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R v RBE QCA 146
SUPREME COURT OF QUEENSLAND
R v RBE  QCA 146
CA No 270 of 2020
DC No 473 of 2020
Court of Appeal
District Court of Queensland at Townsville – Date of Sentence: 11 November 2020 (Loury QC DCJ)
Date of Orders: 23 February 2021
Date of Publication of Reasons: 20 July 2021
23 February 2021
Morrison and McMurdo JJA and Burns J
Orders delivered: 23 February 2021
CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – OTHER MATTERS – where the applicant pleaded guilty to an ex officio indictment alleging one count of arson of a dwelling – where the sentence proceeded on the basis of an agreed statement of facts – where the agreed statement of facts was silent as to the applicant’s motive – where the sentencing judge drew an inference as to the applicant’s motive – whether the sentencing judge thereby fell into error
CRIMINAL LAW – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS OF APPEAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the applicant pleaded guilty to an ex officio indictment alleging one count of arson of a dwelling – where the applicant was sentenced to imprisonment for four years imprisonment, suspended after serving 12 months, for an operational period of four years – whether the sentence was manifestly excessive
Domestic and Family Violence Protection Act 2012 (Qld), s 8(2)(c)
Evidence Act 1977 (Qld), s 132
Penalties and Sentences Act 1992 (Qld), s 15
R v Ball  QCA 201, considered
R v Carrall  QCA 355, cited
R v Cumner  QCA 54, cited
R v Field  QCA 188, cited
R v Galeano  2 Qd R 464;  QCA 51, cited
R v Leslie  QCA 15, considered
R v Olbrich (1999) 199 CLR 270;  HCA 54, cited
R v Ta  QCA 53, cited
R v Welsh  1 Qd R 592, cited
Strbak v The Queen (2020) 267 CLR 494;  HCA 10, cited
J A Greggery QC for the applicant
D Nardone for the respondent
Purcell Taylor Lawyers for the applicant
Director of Public Prosecutions (Queensland) for the respondent
- MORRISON JA: I have had the considerable advantage of reading the draft reasons of Burns J. His Honour’s reasons reflect my own for joining in the orders made on 23 February 2021.
- McMURDO JA: I agree with the reasons given by Burns J.
- BURNS J: By this application, leave was sought to appeal against a sentence imposed in the District Court at Townsville on 11 November 2020. The applicant pleaded guilty to an ex officio indictment alleging one count of arson of a dwelling (domestic violence offence). The dwelling was jointly owned by the applicant and the complainant (his former wife) at Cranbrook. The applicant was sentenced to four years imprisonment, suspended after serving 12 months for an operational period of four years. Pre-sentence custody of 49 days was declared to be time already served under that sentence.
- In support of his application, the applicant complained that the sentencing discretion miscarried because of a fact-finding error and otherwise contended that the sentence was manifestly excessive. At the hearing on 23 February 2021, the Court granted leave to appeal, allowed the appeal, set aside the sentence and substituted a sentence of imprisonment for three years suspended forthwith, that is to say, after account was taken of the pre-sentence and post-sentence custody the applicant had already served (a total of approximately five months) for an operational period of three years.
- I joined in the making of those orders for the reasons that follow.
- The applicant and the complainant married in 2004 but separated in October 2018. In late 2017 as their relationship was breaking down, the applicant threatened to burn down their house. Subsequently, the complainant made application for a Domestic Violence Protection Order in which she named the applicant as respondent. On 12 January 2018, such an order was made by the Magistrates Court at Townsville and, relevantly, it stipulated that the applicant should be of good behaviour towards the complainant and not commit domestic violence against her. The applicant had a history of recurring major depression and suffered from what was described in the medical evidence before the court as a “complex Post-Traumatic Stress Disorder”.
- On 13 November 2018, the complainant forwarded a letter to the applicant in which she stated that their marriage was “over” and, amongst other things, proposed that the matrimonial home be sold. A few weeks later, in the circumstances detailed immediately below, the applicant set fire to the home and that act of course constitutes the offence for which he was dealt with in the court below.
- At around 5:00 am on 5 December 2018, the applicant sent several text messages to his son. About an hour later, they had a telephone conversation in which the applicant expressed a desire to harm himself. At 7:39 am, the applicant sent a text message to his son in which he said “goodbye” and, eight minutes later, another in which he stated, “The house is going up in flames now … me included … is alight”. The applicant also attempted several times to telephone the complainant, but she did not answer. He left a message recording his love for her. At approximately 8:00 am, the applicant also called a friend and told him that he was “going to end it”. He added, “You don’t want to come over. I am going to blow myself up”.
- The applicant’s friend immediately made his way to the home. He could smell petrol fumes and banged on a bedroom window. The applicant shouted, “Go away, you don’t want to be here”. His friend returned to his vehicle to telephone the applicant’s son but, before he could do so, he noticed smoke billowing from the roof of the house. He called emergency services and then returned to the house where he was joined by a neighbour. Although the pair managed to force entry through the front door, they were repelled by the heat.
- Not long after, the applicant telephoned his friend and said that he had escaped from the house and had made his way across the backyard and onto another street. Police subsequently located the applicant, placed him under arrest and transported him by ambulance to the Townsville Hospital where he was treated for minor physical injuries. He was remanded in custody where he remained until granted bail on 22 January 2019 on conditions that required him to undertake treatment for his mental health.
- Fire crews spent an hour and half containing the blaze. A subsequent investigation concluded that the fire had been deliberately lit, with two ignition points in separate bedrooms. Gas canisters had also been placed in the kitchen and hallway. The estimated value of the damage to the house was $300,000. In that regard, the applicant and the complainant held a joint policy of insurance and the complainant was subsequently indemnified for her share of the loss. Nonetheless, she and their children lost various “personal and sentimental items” in the fire that could not be replaced. Lastly, in her statement to the police, the complainant recorded that the applicant had “threatened a couple of times to burn himself to end it all”.
The sentence hearing
- The sentence hearing proceeded on 10 November 2020 with the sentence being handed down on the afternoon of the following day. The circumstances of the offence had been reduced to an agreed statement of facts and it was tendered by the Crown. The statement was silent as to motive. The Crown prosecutor submitted, correctly, that the sentencing judge would need to balance “what is inarguably a very serious offence with the factors personal to the [applicant], specifically, his mental state at the time”. A head sentence of three to four years imprisonment “to reflect the seriousness of the offending” with an “earlier than otherwise suspension or parole order” to reflect the factors in mitigation was advanced, with reliance placed on R v Ball  QCA 201 and R v Leslie  QCA 15.
- In Ball, the applicant pleaded guilty to a number of offences including arson of a house he owned with his wife, breaking and entering with intent, resisting a police officer in the execution of his duty and breach of a domestic violence order. It was submitted on his behalf that his setting fire to the house was “really the product of a sudden surge of emotion brought on by revisiting the former matrimonial home”. He was 32 years of age at the time of sentence and had a prior criminal history including convictions for offences of violence. He was said to have experienced “psychiatric difficulties” in the past which led to his examination in custody for short periods of time without those difficulties requiring treatment for a prolonged period. A psychiatrist who examined the applicant shortly after the event expressed the opinion that he was suffering from an adjustment disorder with depressed mood “which might, but had not, degenerated into a major depressive illness”. At first instance, the applicant received an effective head sentence of five years imprisonment, suspended after 16 months for an operational period of five years. This Court declined to interfere, holding (per McPherson JA; Muir and Atkinson JJ agreeing) that the sentence was not excessive when regard was had to all of the offences involved and the applicant’s actions (described as “vindictive and vengeful, and [showing] a callous disregard for the complainant’s and her children’s home and the personal items of property, of very real value to her, which were destroyed in the process”).
- Leave to appeal was granted in Leslie. The applicant was 19 years old and without any criminal history when he set fire to a housing commission unit in which he lived in an attempt to kill himself. He was forcibly removed from the unit by a police officer. Only moderate damage was caused to the building, but the applicant sustained severe burns. He was sentenced to three years imprisonment, suspended after serving five months for an operational period of three years. The complaint was that the applicant ought to have been given the benefit of immediate parole rather than a partially suspended sentence and, in the end, this Court agreed (per Morrison JA; McMurdo P and Jackson J agreeing). There was ample medical evidence to establish that the applicant had suffered from a Major Depressive Disorder for some years and this not only reduced his moral culpability but meant that prison would not be appropriate given the short period that was intended to be imposed.
- When Leslie was discussed in the court below, the sentencing judge remarked that the subject offending was “clearly an attempted suicide” before adding, “that doesn’t appear to be the case here”. There was then this exchange between her Honour and the prosecutor, during which reference was made to a body of material that the defence was soon to tender:
“HER HONOUR: I know there are statements that he made and there’s some evidence that he had tried to hang himself, but he set the fire in two different rooms and fled the house.
PROSECUTOR: He ultimately fled the house, yes, your Honour. Yes.
HER HONOUR: Quickly.
PROSECUTOR: Unlike in Leslie where he’s – – –
HER HONOUR: Yes.
PROSECUTOR: He’s dragged out.
HER HONOUR: Which doesn’t tend to suggest that the setting of the fire was an attempted suicide.
PROSECUTOR: It may have been an attempt for – of attention rather than necessarily – – –
HER HONOUR: Or it could have been a vindictive act.
PROSECUTOR: All those are – – –
HER HONOUR: Inferences that are open.
PROSECUTOR: All those interpretations are open, your Honour, certainly.”
- It will be seen from what is extracted immediately above that no allegation was made by the prosecutor regarding motive. Rather, prompted by a consideration of the facts in Leslie, the sentencing judge expressed doubt regarding one of the possible inferences arising on the admitted facts in this case – attempted suicide – while appearing to accept as possible the inference suggested by the prosecutor – attention-seeking – or the inference that her Honour suggested – a vindictive act. The prosecutor on the other hand adopted a neutral position, not ruling out any of the possible “interpretations” and not positively alleging any one of them over the others.
- The body of material advanced by the applicant’s counsel in the court below included a report from Dr Likely, consultant psychiatrist, dated 21 April 2020 and Mr Davey, the applicant’s treating psychologist, dated 23 October 2020. They detailed the applicant’s prejudicial upbringing and long-standing mental health disorders along with what both practitioners considered to be a serious exacerbation of those disorders while the applicant was being held on remand. Dr Likely’s report included extracts from clinical notes that were made at the Townsville Hospital following his admission on 5 December 2018 including a history of having “tried to hang himself” and then “set fire to his house”. As to his failed attempt, the applicant said that the “cord on his neck broke” and that he found himself “in the shed”. He was taken to the watchhouse the following morning and subsequently assessed by a forensic Mental Health Service nurse who observed ligature marks on his neck. Later that day, a mental health assessment was undertaken by a consultant psychiatrist who noted the applicant’s past history of “severe depressive episodes needing pharmacological and neuro-stimulation treatment” and diagnosed the applicant as suffering “at present” from an Adjustment Disorder with Mixed Anxiety and Depressed Mood. The applicant was prescribed an altered regime of medication and subsequently received treatment in the form of “cognitive, behavioural and psycho-educational interventions”. Otherwise, Dr Likely observed that, historically, the applicant had been “treated with a plethora of drugs used in the treatment of mood disorders” and had inpatient admissions for the treatment of severe episodes of depression including courses of electro-convulsive therapy. At the time of his report (21 April 2020), the applicant’s chronic history of recurring and relapsing major depression was then in “full remission” as was his Post-Traumatic Stress Disorder, but Dr Likely expressed the opinion that the applicant was “suffering from depression at the time of fire”. Concerns were expressed for the applicant’s mental wellbeing should he be imprisoned and unable to “access his current level of treatment”. A “recurrence of suicidal ideation” was expressly mentioned. Assuming the applicant continued with his treatment, Dr Likely regarded the risk that he might reoffend to be “minimum to non-existent”, and that opinion was shared by Mr Davey.
- For the applicant, it was submitted that imprisonment in the region of three years with no period of actual custody (beyond that which he had already served) was an appropriate sentence in all the circumstances of the case. It was further submitted that the “arson was part of an attempted suicide” but the sentencing judge doubted that was the case. During the course of argument, her Honour appeared to accept that the ligature marks on the applicant’s neck indicated an “attempt at suicide”, but then suggested that any such attempt “failed, and [the applicant] decided to light the house on fire”. Her Honour further observed that the applicant did not remain in the house and did not “stay even long enough to get any burn injuries”. Doubt was also expressed about several apparent inconsistencies in the versions provided by the applicant in the aftermath of the fire. The applicant’s counsel informed the sentencing judge that there were “photos of the shed with the rope tied to the ceiling” and that his instructions were to the effect that the applicant had attempted suicide and then made “an attempt … to blow himself up or burn himself” before, it could be inferred, changing his mind and fleeing the house.
- In reply, the sentencing judge asked the prosecutor “upon what basis do you say now that I should sentence the defendant?”. The prosecutor responded by submitting that it was “open” to her Honour to “not necessarily accept that the intention was to kill himself in the fire” but pointed out that the text messages which the applicant sent prior to lighting the fire would suggest otherwise. The prosecutor added that the facts were also “consistent with a call for attention … rather than a genuine attempt” to commit suicide. These were, it was submitted, “factual matters [for the sentencing judge] to weigh up”. Notably, the prosecutor did not submit that the applicant set fire to the house as a vindictive act.
- When handing down the sentence, the sentencing judge again expressed doubt regarding the versions provided by the applicant after the fire and, although accepting that there was “some evidence that there were ligature marks on [the applicant’s neck] on arrival at the hospital supportive of [his] statement that [he] had tried to hang” himself, she did not regard his explanation for why he set fire to the house as “credible”. Her Honour said:
“I am left to draw an inference as to your motivation. It has been submitted that you ought to be sentenced on the basis that your setting fire to the house was an act of suicide, and that you quickly changed your mind, which explains your having fled the house. I find such a scenario highly unlikely. Your having immediately fled the burning house indicates to me that it was not an attempt at suicide. You used accelerant and you started multiple fires, yet you have no burn injuries at all. You did not remain in the house, it seems, for even a moment.
Your friend and neighbour immediately came to your aid when they saw smoke. And you were gone from the house. Your having set multiple fires, in itself tends against this being a suicide attempt. You were not actively suicidal when you were at hospital. Your judgment was not impaired at the time. All of these features together do not satisfy me that the proper inference to draw is that you were attempting to commit suicide.
You used petrol as an accelerant and placed gas canisters and a deodorant can in places tending to suggest that your intention was to create enormous damage, if not complete destruction of your marital home. Had you intended to commit suicide, I would have expected that at the very least you would have had some sort of burn injuries. You must have left the house virtually immediately upon starting the fire. You called [your friend] to tell him that you had escaped through the backyard and were on another street, after he had tried to force entry to the house.
… You were suffering from depression and perhaps you were abusing diazepam. You did try to hurt yourself by hanging yourself that morning. But when that failed, you made considerable preparations to burn the house. That included you having obtained and spread accelerant, you having tried to set the gas canister alight and a deodorant can, and you having set two fires in the house.
You made multiple calls to multiple people, including your wife, prior to starting the fire, threatening to do so. Your statements and text messages to your son and your friend and a message sent to your wife all tend to suggest that you were, in my view, seeking [attention]. I am satisfied to a very high standard that in burning your marital home, you acted in a vindictive way to hurt your wife. You had previously threatened to burn the house down when your marriage was falling apart.
You achieved what you set out to do, that is, to hurt your wife, because both your wife and your children had sentimental items in the house which could not and can never be replaced.”
The applicant’s contentions
- By the amended application, it was contended that the sentence imposed was manifestly excessive and that the sentencing judge erred in finding pursuant to s 132C of the Evidence Act 1977 (Qld) that the applicant “acted vindictively to hurt his wife in committing the offence”. It is only necessary to deal with the second of those grounds to decide this application.
- Section 15 of the Penalties and Sentences Act 1992 (Qld) provides that, in imposing a sentence, a court may receive any information, or a sentencing submission made by a party to the proceeding, that the court considers appropriate to enable it to impose a proper sentence. As such, a sentencing court is not constrained by the rules of evidence. It is a matter for the judge to decide what information or submissions it receives and, if accepted as reliable, the weight to be attached. This provision enshrines the long-standing practice of the courts to permit considerable flexibility in the presentation of evidence and other information to a sentencing court. However, the essential character of sentence hearings is accusatorial: Strbak v The Queen (2020) 267 CLR 494, -. Accordingly, where some aspect of the “information” (or what is submitted by way of allegation) is disputed by the offender, it is for the prosecution to prove all matters of fact on which it relies that are adverse to the interests of the offender: R v Olbrich (1999) 199 CLR 270, ; Strbak, . At common law, proof of such facts is required to the criminal standard but, in Queensland, the common law is modified by s 132C of the Evidence Act. It is in these terms:
“132C Fact finding on sentencing
- (1)This section applies to any sentencing procedure in a criminal proceeding.
- (2)The sentencing judge or magistrate may act on an allegation of fact that is admitted or not challenged.
- (3)If an allegation of fact is not admitted or is challenged, the sentencing judge or magistrate may act on the allegation if the judge or magistrate is satisfied on the balance of probabilities that the allegation is true.
- (4)For subsection (3), the degree of satisfaction required varies according to the consequences, adverse to the person being sentenced, of finding the allegation to be true.
- (5)In this section—
allegation of fact includes the following—
- (a)information under the Penalties and Sentences Act 1992, section 15 or evidence given at a hearing in relation to an order under part 3A of that Act;
- (b)information under the Youth Justice Act 1992, section 150(4A) or in a pre-sentence report under section 151 of that Act;
- (c)information given to the court under the Penalties and Sentences Act 1992, section 179K;
- (d)other information or evidence.” [Emphasis in original]
- It is to be observed that s 132C is concerned with allegations of fact, the onus of proof of which necessarily rests with the prosecution: R v Carrall  QCA 355, . The sentencing judge may act on an allegation of fact that is admitted or not challenged, but he or she is not obliged to do so. Where an allegation of fact is not admitted or is challenged, the judge may act on the allegation if satisfied on the balance of probabilities that it is true and the degree of satisfaction required in that regard varies according to the consequences, adverse to the person being sentenced, of finding the allegation to be true. Indeed, the required degree of satisfaction may be high where proof of the disputed fact carries with it significant consequences for the offender’s sentence: R v Ta  QCA 53, -; R v Cumner  QCA 54, . Furthermore, s 132C is not merely concerned with the presentation by the prosecution of the primary facts; it also governs the making of an allegation based on any inferences that are alleged to arise from those facts (such as motive). Importantly, information advanced to a sentencing court (through the medium of an agreed statement of facts or otherwise) does not suddenly become a factual repository for the court to make of it what it will. It is for the prosecution to allege what is to be inferred and, where that allegation is not admitted or challenged by the offender, it is for the sentencing judge to decide whether such an inference should be accepted.
- In the case of submissions made on behalf of an offender, a sentencing judge is likewise not obliged to accept defence assertions from the bar table, even if no evidence is led by the prosecution to the contrary and even if the prosecution makes no submission about the matter: Olbrich, ; R v Galeano  2 Qd R 464, . Of course, if the judge is inclined to reject such an assertion, that inclination must be made known to the offender who must be given a reasonable opportunity to make good that which has been asserted: R v Field  QCA 188, . That said, in cases where differing versions of relevant events have like probability then the version most favourable to the offender should be accepted: R v Welsh  1 Qd R 592, 595; Field, .
- Here, the sentencing judge rejected the defence assertion that the applicant had attempted to “kill himself in the fire” but found that he was seeking attention and that he had acted in a “vindictive way to hurt [his] wife”. Each of these three possible motivations was the subject of discussion between the sentencing judge and the prosecutor at the hearing with the prosecutor submitting that each was “open” on the admitted facts. Then, after the defence addressed the court, the judge asked the prosecutor to identify the “basis” on which the applicant should be sentenced. He identified attempted suicide and attention-seeking as possible inferences for the judge to “weigh up” but advanced no submission about any vindictive act.
- In the result, no allegation was made by the prosecution to the effect that the applicant set fire to the house as a vindictive act directed at the complainant. Contrary to the submissions of the prosecutor and for the reasons already stated (at ), it was not for the sentencing judge to decide what inferences arose from the agreed facts and, having done so, her Honour erred (and in a critical way) by determining a fact that was not in issue between the parties. Indeed, the procedure for resolving disputed facts provided in s 132C of the Evidence Act was not even engaged, the prosecutor having made no positive allegation about motive. The only submission on that topic was made by the defence and, although the sentencing judge was not obliged to accept that submission, I would have thought that the overall “information” before the court made the defence contention of attempted suicide at least equally probable to an inference to the effect that the applicant was attention-seeking. If that was so, the applicant should have been given the benefit of the doubt and his counsel’s contention accepted. It is, however, unnecessary, to explore the merits or otherwise of this part of the argument in any detail because the error just identified – finding that the applicant acted in a vindictive way towards his wife – means that the sentence must be set aside and the sentencing discretion exercised afresh. Its only continuing relevance is that, for the purpose of that exercise, the applicant should be given the benefit of that doubt.
The sentencing discretion re-exercised
- The applicant was 45 years old at the time of the offence and was 47 at the time of sentence. He had no criminal history and there was otherwise persuasive material before the sentencing court attesting to his previous good character. He entered an early guilty plea to an ex officio indictment. There was no suggestion that the offence was committed for fraudulent gain.
- As already observed (at ), the applicant had a lengthy history of mental health disorders in the form of recurring and relapsing major depression and a complex Post-Traumatic Stress Disorder. Although both disorders were in remission when the applicant was seen by Dr Likely in 2020, the doctor expressed the opinion that the applicant was suffering from depression at the time of the offence. In addition, when examined by a consultant psychiatrist for a mental health assessment within days of the offence, the applicant was diagnosed as suffering, at that time, from an Adjustment Disorder with Mixed Anxiety and Depressed Mood. When regard is had to the whole of the material before the sentencing court, it seems plain that the applicant’s mental health was compromised to a not insignificant degree at the time of the offence and, relevant to one of the concerns expressed by the sentencing judge, at the times when he subsequently provided versions as to what occurred and why he behaved in the ways in which he did.
- The applicant had also taken a number of concrete steps towards his own rehabilitation in the period of almost two years between the date of the offence and the sentence, including regular treatment from Mr Davey. Over much of the same period, he complied in every respect with what were described as “onerous bail conditions”. Assuming the continuance of his regime of treatment, the applicant presented as a low or non-existent risk of reoffending as at the date of his sentence. Furthermore, his period on remand had demonstrated that actual custody was, and would be, significantly detrimental to his mental health and more burdensome to him because of his diagnosed conditions.
- On the other hand, there can be no doubting the seriousness of the offence which was aggravated by the features that it was committed whilst the applicant was on bail (for a contravention offence) and while he was subject to a Domestic Violence Protection Order in favour of the complainant. It was also a domestic violence offence: Domestic and Family Violence Protection Act 2012, s 8(2)(c). Plainly, a period of imprisonment was called for, but the real question was whether the applicant should be subjected to further confinement.
- To my mind, a head sentence of three years was appropriate to reflect the objective seriousness of the offending in this case. At the time of the hearing before this Court, the applicant had already served a total of approximately five months in actual custody. Given the range and substance of the factors personal to the applicant, it would not have been appropriate to require him to be confined for any further period. Nor, as the sentencing judge recognised, was supervision on parole required. The applicant is a first-time offender with an established, and successful, course of treatment for his mental health. The appropriate course was therefore to reduce his head sentence from four years to three years and to suspend that sentence at the date of the hearing for an operational period of three years.
- Published Case Name:
R v RBE
- Shortened Case Name:
R v RBE
 QCA 146
Morrison JA, McMurdo JA, Burns J
20 Jul 2021
- Selected for Reporting:
|Event||Citation or File||Date||Notes|
|Primary Judgment||DC473/20 (No citation)||11 Nov 2020||Date of sentence; pleaded guilty to one count of arson of dwelling jointly owned with ex-wife (domestic violence offence); sentenced to 4 years' imprisonment, suspended after 1 year for 4 years (Loury QC DCJ).|
|Appeal Determined (QCA)|| QCA 146||20 Jul 2021||Leave granted, appeal allowed, sentence varied; prosecution having made no positive allegation as to motive, sentencing judge erred in finding that accused ‘acted vindictively to hurt his wife’; as defence contention of attempted suicide at least as probable as inference of attention-seeking, accused given benefit of doubt upon resentencing; resentenced to 3 years’ imprisonment, suspended at date of hearing of appeal (i.e. after approx. 5 months) for 3 years: Morrison JA, McMurdo JA, Burns J.|