R v Dinos [1999] NSWCCA 208 | Case summary

1 STUDDERT J: I will ask Justice Simpson to give the first judgment. 2 SIMPSON J: On 25 November 1998 the applicant was convicted after a trial by jury of two offences, one of dishonestly destroying or damaging property by fire, and the other of publishing a false statement with intent to obtain money. Pursuant to the Crimes Act 1900, s 197(b), the former offence carries a maximum penalty of fourteen years' penal servitude and the latter, pursuant to s 178BB, carries a maximum penalty of five years' imprisonment. 3 On 27 November 1998 Hosking DCJ sentenced the applicant on the first count to a total term of penal servitude for four years, conventionally divided into a minimum term of three years and an additional term of one year. On the second charge he imposed a fixed term of imprisonment for nine months. He specified that each sentence was to commence on 25 November 1998, the date of the jury's verdicts. 4 The applicant and a co-accused, Constantine Tikas, were the joint lessees of a chicken shop in Longueville Road, Lane Cove. The business was plainly in financial difficulties and the applicant owed $20,000 in rent to the lessors. After midnight on or about 5 April 1991, which apparently was a week night, the applicant poured petrol around the shop and set it alight. This constituted the first offence of which he was convicted. His co-accused having been charged with the same offence but acquitted by direction, the applicant must be taken to have been acting alone in this respect. Ignition of the petrol caused an explosion and fire that completely destroyed the shop and caused significant damage to an adjoining barber shop and other neighbouring premises. Damage to the chicken shop alone was assessed at $982,000; damage to a nearby computer shop was assessed at $240,000; damage to other premises, including the barber shop, had not, it seems, been assessed at the time of sentencing. In addition to the cost of repair and restoration of the physical damage, insurance companies incurred very substantial costs of investigation. Evidence was given in the trial that conveyed some idea of the extent of the explosion; a steel framed window was blown across the road; glass was spread on the road; pieces of glass and debris were scattered to a considerable distance from the shop. 5 On the hearing of the application photographs from the trial were shown to the court and these support the description of the enormous damage that was done to the premises. 6 The second offence was constituted by a claim made on their insurance policy by the applicant and his co-accused. It seems that, leaving aside that the applicant's own criminal conduct had caused the damage the subject of the claim, the claim itself was inflated, designed to net the two accused $50,000 to $60,000 above the true value of the property destroyed. The insurance company declined the claim and no actual loss was suffered. 7 A number of errors in the sentencing process were asserted in the application. Firstly the applicant pointed to an observation made by the sentencing judge in his remarks on sentence that: "It is little short of a miracle that no one was killed or seriously injured." 8 This remark was made in the context of a finding that the potential danger to the community was extreme, a matter that he took into account in sentencing. 9 On the applicant's behalf it was contended that this remark represented an erroneous view of the seriousness of the explosion and that the conclusion was not supported or supportable by the evidence. 10 I do not accept this contention. The explosion occurred in a shopping area. Although it was after midnight there were plainly some members of the public in the vicinity and nearby was an open restaurant. Also nearby was a hotel which was about to close or had just closed and staff were about to leave those premises. I agree with his Honour's view about the level of potential danger. This basis of the appeal cannot be sustained. 11 A second ground raises the applicant's age and prior history and his subjective circumstances. He was born on 25 March 1938 and was at the date of sentencing sixty years of age. He had no prior convictions. There was evidence, described as most impressive, of character given during the trial. It was argued that, having regard to these features, the sentences imposed were manifestly excessive and that the applicant's first (and one would anticipate, only) prison term should be as short as possible. It is true that there is little, if any, likelihood of his re-offending with the consequence that considerations of special deterrence can be put to one side. This was indeed the view his Honour expressly took. 12 Further, there was evidence of the impact of the arrest, charge and imprisonment on the applicant, although he appears to have spent only two days in custody prior to sentencing. He suffered a nervous breakdown in 1977 and now suffers from depression for which he is prescribed medication. It is not clear whether the depression is related to the nervous breakdown or to the charges the applicant has now been facing for some years. He suffered from burns in the fire and a broken ankle. His Honour considered, correctly in my view, that little weight could be given to these latter circumstances which, plainly, the applicant brought upon himself by his criminal conduct. 13 The applicant was entitled to recognition of his prior clean record and the character evidence given in the trial. It was not overlooked by the sentencing judge but there remains a question whether adequate credit was given for it, together with other relevant mitigating features. 14 Another feature of this case is the extraordinarily lengthy period between the date of the offences - April and June 1991 respectively - and trial and sentencing - 27 November 1998. This was clarified in the remarks on sentence. Twice the trial was listed for hearing but was unable to be reached. A trial which did commence in 1997 aborted after ten days, for reasons undisclosed. The charges finally came on for hearing and the trial ran to a conclusion in November 1998. There is no suggestion that any of the delay is attributable to the applicant. It was argued on his behalf that the lengthy period of uncertainty should have been treated as a significant mitigating factor. Counsel for the applicant relied upon the remarks of Street CJ in R v. Todd [1982] 2 NSWLR 517 at 519 to 520. 15 More recently this Court has again considered the question of the impact on sentence of a long delay not the responsibility of the applicant (except in his exercise of his right to enter a plea of not guilty): see R v. Bragias (1997) 92 A Crim R 330. 16 Grove J considered that the delay was irrelevant to sentencing. Sheller JA took a different view and considered it to be a consideration that was relevant. As the third member of the bench in that case I expressed no view on that question. 17 In the present case it seems to me that the delays which are, on any view, "extraordinary and unacceptable" (as his Honour noted) were a significant factor to be taken into account in the applicant's favour, and his Honour so regarded them. The real question is not whether they, like the applicant's prior good character, were relevant factors but whether they were given adequate weight. Since his Honour expressly said that he was taking these matters into account the submission can be made good only if the applicant is able to establish that the sentence itself shows that, notwithstanding his Honour's stated intentions, he gave them no or inadequate weight. His Honour in fact identified with some precision the reduction he allowed for the various subjective circumstances from the sentence he otherwise considered appropriate. Having regard to the objective gravity of the offence, his initial view was that a total sentence of five years was appropriate but he reduced this to the four year term he actually imposed. He added, "This was after all a very bad case". That can hardly be challenged. 18 I have carefully considered all of the matters raised on behalf of the applicant but I am unable to identify any error in the sentencing process. 19 The final matter raised on behalf of the applicant, and the matter that has given me greatest concern, is the information provided from the Judicial Commission statistics. Quite incredibly, in my view, these statistics show that 48 per cent of offenders convicted under s 197(b) are required to perform community service orders; 24 per cent are sentenced to imprisonment to be served by way of periodic detention; only 12 per cent. are sentenced to full time imprisonment. 20 Of those sentenced to full time imprisonment (and only three cases appear on the statistics) one was sentenced to a fixed term of six months, one to a total term of thirty-six months, and one to a total term of forty-two months. 21 Caution has previously been expressed about the weight that can be given to these statistics, having regard to the truism that each case must be assessed on its own facts: see R v. Bloomfield (1998) 44 NSWLR 734. It may be supposed that a wide range of criminality and factual situations existed in relation to such offences. To my mind, the facts already related concerning the arson offence place it in a very serious category indeed, as his Honour recognised. The sentencing statistics are based on too small a sample to be of real assistance. Without details of the circumstances of the offences, it is impossible to say that they represent any sort of guide for this case. 22 I am not satisfied that any error has been shown in the sentencing of the applicant on the arson offence. No separate argument was addressed to the application for leave to appeal the fraud charge and I take the same view in relation to it. 23 I would therefore grant leave to appeal but dismiss the appeal. 24 STUDDERT J: I agree with Justice Simpson. 25 The orders of the court will therefore be those proposed by her Honour.

R v Dinos

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