R v Hartas[2021] QCA 178

SUPREME COURT OF QUEENSLAND

1. [1]
   FRASER JA:  I agree with the reasons for judgment given by Morrison JA and the order proposed by his Honour.
2. [2]
   MORRISON JA:  The applicant had been in a short-term relationship with one of the complainants (to whom I shall refer as Jan) in April and May 2020.  It lasted only about six weeks, ending at Jan’s instance.
3. [3]
   When they broke up Jan recommenced a relationship with the other complainant, her previous boyfriend.
4. [4]
   On 26 May 2020 the applicant drove past Jan’s house and saw an unfamiliar car parked in the driveway.  He contacted her and she told him that it was her ex-boyfriend’s car.
5. [5]
   The next night, at 11.45 pm, the applicant drove to Jan’s house.  He was intoxicated.  He brought with him the components to make a Molotov cocktail, namely a container of fuel, an empty vodka bottle, matches and some paper to act as a wick.  Whilst outside Jan’s house he constructed the Molotov cocktail and then threw it between the two cars in the carport.  He then drove away.
6. [6]
   Jan’s house was directly behind the carport.  Jan and her boyfriend, and her six-year-old child, were asleep at the time.  They woke to the sounds of an explosion and dogs barking.  When it became evident that the cars were on fire the boyfriend used a garden hose to extinguish the flames before police and the fire service arrived.
7. [7]
   One car was completely destroyed and the other was substantially damaged.
8. [8]
   The applicant eventually confessed to his involvement.  He was charged with one count of arson, that constituting a domestic violence offence.  On 3 February 2021 he was sentenced to three years’ imprisonment with a parole release date fixed at 3 February 2022, 12 months from the sentence.  Eight days of presentence custody was declared as time served.
9. [9]
   The applicant seeks leave to appeal against the sentence imposed on two grounds:

   1. (a)
      that the learned sentencing judge failed to give sufficient weight to the applicant’s personal circumstances; and
   2. (b)
      the sentence was manifestly excessive.

Circumstances of the offending

10. [10]
    At the time of the offence the applicant was 27 years old.  He and Jan had a relationship from the late-April to the end of May 2020, when Jan decided they should break up.  Almost immediately Jan got back together with her ex-boyfriend.
11. [11]
    On 26 May 2020 the applicant purposefully drove past Jan’s house and observed a car parked in the driveway.  He then contacted Jan and asked who the car belonged to.  Jan told him that it was the boyfriend’s car, and the applicant became upset.
12. [12]
    At 11.45 pm on 27 May 2020, the applicant, then in an intoxicated state, drove to Jan’s house with a fuel container and an empty Smirnoff bottle.  When he arrived at the house he created a Molotov cocktail by placing fuel in the bottle and using paper to construct a wick.
13. [13]
    The applicant lit the wick and threw the Molotov cocktail into the open-air garage, between the two cars.  He then drove away.  Jan and her boyfriend woke up to an explosion and to a dog barking.  The boyfriend asked Jan to call 000 because his car was on fire.  He managed to extinguish the fire with a garden hose before the emergency services and police attended.
14. [14]
    At 11.53 pm that night Jan, suspecting that the applicant was responsible, called him.  The phone call went through to message bank.  The call lasted 57 seconds.  She then contacted the applicant via Facebook messenger.  He denied that he had anything to do with the fire and said he was at his home in Burpengary.
15. [15]
    A smashed Smirnoff bottle was located under Jan’s car.  Police tracked the applicant’s call records for the evening of 27 May 2020, and that revealed that he was moving northbound from North Lakes to Narangba.  Police also checked CCTV cameras which verified his car was photographed travelling northbound on the Bruce Highway towards Narangba at 11.56 pm.
16. [16]
    On 12 June 2020 the applicant participated in two recorded interviews with police.  During the first interview he maintained that he had nothing to do with the arson and was at his home in Burpengary at the time.  He said his housemates could vouch for his whereabouts.
17. [17]
    However, when police showed him the photograph of his car travelling along the Bruce Highway, and the cell tower information attached to the phone call made by Jan, he was unable to offer an explanation, saying, “I’m as surprised as you are”.
18. [18]
    After the interview the applicant was transported to the watchhouse to be formally charged.  Prior to arriving there the applicant told police that he was, in fact, responsible for the arson and was willing to participate in a further recorded interview.
19. [19]
    During the second recorded interview the applicant made frank admissions to his offending.  He said that on the night of 27 May he was upset that Jan was not replying to his text messages.  He said he became concerned for her welfare because she had just had a miscarriage.  In a drunken state, he drove to Jan’s house and saw the boyfriend’s car there.  He then made a Molotov cocktail and threw it on the driveway.  When the glass smashed, he re-entered his car and drove away.  He denied knowing who owned the second car.  His intent was not to damage property or hurt anyone.  He said he aimed for the driveway so they could see the flames.
20. [20]
    The applicant told police that a friend of his had told him that another person’s car was outside Jan’s house the day before.
21. [21]
    After the interview the applicant was charged and held in custody.  A temporary protection order was put in place on 16 June 2020.
22. [22]
    The boyfriend’s car (worth $20,000) was written off.  He received a payout in excess of $18,600 after an excess fee.  Jan’s car (worth $16,000) sustained damage to the rear bumper and boot quarter panel, and the rear lights were melted.  The cost of the repair was just over $2,000, paid by insurance.

The psychological report

23. [23]
    At the sentencing hearing a psychological report was provided in respect of the applicant.  Much of the contentions advanced on behalf of the applicant before this Court concerned the impact of what was revealed in that report.
24. [24]
    The report listed a number of features about the applicant’s early years and development:

    1. (a)
       he was born with spina bifida; he had multiple surgical procedures to correct his condition, commencing at 18 months old, then again at ages eight and 15;
    2. (b)
       the surgery to overcome that condition left him with permanent damage to his spinal nerves and residual neurological symptoms and chronic pain;
    3. (c)
       in his infancy and youth the applicant had difficulty with walking because of rotation to his feet, such that he used to go to school with his legs in plaster and corrective splints;
    4. (d)
       the spine disorder has left him with a loss of sensation in his feet;
    5. (e)
       his condition caused him pain during his childhood, in his shoulders, back and lower back, in addition to the loss of sensation in his lower legs and feet;
    6. (f)
       that history supported the psychologist’s view that the applicant had “a poor psychosocial development and delayed maturity as a result of his congenital medical issues and subsequent hospitalisations and periods of inability to mix with other children”;^[1]
    7. (g)
       it was not until the major surgical procedure at age 15 that the applicant started socialising appropriately, partly as a consequence of the fact that the bullying he had experienced at school then ceased;
    8. (h)
       as his body slowly improved with treatment the applicant started engaging in sport, though he was not allowed to play contact sports; notwithstanding that, he competed in shotput;
    9. (i)
       the applicant completed his primary schooling and high school education to part the way through year 12; at primary school he experienced periods bullying because of his physical disabilities;
    10. (j)
        he developed an interest in politics and participated in one politician’s electoral campaign, as well as immersing himself in the charity work of a church;
    11. (k)
        the applicant had attempted a couple of jobs, but they only lasted a few weeks because he was slow and could not handle the physical demands of the job;
    12. (l)
        at 18 years of age (in about 2011) the applicant discovered he had a talent as a disc jockey; he had worked as an independent club disc jockey since that time, until March 2020 when the COVID-19 pandemic closed nightclubs; over that eight to nine year period the applicant’s long night shifts limited his ability to form relationships; he had had several relationships, each of six to eight months, but his work regime made it difficult to continue them;
    13. (m)
        during his short relationship with Jan the applicant understood that she had fallen pregnant to him, but the foetus died in utero; he reported that his doctor had warned him against having children because of the risk of the child having spina bifida; he had the view that Jan blamed him for the death of the child (although she never said so) and he reported that he felt as though they were both depressed;
    14. (n)
        the Personality Assessment Inventory (PAI) performed by the applicant conveyed “mild to moderate distress, with significant elevations on all clinical scales except the ones that measure the severity of alcohol and drug problems”;^[2]
    15. (o)
        the forensic and treatment scales identified potential issues with violence potential, suicide potential/ideation, stress, and a very high motivation towards treatment;
    16. (p)
        the profile suggested the applicant sought out friendships and was desperate for companionship; he would struggle in a work role that did not involve mixing socially or talking;
    17. (q)
        the applicant reported that his traumatic distress arose from the failed pregnancy and the ensuing belief that Jan blamed him for what had happened;
    18. (r)
        the analysis of the PAI “returned a diagnostic consideration of Posttraumatic Stress Disorder, and possibly a com-morbid (sic) mood disorder”;^[3] and
    19. (s)
        the test results also showed a high elevation on Somatic Complaints, relating to genuine medical conditions that had caused him pain, discomfort and disability for all of his life.
25. [25]
    The opinion of the psychologist was that the applicant was an immature 27 year old man, with a complex medical history and significant psychological problems on a background of delayed psycho-social maturity and longstanding mood disorder.^[4]  Having noted that the applicant appeared to have traumatic stress arising out of the failed pregnancy, the report stated:^[5]

“81 I believe that [the applicant] was unwell psychologically, there are indications of alcohol misuse, and he was possibly still having feelings for his ex-partner when the subject offence was committed.  He was also struggling because the COVID-19 pandemic had made him unemployed.

82 From the psychological perspective, what happened was quite unfortunate for [the applicant] and for his ex-partner.

83 [The applicant] is very unwell psychologically.  He suffered from bullying at primary school, and I fear that his immature and somewhat impulsive interpersonal style may place him in harms way in a jail setting.”

26. [26]
    The psychologist also recommended that there be long term social skills training from a health profession and that his symptoms of traumatic stress and low mood “should probably be discussed with his doctor”.  Further, clinical psychology was indicated.

Consideration – Ground 1

27. [27]
    Consideration of this ground, as well as ground 2 (the manifest excess ground) must commence with the fact that the application did not criticise the head sentence imposed.  Counsel for the applicant contended that three years’ imprisonment was at the upper end of what might be within appropriate discretion, but did not seek to contend that a lower head sentence should have been imposed.  Instead, the focus of the contentions was on reducing the parole release date from that which had been set (3 February 2022) to (effectively) immediate release on the day of the hearing.
28. [28]
    In respect of ground 1 it was contended that there was a long line of authority as to the relevance of mental health conditions to sentencing discretion.  Particular reliance was placed on the decision in R v Tsiaras,^[6] and the adoption of it in subsequent decisions including by this Court in R v Yarwood,^[7] and the Victorian Court of Appeal in R v Verdins,^[8] as establishing that serious psychiatric illness not amounting to insanity is relevant to sentencing in at least five ways:

    1. (a)
       first, it may reduce the moral culpability of the offence, as distinct from the offender’s legal responsibility; in such a situation denunciation is less likely to be relevant;
    2. (b)
       secondly, the illness may have a bearing on the kind of sentence that is imposed, and any conditions under which it is to be served;
    3. (c)
       thirdly, a prisoner suffering from serious psychiatric illness is not an appropriate vehicle for general deterrence, whether or not the illness played a part in the commission of the offence;
    4. (d)
       fourthly, specific deterrence may be more difficult to achieve; and
    5. (e)
       finally, psychiatric illness may mean that a given sentence will weigh more heavily on the prisoner than it would on a person of normal health.
29. [29]
    Reliance was placed on Verdins where that Court held that the sentencing considerations identified above were not limited to cases of “serious psychiatric illness”, but included those where the offender was shown to be suffering at the time of the offence, or at the time of sentencing, “from a mental disorder or abnormality or impairment of mental function, whether or not the condition in question would properly be described as a (serious) mental illness”.^[9]
30. [30]
    The approach in Verdins has been adopted by this Court in R v Bowley:^[10]

“The presence of a mental abnormality which does not amount to the defence of insanity under s 27 of the Criminal Code is often a significant matter in the sentencing process.  In R v Tsiaras the Victorian Court of Appeal identified a number of respects in which a defendant’s serious psychiatric illness not amounting to insanity is relevant to that process.  In R v Verdins the same Court revisited the principles stated in Tsiaras.  It pointed out that the relevance of the considerations identified in Tsiaras was not limited to cases of serious psychiatric illness.  That Court also restated the relevant principles.  The authority of both of these decisions has been recognised in this State.  It is, however, appropriate to focus on the reformulation of the principles found in Verdins.  It is in the following terms (a reference has been omitted):

‘Impaired mental functioning, whether temporary or permanent (‘the condition’), is relevant to sentencing in at least the following six ways:

1. The condition may reduce the moral culpability of the offending conduct, as distinct from the offenders’ legal responsibility.  Where that is so, the condition affects the punishment that is just in all the circumstances; and denunciation is less likely to be a relevant sentencing objective.
2. The condition may have a bearing on the kind of sentence that is imposed and the conditions in which it should be served.
3. Whether general deterrence should be moderated or eliminated as a sentencing consideration depends upon the nature and severity of the symptoms exhibited by the offender, and the affect of the condition on the mental capacity of the offender, whether at the time of the offending or at the date of sentence or both.
4. Whether specific deterrence should be moderated or eliminated as a sentencing consideration likewise depends on the nature and severity of the symptoms of the condition as exhibited by the offender, and the effect of the conditions on the mental capacity of the offender, whether at the time of the offending or at the date of the sentence or both.
5. The existence of the condition at the date of sentencing (or its foreseeable recurrence) may mean that a given sentence will weigh more heavily on the offender than it would on a person in normal health.
6. Where there is a serious risk of imprisonment having a significant adverse effect on the offender’s mental health, this will be a factor tending to mitigate punishment.’”

31. [31]
    The central contention advanced was that: (i) the learned sentencing judge stated that the sentence must reflect both specific and general deterrence, and that he found nothing in the report to justify further leniency;^[11] (ii) this showed that the matters in the psychological report had not been taken into account when sentencing.
32. [32]
    It was also contended that the report showed matters to do with the applicant’s physical and mental health which were sufficient to infer that imprisonment would impose a greater burden on him than would be the case on others, but that such matters were not taken into account in sentencing.
33. [33]
    Finally, reference was made to that part of the psychological report which referred to the applicant being “in harms way in a jail setting”^[12] and the submission was made that this was another factor not taken into account by way of mitigating the time to be spent in custody.
34. [34]
    There are a number of reasons why, in my respectful view, these contentions should be rejected.
35. [35]
    First, it is clear that the learned sentencing judge gave particular consideration to the psychological report.  Putting aside the various references to its contents in the course of submissions, his Honour specifically referred to the report in these terms:^[13]

“You have suffered lifelong difficulties from birth.  I have the report of Mr Peros, which I found extremely helpful, to give me a summary of the difficulties that you have faced.  I cannot help but think, though, that one of the things that you suffered as a young child was bullying at school, and the conduct that you exhibited that night is a classic example of bullying a woman who had decided for whatever reason it was time to end the relationship.  I expect your mother, who has probably spent her whole life worrying about you, will be devastated to see you sitting where you are today.  In her old age, she has come to rely on you very heavily, but I cannot allow that natural sympathy for her to act as a shield against an appropriate sentence.

Mr Peros’ report, as I say, provided very helpful background information, and I do accept that at the time that this happened you were at a very low point in your life, both because of work and the breakup of the relationship.  But I cannot find anything in it that would justify further leniency.  I see no reason why, for example, a sentence imposed on you should not, not only personally deter you, but be sent as a message to others as a general deterrent that the breakdowns of relationships cannot be concluded in this way.”

36. [36]
    In my view, it is plain that his Honour had read the whole report.  References to the applicant’s “lifelong difficulties from birth”, the bullying at school and the applicant being at a “very low point” at the time of the offence, all signify close attention to the contents of the report.
37. [37]
    Secondly, his Honour’s statement that he could not find anything in the report “that would justify further leniency” does not signify that the matters in it were ignored or put to one side.  His Honour had recited various factors to be taken into account in the balancing exercise on the sentence immediately prior to referring to the report.^[14]  That included factors in the applicant’s favour including: (i) the lack of previous convictions; (ii) the plea of guilty which was regarded as “significant”; (iii) the plea reflected remorse; and (iv) cooperation with the police, including a confession which was “a very significant factor in your favour”.
38. [38]
    In context, therefore, his Honour took into account all of the mitigating features that would warrant leniency in sentencing and was simply saying that the matters in the report would not justify further leniency.  His Honour linked that to the questions of the impact of what was in the report to personal as well as general deterrence.  Read in context, the last sentence of the passage set out above was his Honour’s conclusion that the matters in the report did not diminish the call for personal or general deterrence.
39. [39]
    Thirdly, when one has regard to the report his Honour’s caution was warranted.  The report did not reveal psychological conditions that would place a strong call on the factors outlined in Tsiaras and Bowley.  Thus:

    1. (a)
       the personality testing revealed “mild to moderate levels of depressed mood and anxiety” and a personality profile consistent with “PTSD and health concerns”;^[15]
    2. (b)
       the breakup with Jan caused him considerable distress;^[16]
    3. (c)
       whilst the applicant had poor psychosocial development as a child and into his teens, nothing was said to indicate that was still present at the time of the offence;
    4. (d)
       the applicant was likely depressed when the offence was committed;^[17] but this was explained as being related to the failed pregnancy and the failure of the relationship;^[18]
    5. (e)
       the height of the expression of his condition was that the applicant “was unwell psychologically, there are indications of alcohol misuse, and he was possibly still having feelings for his ex-partner when the subject offence was committed”;^[19] but it was also pointed out that he was struggling because the pandemic had made him unemployed; and
    6. (f)
       as to his condition at the time of sentencing, all that the report said was that the applicant “is very unwell psychologically”, and the combination of his bullying at primary school, immaturity and “somewhat impulsive interpersonal style” might place him “in harms way in a jail setting.”^[20]
40. [40]
    In my view, none of those comments in the report would justify the conclusion that his mental state at the time of the offence or at the time of sentence warranted substantial weight according to the considerations in Tsiaras and Bowley.  There was no necessary reduction of moral culpability, it was accepted that a period of imprisonment was appropriate, his mental state was not such that he became an inappropriate vehicle for general deterrence nor specific deterrence, and there was an insufficient basis to conclude that his mental state would mean that imprisonment would weigh much more heavily on him than imprisonment would ordinarily weigh on an average prisoner.
41. [41]
    Fourthly, there was nothing in the report or submissions otherwise with respect to the applicant’s physical state which would have suggested that greater mitigation of the sentence was warranted.  True it is that he was born with spina bifida and had experienced a number of surgical procedures and difficulties following from his condition.  It is also true that his physical condition means that he cannot engage in contact sport or work that requires particular physical effort.  However, whilst he might have been slow and awkward at learning how to walk, and suffers from loss of sensation in his feet, that was not such that he could not jump on a backyard trampoline as he grew up, walk, and even participate in shotput.  His progress might be slow because of his physical condition, but not in any way that would suggest prison would be unduly onerous.
42. [42]
    In my view, it cannot be demonstrated that the learned sentencing judge either failed to take into account some particular consideration arising out of the report, or alternatively fell into error by not mitigating the sentence further than it was.

Consideration – ground 2

43. [43]
    This ground contended that the setting of the period to be served under the sentence was manifestly excessive.  The head sentence was three years’ imprisonment, with eight days of pre-sentence custody being declared as time already served, and the parole release date being fixed at 3 February 2022 (being 12 months from the date of sentence).
44. [44]
    The contentions proceeded on the basis of several conceded matters.  First, no criticism was made of the head sentence.  Secondly, whilst the applicant was said to have made frank admissions to the police which assisted because the case was merely circumstantial without them, that did not amount to cooperation attracting the principle in AB v The Queen.^[21]
45. [45]
    The contentions advanced on behalf of the applicant made these points:

    1. (a)
       whilst the applicant’s cooperation was significant, it was unclear how that factor had been taken into account in fixing the period of imprisonment to be served; it was apparent there was no reduction on that account;
    2. (b)
       the period of actual custody imposed was not ameliorated to take into account relevant matters in mitigation such as: (i) the applicant’s physical and mental health as reflected in the psychologist’s report; (ii) his cooperation; (iii) the early guilty plea; and (iv) the applicant’s lack of any criminal history.
46. [46]
    For several reasons, it is my view that this contention cannot be sustained.
47. [47]
    First, the head sentence of three years was accepted as being within the range of sentencing discretion.  A contention was advanced that it was at the top of the possible range, but I disagree.  Based on a number of decisions referred to by the learned sentencing judge,^[22] it was correct to identify that a sentence of up to four years was possible.
48. [48]
    Secondly, once that is accepted, it becomes apparent that his Honour imposed a head sentence which already reflected mitigation in respect of those factors in favour of the applicant such as his lack of previous convictions, his early plea and his cooperation.  So much was identified expressly by his Honour in the course of the sentencing remarks.^[23]
49. [49]
    Thirdly, the other mitigating effects which were urged were those which could be derived from the report of Mr Peros.  For the reasons outlined above in respect of ground 1, his Honour was justified in the conclusion that the matters in that report did not warrant further leniency in the sense of diluting the need for personal and general deterrence.
50. [50]
    Fourthly, the applicant’s contentions did not adequately reflect the fact that the applicant was being sentenced for a count of arson which attracted the aggravating factor that it was a domestic violence offence.  That factor was plainly in the mind of the learned sentencing judge when his Honour referred to the conduct as being a “classic example of bullying a woman”^[24] and that deterrence was called because “breakdowns of relationships cannot be concluded in this way”.^[25]
51. [51]
    Fifthly, that the offence attracted a possible maximum of life imprisonment signifies the seriousness of the offence generally speaking.  However, as his Honour pointed out, the applicant’s criminal behaviour was “deeply premeditated”, carried out because of “revenge and jealousy”, destroyed one car and badly damaged the other, and involved the potential for disastrous consequences from the fire itself.  The learned sentencing judge rightly characterised the offending conduct, given its grave potential to life and property, as “an extremely serious act of domestic violence”.^[26]  The impact of that offending beyond the physical consequences for the vehicles was reflected in the victim impact statements of each of the complainants.  Each of them identified the serious psychological harm experienced as a consequence, involving Jan’s need to obtain psychiatric assistance.  The offence also caused distress to the six-year-old child who experienced nightmares for many months.^[27]
52. [52]
    Sixthly, given those matters it is not possible to establish that the parole release date was set in such a way as to make that part of the sentence unreasonable or plainly unjust so as to justify an inference that there must have been a misapplication of principle.^[28]

Conclusion

53. [53]
    As both grounds have not succeeded I propose the following order:

1. Application for leave to appeal refused.

54. [54]
    APPLEGARTH J:  I agree with the reasons of Morrison JA and with the proposed order.