R v Barling [1999] QCA 16

"The offender has shown a tendency to violence in the past. Whether or not it's fashionable these days to regard assaulting police officers as a minor matter, he's got a conviction for that back in 1994, and one of obstructing police as well. Violence is not a stranger to him. I consider that he's one quite likely to lapse into acts of violence."

I must say that I am not persuaded that that conclusion reached by the learned Judge below and his view of the seriousness of those prior matters is correct.

The facts are as follows. The applicant was in a relationship with the female complainant for about 18 months. They lived

together from time to time in a caravan, which they jointly owned but which the applicant largely paid for.

After a dispute he destroyed some of the complainant's property, and in a fit of remorse told her she could have the caravan to repay her for the damage he had caused. On

3 October 1997 the complainant went to a nightclub and asked the applicant not to come. He nevertheless went to the nightclub and abused her, accusing her of having sex with some of the men with whom she was in company.

She left the nightclub for a time and then returned, finally returning home to her parents' place where her caravan was situated in the early hours of the morning. She there found the caravan and all her possessions had been destroyed by fire. It seems the applicant had left the nightclub for his mother's home, where he grabbed a can of petrol, which turned out to be empty, and went to the caravan.

He banged on the caravan, and having ascertained no one was home then lit a curtain in the van. He drove home and told his mother and brother what he had done. During the fire the complainant's mother became distraught, believing her daughter was inside the burning van. The value of the destroyed property was in excess of $10,000.

The applicant was remorseful, even attempting suicide shortly after committing the offence, and then seeking medical and psychological help for his emotional problems. Victim impact

statements tendered on behalf of the complainant and her mother demonstrated that the offence had had a profound detrimental emotional effect on them, something which is perfectly understandable in the circumstances.

At sentence the defence submitted that there was no actual danger to the complainant as the applicant knew she was at the nightclub, and loudly banged on the caravan for some time before lighting the curtain. The learned trial Judge did not accept that submission, saying:

"No, no, that's not right. He'd left the night-spot some considerable time before, according to Mr Heaton. He'd gone home. He'd seen his family. He'd borrowed a car. He'd carried out his acts in preparation. Then he'd gone round there. He didn't really know whether she was in the caravan or not, according to the prosecution, and you tell me that he was satisfied that she was not in there. How can I be sure of that?"

MR McINNES: He was satisfied, perhaps not fully reasonably.

HIS HONOUR: Good gracious. He knocked on the door and rocked the caravan, didn't go inside or anything of that kind.

HIS HONOUR: Well, he's not going to be punished on the basis that he truly had a proper belief that she was not in there. That's simply not on. He took the risk.

HIS HONOUR: Or at least he made her take the risk."

Indeed the Crown submission was in fact consistent with the defence submission:

"He told the police that he looked through the caravan, shook it to make sure that there was nobody there. Once he saw that there was nobody inside, he initially tried to empty the jerry can in through a window of the caravan...

HIS HONOUR: How did he make sure no one was inside?

MR HEATON: He was banging on it, shaking the caravan and looking into it, looking through the windows."

This Court has held in R v. Morrison [unreported, CA No 391 of 1997] that a sentencing Judge must be satisfied beyond reasonable doubt of all disputed matters relied on by the prosecution at sentencing which are not necessarily concluded against a convicted person by the plea of guilty and which aggravate the offence.

It would be an aggravating factor resulting in a heavier penalty if the applicant believed or did not care whether or not the complainant, or someone else, was in the caravan when he lit the curtain, yet His Honour concluded that this was so, despite defence submissions which were supported by Crown submissions, and without hearing evidence on this point.

In my view then in all the circumstances present in this case His Honour was not entitled to draw that conclusion. It follows that as the applicant did not believe any person was present in the caravan when he lit the caravan curtain, he should have been sentenced on that basis. His Honour was inadvertently led into error, it seems, as to the application of subsection 9(4) and thereby section 9(3) of the Penalties and Sentences Act 1992 by counsel for the Crown below.

At least on the facts on which this applicant should have been sentenced, namely that he did not believe the complainant, or anybody else, was in the caravan at the time he set fire to

it, the provisions of section 9(3) of the Penalties and Sentences Act cannot apply. I cannot accept the submissions made by counsel for the respondent in this Court that Section 3 of the Penalties and Sentences Act refers to property offences which result in psychological or emotional distress to complainants. The section is not intended to be so wide. In my view it is intended to refer only to offences against the person.

His Honour having erred in this way means that this Court can exercise its discretion afresh and re-sentence the applicant. As the learned Judge below noted, there are very serious aspects to this offence. It was a spiteful act which necessarily involved potential danger, even though the applicant believed there was no one in the caravan, and there was in fact no one in the caravan. Fires can spread and in this case the actual explosion of a gas bottle in or near the caravan demonstrated the potentiality of injuries to others.

Fortunately no one was physically injured. The maximum penalty is life imprisonment. Some assistance is given by the Court of Appeal decision of The Queen v. Henderson, unreported, CA 198 of 1993, delivered 16 August 1993. That case involved the burning of a dwelling-house in a domestic dispute, by Henderson whilst he was emotionally distressed.

White J, with whom Pincus JA and Ambrose J agreed, noted at 3:

"The authorities suggest that where there is no question of fraud to gain insurance money and where the safety of others is not a consideration, the appropriate head sentence for the offence of arson is about three years."

"I agree and would only add that, there being no particular circumstance requiring a heavier sentence, what Justice White has identified as being the ordinary penalty of three years should not in my opinion have been exceeded. When I speak of circumstances requiring a heavier penalty I have in mind the possibility of danger to individuals in the dwelling, the possibility that there might be extremely heavy property damage whereas this was not so here."

Although usually whenever the offence of arson is committed there is a possibility of injury through spread of the fire, the facts of this case bring it within that category of cases mentioned in Henderson and a head sentence of three years is, in my view, the appropriate sentence. The applicant is young with no relevant prior convictions, and has pleaded guilty at an early stage. As His Honour noted:

"It is desirable that he receives counselling for his emotional problems and he will need such counselling and supervision upon his release into the community."

In those circumstances, these factors should be reflected in an early recommendation for parole. I would sentence him to a term of imprisonment of three years and recommend that he be released after serving 12 months of that sentence.

THE CHIEF JUSTICE: I agree. In relation to Mr Moynihan's submission as to section 9 subsection 3 of the Penalties and Sentences Act, I should confirm that I would not regard this offence of arson, a property offence, as one involving violence against a person in terms of section 9 subsection 3 paragraph A. Neither would I regard it as one which resulted in physical harm to another person in terms of subsection 3 paragraph B.

It was an offence in relation to property which did not in fact result in physical harm to the complainant. Similarly, it was not one which in fact involved the use of violence against her. Mr Moynihan sought to widen what I would see as the natural meanings of those terms "violence" and "physical harm" to include emotional disturbance and the like, or the possibility of it.

I do not think that that would accord with the ordinary construction of the subsection. There is no reason to depart from that natural construction, and especially because the provision potentially affects the level of punishment there is particular reason not to adopt an unnecessarily broad construction. I consider the learned Judge erred in concluding, as he appears to have done at the invitation of counsel for the Crown, that section 9 subsection 3 applied.

McPHERSON JA: I agree with those remarks of the Chief Justice on the subject of the statutory provision in question. On the broader issue there are, in the sentencing reasons of the Judge in the Court below, demonstrated errors of fact or law, or both, that make it necessary for this Court to exercise the sentencing discretion over again.

In performing that function, I would impose the sentence proposed by the President, in other words the term of imprisonment for five years that was imposed below should be varied by reducing it to three years with a recommendation for parole after the applicant has served 12 months.

THE CHIEF JUSTICE: The application is granted and the appeal allowed. The sentence of five years imprisonment imposed below is set aside. The applicant will be sentenced to three years imprisonment with a recommendation for consideration for eligibility for parole after he has served 12 months of that term.