//
© 2026 Zoe. All rights reserved.
Zoe is a legal information platform. Always consult the Federal Register of Legislation for authoritative text.
[2006] VSCA 147
Court of Appeal (Vic)
2006-07-07
CHERNOV, VINCENT and REDLICH, JJ.A.
Original judgment source is linked above.
CRIMINAL LAW - Director's appeal against sentence - Relevant principles - Arson - Seriousness of offence - Whether sentence of immediate imprisonment required - Inadequacy of reasons for sentence - Combined custody and treatment order - Necessity to first determine appropriate sentence - Adequacy of sentence imposed - Whether desirable or permissible to make custodial portion of CCTO concurrent with sentence already being served - Appeal allowed
1 I have had the advantage of reading the draft reasons for judgment of Redlich, J.A. in this matter and agree with his Honour's proposed disposition of the appeal. I consider that, for the reasons given by his Honour, the impugned sentence is so inadequate that it plainly demonstrates serious error in sentencing principle, thereby re-opening the sentencing discretion to be exercised by this Court.
2 The offence of arson is a very serious offence as is reflected in the maximum custodial sentence of 15 years that has been prescribed for it by Parliament. Importantly, the offending here was grave - it was a serious example of the crime of arson, having profound consequences for innocent victims. This Court has recently emphasised that those apprehended for this offence must generally expect to receive a stern sentence of imprisonment. Obviously, there will be cases of arson where imprisonment would not be appropriate even in respect of an offence such as arson. In this case, however, it is difficult to see how one can conclude otherwise than that the sentence is plainly inadequate and bespeaks error. Not only is the offence serious as I have mentioned and the offending grave, but the sentencing principles of general and specific deterrence and denunciation were of considerable importance in the sentencing disposition. Thus, the aggravating factors present in this case for sentencing purposes were of considerable magnitude and, in the circumstances, there was relatively little scope for leniency.
3 The respondent has a serious criminal history that shows, amongst other matters, that he has committed offences of violence and has abused the leniency that has been extended to him by the courts and has breached his promise to be of good behaviour in return for not receiving a sterner sentence. Importantly, the respondent has not demonstrated much by way of remorse for his offending, has pleaded guilty at a late stage and did so in face of a strong Crown case. In the circumstances his entitlement to a discount for pleading guilty must be moderated accordingly. It is also apparent that his prospects of rehabilitation are, at best, minimal.
4 Had these matters been properly taken into account by his Honour in the sentencing disposition, it is difficult to see how he could have arrived at the sentence that he imposed. And it is apparent, as Redlich, J.A. shows, that his Honour gave almost no consideration to these critical matters because it is plain enough that his Honour did not determine the sentence by the usual process of reasoning that proceeded on the basis of an analysis of the matters to which I have referred, including the importance of sentencing principles. Rather the judge decided that a combined custody and treatment order was appropriate and was then "driven" to impose a sentence of imprisonment of 12 months.
5 In the circumstances, I consider that the impugned sentence is so plainly inadequate as to demonstrate error of principle. I would re-sentence the respondent as Redlich, J.A. proposes.
6 I agree in the disposition of this matter as proposed by Redlich, J.A. and I do so for the reasons advanced by him in his judgment.
7 On 15 November 2005 the respondent pleaded guilty in the County Court at Mildura to one count of having destroyed a house and personal property by fire on 11 April 2004.
8 After a brief plea in mitigation on that day the sentencing judge ordered that the respondent be assessed for the purposes of a Combined Custody and Treatment Order (CCTO) or a Community Based Order (CBO). It appears that at the time of the plea the respondent was on remand for unrelated offences committed on 19 May 2005 involving his de facto wife. He committed those offences whilst on bail for the charge of arson. On 23 January 2006 the matter was mentioned before the sentencing judge sitting at Melbourne, the respondent appearing by video link from Fulham Prison. Both the appellant and the respondent were represented but no record of the proceedings is available. At the mention his Honour was informed that the respondent had been sentenced to 18 months' imprisonment with a non-parole period of nine months on 1 December 2005 for the offences committed on 19 May 2005. His Honour was told that the earliest release date on parole for that sentence was 30 May 2006. The summary of proceedings with which we were provided reveals that his Honour then raised the possibility of the imposition of a CCTO being made concurrent with the sentence then being served by the respondent. The respondent was remanded in custody.
9 On 27 January 2006 the respondent was sentenced to 12 months' imprisonment in respect of the arson offence. It was ordered pursuant to s.18Q(1)(c) of the Sentencing Act 1991 that the prisoner serve a period of six months in custody and serve the balance of six months in the community under a CCTO. His Honour directed that the sentence imposed be served concurrently with the sentence then being served. The Director now appeals against the adequacy of that sentence pursuant to s.567A of the Crimes Act 1958. The primary contention of the Director was that the circumstances of the present offence called for an immediate custodial sentence and that a sentence of 12 months or less was so plainly inadequate as to manifest error in principle.
Principles which govern appeals by the Director of Public Prosecutions
10 A number of the principles which govern appeals by the Director of Public Prosecutions are set out in R. v. Clarke[1] and R. v. Johnston[2]. One is that an appeal should not be brought unless the sentence reveals such "manifest inadequacy or inconsistency in sentencing standards as to constitute error in principle".[3] An examination of authorities suggests, as was conceded by the Director in argument, that manifest inadequacy alone will not be sufficient to warrant appellate intervention. Something more is required to ensure that prosecution appeals do not unduly circumscribe the sentencing discretion of judges.[4] The inadequacy of the sentence must be "clear and egregious",[5] the sentence being so disproportionate to the seriousness of the crime as to shock the public conscience[6] and "undermine public confidence in the ability of the courts to play their part in deterring the commission of crimes".[7] When re-sentencing the offender the appellate court must pay careful heed to the factor of double jeopardy, inherent in a Crown appeal, arising from the respondent's exposure to sentencing on a second occasion for the same crime.[8] Because of the element of double jeopardy, Crown appeals are regarded as having a "rare and exceptional" character which calls for restraint, even where manifest inadequacy may be present, the Court having an overarching discretion not to interfere.[9] Double jeopardy is a factor which must be considered in both the Court's determination of whether this Court should exercise its discretion to allow the Crown appeal and, where the discretion is exercised, as to the sentence which should be imposed. Any different sentence to be imposed must allow for double jeopardy.[10]
11 Crown appeals inevitably excite an examination of whether there is reasonable proportionality between the sentence and the gravity of the crime. The objective gravity of the offence must be assessed otherwise other relevant sentencing considerations, and in particular subjective factors, may be given undue weight in arriving at the sentence,[11] rendering it is unlikely that the sentence will be commensurate with the seriousness of the crime.[12]
12 The circumstances of this offence may be briefly stated. The respondent had lived in a de facto marital relationship with one Wendy Thompson until they separated in late 2003. Ms Thompson then moved to a house located at 1 Toots Road, Ultima, some 30 kilometres south of Swan Hill. The house was part of a family farm property and Ms Thompson was permitted to live in the house rent free by its owner. In April 2004 there was a reconciliation between the respondent and Ms Thompson and he moved into the Ultima house with her.
13 During the course of the day and early evening of 10 April 2004 the respondent drank a large amount of red wine from a cask purchased by Ms Thompson. He may also have consumed amphetamines and cannabis. He became agitated and aggressive and fought with Ms Thompson. She, fearing for her safety, rang her son to come and collect her. She left the property with her son while the respondent was asleep on the floor in the house. Over the next few hours he rang Ms Thompson numerous times on her mobile telephone pleading with her to return to the house, but she refused to do so. The respondent then threatened to burn the house down. Ms Thompson attempted to call the respondent at the house but was unable to make contact. She then sent a text message to the respondent on his mobile telephone, asking him to hang up the house telephone. The respondent replied by text message stating "no house left".
14 The house at Ultima was totally consumed by fire in the early hours of 11 April 2004. Fire services and police attended the blaze. The fire was estimated by police to have started at some time between 12.15 am and 12.30 am. In a telephone call to police recorded by the Mildura Hill Police Communications Centre at 1.23 am, the respondent complained that his de facto had stolen his wallet and his "ID" and had "taken off" and stated that he "wanted her picked up before she spends any money in my account or anything." He said that she had left him, that he was walking between Ultima and Swan Hill and he did not know where he was. He made no reference to the fire in that telephone call to police. At about 4.00 am on 11 April the respondent was found by police walking on the side of the road about 15 kilometres from the scene of the fire. He made no mention to police about the fire, was arrested and conveyed to the Swan Hill Police Station. The respondent was interviewed by investigating police. Initially he told them that there had been a candle alight in the bedroom and that a mattress and doona cover had caught fire accidentally and the fire had got out of control. In a second interview he told police that he sat in the house having drinks after the doona was on fire but he did not remember the house being on fire.
The crime of arson
15 Arson is a serious crime carrying with it a maximum penalty of 15 years' imprisonment. President Winneke was to state in The Queen v. Mazur[13] that "courts imposing sentences for offences of arson will, except in the most exceptional circumstances, regard a sentence of immediate imprisonment as being appropriate". The Director contended that there were no exceptional circumstances in this case. Mr Priest, for the respondent, correctly submitted that the observations made by Winneke, P. in Mazur must be read in the context that the Court was there seeking to discourage the use of an earlier decision of Perrone as a precedent for the notion that a fine was appropriate for a serious arson. The Court stated in Mazur that "in cases of arson a custodial sentence is not inevitable."[14]
16 The Director submitted that the present case was very similar to the case of D.P.P. v. Ralph[15] in which the Director had successfully appealed against the manifest inadequacy of a sentence of two years' imprisonment with a non parole period of nine months for the crime of arson. On appeal the custodial sentence had been increased to three years six months with a non-parole period of two years and three months. As in the present case, the respondent there, whilst inebriated and in the context of relationship difficulties, rang his de facto and threatened to burn down the house in which his female partner was living, before in fact doing so. The respondent in that case had also pleaded guilty following an initial denial of wrongdoing. While it must be recognised that comparison with other cases will generally be of limited assistance, the approach as to principle taken in Ralph is of particular significance to the present case. There, President Winneke observed:
" ... this is a case in which the Court is required to intervene in order to maintain the appropriate standards ... This crime was, I think, a serious example of its type. It was committed for no better reason than to exact revenge upon the person who had demonstrated loyalty to the respondent and restraint in the face of his unacceptable habits. The fact that he was inebriated cannot excuse his conduct. This was not a sentence which could be characterised as merely 'lenient'. It was, in my view, manifestly inadequate to meet the wanton circumstances of the offending. If it is permitted to stand, it will, in my view, set an inappropriate precedent for the crime of arson of property in this State."[16]
17 It was submitted on the respondent's behalf that comparisons with other cases are rarely helpful and that the decision in Ralph may be explained on the basis that "the spark of incipient rehabilitation that the sentencing judge detected in the respondent" in the present case, was not to be found in Ralph.
18 It was conceded for the respondent, however, that the impugned sentence was very lenient, but it was one which focused upon the respondent's rehabilitation and that the sentencing judge had expressed no idiosyncratic views in the course of his reasons for sentence. That the judge thought the respondent to be a proper candidate for leniency and the extension of mercy, Mr Priest submitted, is reflected in the fact that his Honour considered the respondent would clearly "need strong support" and thus resolved to have the respondent assessed for a CCTO at the
commencement of the plea. It was submitted that a lenient sentence could be justified as there were reasonable grounds to justify the judge's sympathies.
Inadequacy of reasons
19 The judge's reasons for sentence occupy less than two pages and were described by counsel for the respondent as "tissue thin". Mr Priest candidly submitted that the sentencing judge had done the respondent no favours by giving inadequate reasons for the sentence imposed. The Court was invited to take into account that a person falling for sentence has little control over what a judge says or fails to say in a sentence and cannot ensure that the judge refers to all factors said to be relevant. Counsel for the respondent submitted that the sentencing judge had figured prominently in appeals by the Director over recent years in refusing to give sufficient reasons for the sentences he imposed. It was contended that the fact that his Honour had not mentioned general deterrence, specific deterrence, denunciation or just punishment did not mean that his Honour did not give those principles due regard. Counsel submitted that the absence of any reference to these principles should not be permitted to obscure the real question whether the sentence should properly be viewed as manifestly inadequate.
20 The absence of sufficient reasons for sentence will not necessarily result in intervention by an appellate court.[17] Their absence may, depending upon the circumstances, including the sentence that has been imposed, more readily lead to the conclusion that relevant principles or facts have been overlooked. The failure to make reference to relevant considerations may deny a party the benefit that adequate reasons might have provided.
21 The final submission of counsel for the respondent was that even if the sentence could be described as manifestly inadequate, the principle of double jeopardy had particular poignancy in the present case and the Court should exercise its over-arching discretion to dismiss the appeal.
Seriousness of offence
22 The circumstances of the respondent's offending were very serious. He knew that Ms Thompson lived in the house as a result of the generosity of its owner and he had benefited personally by residing there for some days prior to this event. As a consequence of the arson the owner lost a family home with sentimental value, lost the sum of $56,000 being the balance of the market value of the house in excess of the sum insured, and Ms Thompson lost personal property and a place in which to live rent free. When interviewed the respondent denied that he deliberately lit the fire and denied the suggestion that he had threatened to burn the house down. The pre-sentence report states that the respondent denied that he was responsible for the fire. As there was an absence of real remorse and as the respondent's plea was entered at a relatively late stage, the respondent was not entitled to any significant discount in his sentence for his plea of guilty.
Respondent's antecedents
23 The respondent was 33 at the time of the arson. He admitted 15 prior convictions from four court appearances. In May 2000 he had been released on a CBO for a period of eight months for driving whilst disqualified and exceeding .05. He subsequently breached the CBO. In December 2001 he was sentenced to 18 months' imprisonment with a minimum non-parole period of six months for armed robbery, recklessly causing injury and two counts of reckless conduct endangering life. In April 2003 he was released on intensive correction orders for reckless conduct causing a serious injury, damaging property, making a threat to kill, unlawful assault and other offences. This respondent's criminal history is significant and shows that he wholly disregarded orders of the court, the leniency afforded to him and his undertakings or promises to be of good behaviour. On each prior occasion the orders made or sentences imposed had been directed towards providing the respondent with every prospect for rehabilitation. That did not deter him from offending in the present circumstances. And as has also been mentioned, the respondent, whilst on bail for the arson offence, committed further offences against Ms Thompson during a period of apparent reconciliation. Hence there was much force in the Director's contention that in these circumstances the extent to which the respondent could be treated with leniency was limited, particularly when one has regard to the respondent's antecedents, the uncertainty of his relationship with Ms Thompson and his extensive untreated problem with alcohol abuse.
24 It may be said that the sentence imposed by his Honour was intended to promote the respondent's rehabilitation. It may also be assumed that his Honour took into account the psychiatric assessment which disclosed the respondent had been previously assessed as having a borderline personality disorder with antisocial traits and a previous diagnosis of bipolar affective disorder. Similarly, his Honour was probably satisfied that drunkenness contributed to the commission of the offence and that a sentence of no more than 12 months' imprisonment was appropriate given that the judge apparently contemplated that the respondent would benefit from an intensive alcohol treatment program which should be addressed at the earliest possible time within the community. It is plain enough that, to achieve that end, the judge thought it necessary to order that the six month immediate custodial component of the CCTO run concurrently with the remainder of the nine month non-parole period of the sentence the respondent was then serving, which had been imposed on 1 December 2005.
25 I should refer to the submission made by the Director that it is unclear from an examination of the legislative scheme whether his Honour was entitled to order concurrency between the six months of the CCTO to be served in custody and the sentence that the respondent was already undergoing. The respondent contended that there was no legislative embargo on ordering that the custodial portion of a CCTO be served concurrently with the sentence the respondent was undergoing. Assuming that such a course was open, the Director had submitted that the sentence imposed was impractical as it envisaged that upon the respondent's release he would be subject to a CCTO which ran simultaneously with conditional release on parole. Both the terms of release under a CCTO and parole are onerous. The Director submitted that the purposes of the CCTO could be undermined if the conditions of parole were incompatible with the conditions of the CCTO. He submitted that the risk of that occurring increased if the period between the imposition of the CCTO and the date of eligibility for release on parole were significant. It was further submitted that his Honour must have taken into account that the respondent was likely to be released on parole and had thereby taken into account possible executive action by the Adult Parole Board in contravention of s.5(2AA)(a) of the Sentencing Act 1991.
26 The Director did not allege such error in his grounds of appeal nor did the Director seek to rely upon any such error. As these matters were only the subject of written submissions, no oral argument being addressed to them, I express no view about whether an order for concurrency could have been made. Even if such a course is open, it is difficult to see why it would be followed in preference to release on parole in terms similar to those that would be made under a treatment order. As the "COATS"[18] pre-sentence report indicated, the process exists for the Adult Parole Board to refer the respondent to COATS prior to his release, subsequent to which a treatment plan ensuring participation in community based drug treatment would be co-ordinated thereby providing an appropriate means to address the causal factors underlying the respondent's offending.
Combined custody and treatment order pursuant to s.18Q of the Sentencing Act 1991
27 There is a two stage process involved in the making of orders such as a CCTO, an intensive corrections order or a suspended sentence.[19] There must first be a determination as to what is the appropriate sentence without regard to the manner
in which the sentence is to be served.[20] A Court cannot make a CCTO pursuant to s.18Q of the Sentencing Act 1991 "if the sentence of imprisonment by itself for the whole term stated by the Court would not be appropriate in the circumstances having regard to the provisions of this Act."[21] Similar provisions appear in relation to making "intensive correction orders"[22] or when "suspending a sentence of imprisonment".[23] The questions of proportionality and the appropriateness of the term of imprisonment must have been determined before the court can consider whether any of these sentencing options should be utilised.[24] The alternatives available as to how the sentence may be served, relate to the implementation of the sentence and not to its imposition.[25] The sentencing judge should not tailor the sentence to be imposed according to the manner in which he or she considers the sentence should be served.[26] First, the appropriate sentence must be determined. Then the judge may determine if such an order should be made. The two steps should not be elided.[27] The focus by his Honour appears to have been on the implementation of the sentence and not upon its appropriateness.
28 As I have already observed his Honour at a very early stage of the plea stated that he would have the respondent assessed for a CCTO and for a CBO. It is difficult to discern what circumstances had then been placed before his Honour that influenced the consideration of such a course. Before the Court can make a CCTO it must conclude, having regard to the various sentencing considerations set out in the Act, that a term of imprisonment of not more than 12 months' duration is appropriate.
29 While it was appropriate and necessary for the sentencing judge to take these personal factors into account, the sentencing principles of general deterrence, specific deterrence, just punishment and denunciation were also to be reflected in the sentence that was proposed. The sentence imposed makes it apparent that the judge did not have any, or any due, regard to them in the sentencing disposition. The result was a sentence which in my view did not properly reflect those objectives and which was not reasonably proportionate to the crime. The sentence imposed reveals such manifest inadequacy and is so inconsistent with recognised sentencing standards as to constitute error in principle. A proper exercise of the sentencing discretion required the imposition of a head sentence with a new non-parole period. I would therefore allow the appeal.
30 Bearing in mind the principles of restraint which must be exercised by this Court in re-sentencing the person who is standing for sentence a second time,[28] I would re-sentence the respondent to a term of imprisonment for three years and six months. I would order that the term of imprisonment be served cumulatively upon the sentence that was imposed on 1 December 2005 of 18 months' imprisonment with a non-parole period of nine months. I would fix a new non-parole period[29] and direct that the respondent serve a period of two years and six months before becoming eligible for parole.
- - -
[1] [1996] VICSC 30; [1996] 2 V.R. 520 at 522.
[2] [2004] VSCA 150; (2004) 10 V.R. 85 at 96-7.
[3] _R. v. Clarke a_t 522 per Charles, J.A.; Everett v. The Queen [1994] HCA 49; (1994) 181 C.L.R. 295 at 300 per Brennan, Deane, Dawson and Gaudron, JJ.; Griffiths v. R. [1977] HCA 44; (1977) 137 C.L.R. 293 at 310 per Barwick, C.J.; Malvaso v. R. [1989] HCA 58; (1989) 168 C.L.R. 227 at 234 per Deane and McHugh, JJ.; D.P.P. v. Wilson [2000] VSCA 112; (2000) 1 V.R. 481 at 488 per Winneke, P.
[4] R. v. Osenkowski (1982) 30 SASR 212 at 212-3 per King, C.J.
[5] D.P.P. v. Oversby [2004] VSCA 208.
[6] R. v. Clarke supra at 522; R. v. Osenkowski supra at 213.
[7] Everett at 306 per McHugh, J.
[8] D.P.P. v. Wilson supra 488; D.P.P. v. Scott [2003] VSCA 25; (2003) 6 V.R. 217 at 225 per Vincent, J.A.; D.P.P. (Cth) v. Gaw [2006] VSCA 51 at [12], per Callaway, J.A.; Everett v. R. supra at 302-3.
[9] D.P.P. v. Leach [2003] VSCA 96; (2003) 139 A. Crim. R. 64 at 74; D.P.P. v. Josefski [2005] VSCA 265 at [64].
[10] D.P.P. (Cth) v. Gaw [2006] VSCA 51 at [22] per Callaway, J.A.; R. v. Clarke [1996] VICSC 30; [1996] 2 V.R. 520 at 522.
[11] Veen (No 2) [1988] HCA 14; (1988) 164 C.L.R. 465 at 472_; R. v. Fuller ([2002] VSCA 168; 2002) 6 V.R. 496, 514; R. v. Saunders [2000] VCSA 58 at [26]; R. v. Zamagias [2002] NSWCCA 17 at [9]; R. v. McGourty_ [2002] NSWCCA 335 at [35]; R. v. Rzek [2003] VSCA 97 at [31-33]; R v Whiteside & Dieber [2000] VSCA 42.
[12] R. v. Geddes (1936) 36 SR (NSW) 554 per Jordan, C.J. at 556_; Zamagias, supra_ at [23].
[13] [2000] VSCA 111; (2000) 113 A. Crim. R. 67 at 74.
[14] [2000] VSCA 111; (2000) 113 A. Crim. R. 67 at 73-74 per Brooking, J.A. with whom Winneke, P., agreed.
[16] Ibid at [12].
[17] R. v. Mills [2005] NSWCCA 175; (2005) 154 A. Crim. R. 40 at 48.
[18] Community Offender Advice and Treatment Service of the Australian Community Support Organisation (ACSO).
[19] R. v. Jonceski (1991) 60 A. Crim. R. 189 at 193-194; R. v. Pulham [2000] VSCA 17 at [3] per Batt, J.A. with whom Winneke, P. agreed; R. v. Groom [1999] 2 V.R. 159 at 167-170 Batt, J.A. with whom Tadgell and Buchanan JJ.A. agreed; see also R. v. Bice & Anor (2000) 2 V.R. 64; D.P.P. v. Gray [2005] VSCA 267 at [30].
[20] Dinsdale v. R. [2000] HCA 54; (2000) 202 C.L.R. 321 at 346 per Kirby, J.; R. v. Percy [1975] Tas. S.R. 62 at 73_; Stevens v. Giersch_ (1976) 14 SASR 81 at 82_; R. v. Zamagias_ [2002] NSWCCA 17 at [25]- [27]; R. v. Schodde [2003] NSWCCA 164; (2003) 142 A. Crim. R. 307 at [13]; Douar v. R. [2005] NSWCCA 455 at [71].
[21] S.18Q(4) of the Act
[22] S.19(3) of the Act.
[24] R. v. Groom (1999) 2 V.R. 159 at 168-70_; R. v. Simmons_ [1998] 2 V.R. 14.
[25] S.18Q (1); S.19(1); S.27 (1) of the Act.
[26] For an illustration see R. v. Stambolis [2006] NSWCCA 56.
[27] Dinsdale v. R. [2000] HCA 54; (2000) 202 C.L.R. 321 at 346 per Kirby, J.; R. v. Blackman & Walters [2001] NSWCCA 121.
[28] Dinsdale v. R. at 341 per Kirby, J.; R. v. Clarke [1996] VICSC 30; [1996] 2 V.R. 520 at 522.
[29] The period commences on 27 January 2006, the date the sentence was imposed: R. v. Bortoli [2006] VSCA 62.
DPP
Bright [2006] VSCA 147
(1982) 30 SASR 212
(1976) 14 SASR 81