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[2011] VSCA 125
Court of Appeal (Vic)
2011-05-11
Mandie JA, Buchanan JA, Neave JA
Original judgment source is linked above.
DPP v Quarrell, (Unreported, County Court of Victoria, Judge Douglas, Date Of Conviction: 11 March 2010, Date Of Sentence: 16 July 2010)
CRIMINAL LAW - Applicant convicted of numerous counts of arson and attempted arson - Application for leave to appeal against conviction - Whether judge erred in admitting coincidence evidence and in directing the jury about coincidence evidence - Application for leave to appeal against sentence - Whether sentence manifestly excessive.
1 I agree with Mandie JA, for the reasons his Honour has stated, that the applications for leave to appeal against conviction and sentence should be dismissed.
2 I have had the advantage of reading in draft the judgment of Mandie JA and agree, for the reasons his Honour gives, that the applications for leave to appeal against conviction and sentence should be refused.
3 This is an application for leave to appeal against conviction and, if the convictions are sustained, against sentence. On 25 February 2010 the applicant pleaded not guilty in the County Court to a presentment containing seven counts of arson and two counts of attempted arson in relation to nine beach boxes situated on Rosebud beach. The jury found the applicant guilty and the applicant was convicted on each count on 11 March 2010. A plea was subsequently heard and on 16 July 2010[1] the applicant was sentenced as follows:
4 The total effective sentence was thus five years' imprisonment and the judge ordered that the applicant serve a minimum of three years before becoming eligible for parole.
In relation to sentence:
The sentence imposed on each count, the total effective sentence and the minimum non-parole period are in all the circumstances of the case manifestly excessive.
6 The applicant was born on 19 January 1953 and was aged 55 years at the time of the offences. She resided in Rosebud. The filed summary of the offending relevantly reads as follows:
On Tuesday May 2008 at around 10.15pm, a security guard was walking along Rosebud Beach and smelled smoke. He walked in the direction of the smell and saw smoke coming from beach box F111 and what appeared to be ... flames coming from a shed. He made his way through the scrub and observed the applicant four or five metres away standing near the beach box and observing the fire. He then said, 'Security. Don't move.' to identify himself whereupon the applicant moved away. The security guard gave chase and again identified himself as security and told the applicant, 'Stay here. I believe you lit this fire and I am going to call the police.'
The applicant told the security guard that she saw somebody lighting the fire. The applicant denied lighting the fire and told him that she went to the beach to put the fire out. She moved away and the security guard wrestled her to the ground to prevent her from fleeing. The applicant resisted and told him that he was going to be in trouble for assaulting a female.
A short time later the security guard contacted police. The security guard noticed that the fire was still burning and so he extinguished it. The applicant told him that she saw a person run off and that he should find that person. Around five minutes later Sergeant Dixon and Constable Whitelaw arrived. At the time, the applicant was wearing dark clothing, had a pair of binoculars in a case with a long strap hanging on her shoulder and was wearing a bum bag. Inside the bum bag [were] three cigarette lighters, a cap from a kerosene bottle, a woollen glove, the thumb of which was partially burned.
Constable Whitelaw said she could smell a kerosene-type smell on the bum bag and that the applicant smelled of smoke. The security guard saw the applicant drop a bag near beach box F111. The police seized the carry bag which contained yellow rubber gloves and foliage from around the beach boxes which was used to light the fires and which the applicant placed at the boxes where the applicant attempted to light the fires.
The applicant denied having possession of the carry bag or any of its contents. She also denied knowing about the presence of the black cap from the kerosene bottle in her bum bag. The prosecution alleged that the applicant had purchased the kerosene earlier that day as well as two pairs of the same brand of yellow rubber gloves found in a bag at the home of the applicant. DNA evidence was relied on to link the applicant with the handles of the carry bag and the yellow rubber gloves found in the bag.
Beach box 66 (subject of Count 1) was damaged by fire on the left hand side where there is a burned area on the lower weatherboard and barge boards underneath. A pair of latex gloves was collected from near the beach box and forensically tested. The results of the tests indicate that there was medium petroleum distillate, probably mineral turpentine on the gloves.
Beach box 67 (subject of Count 2) was more severely damaged than beach box 66, and was therefore more difficult to examine. Traces of turpentine or a similar product [were] found along the sides of the bathing box. There was extensive fire damage to the side walls. The prosecution relied upon DNA evidence connecting the applicant to this offence.
Beach box 171 (subject of Count 3), situated one kilometre from beach box F111, was not seriously damaged. The fire was very small and did not cause significant damage to the floor or the frame of the bathing box.
The lower half of the door of beach box 164 (subject of Count 4), had been consumed by the fire and there was an upper timber air vent which had been forced or broken. A piece of the timber door was found on the ground inside and it appeared that the base of the door had been forced inwards.
The timber stump at the front of beach box 162 (subject of Count 5) had almost completely been consumed by fire.
The base of the door of beach box 161 (subject of Count 6) was badly heat affected and there was soot near the centre, and the timber floor base had been deeply charred. It was not clear how much fire damage had occurred within the structure but a glass bottle was found in the area as well as a melted bottle and rubbish.
Count 7 relates to the attempted arson of beach box 158. Branches had been piled on and under the front steps similar to the other buildings but there was no obvious fire.
Count 8 relates to the attempted arson of beach box 152. A large amount of branches had been placed under the base of the front door and cavity between the door and the floor.
Count 9 relates to beach box F111, which was where the applicant was apprehended by the security guard. A small external fire had occurred on one side of the northern corner where a small amount of leaves, sticks and small branches under the base of the structure were burned. The weatherboards in the immediate area of these branches had been lightly charred. The bottom board having sustained the greatest fire damage, with the boards above being lightly heat affected and sooted.
The prosecution case was that it was improbable that each of the offences in Counts 1 to 9 was committed by more than one person and that it was improbable that the offender was a person other than the applicant. There were similarities in all of the offences, Counts 3 to 8 occurred in the same area and took place on the same night as Count 9.
7 In support of ground 1, the applicant relied upon written submissions that were not expanded by oral argument.
8 The applicant submitted that the judge erred in allowing certain evidence to be led as coincidence evidence. The applicant referred to ss 98 and 101 of the Evidence Act 2008 ('the Act') which relevantly provided:
98(1) Evidence that 2 or more events occurred is not admissible to prove that a person did a particular act ... on the basis that, having regard to any similarities in the events or the circumstances in which they occurred, or any similarities in both the events and the circumstances in which they occurred, it is improbable that the events occurred coincidentally unless -
...
(b) the court thinks that the evidence will, either by itself or having regard to other evidence adduced ... by the party seeking to adduce the evidence, have significant probative value.
...
101(2) ... coincidence evidence about a defendant, that is adduced by the prosecution cannot be used against the defendant unless the probative value of the evidence substantially outweighs any prejudicial effect it may have on the defendant.
9 The applicant submitted that the judge erred in concluding that the offences had the requisite degree of similarity to allow a finding that the test of 'significant probative value' was satisfied, or alternatively, submitted that the probative value of the evidence did not substantially outweigh its prejudicial effect.
10 The applicant submitted that some of the similarities relied upon by the Crown were not unusual for the offence of arson, namely, the use of an accelerant and the use of foliage from nearby areas to fuel the fires. The applicant further pointed to the following factors, inter alia, as detracting from the probative value of the evidence:
11 The applicant submitted that the degree of similarity between the offending acts or the circumstances in which they were committed was not such as to render the evidence of significant probative value. Alternatively, it was submitted that the probative value of the evidence did not substantially outweigh the prejudicial effect of the evidence which arose by virtue of having a joint trial of 9 counts and where the evidence was held to be cross-admissible.
12 In response, the respondent submitted that the evidence of the circumstances of the offences had significant probative value in relation to the identification of the applicant as the person responsible in relation to each of the counts and that evidence included the following:
13 The respondent submitted that the judge was entitled to hold that the Crown could lead the evidence on the basis that it was improbable that the relevant events occurred coincidentally. The respondent further submitted that the applicant's submissions placed too much emphasis on similarities and differences in the evidence relating to the methods used to light the fires rather than having regard to a consideration of all of the surrounding circumstances as required by s 98(1) of the Act.
14 I would reject ground 1. In my opinion, the judge was right to conclude, having regard to the similarities in the events and in the circumstances in which they occurred, that it was improbable that the events occurred coincidentally. With respect, I consider that almost all of the matters particularised by the respondent and set out above self-evidently establish a firm foundation for that conclusion and for the further conclusion that those matters of themselves, and in conjunction with each other and the evidence as a whole, had significant probative value and that that probative value substantially outweighed the prejudicial effect thereof upon the defendant.[2]
15 In argument the applicant concentrated on ground 2. The applicant submitted that the judge had inadequately directed the jury as to how they might use the coincidence evidence in relation to each separate count and failed to make it clear to the jury that they had to be satisfied beyond a reasonable doubt that the same person had committed each offence and that that person was the applicant. It was submitted that the direction would have led the jury to consider the coincidence evidence in relation to all counts whereas the jury should have been told, if they were first satisfied of the applicant's guilt in relation to count 9, to compare the facts of count 9 with the facts of each of the other counts. The question was, so it was submitted, whether there was a similarity between the facts of count 9 and the facts of each of the other counts and not whether there was a similarity between the facts of count 9 and the facts of all of the other counts taken together. It was further submitted that the jury should have been told that they had to be satisfied beyond a reasonable doubt that each offence had been committed by the same person not merely that it was 'improbable' that the offences had been committed by different persons.
16 The above submissions on behalf of the applicant were primarily concerned with the italicised passages set out below as part of some longer extracts from the judge's charge:
But the Crown says that there is overwhelming evidence as to Count 9 and the Crown then points to these pieces of evidence I am about to refer to as pieces of evidence, the combination of which you can draw inferences as to the guilt of the accused when looking at each of the counts on the presentment 1 to 8 inclusive. I will go through this. The evidence upon which the prosecution relies is amounting to similarities in relation to each count that it was says was improbable that each of the offences was committed by more than one person. And that was the person who committed Count 9, who the prosecution say is the accused. I am going to direct you as to this in a more comprehensive way as the evidence I call coincidence evidence. The alleged similarities are these ...
[The judge then summarised the various alleged similarities that were relied upon by the Crown]
This evidence can be used as to each of the Counts 3 to 9, if you are satisfied beyond reasonable doubt that, in the circumstances, each of the offences was committed by the same person.
Those pieces of evidence that I have set out from which the Crown ask you to draw an inference together are said to be circumstantial evidence. The case is circumstantial. The Crown relies on a combination of those pieces of evidence from which the Crown says you ought to draw an inference that the accused is guilty of each offence. To find the accused guilty, you must be satisfied, looking at the circumstantial evidence - so I have divided up the circumstantial evidence in relation to Count 9 itself, and the circumstantial evidence as to the similarities upon which the Crown rely in relation to whether you are satisfied of the guilt of the accused of each of the Counts 1 to 8 inclusive.
To find the accused guilty, you must be satisfied, one, that her guilt is the only reasonable inference that can be drawn from the circumstances established by that evidence, and that if there is any reasonable explanation of those circumstances which is consistent with the accused's innocence, then the prosecution will not have proved her guilt beyond reasonable doubt, and you must acquit her.
...
The prosecution's case is that there is such [similarity] between the evidence led in respect of each count on the presentment and the evidence of the offences alleged against the accused in other counts on the presentment that it is improbable that these similarities arose by coincidence. Thus, it is improbable that each of the offences was committed by more than one person. If you are satisfied beyond reasonable doubt that the accused is guilty of Count 9, the prosecution relies on these similarities ... to infer that the accused is guilty of each of the offences on the presentment.
...
If you are satisfied beyond reasonable doubt that the accused is guilty of Count 9, the prosecution case relies on these alleged similarities to infer that the accused is guilty of each of the offences on the presentment. I will perhaps repeat what I said about the similarities. The prosecution's case is that there is such [similarity] between the evidence led in respect of each count on the presentment and the evidence of the offences alleged against the accused in other counts on the presentment, that it is improbable that these similarities arose by coincidence. Thus, it is improbable that each of the offences was committed by more than one person. The Crown rely on the evidence from Count 9 to link the accused as that one person, if that makes sense. This is the evidence I have referred to as coincidence evidence. I will give you now directions about how you use this.
As I have said, any direction of law I give you are bound by. You can only infer that the accused committed the alleged offences if you are satisfied beyond reasonable doubt of the following matters; 1) that on the evidence there is such similarity between the evidence led in relation to the count under consideration, and other counts, concerning the way in which the count under consideration was committed that it is improbable that the offences were committed by different people, and you are satisfied it was the accused who committed Count 9. I will [say] that again, ladies and gentlemen.
You can only infer that the accused committed each alleged offence, Count 1 to 8, if you were satisfied beyond reasonable doubt of each of these two matters; 1) that on the evidence there is such similarity between the evidence led in relation to the count under consideration, and the other counts, concerning the way in which the count under consideration was committed, that it is improbable that the offences were committed by different people; 2) it was the accused who committed Count 9. The Crown says if you are satisfied of each of the two matters, the Crown case is the only reasonable inference is that it was the accused who committed each of the offences charged in the presentment. The prosecution have identified the similarities upon which it relies, and I have already directed you specifically to those alleged similarities when directing you as to circumstantial evidence and inferences. I will not do it now, but if at any time you want any of these directions repeated, you only have to ask, ladies and gentlemen.
It is important that you only use this evidence that I have referred to as coincidence evidence for this purpose, and only if you are satisfied beyond reasonable doubt that the only reasonable inference that you can draw is that the accused was the offender. If you are not satisfied that this is the only reasonable inference, then you must disregard this coincidence evidence. The coincidence evidence has been admitted for a strictly limited purpose which I have set out. It is important that you do not use this evidence in the following ways; you must not use it to find the accused is likely to have committed the offence charged in the count under consideration, and to use this conclusion as evidence she is guilty. Your decision must not be based on assumptions about the kinds of people who commit offences. You must not reason because the accused did something wrong on another occasion she must have done so on the occasion that is the subject of the count under consideration, and you may only convict the accused of an offence if you are satisfied that the prosecution has proved that she committed that offence beyond reasonable doubt.
The evidence that I have described as coincidence evidence, in other words in relation to the alleged similarities between each count, is admitted solely on the basis that you may use it to draw the inference that the accused was the offender in the way I have set out. The presentment contains nine separate counts or charges. The nine counts as heard by you at the one time rather than having a separate trial for each of the counts on the presentment. This is done because it is very convenient and I have also told you that as a matter of law the Crown is entitled to use the coincidence evidence of other counts when you are looking at each count. However, I cannot impress upon you more that the accused, as is the Crown, is entitled to a separate consideration by you of each of the offences charged in the nine counts on the presentment.
It would be quite wrong for you to say that simply because you find the accused guilty or not guilty of one count, she must be guilty or not guilty as the case may be of another. Now, when you look at each count on the presentment, you are entitled to use the evidence of similarities as to improbabilities that I have said. You must go through the evidence in relation to each count separately. You are not entitled to say well, she is guilty of one or two counts, she must be guilty or not guilty of the rest. There must be a separate consideration in relation to each count on the presentment.
Each count must be considered separately in the light of the evidence which applies to it and you must ask yourselves in relation to each count, am I satisfied beyond reasonable doubt by the evidence that she is guilty of this crime. If that question is answered yes in your judgement, you should find the accused guilty of that count. If it [is] answered no, you should find the accused not guilty of it.
It is very important to bear in mind in particular in cases where coincidence evidence is relied on by the Crown that you do not say because you find the accused guilty or not guilty of one count, she must be guilty or not guilty of the other count.
Now, I have directed you that if you find the accused not guilty of Count 9, that is the lynchpin for the others. You must acquit the accused. That is the count linking the accused to the method the Crown relies on in relation to each offence. So it is like we often say in the law, links in a chain. So that Count 9 is a link that is very important in the chain of evidence the Crown relies on in relation to Counts 1 to 8 inclusive. So if you find the accused not guilty of Count 9 you must acquit of each of the other cases for obvious reasons. If you convict the accused of Count 9, then you must not just convict of the rest, you then go through each count individually, looking at the evidence I have referred you to and I will now refer to the evidence specifically in relation to each of the beach boxes.
Now, as to the elements of these offences. I have said to you a number of times the Crown must prove the elements of an offence with which a person is charged. Therefore, it is important I direct you as to these elements. Now, as to Counts 1, 2, 3, 4, 5, 6 and 9, the accused is charged with arson. That is damaging property of another by fire. The prosecution must prove beyond reasonable doubt each of the following elements:
So it is a matter for you but it is a comment of mine that one and three ought not trouble you with the evidence but it is two that is the issue in the case. Has the Crown proved beyond reasonable doubt that it was the accused who damaged by fire the beach box named in Count 1, 2, 3, 4, 5, 6 and 9 and that she did so intentionally. That is the issue. Now, as I said, the accused denies that she was the offender.
Now, 'intentionally' is defined as a person who destroys or damages property shall be taken to have done so intentionally only if her purpose or one of her purposes is to destroy or damage the property or she knows or believes that her conduct is more likely than not to result in the destruction of or damage to the property. So you must be satisfied that she damaged the beach box in each count on the presentment when you are looking at them in order, or whichever order you wish to look at them, and that she did so intentionally.
So looking at that second element and perhaps dividing it up, the Crown must prove beyond reasonable doubt that the accused caused the damage by fire to the beach box named in the count and, at the time, her purpose was to destroy or damage the beach box knowing that her conduct was more likely than not to result in destruction or damage to the beach box. It was done intentionally or deliberately.
17 The applicant was particularly critical of the passage in the second italicised paragraph of the above extract in which the judge told the jury that '[y]ou can only infer that the accused committed the alleged offences if you are satisfied beyond reasonable doubt of the following matters; 1) that on the evidence there is such similarity between the evidence led in relation to the count under consideration, and other counts, concerning the way in which the count under consideration was committed that it is improbable that the offences were committed by different people, and you are satisfied it was the accused who committed Count 9'.
18 On the other hand, the respondent submitted that when the passages complained of were read in the light of the whole of the judge's charge, including those given at the commencement of the trial, the jury could have been in no doubt that before they could find the applicant guilty of any count on the presentment they would have to be satisfied beyond a reasonable doubt that the applicant lit the fire involved in that particular count (or had attempted to do so).
19 At the commencement of the trial, the judge had directed the jury in appropriate terms as to inferential reasoning and as to not reasoning that because the accused did something wrong on another occasion she must have done so on the occasion involved in the count under consideration. Earlier in her charge she had told the jury they had to be satisfied beyond a reasonable doubt in relation to the necessary ingredients of each charge and had carefully directed the jury as to the onus of proof, inferences and the way that they could use the coincidence evidence.
20 I would reject ground 2. It is clear that the judge adequately directed the jury as to how they might use the coincidence evidence in relation to each separate count. The judge did make it clear to the jury that they had to be satisfied beyond a reasonable doubt that the same person had committed each offence and that that person was the applicant. I do not accept the applicant's submission that it was necessary, or indeed appropriate, to direct the jury that they had to compare the facts of count 9 with the facts of each of the other counts and that they were not entitled to consider (once they were satisfied of the applicant's guilt in relation to count 9) the whole of the coincidence evidence in relation to each of the counts.
21 The terms of s 98(1) of the Act make it clear that regard can be had in relation to each count 'to any similarities in the events or the circumstances in which they occurred, or any similarities in both the events and the circumstances in which they occurred' and that the coincidence evidence can have significant probative value 'either by itself or having regard to other evidence adduced or to be adduced'. The jury were correctly directed as to the separate consideration of each count and were entitled to consider the whole of the evidence, including all the circumstantial evidence, in relation to each such count. It was, as the respondent submitted, a case of 'strands in the cable'.
22 In my opinion, the judge's directions did not contain any of the errors advanced under cover of ground 2.
23 The applicant submitted that the individual sentences, the cumulations, the total effective sentence and the non-parole period were all manifestly excessive. Counsel for the applicant pointed to various mitigatory factors that were indeed found by the sentencing judge including the applicant's age, her lack of prior convictions and reputation as a hard-working person, her traumatic upbringing and the difficult time she had endured in custody (including the loss of her house due to her inability to make the mortgage repayments and her missing a number of close family events). Reference was also made to other matters mentioned by the sentencing judge including the harsh impact of a sentence of imprisonment having regard to her severe back pain and history of claustrophobia and anxiety, and the compensation orders made against her in favour of the owners of four of the beach boxes.
24 The applicant submitted that the offending was at the lower end of the scale for offences of arson and that, without accepting that categorisation, the sentencing judge had accepted that the fires were not near residential homes where people would be at risk and were perpetrated on unoccupied beach boxes at night and were not committed for retribution, revenge, financial gain or other aggravating motive. It was further submitted that, with the exception of count 2, the amount of damage in respect of the other counts was either minimal or not significant. In that regard, it was submitted that the judge should not have imposed the same sentence for each count irrespective of the damage caused.
25 The applicant referred to DPP v Derby[3] in which the quantum of damage was approximately $125,000 and in which this Court in allowing a Crown appeal imposed a total effective sentence of two years with a non-parole period of 12 months. The applicant referred to the summary of sentences imposed for the offence of arson contained in that case[4] which, it was submitted, showed that lesser sentences than that imposed in this case had regularly been imposed in cases where the offending was more serious having regard to the damage involved and the motives for the offence and, in a number of cases, in relation to offenders with significant prior histories.
26 The applicant accepted that the judge was required by virtue of the operation of s 6D(a) of the Sentencing Act 1991 (Vic), for the purposes of counts 2 to 9, to sentence on the basis that protection of the community was the principal sentencing consideration but submitted that her Honour still had to take into account the principles of totality and proportionality. It was submitted that the principle of proportionality dictated that a lesser sentence should have been imposed on each count.
27 It was further submitted that the applicant's conduct was, for sentencing purposes, a 'course of conduct' in that the offences were closely connected and that, therefore, the amount of cumulation ordered was disproportionate and resulted in a manifestly excessive sentence which also offended the principle of totality.
28 Notwithstanding the foregoing, the applicant conceded that the term of imprisonment of three years imposed in relation to count 2 (where the damage exceeded $17,000) was within the allowable range, albeit at the top end.
29 The respondent joined issue on the foregoing submissions. The respondent submitted that the total effective sentence and each element thereof was reasonably open to the sentencing judge in the exercise of her discretion having regard inter alia to the maximum penalty of 15 years' imprisonment, the seriousness of the offences including pre-meditation, the applicant's lack of remorse or insight into the offending conduct and her status as a serious arson offender in relation to counts 2 to 9.
30 The respondent submitted that the amount of damage caused by the offences should not be overemphasised - it was not a mitigating factor that the applicant was an unsuccessful arsonist and that the lack of more substantial damage was somewhat fortuitous. In addition, the respondent submitted that where multiple offences were being dealt with a sentencing judge was entitled to adopt a broad brush approach.[5]
31 The respondent submitted that the cumulation ordered was moderate having regard to the provisions of the Sentencing Act. The respondent submitted that the protection of the community, and also general deterrence, were important considerations. The beach boxes were 'soft targets'. The respondent further emphasised the applicant's lack of remorse and that in the circumstances of continuing denial of guilt the judge could not take into account any prospect of rehabilitation.
32 I would accept the respondent's submissions. As is very frequently stated, the question of manifest excess does not admit of much argument. In my opinion, the total effective sentence and the non-parole period are not manifestly excessive and do not offend the principle of totality. All of the relevant circumstances were properly considered and taken into account by the learned sentencing judge. The sentence and its individual elements are not of themselves such as to demonstrate that her discretion has miscarried. The individual sentences imposed on the counts other than count 2 were certainly stern but the degree of cumulation was not disproportionate having regard to the policy of Parliament in relation to serious arson offenders enunciated by Part 2A of the Sentencing Act.
33 Finally, in relation to the applicant's submissions based on DPP v Derby, I note that that case was a Crown appeal in which a term of imprisonment was substituted for an intensive corrections order and the principle of double jeopardy and other mitigatory factors were also involved. As far as the various sentences considered in paragraphs [22]-[34] of Derby are concerned, each of them naturally turned on the particular facts relating to the offences and to the offender and are of no great assistance in the present case with its own unique features.
34 For the foregoing reasons, I would refuse leave to appeal against conviction and sentence.
[1] The reasons for the delay are not relevant to the present applications.
[2] As to the matters referred to in this paragraph, see generally CW v The Queen [2010] VSCA 288.
[4] [2007] VSCA 92; (2007) 171 A Crim R 302, [22]-[34].
[5] R v Ash [2005] VSCA 43, [20]; R v Nikodjevic [2004] VSCA 222, [44].
Quarrell
The Queen [2011] VSCA 125