JUDGMENT OF: Underwood CJ, Evans and Tennent JJ

Criminal Law - Jurisdiction, practice and procedure - Judgment and punishment - Sentence - Factors to be taken into account - Parity - Generally - The "tariff submission".

Lowe v R [1984] HCA 46; (1984) 154 CLR 606, referred to.

R v Ellis (1993) 68 A Crim R 449, followed.

Dowie v R [1989] TASSC 44; [1989] Tas R 167, applied.

Criminal Law - Jurisdiction, practice and procedure - Judgment and punishment - Sentence - Factors to be taken into account - Miscellaneous matters - Hardship - Circumstances in which hardship to offender's family might be relevant.

Wirth v R (1976) 14 SASR 291; R v Maslen and Shaw (1995) 79 A Crim R 199; Amuso v R (1987) 32 A Crim R 308, followed.

Judgment Number: [2006] TASSC 95

1 The facts of this appeal are set out in the reasons for judgment of Tennent J.

2 No authority accompanied the submission of counsel for the appellant that the learned trial judge failed to give appropriate weight to the fact that the appellant was the mother of three children aged 9 years, 5 years and 3 months.

3 In Boyle v R (1987) 34 A Crim R 202, the Court of Criminal Appeal (WA) adopted the English approach that absent exceptional circumstances, there is no place in the exercise of the sentencing discretion for the impact of imprisonment on the offender's family. The relevant authorities are set out at 205, accompanied by the statement:

"But the English decisions make it clear that that is not an absolute rule and it will be departed from in exceptional circumstances, particularly, it seems, when imprisonment will result in children being left to fend for themselves best they can without parental supervision or support [there follows a list of English cases]."

4 Boyle was applied by the Court of Criminal Appeal (NSW) in R v Maslen and Shaw (1995) 79 A Crim R 199. Hunt CJ at CL said, at 209:

"It is only in circumstances where the hardship upon a prisoner's family is exceptional that it will operate in mitigation; the hardship must be sufficiently extreme - going beyond the sort of hardship which inevitably results to a family when the breadwinner is incarcerated - that a 'sense of mercy or of affronted common sense imperatively demands that [the sentencing judge] should draw back'."

5 This general proposition was affirmed by the New South Wales Court of Criminal Appeal in R v Edwards (1996) 90 A Crim R 510, and more recently, in R v Gip [2006] NSWCCA 115; (2006) 161 A Crim R 173.

6 In Sullivan v R 9/1975, noted [1975] Tas SR (NC 1), the members of the Court of Criminal Appeal of this State expressed views to the effect that hardship on the appellant's family was not a relevant consideration to take into account when imposing sentence, except in exceptional cases.

7 In Wayne v R [1992] NTSC 42; (1992) 62 A Crim R 1, Mildren J observed at 9 that it is only in exceptional circumstances that the impact of imprisonment on the offender's family has any relevance in the exercise of the sentencing discretion. He said, "The fact that the dependants affected are those of a woman is not an exceptional circumstance:" citing as authority, Bray CJ in Wirth v R (1976) 14 SASR 291 at 293.

8 In R v Orphanides [2002] VSCA 86; (2002) 130 A Crim R 403, the Victorian Court of Appeal held that without evidence of exceptional hardship, the failure to give weight to the illness of an offender's child did not bespeak of error in the exercise of the sentencing discretion.

9 The Court of Criminal Appeal in Amuso v R (1987) 32 A Crim R 308, said at 313:

"... it is the clear policy of the law that such matters as hardship to the family of the offender is not - except possibly in very exceptional cases - a factor to be taken into account in mitigation of sentence."

10 The rationale for this public policy appears in the following passages taken from the judgment of Wells J (with whose reasons Sangster J agreed) in Wirth (supra) at 295 - 296:

"The argument thus presented to us raises the following question: When (if ever), and to what extent (if at all), should the hardship caused, directly or indirectly, by a proposed sentence of imprisonment, to the family of, or to others closely associated with, the offender be taken into account by the court in mitigation of that sentence?

... Hardship to spouse, family and friends, is the tragic, but inevitable, consequence of almost every conviction and penalty recorded in a Criminal Court. ... It seems to me that courts would often do less than their clear duty -- especially where the element of retribution, deterrence, or protection of society is the predominant consideration -- if they allowed themselves to be much influenced by the hardship that prison sentences, which from all other points of view were justified, would be likely to cause to those near and dear to prisoners.

But it has been often remarked that the strength of our law lies in the willingness of judges, when applying a principle, not to carry it past the point where a sense of mercy or of affronted common sense imperatively demands that they should draw back. So it is proper that I should here add that, in my opinion, hardship likely to be caused by a sentence of imprisonment under consideration ought to be taken into account where the circumstances are highly exceptional, where it would be, in effect, inhuman to refuse to do so ... For example, if it were demonstrated to the satisfaction of the court that to send a man to prison would, without much doubt, drive his wife to suicide, it would be a steely-hearted judge who did not, however illogically, at least try to meet the situation by suitably framed orders as to penalty. But further than that, in my judgment, courts should not go."

11 I set out these authorities at some length because family hardship is frequently, but inappropriately, urged upon sentencing judges and this Court as a mitigating factor. Such hardship is not relevant except in the most unusual case. In this case, the learned sentencing judge was told nothing about hardship to the appellant's family. The only information he had was that the appellant was the mother of three children, aged 9 years, 5 years and 3 months. Accordingly, counsel's submission clearly fails. In any event, the learned sentencing judge said at the end of his comments on passing sentence, "Because you have got a young baby, I am going to impose the shortest possible non-parole period".

12 Counsel for the appellant referred the Court to all the sentences passed in this State over the last five years for the crime of arson. According to my search of the Court's sentencing database, sentences for arson have been imposed on 64 occasions between 1 November 2001 and 1 November 2006. The submission was that this sentence was the longest sentence imposed during the five year period, it was not the most serious case of arson during that time, and this indicated undefined error in the exercise of the sentencing discretion. This submission might be categorised as a "tariff submission".

13 The starting point for any "tariff submission" is the oft-quoted statement of Mason J (as he then was) in Lowe v R [1984] HCA 46; (1984) 154 CLR 606 at 610 - 611 commencing:

"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."

14 Although Lowe concerned disparity between sentences imposed on co-offenders, the above statement has been said to have general application. See Inkson v R [1996] TASSC 13; (1995) 6 Tas R 1 at 22; Breed v Pryce (1985) 36 NTR 23.

15 As Hunt CJ at CL said in R v Ellis (1993) 68 A Crim R 449 at 460, the obligation of a sentencing judge is to give:

"... full weight to the collective wisdom of other sentencing judges in interpreting and carrying into effect the policy of the legislature; that collective wisdom is manifested in the general pattern of sentences currently being passed in cases which can be recognised judicially as relevant to the case in hand: Oliver (1980) 7 A Crim R 174 at 177, quoted in Visconti [1982] 2 NSWLR 104 at 107."

16 However, as his Honour said at 461, the general principle expressed by Mason J in Lowe does not mean that the approach to be taken with respect to co-offenders is necessarily the approach to be taken when reviewing a sentence imposed on a single offender. His Honour said:

"What must be looked at is whether the challenged sentence is within the range appropriate to the objective gravity of the particular offence and to the subjective circumstances of the particular offender, and not whether it is more severe or more lenient than some other sentence which merely forms part of that range. There is nothing in Lowe to suggest otherwise."

17 Although Kirby P was in dissent in R v Hayes (1987) 29 A Crim R 452, the following statement at 465 is valid and has general application:

"It would be a serious mistake to assume that the sentencing of persons for offences, such as those involving the respondent, could be reduced to a simplistic formula derived from little more than the quantity of plants found in the prisoner's unlawful cultivation. Courts search for consistency. However, that goal would be bought at too high a price if cases were to be reduced to an equation between loss of liberty and the number of Indian hemp plants found. As the cases and the practice of the courts show, the sentencing process is much more complicated. There is a danger, in the short presentation of facts, that a busy court, seeking consistency, will seek refuge in levels of punishment imposed in apparently similar cases, attaching undue weight to the only objective features which run through all cases involving cultivation of prohibited plants - namely the variety of the plant and the quantity of the cultivation found."

18 Although the sentencing judge, and this Court, must depend in part upon knowledge of sentences for the same or similar offences (R v Williscroft [1975] VicRp 27; [1975] VR 292 at 301) a "tariff submission" is unlikely to succeed if it simply refers to the number of sentences imposed during any given period, the term of imprisonment in each case and one or two objective factors such as the value of the property destroyed. Such an approach reduces the sentencing discretion to a mechanical calculation. See Pavlic v R [1995] TASSC 96; (1995) 83 A Crim R 13. The view expressed by Wright J in Dowie v R [1989] TASSC 44; [1989] Tas R 167 at 185 is apposite to this appeal:

"For my part I have considerable difficulty with the notion that to enable sentencing consistency, which is of course one of the primary aims of a sentencing judge, (see Lowe v The Queen [1984] HCA 46; (1984) 154 CLR 606 at pp610-611 per Mason J), the parameters apparently indicated by sentences actually imposed in previous cases for similar crimes, constitute some sort of a framework within which the impending sentence must fit or be seen to be manifestly inadequate or excessive, as the case may be. I subscribe to the view enunciated by Adam and Crockett JJ in R v Williscroft & Ors [1975] VicRp 27; [1975] VR 292 at p299, where they accepted that it is the seriousness of the criminal conduct, rather than the category of crime of which the offender has been convicted, which is of paramount importance."

19 With respect to the "tariff submission" made in this appeal, the first observation to make is that the appellant was not sentenced for the crime of arson alone. She was also sentenced for the crimes of aggravated burglary and unlawful damage to property committed 14 months before the crime of arson. She was also sentenced for aggravated burglary and unlawful destruction of the windows of the complainant's car committed in connection with the crime of arson. The second observation is that arson may be committed by reckless conduct or intentional conduct, the latter being more serious than the former. The third observation is that the crimes of arson and unlawful destruction of property are often committed by persons suffering from some kind of mental illness or in the heat of the moment while tempers are aroused. The fourth observation is that any comparison with other sentences must take into account, in addition to the value of property destroyed, the age and antecedents of the offender, whether there was remorse or not, and so on.

20 The appellant was not a youthful offender, nor was she remorseful. The defence on the trial for arson and the related counts was conducted on the basis that the complainant had lit the fire himself and dishonestly tried to implicate the appellant. The appellant had previous convictions that indicate a tendency to act violently and aggressively if crossed. In July 2002 the appellant broke into the complainant's home, broke a number of windows and spitefully destroyed possessions that she knew were dear to him. This was calculated criminal conduct borne out of anger towards a former partner and designed to cause maximum distress. Fourteen months later the appellant, not a youthful offender, and not affected by any mental illness, again broke into the complainant's home, and again with the intention of causing maximum distress, deliberately set fire to the house, causing very extensive damage. There was neither confession, nor remorse, for this criminal conduct. In his evidence, the complainant said that after the fire, the appellant told him that the fire was "just the start" and that "Nikita and Tracey are next" (the complainant's then partner and their child).

21 The totality of the appellant's criminal conduct called for the imposition of a substantial prison sentence. There was no basis upon which it can be said that not to suspend the execution of part of the sentence reflected error in the exercise of the sentencing discretion. In my opinion a sentence of three years' imprisonment with an 18 month non-parole period was well within the range of sentences that might have been imposed in the proper exercise of the sentencing discretion. The "tariff submission" is not made out. I would dismiss the appeal.

22 I agree with the reasons for judgment of both Underwood CJ and Tennent J and would dismiss the appeal.

23 The appellant appeared for sentence in respect of five counts on an indictment. She pleaded guilty to the first two, being one count of aggravated burglary and one count of unlawfully injuring property, and not guilty to the last three, being counts of aggravated burglary, arson and unlawfully injuring property. After a trial she was found guilty of the latter charges.

24 All charges involved the same complainant, being the appellant's former partner and the father of two of her children, Michael Oliver. The first two charges arose out of her entry into his home in July 2002 and her damage to property of his after that entry. The last three arose out of an incident in September 2003 and again involved the appellant breaking into Mr Oliver's home. However on this occasion she set fire to it. She also damaged his vehicle parked outside.

25 The appellant was sentenced to three years' imprisonment with a non-parole period of 18 months. She has now appealed the severity of that sentence. She asserts that the learned sentencing judge erred in law in that in all the circumstances the sentence was manifestly excessive.

26 The thrust of the submissions made by counsel was that the sentence was outside the range of other sentences imposed, in particular for arson, and that insufficient regard had been had to the personal circumstances of the appellant and the background which gave rise to the commission of the crimes.

27 At the time of sentence the appellant had three children aged 8 years, 5 years and 3 months. The older two were her children by Mr Oliver and the youngest was by her new partner. She was 29 years old and had completed an aged care course at TAFE and been offered employment. She had a prior conviction for injury to property in February 1996 and for assaulting police in February 2002. Subsequent to the commission of the crimes for which she was being sentenced, she was convicted of destroying property and assault. The date of those offences was March 2004.

28 The appellant and Mr Oliver separated some time in 2001. Their separation and subsequent dealings were acrimonious. In 2002, the appellant sought child support and discovered Mr Oliver was already supporting another child. It confirmed something she had long suspected, namely that Mr Oliver had had an affair about the time their relationship started. Shortly after that she committed the first offences.

29 On this occasion, in July 2002, the appellant broke into Mr Oliver's home. She broke nine windows and damaged or destroyed a number of household items. These included a collection of vinyl records Mr Oliver had had for many years. She also smashed a photo frame and tore up the photo in it, which was of the parties' children. In doing this the appellant cut herself and was ultimately connected to the crime despite her denials of responsibility by DNA evidence. She pleaded guilty in the face of that evidence. The damage to items of property and the windows was estimated at $3,300.

30 The appellant and Mr Oliver became involved in Family Court proceedings relating to their children. There had been a period when Mr Oliver was not seeing his children. However contact was resumed and he was due to see the children on the weekend of the 12/13 September 2003. However he received a message on the Friday to the effect he would not be permitted contact that weekend. He told the Court that the appellant then contacted him wanting to discuss their children and issues relating to the other child he had had with the lady who was by this time his new partner. He refused to talk with her. He then went out for the night.

31 In his absence the appellant drove from Burnie to Mr Oliver's address in Ulvertsone. She broke into the house and set fire to it. She also broke the back window of Mr Oliver's car. There was substantial damage done to the house and its contents in the fire. The contents lost had an estimated value of between $15,000 and $20,000. The damage to the house itself was said to exceed $50,000. At trial the appellant conducted her case on the premise that Mr Oliver had in fact set the fire and framed her for it.

32 Counsel submitted that insufficient weight had been given to the fact that the appellant was the mother of three children. Nothing was put to the learned sentencing judge to suggest any particular hardship to the children were they separated from their mother by her imprisonment. It was open to the learned sentencing judge in the absence of any such submissions and with the material he had before him to assume the fathers of the children could care for them and that there were no exceptional circumstances which would warrant this factor being given significant weight.

33 However the learned sentencing judge took into account in the appellant's favour that she had a young baby, although he noted the child was conceived at a time when the appellant must have known she faced a risk of imprisonment. He allowed the shortest non-parole period possible to recognise this factor.

34 The learned sentencing judge also detailed the appellant's offending history.

Background giving rise to the commission of the crimes

35 There is no doubt the appellant and Mr Oliver were in dispute about a number of issues. There is no doubt the appellant felt aggrieved by Mr Oliver's involvement with another woman which resulted in the birth of a child, by Mr Oliver's trying to hide his connection with that child, by the fact that he was now living with that child's mother and by the situation relating to the care of the two children she had with him. However as the learned sentencing judge quite properly pointed out:

"Whatever the rights and wrongs of the squabbles that you were having over the children's arrangements ... that is not a justification for causing the sort of damage that you did, it's certainly not a justification for damaging his landlady's house."

36 The appellant cannot put forward as a mitigating factor that, because she was angry at the behaviour of Mr Oliver and she felt he was in the wrong in their disagreements, she was entitled to act as she did.

37 Counsel referred to a number of sentences imposed for counts of arson by this Court and to the comments of Professor Warner in her text Sentencing in Tasmania, 2nd ed. Under the heading "Relevant factors" at 361, Professor Warner said:

"The actual and potential amount of damage to property, a potential for injury to persons, the motive and the degree of deliberation involved are factors relevant to sentence. The type of property involved is also relevant and, in the case of arson, setting fire to a dwelling house is seriously regarded especially if the house was occupied. The seriousness of the fire in terms of the amount of damage caused, the risk to any persons including fire fighters, the potential for damage as indicated by the weather conditions in terms of bush fire and where the fire was lit are all important considerations. Motive is important in cases of arson and unlawfully setting fire to property. A motive of defrauding an insurer is aggravating. Rivalry and hatred, revenge and even retaliation for some actual or perceived wrong are treated as aggravating factors, for taking the law into one's own hands is discouraged by the courts."

"Clearly, 4 years' imprisonment is regarded as the top end of the range for arson, reserved 'for very bad cases where the case put in mitigation was not strong so that such a grave penalty was clearly deserved'."

38 Counsel for the appellant submitted that the present case did not fall into that category.

39 Counsel for the State submitted the arson in this case was a very deliberate action. The appellant had driven about 30 kilometres to get to the house and clearly had ample time to reflect on her actions. The house was substantially damaged and Mr Oliver lost a large quantity of both his own and his children's possessions. The fire was lit in a suburban house where other dwellings could have been potentially at risk. It was lit late at night at a time when it might be expected it would not be immediately detected. The appellant's actions were motivated by significant ill will. She showed no remorse. She had conducted her case by attempting to place the blame elsewhere despite evidence which placed her in a compromising position as far as the fire was concerned.

40 Counsel for the State submitted that the range of penalties as canvassed by Professor Warner was still valid, referring to a sentence imposed in Burgess on 26 May 2005.

41 Counsel for the accused had conducted an examination of sentences imposed by the court for counts of arson in the last five years, a period not covered by the data in Professor Warner's text. He submitted by reference to that examination that the sentence in the present case was the harshest imposed in that period. The matters to which he referred clearly showed a range of penalties for counts of arson during that period which ranged from fines to terms of imprisonment in the region of three years. Many of those which attracted a sentence of imprisonment included orders suspending the whole or a significant part of the term. Counsel submitted many involved arson which resulted in significantly more damage than in the present case but which attracted lesser penalties.

42 Many of the sentences referred to involved youthful offenders, offenders without offending history and offenders affected by alcohol or psychiatric difficulties. However, what the sentences highlighted was the range of variables which affected the court's sentencing decisions and the caution which should be exercised in using such sentences as a definitive guide.

43 In the present case, the fire was set in a dwelling in a suburban area with potential for harm to it and others at a time when it was least likely to be quickly detected, steps were taken to prevent a smoke alarm sounding, the appellant travelled some distance to start the fire, there was substantial damage to the house and its contents resulting in Mr Oliver losing his home and most of his own and his children's belongings, and there was little apparent remorse. The appellant's actions were motivated by her feelings of ill will towards Mr Oliver. There were limited mitigating factors.

44 Counsel for the appellant concentrated his submissions on the count of arson, in effect attributing the sentence imposed to that alone. He ignored, in my view, the appellant's overall conduct which involved her on two separate occasions some 14 months apart breaking into Mr Oliver's home and destroying his belongings in what can only be described as vindictive attacks in no way justified by what she presumably perceived as the wrongs done to her by him. The gravity of her behaviour escalated in that she went from simply smashing things to using fire, a much more dangerous tool.

45 The aggravated burglary and injury to property in July 2002 could in themselves have attracted a period of imprisonment, although perhaps suspended. The conduct in September 2003 clearly showed the appellant had not, in July 2002, simply acted once impulsively and perhaps opportunistically in anger. It showed there was a serious need for personal deterrence which the learned sentencing judge clearly recognised.

46 I am not satisfied that error has been shown to have occurred in the sentencing process such that the sentence imposed could be said to be manifestly excessive. I would dismiss the appeal.