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The applicant had burnt down the matrimonial home. In sentencing the offender, the sentencing judge held, in the absence of submissions by the prosecution on motive, that this was “a vindictive act”. The Court of Appeal (Burns J with whom Morrison and McMurdo JJA agreed) held that in drawing this inference, the sentencing judge made a “critical” error as her Honour determined a fact that was not in issue between the parties. The Court of Appeal set aside the applicant’s sentence and resentenced the applicant.
Morrison and McMurdo JJA and Burns J
23 February; 20 July 2021
Having burnt down his matrimonial home, the applicant was sentenced to a period of imprisonment of four years, suspended after serving 12 months for an operational period of four years, for one count of arson. . The sentence hearing proceeded on an agreed statement of facts. .
The defence case was that the fire was an attempt to commit suicide by the applicant. .
In submissions, the prosecutor did not advance a motive, but agreed, when directly asked by the judge, that a suicide attempt or attention-seeking were potential basis for sentencing the offender. The prosecutor did not positively allege that the applicant had acted vengefully but conceded that it was open to the sentencing judge to infer that the applicant’s act of arson was “a vindictive act”. , .
The central issue on appeal was whether the sentencing judge fell into error in finding that the applicant had “acted vindictively to hurt his wife in committing the offence”. .
Decision of the Court of Appeal
Justice Burns, with whom Morrison and McMurdo JJA agreed, held that in drawing this inference her Honour erred, “and in a critical way”, as she determined a fact that was not in issue between the parties. , see also , .
Section 132C of the Evidence Act 1977 sets out the circumstances in which a sentencing judge or magistrate may engage in fact finding during a sentence. Relevantly, s 132(C) provides that:
“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.”
Section 132C is not confined to allegations of fact but extends to any inferences said to arise from those facts, including motive. .
It places a burden on the Crown to prove the facts, or inferences, on which it seeks to rely if those facts are not admitted. The prosecution must allege what fact or inference is to be found and if that fact or inference is not admitted or challenged by defence, the Court must determine whether it should be accepted. .
Similarly, the sentencing judge is required to determine whether to accept an assertion by the defence, even where no contrary evidence is led by the prosecution or where such an assertion is not the subject of submissions by the prosecution. In this circumstance, where there are competing inferences, the benefit of the doubt should be given to the offender. .
Here, the prosecution did not make a submission that the applicant had set fire to the house vindictively. The prosecution had been “neutral” and when asked by the judge said no more than that each possibility was “open” on the admitted facts. , .
In drawing this inference about the applicant’s motive the sentencing judge made a determination about a fact that was not in issue between the parties and therefore fell into error. .
The Court of Appeal set aside the applicant’s sentence and resentenced the applicant. In doing so, Burns J noted that the material before the Court indicated that the defence submission that the fire was an attempted suicide was “at least equally probable”. .
The applicant was resentenced to a period of three years’ imprisonment suspended at the date of the hearing for an operational period of three years. .
A Hughes of Counsel