R v Cooper[2021] QCA 169

SUPREME COURT OF QUEENSLAND

1. [1]
   MORRISON JA:  I have the advantage of reading the draft reasons of Bond JA and Callaghan J.  Though I substantially agree with Bond JA, I wish to add some observations of my own.
2. [2]
   The applicant seeks leave to appeal from a sentence imposed upon her on 3 September 2020, after a trial in the District Court.  She pleaded not guilty and was convicted of attempted arson.  She was sentenced to four years’ imprisonment.  The sole ground is that the sentence is manifestly excessive.

Background

3. [3]
   The applicant owned a newsagency where she worked six days per week.  She had not drawn a wage for some time and was in financial distress.  The applicant and her husband faced several financial threats, in particular: (i) they had defaulted on bank loans; and (ii) the mortgagee had commenced recovery action in respect of their home.
4. [4]
   On 30 July 2018 the applicant’s insurance company sent her an email, reminding her that the renewal date for a policy that insured their business for $700,000 was approaching.
5. [5]
   The same day, the applicant left the newsagency at approximately 5.30 pm, having set a fire in the premises.  Shortly after, a tenant at a nearby shop contacted emergency services after seeing a fire within the newsagency.
6. [6]
   As it happened no other tenancy was damaged but the damage to the newsagency was significant.  The owners of the shop premises suffered a loss of approximately $174,000.  The business itself suffered loss, in that about $80,000 in stock was lost in the fire, and $65,000 damage was done to fixtures and air-conditioning.
7. [7]
   The applicant denied setting the fire both in her interviews with police and when giving evidence at trial.  She was convicted for attempted arson and sentenced to four years’ imprisonment.
8. [8]
   The applicant was 57 years old at the time of the offence.  She had no previous convictions.  She and her husband had raised a child (by then an adult).  She had been in employment all her life.  At the time of the trial she was employed as a machine operator at a mine.

Approach of the learned sentencing judge

9. [9]
   The learned sentencing judge was, of course, dealing with a sentence imposed after a trial and not a plea of guilty.  During the trial the applicant had denied any involvement in or knowledge of the fire.  Her abandonment of the appeal against conviction means that this Court must proceed on the basis that the applicant now accepts responsibility for setting the fire.
10. [10]
    The sentencing judge concluded that, for the purpose of sentencing, the applicant was in very serious financial trouble; there was evidence about legal processes brought against the business and that the applicant’s family home was in jeopardy because it was mortgaged to secure two loans with one being over the business.  His Honour found that the act of setting the fire was an act of desperation which had led to “great personal loss”.
11. [11]
    By an act of desperation his Honour referred not just to the setting of the fire, but the intention in doing so to make a fraudulent claim on the insurance.  So much appears clear from his Honours remarks:

“People must know that if they set about burning things, even if they do it in desperation to get the insurance, the Court will impose a heavy penalty because it is not just highly destructive conduct. It has a potential for damaging innocent property and injuring innocent people.”

12. [12]
    The sentencing judge noted that firefighters were able to contain the fire quickly, but that fact did not mean that the fire was not dangerous.  There was evidence that the loss to the owners of the shop went beyond $174,000.
13. [13]
    The learned sentencing judge had regard to a number of factors which included the applicant’s personal antecedents (her lifetime of work, successful family life and no criminal convictions).
14. [14]
    The sentencing judge considered that the offence was a serious example of attempted arson, because of the amount of damage caused and the risk to both other property and other people.  His Honour considered that the conduct was not only highly destructive, but that it had a “potential for damaging innocent property and injuring innocent people.”
15. [15]
    His Honour noted that a primary purpose for this particular offence was deterrence; that the Court would impose a heavy penalty where offenders “set about burning things, even if they do it in desperation to get the insurance”.  The maximum penalty for the offence of attempted arson, being 14 years’ imprisonment, was considered.

Consideration

16. [16]
    To succeed on such an application, it is not enough to show that the sentence imposed was different from, or even markedly different from, other examples of sentences in other cases.  Rather, it is necessary to demonstrate that there must have been a misapplication of principle or that the sentence imposed is “unreasonable or plainly unjust”.^[1]
17. [17]
    Sentencing judges are to be “allowed as much flexibility in sentencing as is consonant with consistency of approach and as accords with the statutory regime that applies”.^[2]  Cases that are said to be comparable do not mark with precision the outer bounds of a sentencing judge’s discretion in imposing a sentence in another case.^[3]  At best they stand as yardsticks.
18. [18]
    Before this Court the applicant referred to a number of cases, contending that they were of assistance.  Mostly they were not, as the circumstances differed to such a degree that any real comparability was absent.
19. [19]
    Callaghan J has referred to R v Robertson^[4] as providing some clear guidance.  As will appear I respectfully disagree.
20. [20]
    Robertson involved a sentence of two and a-half years’ imprisonment imposed for an attempted arson.  This Court reduced the head sentence from two and a-half years’ imprisonment to two years’ imprisonment.
21. [21]
    The circumstances of the offending in Robertson were distinct from those of the present case:

    1. (a)
       the sentence was imposed on a plea of guilty; here the applicant went to trial;
    2. (b)
       the attempted arson was an act of domestic violence:

       1. Robertson’s ex-partner had obtained a temporary protection order against her;
       2. in the days following service of the order, Robertson had fraudulently used her ex-partner’s credit card to purchase items valued at $774.00; that led to a police complaint against her;^[5]
       3. she then made contact with her ex-partner in breach of the order, leading to another police complaint; and
       4. while she was at the house on the night she lit the fire, Robertson entered a shed on that property and stole a mower and whipper snipper; the items belonged to the landlord but she took them believing they belonged to her ex-partner; the same day she pawned both items at a Cash Converters; these actions resulted in summary charges in addition to the attempted arson;
    3. (c)
       the house was known to be unoccupied; here the business premises were part of a shopping centre where other tenants might be present, and one was;
    4. (d)
       the fire was caused by setting fire to a telephone book with accelerant added and throwing that inside a room of the house; 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; here the fire affected the entirety of the premises, not just one room;
    5. (e)
       approximately $18,000 damage was caused; here the loss to the lessor was over $174,000;
    6. (f)
       the proper characterisation of Robertson’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;^[6] here the applicant intended to destroy the business premises so as to make a fraudulent insurance claim; the relevant intention required for the offence of attempted arson to be committed is that the offender meant to set fire to the building.^[7]
22. [22]
    In Robertson Atkinson J conducted an extensive review of potentially comparable cases.  They included: R v Johnson,^[8] R v Gwilliams,^[9] R v Silasack,^[10] R v Leigh,^[11] R v Rhode,^[12] R v Drinkwater,^[13] R v Porter,^[14] and R v Francis.^[15]
23. [23]
    Her Honour concluded:^[16]

“[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.”

24. [24]
    In my respectful view, Roberston was not a comparable case, in the sense of providing a yardstick against which to assess the sentence in the present case.  The differences in the surrounding circumstances are too great to make it of utility in that sense.  In the present case: (i) the attempted arson was in order to make a fraudulent claim on a $700,000 insurance policy; (ii) the damage caused to the lessor was in excess of $174,000; (iii) the fire in Robertson was localized and somewhat ineffectual, unlike the present case where damage was caused to much of the business premises; (iv) Robertson had no intention to destroy the residence whereas that was the intention here, signified by the intention to claim on the insurance; (v) Robertson had apologised and co-operated with police, contrary to the applicant’s conduct in the present case; and (vi) the sentence in Robertson was on a plea of guilty whereas in the present case the case went to trial, with the applicant denying her involvement.
25. [25]
    The significance of the intention to make a fraudulent claim cannot be understated in relation to the sentence imposed in this case.  As Jerrard JA in R v Johnson said:^[17]

“[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.”

26. [26]
    Of course, a statement such as that cannot be seen to constrain the exercise of a sentencing judge’s discretion, which must focus on the facts surrounding the particular offence.
27. [27]
    However, in my respectful view, once Robertson is identified a not being a useful yardstick, comparisons between that sentence and the present sentence are inutile.  And, it therefore ceases to be of relevance on the issue of whether the present sentence is manifestly excessive.
28. [28]
    Of the cases referred to by Atkinson J in Robertson, none could be said to be a yardstick in the present case.  They merely show that sentences for arson are variable, as are the facts of the offending, and that beyond general propositions (such as arson of a house is worse than a car, meriting a more severe sentence, and that the involvement of fraud in an arson will merit a greater sentence) little can be gained from a case that is not truly comparable.
29. [29]
    The applicant relies upon R v Sparks,^[18] R v O'Rourke,^[19] and R v Briones^[20] as yardsticks.  Those are cases of offences of arson rather than attempted arson.
30. [30]
    Sparks involved a conviction after trial for arson and fraud.  Sparks was sentenced to four years’ imprisonment with parole eligibility after two.  In that case, the applicant enlisted an accomplice and set fire to a house, motivated by an intention to make false claims on insurance.  In dismissing the appeal against conviction, this Court observed that the sentence was within the appropriate range.
31. [31]
    O'Rourke involved conviction after trial for arson and fraud.  O'Rourke was sentenced to three years’ imprisonment with parole eligibility after 18 months.  O'Rourke enlisted an accomplice to set fire to his own home with the intention of claiming insurance.  The loss to O'Rourke was estimated as between $100,000 and $150,000.
32. [32]
    Briones involved conviction after trial for arson and attempted fraud.  Briones was sentenced to three and a-half years’ imprisonment with parole after 20 months.  Briones organised for another party to set fire to a house he owned and was sentenced on the basis that the arson was premeditated.  This Court refused an application to appeal against sentence.
33. [33]
    While the above cases are for offences of arson rather than attempted arson, they remain relevant.  In Sparks and Briones, this Court found that the sentences imposed were not manifestly excessive.  While it is possible to contend that the sentence in the present case is higher than the sentences imposed in Sparks and Briones, the fact that the Court simply found not to be manifestly excessive, and the fact that the sentence in the present case is for attempted arson rather than arson, prevents them from being of utility on the issue of manifestly excess in the present case.

Conclusion

34. [34]
    The applicant has not identified any misapplication of principle in the exercise of the sentencing discretion such that one could conclude that the sentence imposed is unreasonable or plainly unjust.  I am unable to conclude that the four-year sentence imposed on the applicant was beyond the permissible exercise of the sentencing judge’s discretion.
35. [35]
    I agree with the order proposed by Bond JA.
36. [36]
    BOND JA:  The applicant and her husband conducted a newsagency business in leased premises within a larger shopping complex.  The business and the lease were held via a family trust arrangement.
37. [37]
    The applicant was in serious financial stress.  She had not been able to draw a salary from the business for some time.  The family home was security for a home loan and a loan for the business and a default had the result that the lender had commenced a recovery action.  The family home was in jeopardy.  There was also a tax debt which was the subject of a payment plan.
38. [38]
    The applicant started a fire in the newsagency premises, creating a risk of damage to property and injury to other people present in other tenancies within the shopping complex and, necessarily, to the firefighters called to the scene.  Luckily, the firefighters were able to extinguish the fire quickly.  Although no one was hurt and the building itself was not structurally damaged, the inside of the newsagency premises was damaged causing in excess of $174,000 loss to the owners of the building and a loss to the applicant and her husband in excess of $145,000 in lost stock and damage to fixtures and air-conditioning.
39. [39]
    After a five-day trial before a jury, the applicant was convicted of attempted arson.
40. [40]
    The sentencing judge took into account the foregoing facts.  Further, he was prepared to infer that the applicant had been motivated to start the fire because of the financial stress she was under and with a view to claiming on the business’s $700,000 insurance policy.  The applicant does not challenge the appropriateness of that inference.
41. [41]
    The sentencing judge also took into account that:

    1. (a)
       The applicant was 54 at the time of the offending and 57 at the date of sentencing.
    2. (b)
       She had no prior criminal convictions.
    3. (c)
       She was a hardworking person who had worked very hard for a long period of time.
    4. (d)
       She was in financial stress, had perhaps acted in desperation, and had certainly suffered great personal loss.
    5. (e)
       It could not be said that there was any evidence of remorse on behalf of the applicant.
42. [42]
    The sentencing judge found that the offence was a serious one.  And he found that the applicant’s offending was a serious example of the offence because of the amount of damage involved, and the risk of damage to other people and other property.
43. [43]
    He noted the authorities to which he had been taken with a view to giving him guidance in relation to the appropriate sentence.
44. [44]
    He observed:

“Under the Penalties and Sentences Act, the purposes for sentencing are to punish you in a proportionate way to the criminality, to deter you and other people from committing similar offences, to denounce the conduct, meaning to express the community’s condemnation of such behaviour, to protect the community and, where it is open to allow for, the rehabilitation of the offender.  Primary among those purposes is deterrence of you and particularly of others.  People must know that if they set about burning things, even if they do it in desperation to get the insurance, the Court will impose a heavy penalty because it is not just highly destructive conduct.  It has a potential for damaging innocent property and injuring innocent people.”

45. [45]
    After noting that the maximum penalty for the offence of attempted arson was 14 years, the sentencing judge concluded that the sentence which was appropriate in all the circumstances was four years imprisonment.  That was less than the five-year term sought by the Crown, but more than the unspecified “much lower” term sought by her counsel.  Because the sentencing judge did not fix a parole eligibility date, the applicant would become eligible for parole after serving 50 per cent of the sentence: s 184(2) Corrective Services Act 2006.
46. [46]
    The applicant now seeks leave to appeal against her sentence, having abandoned an appeal against conviction.  She does not argue that the sentencing judge made any specific error in the exercise of the sentencing discretion.  Rather, her case is that the sentence was manifestly excessive and that, accordingly, this Court should set aside the sentence below and exercise the sentencing discretion afresh.
47. [47]
    Observations which I made in R v Williams are apposite:^[21]

“In order to make good this contention, it is not enough to show that the sentence is markedly different from sentences in other cases.  The difference must be such that ‘… the result embodied in the court's order ‘is unreasonable or plainly unjust’ and the appellate court infers ‘that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance’.”

48. [48]
    Further, reference should be had to R v Lilley [2021] QCA 52, where Rafter AJ (with whom Sofronoff P and Boddice J agreed) made these observations at [48]:

“The High Court explained in R v Pham^[22] that comparable cases provide guidance as to the identification and application of sentencing principles and may show sentencing patterns and a range of sentences against which to examine a proposed or impugned sentence.  However, that does not mean that the range of sentences is necessarily the correct range or determinative of the upper and lower limits of the sentencing discretion.  As the Court emphasised ‘Appellate intervention on the ground of manifest excessiveness or inadequacy is not warranted unless, having regard to all of the relevant sentencing factors, including the degree to which the impugned sentence differs from sentences that have been imposed in comparable cases, the appellate court is driven to conclude that there must have been some misapplication of principle’.’^[23]”

49. [49]
    Before this Court, the applicant advanced her argument that the head sentence and the period of custody to be served was manifestly excessive by inviting the Court to have regard to the following cases:

    1. (a)
       R v Sparks [2004] QCA 454: The appellant was convicted after a trial for the offences of arson and fraud.  The arson offence was comprised of counselling or procuring an accomplice to burn down the residential house in which the appellant and her accomplice were living as tenants, so as to fraudulently claim on their respective insurance contracts for the contents destroyed in the fire.  The appellant was sentenced to four years imprisonment for arson and two years for fraud, to be served concurrently.  Her appeal against conviction was dismissed.  On the application for leave to appeal against sentence, the Court concluded that four years was within the applicable range.
    2. (b)
       R v Silasack [2009] QCA 88: The applicant was convicted on his plea of guilty of attempted arson and of stealing, fraud, attempted fraud and various summary offences.  On appeal, he was sentenced to six years imprisonment with parole eligibility after two years, which reflected the cumulation of a five-year sentence for attempted arson and a 12 months sentence for the other offences.  The circumstances of the attempted arson involved an offender, who, motivated by an intention to revenge himself against his former domestic partner who had sought the protection of a Domestic Violence Order, recruited two young men to assist him in burning down the former partner’s house.  The offender directed one of the men to throw bottles containing Molotov cocktails through the windows of the house in which the partner, her child and her parents were present, resulting in minor burns to the partner’s mother and minor damage to the house.
    3. (c)
       R v O'Rourke [2010] QCA 122: The appellant was convicted after a trial of arson of his own house and insurance fraud.  The cost of replacing the house was $100,000 to $150,000.  He was sentenced at trial to three years imprisonment with release on parole after 18 months.  The sentence appeal was abandoned and the conviction appeal was dismissed.
    4. (d)
       R v Robertson [2017] QCA 164: The applicant was sentenced after her own plea of guilty to offences of attempted arson and other offences directed against her former domestic partner.  The offences were motivated by revenge.  The attempted arson involved breaking into a rental house from which the former partner had already moved out, setting fire in a toilet in that house, and causing approximately $18,000 damage to the house.  By majority, the Court concluded that a sentence of two years and six months imprisonment with a parole release date after six months was manifestly excessive and reduced the head sentence to two years imprisonment.
    5. (e)
       R v Briones [2017] QCA 265: The appellant had been sentenced to three years and six months imprisonment with eligibility for parole after serving 20 months after a trial for arson of her own house and attempted fraud.  The offending had involved the appellant organising for a man to burn her house, a month after she had increased her insurance on the house.  The house was substantially damaged and the arson presented a danger to neighbours in the residential area, to their property and to firefighters.  The appellant appealed against her conviction and applied for leave to appeal against her sentence.  The appeal was dismissed and the application for leave refused.
50. [50]
    Having regard to those cases, the applicant submitted this Court should set aside the sentence below, exercise the sentencing discretion afresh and conclude that the appropriate sentence was of three years imprisonment suspended after the time the applicant had served 12 to 18 months imprisonment.
51. [51]
    For the following reasons, I am not persuaded.
52. [52]
    Sparks, O'Rourke and Briones were all cases involving the more serious offence of arson.  I would not regard a consideration of sentences imposed for arson as necessarily irrelevant to a consideration of the sentence to be imposed for the lesser offence of attempted arson.  A submission that a sentence for an attempted arson is manifestly excessive because it is outside the range of sentences which could have been imposed if the attempt had been successful, might well carry persuasive weight.  But the present comparison does not seem to rise so far.  Sparks and Briones were cases in which sentences for arson were simply found to be within the range of a properly exercised discretion and O'Rourke did not involve a sentence appeal.
53. [53]
    Silasack and Robertson are more relevant because they considered sentences for attempted arson.  Silasack was more serious than the present case because it: carried the elements of revenge against a former domestic partner; suborning other persons to assist; direct risk to persons and property within the affected house; and actual, albeit minor, harm to a person.  Robertson also involved the element of revenge against a former domestic partner, but the attempt resulted in minor damage to an unoccupied house.  I do not consider that either case makes clear a sentencing pattern or range by reference to which the present sentence may be impugned.
54. [54]
    Having regard to the considerations to which the sentencing judge properly had regard, including such comparison as might be made between the sentence imposed by him and those imposed in Silasack and Robertson, I am not persuaded that the present sentence should be regarded as unreasonable and plainly unjust.  I am not persuaded to infer that the sentence must have involved some misapplication of principle.
55. [55]
    To the contrary, the present offending was the serious offence of attempted arson.  It was motivated by the possibility of defrauding an insurer.  It involved the risk of serious harm to persons and property in the other shops within the shopping centre and it actually resulted in serious financial loss to innocent persons.  I regard the sentence which was imposed to be within the range of a proper exercise of the sentencing discretion.
56. [56]
    I would dismiss the application for leave to appeal the sentence.
57. [57]
    CALLAGHAN J:  After a five-day trial, the applicant was convicted of attempted arson and sentenced to four years’ imprisonment.  An appeal against her conviction has been abandoned, but she persists with an application for leave to appeal against that sentence.  The only ground of appeal proposed is that the sentence is manifestly excessive.
58. [58]
    The prosecution case was circumstantial.^[24]  In 2007 the applicant and her husband bought a newsagency located in a shopping centre near Mackay.^[25]  It was not successful.  Despite working fulltime, by 2018 the applicant was not drawing a wage from the business, which had been on the market for a number of years.^[26]  In fact, the applicant and her husband were feeling a range of financial pressures.^[27]  They had significant loans on which they had defaulted, and the mortgagor had commenced action for recovery of their home.^[28]
59. [59]
    Against that background of financial distress, on 30 July 2018 the applicant’s insurance company sent her an email.  It reminded her that it was time to renew a policy that insured the business for $700,000.^[29]
60. [60]
    The applicant and her husband were working at the newsagency that day;^[30] their one other employee was not.^[31]  Mr Cooper went home at about 2 pm,^[32] which meant that the applicant was the only person in the store at closing time – 5.30pm.^[33]  She performed a routine that involved locking tills and doors^[34] and left the scene at 5.40 pm.^[35]
61. [61]
    Nine minutes later the occupants of another tenancy within the shopping centre noticed flames and called 000.^[36]  So secure were the premises that when firefighters arrived they had to break glass doors in order to get inside.^[37]  It could therefore be inferred that there was no forced entry subsequent to the applicant’s departure.  Only the applicant, her husband and their absent employee had a key.^[38]
62. [62]
    The newsagency sold a line of canisters that contained butane.  These were usually kept in one place against the back wall.  After the fire, a number of these canisters were found in different locations around the shop.  Scientific examinations were not conclusive as to the relevance of this fact, but they did not have to be.  The applicant attempted to explain away individual circumstances, but their accumulation compelled an irresistible inference that was not displaced by her sworn denial of responsibility.  As noted, she has abandoned her appeal against conviction.
63. [63]
    The response of the fire brigade was prompt and efficient, but the damage done was significant.  The owners of the shop suffered a loss of $174,000.^[39]  That said, the applicant’s actions cost her dearly too.  There was of course no insurance payment, and she was sentenced on the basis that some $80,000 in stock was lost and $65,000 worth of damage was done to her fixtures and air-conditioning.^[40]  The transparency of her actions meant that the applicant had, between offence and trial, been shunned by her local community.
64. [64]
    But for the evidence of financial distress, the applicant’s behaviour would have been completely inexplicable.  At the time of the offence she was 57 years of age with no previous convictions whatsoever.  She and her husband had raised an adult son and she could point to a lifetime record of hard work.  Indeed, at the time of the trial she was working as a machine operator at a mine.^[41]
65. [65]
    His Honour the learned sentencing judge had regard to the applicant’s unblemished record and the fact that her desperation had led to “great personal loss”.  He noted, however, that there was a need for the sentence he imposed to serve the purpose of deterrence.  With respect, his Honour clearly was correct when he said:

“People must know that if they set about burning things, even if they do it in desperation to get the insurance, the Court will impose a heavy penalty because it is not just highly destructive conduct. It has a potential for damaging innocent property and injuring innocent people.”

66. [66]
    It is not suggested that this or any other aspect of his Honour’s articulated approach to the sentencing process was affected by specific error.  Rather, in order to demonstrate that the sentence was manifestly excessive, reference has been made to a number of other cases.  The same exercise occurred during proceedings before his Honour,^[42] but many of the cases to which reference was made involved sentencing for the offence of arson, rather than attempted arson.
67. [67]
    It is a characteristic of the criminal law that different offences might be charged based on very similar acts, depending upon their consequences.  A single punch might result in bodily harm or an unlawful killing.  The cases to which reference was made demonstrate that the difference between a case of arson and some cases of attempted arson fairly can be said to come down to a matter of luck.  They are nonetheless discrete offences to which different maximum penalties apply.  Care must then be taken not to conflate the range that is appropriate for the applicant with the one that is applicable to the offence of arson itself.
68. [68]
    Especially is this so because had even a part of the shopping centre caught fire, and the applicant’s conduct been charged as an offence of arson, it might have been difficult to argue that a sentence of four years imprisonment was manifestly excessive.  However, since the conviction is only for attempted arson, then that argument can be made well.  In part that is because this is not a case in which the court is confined to an exercise that involves drawing about manifest excess by considering sentences imposed in many other cases and attempting to plot them on a notional yardstick.  There is, in the circumstances some clear guidance to be found by reference to the decision in R v Robertson [2017] QCA 164.
69. [69]
    Robertson was a case in which this Court determined that a sentence of two and a half years’ imprisonment for attempted arson was manifestly excessive.  Atkinson J observed that it was a case which:

 “…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.”^[43]

70. [70]
    Nevertheless, after taking into account the fact that Robertson had no relevant criminal history and good prospects of rehabilitation, her Honour took the view that the aforementioned head sentence of two and a half years’ imprisonment was manifestly excessive, and favoured a sentence of two years’ imprisonment for the offence of attempted arson.   Her Honour left intact that part of the sentence that fixed a parole release date after six months of the sentence had been served.  Morrison JA agreed with her Honour.^[44]
71. [71]
    There is, in the context of this application, limited significance to the bare fact that the head sentence decided by the court to be appropriate for Robertson was precisely half the length of the one that was imposed on the applicant.  The circumstances of the court’s intervention, however, are instructive.
72. [72]
    The question as to whether the head term of two years and six months was ever going to have effect in practice was largely hypothetical.  Robertson could look forward, with certainty, to release after six months.  There was no need for the court to intervene so as to address an immediate concern about the length of time that Robertson was going to spend in custody.  If the reduction of the head term by six months was not – as it could not have been – an impermissible exercise in tinkering or fine tuning, it must be allowed that those extra six months took the sentence beyond the range that was permissible for that offence.  The imposition of a head term of two and a half years imprisonment was, in the circumstances of that case, wrong in principle.^[45]
73. [73]
    Of course it is open to parse over points of similarity and distinction between those circumstances and the applicant’s.  However, for the applicant’s case to escape application of similar principle would to my mind involve the identification of differences between the cases that would justify a meaningful distinction in the head term.
74. [74]
    I do not believe such can be found in the fact that the applicant went to trial.  It is clear that the court was of the view that Robertson’s plea of guilty was reflected in her parole release date.^[46]
75. [75]
    Care must also be taken with any attempt to draw a distinction between these cases by reason of the monetary value of the damage done in each.  The applicant was charged with attempting to set fire to a building which did not ignite.  She was not charged with the wilful damage of any property.  The fact that she caused $174,000 worth of damage to someone else’s property (and significant damage to her own) illustrates the potential for harm, but such potential will attach to most of these offences when any sort of building is a target of the attempt.  Similarly, these offences will always create a risk of injury to those who attempt to extinguish flames – if such injury is serious enough it will be reflected in a different sort of charge and may be punished accordingly.
76. [76]
    It will often be open to draw distinctions between cases of this type by reference to the motives that inspire them.  It may be that an offence driven by a “… malicious, vengeful, callous” intent^[47] will often be viewed more seriously than a case like the applicant’s.  Too much will depend on the circumstances for that to be a proposition of universal application, although the concept is relevant to consideration of another case that is discussed below.  For current purposes, it need only be said that the quality of the applicant’s offending is not so different from Robertson’s as to warrant her being placed in a different, and more serious category.
77. [77]
    It remains, in both cases, that mature women committed offences of attempted arson against premises which were unoccupied but where there was a real risk that the fire would take hold, cause extensive damage to property and, potentially, harm people.^[48]  These similarities do not mean that the applicant should receive the same sentence as Robertson.  However, the fact that it was a clear error to impose just six months more than two years’ imprisonment on Robertson does point to a conclusion that a sentence of double that length was not within the range applicable to the applicant.
78. [78]
    In argument calculated to resist that conclusion, the respondent referred only to R v Silasack [2009] QCA 88.
79. [79]
    After initially receiving a sentence of seven years imprisonment, Silasack was sentenced, on appeal, to a total of six years imprisonment, with this court fixing at five years the sentence that was appropriate for attempted arson.  However, the circumstances of that case were so very different as to limit its relevance for current purposes.
80. [80]
    Silasack was a 31-year-old man against whom a protection order had issued pursuant to the Domestic and Family Violence Protection Act 1989 (Qld).  That order prohibited him from being within 100 metres of his former partner’s residence.  In defiance, he devised a plan to “firebomb” that house which was occupied not only by his former partner but also by his seven-year-old son.  He recruited two young men to join him in the enterprise.  Molotov cocktails were prepared.  Silasack directed a co-offender to throw one bottle through the window of the complainant’s room and the other under the verandah.  The young man did that; one bottle hit a windowsill and fell onto the ground.  The other bottle did land inside the complainant’s bedroom, where it set fire to curtains, a cane basket and some clothes.  Also in the house at the time were Silasack’s former partner’s father and mother, who suffered some minor burns to her hand as she attempted to extinguish a fire.
81. [81]
    The sentence imposed therefore had to reflect the fact that Silasack corrupted others to participate in the offence, and knew that the premises were occupied by four people – including a child.  His actions were committed in the context of ongoing domestic violence and in that way were calculated to alarm community concerns.  His case had a particularly pernicious quality which is absent from the applicant’s offending.  The differences are so profound that I do not consider Silasack to belong on any “yardstick” that is useful here.  It belongs to a system of measurement that should be used in a different type of case.  For current purposes, Silasack can be put to one side.

82. [82]
    It is relevant, although not decisive, to note that apart from Silasack we were not referred to another case of attempted arson in which the head term exceeded that which was imposed on Robertson.  Such cases may exist; the respondent has not suggested that any align with the applicant’s in such a way as might make them useful for the purposes of this exercise.
83. [83]
    I am therefore left with the conclusion that four years was manifestly excessive in this case.  That does not entitle the applicant to a sentence that is identical to the one imposed on Robertson.  In a separate and independent exercise of the sentencing discretion, it should be accepted that the applicant’s case was a serious example of the offence of attempted arson.  The potential for devastation was demonstrated by the large amount of damage that was caused, in a very short time, and it created great risk of further damage and injury.  Unacceptably, it was motivated by financial considerations.

84. [84]
    It did not involve that sinister quality which attends an offence committed in a context of domestic violence or motivated by revenge, but in my view it still warrants a sentence of three years imprisonment.
85. [85]
    Such a sentence, without further order, would see the applicant eligible for parole after 18 months.  However, at this point in the process it is open to have regard to the “desperation” that triggered the offending, as well as the applicant’s age and her unblemished record.  It is not possible, at present, to discern a purpose that would be served by having her supervised on parole.  It is not open to impute any remorse, but from the abandonment of her appeal against conviction it might be inferred that the applicant now accepts some responsibility for her actions, which were so very out of character.  After having regard to all relevant considerations, I am of the view that it would be appropriate for the sentence of three years imprisonment to be suspended after a period of 15 months for an operational period of three years imprisonment.