the conclusion that generally “a more serious penalty is imposed for arson of a house where significant damage is done and there is a real risk of personal injury or death, than for arson of an empty motor vehicle.”
124. McMurdo P concluded that the sentencing judge was right to conclude that the case was a serious case of arson of a motor vehicle, given the position of the car close to the house, the fact that the house was occupied, the value of the car and the circumstances of the breakdown of the relationship.
125. The head sentence was effectively four and a half years’ imprisonment as the appellant had spent six months in custody which could not be declared.  The sentencing judge took this into account in calculating parole eligibility, but did not take it into account in calculating the head sentence.  McMurdo P concluded, Muir JA and Dalton J agreeing, that despite the seriousness of the offending, the comparable cases did not support an effective head sentence of four and half years’ imprisonment.
126. The appeal against sentence was allowed and the appellant was sentenced to three and a half years’ imprisonment with a parole eligibility date after 15 months.
127. In the context of those comparable cases it can be seen that, the present case was not as serious as those herein referred to.  It had a number of exacerbating factors.  These included that the offending in this case was motivated by anger and revenge in the context of the end of a relationship where a protection order had been made against the applicant.  The victim of the fire was an unrelated third party.  The landlord was further victimised by the applicant stealing and pawning his property.  Lighting a fire in an enclosed space using an accelerant is inevitably dangerous with the risk that the fire will spread.  Although the applicant knew that the fire did not put any person in actual danger as the premises were unoccupied there was nevertheless a real risk that the fire would take hold and cause extensive damage to property and even potentially harm persons.  The need for punishment, general and personal deterrence and denunciation of the behaviour was obvious.
128. However there were a number of factors which made this offending less serious than the offending described in the cases herein referred to.  The offending was not pre-planned and there was no suggestion that any materials were taken to the premises for the purpose of setting fire to the property.  The applicant placed a phone book lit with accelerant on the tiled floor of an isolated room in a house that she knew was unoccupied reckless as to potential consequences of her behaviour but without any intention to destroy the residence or harm any person.  While the conduct was serious it was considerably less serious in nature than that in the cases in which a sentence not much longer was imposed.  It was committed by a person without a relevant criminal history with good prospects of rehabilitation.  It is therefore right to conclude that the sentence was manifestly excessive.  In my opinion a sentence of two years’ imprisonment should have been imposed on the count of attempted arson.  The parole release date was well below the one-third mark which would ordinarily take account of the plea of guilty and acceptance of responsibility by the applicant, and should, notwithstanding the reduction in the head sentence, stay in place.
129. I would therefore grant the application for leave to appeal and allow the appeal only to the extent of replacing the term of two and a half years’ imprisonment for attempted arson with a term of two years’ imprisonment.  The sentences imposed upon the applicant are otherwise affirmed.