1. Pursuant to s.403(2) of the Criminal Code, a verdict of

guilty of the crime of unlawfully injuring property,

contrary to s.273 of the Criminal Code, is substituted for

the verdict of guilty of arson, contrary to s.268 of the

Criminal Code, returned by the jury against the appellant,

Kenneth Barrymore Bauer.

2. In respect of the crime of unlawfully injuring property,

the appellant is sentenced to imprisonment for 12 months, in

substitution for and coming on the same day as the sentence

of 18 months' imprisonment passed on the appellant for the

crime of arson.

NETTLEFOLD J I have now had an opportunity to study the reasons for judgment prepared by Underwood J. I agree with his reasons both in respect of the appeal against conviction and the question of the sentence which should now be passed. In the circumstances I should add some comments about the sentence.

2. With respect, no statement in the law reports in recent times has made a greater impact on my mind than the following statement by Mason J in Lowe v. The Queen [1984] HCA 46; (1984) 154 CLR 606 at 610:

"Just as consistency in punishment - a reflection of the

notion of equal justice - is a fundamental element in any

rational and fair system of criminal justice, so

inconsistency in punishment, because it is regarded as a

badge of unfairness and unequal treatment under the law,

is calculated to lead to an erosion of public confidence

in the integrity of the administration of justice. It is

for this reason that the avoidance and elimination of

unjustifiable discrepancy in sentencing is a matter of

abiding importance to the administration of justice and to

the community."

3. One cannot give Mr Bauer justice in accordance with that notion without paying close attention to the decisions of members of this court in comparable cases in recent years. Research along those lines will throw up the following decisions:

G.J. Quinn - 11 May 1977

J.E. Jones - 4 October 1978

D.G.T. Cruickshank - 7 June 1983

K.A. Patterson - 12 September 1983

Brown v. The Queen - 12 April 1985 - CCA

S.T. Butterworth - 17 April 1985

D.H. Streets - 26 February 1987

D.M. Hill - 30 March 1987

4. Of course, those cases are but examples of what was a consistent sentencing practice.

5. I am firmly persuaded that any sentence in excess of 12 months would represent an injustice to Mr Bauer, an injustice disclosed by a proper application of the principle stated by Mason J. As Underwood J has pointed out the property destroyed was an empty and unoccupied building which had not yet become any person's home. Having regard to the isolated location, the appellant's actions did not produce a risk of injury to other people. In short, the appellant's crime was an economic crime and the value of the property destroyed was down towards the lower end of the range of values thrown up by a study of the cases. I do not overlook that fire crimes are difficult to detect. Nor do I overlook that the criminal act here was born of malice and premeditated.

6. I take this opportunity to make two observations. First, we need better records of sentences passed. Second, a loyal application of the principle stated by Mason J will mean that, from time to time, the Court of Criminal Appeal will need to review the current level of sentence for a particular crime to ensure that it accords with what is desirable in the then prevailing social circumstances. But that proposition is far from new. It was stated by this Court as long ago as Papazoglou v. The Queen, 9/1963 in a passage which was cited in Brown v. The Queen (supra). The passage is in fact a quotation from Napier J in Wade v. Trotter (1934) SASR 62 at 64. The passage reads as follows:

"... I think that one of the functions of a Court of

criminal appeal is to standardise - so far as that is

possible - the penalties imposed in Courts of first

instance. ... There is no doubt that it is impossible to

lay down a 'tariff', but it is manifest that the penalty

for a particular infraction of the law ought not to vary -

to any consideration extend - upon the mere accident of

the complaint being heard in a particular Court or before

a particular magistrate. ... when there has been a

manifest departure from what I shall call the 'customary

penalties in other Courts', then I think that it becomes

the duty of this Court to examine the case, and to pass

upon the propriety of the particular penalty, and for that

purpose upon the propriety of the standard suggested by

the customary penalties."

UNDERWOOD J The appellant was found guilty of one count of arson contrary to s.268 of the Criminal Code and sentenced to 18 months' imprisonment to commence from 5 June 1987.

2. The appellant was the author of the Notice of Appeal Against Conviction and the Application for Leave to Appeal Against Sentence. Upon the hearing of his Appeal he was unrepresented by counsel and accordingly, it is appropriate to deal with this matter as it was argued, without reference to the grounds of appeal.

3. The appellant was engaged in the business of purchasing unwanted houses, mainly from Government departments and selling them to willing purchasers. The appellant dismantled the houses he bought and transported them, either direct to a site nominated by a purchaser or to land he leased at Evandale for storage until later sale. Early in 1986, the appellant had completed the purchase of seven houses known as lot numbers 48, 111, 113, 114, 117, 118 and 119. He had transported these houses to his leased land at Evandale. At the same time, a Mr Goldfinch was in the process of purchasing a seaside block of land at Bellingham. The undisputed evidence of Mr Goldfinch was that, before he had title to the block of land, he discussed with the appellant the purchase of one of the houses at Evandale. The appellant was being threatened with eviction from the Evandale land for non payment of rent, and he agreed to sell one of these houses to Mr Goldfinch and transport it to Bellingham for $6,700 provided Mr Goldfinch immediately paid the money to the solicitors acting for his landlord.

4. Mr Goldfinch looked at the houses at Evandale, five of the six of which were, for practical purposes, identical, and agreed to buy one of them. The appellant said that he would keep the house at Evandale for Mr Goldfinch until title of the block of land issued.

5. Mr Goldfinch paid $6,700 to the solicitors acting for the appellant's lessor. Those solicitors gave him a receipt and this document was later signed by the appellant. At that time, no agreement had been reached between the appellant and Mr Goldfinch as to which of the five houses then at Evandale, Mr Goldfinch had bought.

6. On the 25 January 1987 the appellant and Mr Goldfinch signed an agreement with respect to the cartage of a house. The document, which was not suited to the transaction the parties had entered into, was a roneoed pro-forma document with blank spaces left in it. It is unnecessary to consider any part of this document except the space originally left blank for a description of the house the document relates to. At the time the document was signed the appellant wrote in that space, "building + house removals yard ex Hertz rental". In later discussion it was agreed that Mr Goldfinch would probably take lot number 111 and at that time, the appellant wrote on the original agreement the additional words "no. (?) 111 and negotiable". (my question mark).

7. Over the following weeks, there was some discussion between Mr Goldfinch and the appellant concerning Mr Goldfinch taking in lieu of one of the houses at Evandale, a house the appellant was negotiating to buy in George Town but apparently nothing came from those discussions. In March 1986, Mr Goldfinch was at Evandale and saw lot No. 111 being dismantled and taken away. He became concerned that the appellant may not honour the terms of the agreement that had been entered into.

8. The Crown case was that some time after that event, there was a discussion between the appellant and Mr Goldfinch whereby it was agreed that Mr Goldfinch should take lot number 117 but the appellant could not cart it to Bellingham as his vehicle had broken down. Mr Goldfinch said that at the time this agreement was reached, the appellant wrote on a photostat copy of the written agreement (made before the words "no. 111 and negotiable" had been written on it) the words "negotiable 117 verified 26-2-86 KBB".

9. About the middle of June 1985, Mr Goldfinch engaged the services of one Geoffrey Chilcott to move lot number 117 from the appellant's yard at Evandale to Bellingham. Chilcott was a former employee of the appellant. In June 1985 for reasons which the evidence did not make clear, the appellant felt great antipathy towards Mr Chilcott.

10. The accused, in his unsworn statement, said that at no time had he agreed that Mr Goldfinch could take lot number 117 and he denied making any amendment to a photostat copy of the agreement so that it referred to lot number 117. He said he never gave Mr Goldfinch any authority to remove lot number 117.

11. On or about the 2 July 1987, before the house had been fixed to permanent foundations, it was totally destroyed by fire. The appellant denied any involvement with this fire and asserted in his unsworn statement, that he was home the night the house was destroyed. He called witnesses to corroborate this alibi.

12. The Crown case was that the accused made an oral confession to police officers that he set fire to the house. The evidence of the police officers was that, when asked for his reason for burning the house down the accused said, "Chilcott really, he ruined me and also in the finish Goldfinch was - Goldfinch was becoming a bloody menace as well".

13. Upon the trial the following matters became substantial issues, namely:

1. Was it the accused who set fire to the building?

2. That, if the accused did set fire to the building:

(a) Was the house then owned by Mr Goldfinch thus making the

accused's act unlawful? and/or

(b) If the house was in fact owned by Mr Goldfinch did the

accused have an honest claim of right, believing that it

belonged to him?

14. Although not the subject of much attention from the defence at the trial, the evidence raised a further issue of whether the house was attached to the soil as prescribed by s.268 of the Code.

15. All of the foregoing matters were canvassed by the appellant upon the hearing of the appeal. With respect to all matters other than the question of attachment to the soil, no complaint was made about the directions of the learned trial judge. The jury were entitled to prefer the evidence of the police that the appellant made an oral confession, to the unsworn statement and the evidence of the appellant's alibi witnesses. Similarly, the jury were entitled to reject the statement of the accused and accept the evidence of Mr Goldfinch that the appellant had expressly agreed to transfer ownership of lot number 117 to him. In accordance with the directions properly given them, the jury were entitled to be satisfied beyond reasonable doubt that the accused did set fire to the house and that such act was unlawful and at the time it was committed, the accused did not honestly believe he had a claim of right to the house.

16. The issue of attachment to the soil and the learned trial judge's directions concerning this issue requires separate consideration.

"Any person who unlawfully sets fire to any building,

erection, or structure whatever attached to the soil,

whether the same is completed or not, ... is guilty of a

crime which is called arson".

18. In his directions to the jury the learned trial judge referred to the evidence on this issue and said:

"Well that's the evidence about whether it was attached to

the soil, you might think it's not necessary to nail a

house to the soil, it sits there under its own weight and

for all intents and purposes it is attached if it's put in

a permanent position in that way, I don't know. But that

is a question you might have to think about. I frankly

don't know, and there's certainly no evidence about how

houses are normally attached to the soil, whether they are

bolted onto footings or whether they just sit on footings,

I suppose either of those methods of attachment are

appropriate to regard as permanent methods of attachment,

it might be a matter that you'll have to think about, it's

up to you."

19. The matter was one which obviously troubled the members of the jury for they returned to ask the learned trial judge for a definition of the word attached. His Honour referred again to the evidence and, in further directions, told the jury that the degree of permanency was a relevant consideration. He concluded his further directions by saying:

"I would think that it would be competent for you on the

basis of that evidence to reach a conclusion that the

house was in a real sense of the word, attached to the

soil, but that is a matter for you. I think there is

sufficient evidence there for you to reach that

conclusion in the terms of the section."

20. What is the proper construction of the words "attached to the soil" as they appear in s.268 of the Criminal Code?

21. It is perhaps instructive to look at the antecedents of the crime enacted by s.268 of the Criminal Code for the words of the section appear to be unique to this State.

22. At common law, the crime of arson comprised the "malicious and wilful burning of the houses or out-houses of another man". See Blackstone, Laws of England Vol. IV p 220. To supplement the common law, a series of statutes was enacted, commencing with 22 Hen. VII c.11, which made the burning of various buildings (other than a dwelling house) structures, crops and other chattels, either a felony or a misdemeanour. See Blackstone (supra) 243 et.seq.

23. In 1861, the Malicious Damage Act was enacted being an Act, "to consolidate and amend the statute law of England and Ireland relating to malicious injuries to property". The common law felony of arson and the numerous early statutes which created the offences of damage to or destruction of property by fire, were all condensed into 18 sections. The statute made reference to a variety of specified buildings such as churches, dwelling houses and warehouses. It also made reference to a diverse range of other things such as trees, shrubs, crops, fences, ships and mines. It concluded with a provision making it a misdemeanour to maliciously injure any real or personal property whatsoever not specifically referred to elsewhere in the Act. Attachment to the soil was not prescribed as an element in any of the offences created by this statute. Identical legislation was enacted in Tasmania by the Malicious Injuries to Property Act 1863.

24. S.3 of the Malicious Damage Act (UK) made it a felony, punishable by life imprisonment, to set fire to (inter alia) any house. S.6 of the same Act made it a felony punishable by 14 years' imprisonment, to set fire to any building "other than such as are in this Act before-mentioned". In R. v. Manning and Rogers (1871) 12 Cox's CC, 106 the Court of Appeal considered whether a partly constructed house was a building within the meaning of s.6 or a house within the meaning of s.3. Although the court was of the view that this was a question of fact which had been decided by the jury and the finding should not be disturbed, the court considered that the degree to which the construction had advanced was an important factor in determining this question.

25. The Criminal Code Act 1924 (Tas) repealed the Malicious Damage to Property Act 1863 and enacted s.268. This section has remained unamended to the present day. Almost certainly, the section owes its origins to the English Draft Code which accompanied the report of the Royal Commission in 1879. The terms of s.382 of the Draft Code are similar to s.268 of the Code (Tas) except for one matter which has significance in the present context. The Draft Code made it an offence to wilfully set fire "to any building whatever or to any erection or structure whatever fixed to the soil whether such building, erection or structure is complete or not". Those words probably reflect the debate in R. v. Manning and Rogers (supra) concerning the meaning of a house. In the case of setting fire to a building the terms of the Draft Code did not require roof that the building was attached to the soil. That requirement was confined to cases concerning erections or structures.

26. S.268 of the Code (Tas) refers to "any building, erection or structure whatever attached to the soil, whether the same is completed or not". Accordingly, proof of attachment to the soil is necessary in a case of setting fire to a building as well as in a case of setting fire to an erection or a structure.

27. Guidance as to the meaning of the expression "attached to soil" is difficult to find in the criminal law. The now repealed Larceny Act 1916 (UK) provided that chattels "attached to or forming part of the realty" shall not be capable of being stolen until severed from the realty. In Billing v. Pill (1954) 1 QBD 70 the Court of Appeal considered whether a temporary Army hut secured to a concrete base by bolts, was thereby attached to the realty within the meaning of s.1(3) of the Larceny Act 1916. Lord Goddard CJ, delivering the judgment of the Court, referred to the old common law that one cannot be charged with stealing real property and said at p 75:

"The question is: is the thing a fixture: What is a

fixture? The commonest fixture is a house which is built

into the land, so that in law it is regarded as part of

the land. The house and the land are one thing. If,

therefore, one has something, such as lead pipes, which

are an integral part of the house, it follows that as the

house is an integral part of the land, the pipes are also,

and therefore the pipes will be fixtures and they will be

attached to or will form part of the land. If there is a

thing which by its nature is a chattel which is affixed in

some way, it seems to me that the true test is: was it

really meant to be a temporary fixture, not intended to be

part of the house or the land."

28. The Lord Chief Justice then cited with approval du Parcq LJ in Laws of England, Hailsham Ed, vol. 20 para 107:

"'Whether a chattel has been so affixed to the land or

buildings as to become a fixture depends on the object and

purpose of the annexation, and if the chattel can be

removed without doing irreparable damage to the premises,

neither the method nor the degree of annexation, nor the

quantum of damage that would be done to the chattel or to

the premises by the removal, affect the question save in

so far as they throw a light upon the object and purpose

of the annexation. If the object and purpose was for the

permanent and substantial improvement of the land or

building, the article will be deemed to be a fixture, but

if it was attached to the premises merely for a temporary

purpose or for the more complete enjoyment and use of it

as a chattel, then it will not lose its chattel character

and it does not become part of the realty.'"

29. His Lordship concluded that the Army hut was a temporary structure which could be removed without damage to the realty and therefore was not attached to the realty within the meaning of the English Act.

30. This decision was the subject of criticism in an article, "Stealing a Hut" (1955) Crim LR 404, and would appear to be at odds with R. v. Skujins (1956) Crim LR 266 where a farm gate was held to be attached to the realty within the meaning of the Larceny Act. The learned author of the article claims that the Court of Appeal was in error in relying upon the common law to interpret the meaning of the words "attached to" in s.1(3) of the Larceny Act (UK); See Bank of England v. Vagliano Bros (1891) AC 107 at p 144. It was argued by the learned author that there was no mandate for calling in aid the common law so that the words "attached to" were construed to mean attached to and forming part of the realty.

31. In the case of s.268 of the Code (Tas) there is no common law history touching upon the expression "attached to the soil". The section is not "written on a palimpset with the old writing still discernible behind"; per Windeyer J in Vallance v. The Queen [1961] HCA 42; (1961) 108 CLR 56 at p 76. Thus, the expression "attached to the soil" (unique to the Tasmanian Criminal Code) is to be given its ordinary meaning; that is, joined to, fixed or fastened to, so that some act of severance is required before a building, structure or erection can be lifted up and moved away. There is no room for importing the concepts familiar to the civil law concerning the degree and object of annexation. It is a simple question of fact. Is a building, structure or erection, joined or attached to the soil so that it cannot be removed without some act or acts severing that building, structure or erection from its connection with the soil.

32. In the present case, the evidence on this question was to say the least, scanty. Mr Goldfinch was the only witness who gave evidence touching this issue. The following passages appear in the transcript:

"All right, thank you. And once the house was put on

your block of land, what did you do with it, if anything,

to do it up or get it in living order? ... I started to

dig pier holes and I bought up rods and stuff to wind

(sic) it together and bought posts and stuff to go round

the house, the side of itself. I insured the house.

Right and how was the house attached to the land, what was

it on? ... It was still on wooden blocks at the moment.

We'd dug out the holes, we had put cement piers and

lowered the house down onto it.

Right. Now to move the house did you have to take

anything out of it? What about --? ... the chimneys.

Right and did it have the chimneys put back in or the

chimney or chimneys put back in it? ... No, no.

And could you get under the house? ... Yes.

Was there any electricity connected to the house? ... No.

...

Would you just tell us how the house was attached to the

foundations? ... At the time it was burnt?

Yes ... well it was only sitting on blocks. We were

preparing the foundations and the piers - cement piers

so it could be lowered down on to them.

Was it attached to those temporary piers at all? ... No.

Was there anything connecting it to the piers underneath

or to the soil? ... We had the house tipped in a bit like

that, that fashion so that nothing could happen to it.

Were any nails applied to it or anything like that? ...

Oh, there probably was in some of the places. You know,

it's that long ago I can't really remember.

...

MR JACOBS (Resuming): Do you recall if you'd done anything

to the house from the time it arrived until you heard that

it was burn down? ... Oh well, we had secured the house,

to make sure it couldn't blow away sort of thing, we dug

holes and everything to put down piers and that in, just

directly under the house, we had it basically where we

wanted it."

33. There is nothing in the above passages upon which the jury could have found that the house was attached to the soil except perhaps by drawing an inference from the expression, "we had secured the house to make sure it couldn't blow away". However, such an inference is not the only inference which could be drawn from that passage, leading to the conclusion that the house was in some way joined to, as opposed to resting upon, the soil. In my view, the learned trial judge erred in his directions with respect to the meaning of the expression "attached to the soil" and in the circumstances of the case should have directed the jury that there was no evidence upon which they could be satisfied beyond reasonable doubt that the building was attached to the soil at the time it was set fire to.

34. The learned trial judge directed the jury that if they were not satisfied beyond reasonable doubt that the building was attached to the soil but otherwise satisfied to the requisite degree of the existence of the other elements of the crime of arson, they could convict the accused in the alternative, of unlawfully injuring property contrary to s.273. Such a direction was a proper one having regard to the provisions of s.341 of the Code which provides:

"Every count in an indictment shall be deemed to be

divisible, and if the commission of the crime charged, as

described in the enactment relating that crime or as

charged in the count, involves the commission of any

other crime, the person accused may, on that indictment,

be convicted of that other crime."

35. The meaning of an equivalent section in New Zealand was considered in R. v. King (1900) 19 NZLR 409 and R. v. Lamb (1959) NZLR 232.

36. In both cases it was held that, before the section could have effect, it must be shown that the commission of the crime, either as described in the enactment creating that crime or as described in the count, must of necessity - that is to say, regardless of what evidence may be or has been adduced - involve the commission of the alternate crime. The rationale of the rule was expressed by Edwards J in R. v. King (supra) at p 413:

"The prisoner, when he is put upon his trial, is entitled

to know how to shape his defence. If the crime with which

he is charged necessarily includes a minor crime, then he

knows that he has to shape his defence to meet the minor

as well as the major charge. If it may include, but does

not necessarily include, a minor charge, then he may be

left in doubt until the close of the evidence for the

prosecution whether he has to meet the minor charge, and

may consequently be embarrassed in his defence."

37. For the position is the same at common law see R. v. O'Brien (1911) 22 Cox CC 374; R. v. Kelly (1964) 1 QB 173.

38. The same reasoning must be applied to a construction of s.341 of the code. In the present case, the particulars of the count alleged that the accused committed the crime of arson by setting fire to a building. Setting fire means something more than scorching and must of necessity, involve injury to the building. As the provisions of s.267(3) and the requirement to prove unlawfulness apply equally to ss. 268 and 273, it follows that the commission of the crime of arson as charged in the count, of necessity involved the commission of the crime of unlawful injury to property. For this reason, the learned trial judge instructed the jury that if they were not satisfied beyond reasonable doubt that the building was attached to the soil but otherwise satisfied with respect to guilt as charged, the jury could find the accused guilty of the alternative count of unlawfully injuring property.

39. Accordingly, although I am of the opinion that the learned trial judge fell into error with respect to his directions upon the issue of attachment to the soil, this is an appropriate case for the application of the provisions of s.403(2) of the Code which provides that:

"(2) Where an appellant has been convicted of a crime, and

the jury could on the indictment have found him guilty of

some other crime, and on the finding of the jury it

appears to the Court that the jury must have been

satisfied of facts which proved him guilty of that other

crime, the Court may, instead of allowing or dismissing

the appeal, substitute for the verdict found by the jury

a verdict of guilty of that other crime, and pass such

sentence, not being a sentence of greater severity, in

substitution for the sentence passed at the trial, as may

be warranted in law for that other crime."

40. Upon the appeal against conviction then, I would substitute for the verdict of guilty of arson a verdict of guilty of unlawfully injuring property contrary to s.273 of the Code.

41. Setting aside the conviction for arson and substituting a conviction for unlawfully injuring property, makes the appeal against sentence otiose; a new sentence has to be imposed on the substituted conviction.

42. The appellant is a mature man who apparently committed the crime because of antagonism he felt towards his old business enemy and rival, Mr Chilcott who removed the house from his yard at the request of Mr Goldfinch. The value of the property, which was totally destroyed, plus the costs of moving it to Bellingham was just under $11,000.

43. Although the applicant has a number of previous convictions, most of them were imposed more than 25 years ago. Of significance, the appellant was convicted in 1986 of three counts of unlawful injury to property. One of these offences involved ramming a police car as part of an escape from custody following his arrest in relation to an offence against the Road Safety (Alcohol and Drugs) Act. The other two crimes were committed when the appellant drove his truck into Mr Chilcott's truck and immediately thereafter, drove his truck into a house then loaded onto the back of Mr Chilcott's truck. The trial judge's sentence was set aside by the Court of Criminal Appeal and in lieu thereof, in respect of those two offences, the appellant was sentenced to terms of 9 months' and 6 months' imprisonment, the latter to be served cumulatively with the former. Those crimes were committed on the 3 October 1985. The present crime was committed 9 months later on the 2 July 1986. However, the convictions for the crimes first committed were not imposed until after the commission of the presence offence and thus, for the purpose of imposing sentence, are not prior convictions.

44. The property destroyed was an empty and unoccupied building which had not yet become any person's home. Having regard to the isolated location, the appellant's actions did not constitute a risk of injury to other people. Notwithstanding those matters, it was a serious and pre-meditated criminal act. Having regard to the appellant's prior conduct towards Chilcott there are no mitigating circumstances surrounding the commission of the crime and clearly, a substantial penalty is called for. In my view an appropriate sentence would be 12 months' imprisonment to date from the 5 June 1987 which was the date upon which the appellant was first remanded in custody in respect of the charge of arson.