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[1999] QCA 11
General information, not legal advice.
Court of Appeal (Qld)
1999-02-04
Mackenzie J, Jersey CJ, Thomas JA
Original judgment source is linked above.
MACKENZIE J: This is an application for leave to appeal against sentence. The applicant was convicted, after a trial, of unlawful use of a motor vehicle and arson of the vehicle. He was sentenced to 12 months' imprisonment for the unlawful use of the motor vehicle and four years for the arson. The argument has focused solely on the four years for the offence of arson.
The applicant and the complainant had been in a relationship which ended acrimoniously, with legal action to recover sums allegedly owing being taken. The vehicle in question had been leased by the complainant in 1991 prior to the relationship breaking down. She last saw the vehicle on 21 May 1992 when she left to attend her mother's funeral in Sydney. Police found it burnt out three days later.
At the time of the offences the vehicle was worth about $16,000 and was uninsured. Thus the complainant remained liable to the leasing company for moneys owing under the lease and, in fact, discharged that obligation. She also suffered the inconvenience of being deprived of the vehicle. The magnitude of the loss suffered by her is, in my view, a significant factor in the resolution of the case.
Information that the applicant had admitted taking the vehicle and burning it came to the police only in late 1996. At the time of the offence the applicant was 40 and had no previous convictions. It was urged before the learned trial Judge that he should be given a suspended sentence so that he could work to repay the complainant. The learned trial Judge was, not surprisingly, not impressed with this proposition observing that there was no concrete proposal for repayment and that there had been plenty of time to have done it before trial. He was entitled to take that view. He described the offences as malicious and spiteful which they undoubtedly were. He said that a deterrent sentence was called for.
It was submitted today that the learned trial Judge had given excessive weight to deterrence in view of the applicant's good character and the emotional content of the offence which made reoffending unlikely. Some sentences of four years or more for arson of motor vehicles can be found such as in Evans, Criminal Appeal 91 of 1986, Carroll, Court of Appeal 258 and 259 of 1997 and Colombo, Court of Appeal Number 503 of 1994.
Where arson is one of a multiplicity of offences dealt with at the same time they provide little assistance since the focus is generally not on the arson. Nor are cases where there is a potential danger for life since that adds a more serious dimension to the offence, as was the case in Evans.
Support can be found for the view that where there is no suggestion of fraud and where the safety of others is not a consideration the head sentence of up to three years may appropriately be imposed as, for example, in Henderson, Court of Appeal 198 of 1993 and Sharkey, Court of Appeal 28 of 1994.
In the present case there is the factor, not found in most of the cases referred to, that a person of previously good character has committed the offence. To say that, of course, does not minimise the reprehensible nature of the applicant's conduct in doing what he did nor remove the feeling that the delaying of any proposal to repay the complainant's loss until after he had been found guilty by the jury demonstrates a lack of remorse on his part.
However, an objectively appropriate sentence must be imposed. Weighing all the circumstances of the case I am of the opinion that the sentence of four years exceeds the high end of the range for the particular offence and must be regarded as being beyond an appropriate exercise of the sentencing discretion and manifestly excessive in the circumstances.
I would grant leave to appeal, allow the appeal, and substitute a sentence of three years' imprisonment in lieu of the sentence of four years imposed in the District Court at Maroochydore.
R
Cramond [1999] QCA 11