R v Hall [1979] FCA 84

commenced ~ Change of plea on first count to guilty ~ Leave to enter nolle prosequi on second count - - Whether accused in the charge of the jury - Oral leave to arraign

on substituted second count - Appropriateness or otherwise of

filing a nolle prosequi in relation to the original second

count - - Whether authority to decline to prosecute available.

GENERAL DIVISION 7. BETWEEN: THE QUEEN

• (Appellant) "AND: PHILLIP GRARAM HALL (Respondent) a ORDER

JUDGES MAKING ORDER: Toohey, Gallop & Lockhart J.J.

DATE OF ORDER: 28 June 1979 ee WHERE MADE: Darwin THE COURT ORDERS THAT: . a

1.: the appeal against the sentence imposed by the Supreme Court ~ / of the Northern Territory of australia upon the respondent's "being convicted of unlawfully and naliciously setting fire to . a butlaing contrary to section 86 of the Criminal Law Consolidation Act and Ordinance be allowed and that in substi tution for the said sentence the respondent be

imprisoned for a period of four years and ten months with _& non-parole pveriod of two years and six months. 2. The appeal against the sentence imposed by the Supreme Court . of the Northern Territory of Australia upon the respondent's being convicted of unlawful and malicious damage by night

contrary to section 129 of the Criminal Law Consolidation

NORTHERN TERRITORY DISTRICT REGISTRY ) No. NTG 11 of 1979

ON _ APPEAL FROM THE SUPREME COURT OF THE NORTHERN TERRITORY OF AUSTRALIA

LOCKHART J. This the Supreme Court conviction of the

is an appeal against sentence imposed by of the Northern Territory following the respondent on two charges: first, that

to s. 86 of the Criminal Law Consolidation Act and Ordinance

sentenced the respondent on the first charge to four years

and ten months! imprisonment, with a non-parole period of

imprisonment with a non-parole period of one year and ordered that the sentences be served concurrently. . He further ordered that the respondent be released from

custody on 2 July 1979 on the following condit ions:-

1. That he enter into a bond in his own recognizance in the sum of $500.00 to be of good behaviour for a period of three

of a probation officer during the said period of three years and obey the directions of the said probation officer as to employment and place of living and that he report to the said probation officer on 2 July 1979 and obey his directions as to further reporting and that he subject himself to such medical psychiatric or psychological treatment as may from time to

time be directed by his said probation officer and those from time to time in charge of his

3. That he pay by way of restitution, the sum of $3,800.00 by instalments as follows:-

The Crown appeals against this sentence, submitting

that the sentence is so inadequate as to manifest an error i principle on the part of the learned sentencing judge. It i not submitted that any error appears on the face of his Honour's remarks; but it is said that the sentence imposed falls so far short of the range of sentences which would be dictated by the exercise of. sound judicial discretion that

this court should intervene and impose a sentence which is

The respondent lived at No. 1 Lambell Terrace Darwin close to the Darwin Hospital and the Red Cross Centre. The house was owned by a Miss Fleper. She occupied the house together with the respondent and a Mr. T. J. Findlay. Each person occupied a separate bedroom and shared facilities in common.

The respondent had been living at those premises for about two weeks before the events of 20 November 1978.

For about six or seven months before then, he had been working on a voluntary basis with the Red Cross doing jobs such as Meals On Wheels. On 17 November 1978, three days before the respondent set the fires which led to his conviction, he telephoned the Red Cross Centre and enquired whether he could purchase some vases from the Red Cross Opportunity Shop which formed part of the Centre. He enquir as to what type of items were kept in the shop and was told that there was clothing, kitchenware, bedding and mattresses

On Sunday 19 November 1978 the respondent and Mr. Findlay together with one other person arranged to dine at a restaurant in Darwin called "Melissa's Restaurant" which was owned by the same lady who owned No. 1 Lambell Terrace, Darwin namely Miss Fleper. The respondent arrived at Melissa's Restaurant at about 6.30 p.m. and was joined by his two dinner companions about an hour later. He was not intoxicated when he arrived at the restaurant, but during tl

course of the evening the three people consumed a few drink:

before dinner, four bottles of wine with dinner and possibly "gome beer also.

The three people left the restaurant somewhere between 12.15 and 12.45 a.m. the respondent being somewhat intoxicated. He was driven back to his home by Mr. Findlay who went to bed about five minutes later. Miss Fleper left the restaurant about half an hour after the respondent did and she too went home, taking with her six bottles of Crown Lager beer. Miss Fleper and the respondent sat up and talke till about 3.00 a.m. during which time the respondent drank two cans of beer and Miss Fleper one bottle of Crown Lager.

At about 3.00 a.m. Miss Fleper retired to her room and went to bed. Prior to her doing so the respondent tried to dissuade her by asking her to stay up and have some more beer, but at that time the respondent was fairly drunk. Upo her retirement Miss Fleper left five full bottles of Crown Lager beer; but when she rose in the morning she noticed that all five bottles were empty although the respondent hac been drinking cans of Carlton Draught beer whilst the two of them conversed until the early hours of the morning. Crown Lager bottles hold thirteen ounces of beer.

At 3.35 a.m. the control room of the Northern Territory Fire Brigade received a message that there was a fire in Shultz Street which runs off Lambell Terrace. At 3.36 a.m. the first fire truck arrived, and noticed that th

Red Cross Opportunity Shop was on fire. It took the fire

brigade about 10 minutes to bring the fire under control. The observations of the firemen were that there was one room in which the fire had obviously started being a bedroom in which thére was a bed and mattress. It was a room kept by the Red Cross for accommodating people who visited Darwin from the outback to see their relatives or friends who were in the Darwin Hospital. There was nobody resident in that room that night.

O At 4.11 a.m. the Control Centre of the Fire Brigade received a second call in connection with a fire in the Psychiatric Clinic which is part of the Darwin Hospital. Th fire brigade was at the Red Cross Centre at that time; they moved to the second fire and brought it under control by 4,20 a.m. When the fire brigade arrived at the Psychiatric Clinic it was full of smoke but they were able to restrict 'the fire to a small storage room where the fire had been started and which contained highly inflammable material in

I need not review the evidence as to the witnesses who identified the respondent as the person who started the fire because there is no dowt that it was he who did so.

At 4.43 a.m. the police communications centre at Darwin received the first of four telephone calls from a person claiming to have lit the fires at the Psychiatric Clinic and the Red Cross Opportunity Shop. A second call was received at 5.00 a.m., the third between 5.20 a.m. and

traced to the premises of No. 1 Lambell Terrace. Thereafter the police surrounded the premises and arrested the responden

Before the respondent was arrested, Mr. Findlay rose at about 6.40 a.m. and spoke to the respondent who was standing in the kitchen wearing a dressing gown and drinking beer. The respondent told Mr. Findlay that he had been up all night and had seen vehicles with flashing lights travelling up and down in front of the house. Mr. Findlay noticed that there were four empty Crown Lager bottles of beer.

At about 8,00 a.m. at the police station the respondent was questioned by the police. He claimed to have slept until 7.00 in the morning and denied that he had made any telephone calls during the evening or morning and said that he was asleep. He denied any knowledge of the fires at the Red Cross Centre and the Psychiatric Clinic. He then sought legal advice and, having obtained it, decline: to answer any further questions.

There was considerable damage to the Red Cross Opportunity Shop. The damage. to the Psychiatric Clinic was

This is not the first time that the respondent has been convicted of arson. In January 1976 he was sentenced by the Supreme Court of Western Australia in Perth to imprisonment for three years. on two counts of arson with no parole period being fixed. The respondent was

released from prison in Western Australia on 8 April 1978

-7- having served his sentence for two years and three months. Within less than eight months he had lit the fires in the Red Cross Opportunity Shop and the Psychiatric Centre of the Darwin Hospital. .

The Crown contended before this Court that the learned sentencing judge should have imposed a substantial sentence on each count and siuould have found in all the circumstances that no non-parole period should be specified.

This court will interfere with the sentence imposed by the learned sentencing judge if it is established that his Honour was in error in acting on a wrong principle or in wrongly determining some material evidentiary question. This court does not intervene merely because in its opinion the sentence is excessive or inadequate. The error may appear from the learned sentencing judge's remarks or from the sentence itself which may be manifestly insufficient or excessive. See Skinner v. R._ (1913) 16 C.L.R. 366;

Whittaker v. R. (1928) 41 C.L.R. 230; Griffiths v. R. (1977

15 A.L.R. 13. R. v. Tait (a decision of the Full Bench of

this court delivered on 1 May 1979, not yet reported. )

does not distinguish in principle between appeals by the Crown and those by convicted persons, some special considerations arise where the Crown appeals on the ground that the sentence is insufficient. See Peel v. R. (1971) 125 C.L.R. 447 especially per Barwick C. J. at p. 4523 Re v

Tait (supra). In R. v. Tait (supra) Brennan, Deane and

In the light of these principles I turn to the present appeal. The Crown submitted that the learned sentencing judge imposed sentences so manifestly inadequate as called for the intervention of this Court. The Crown contended that his Honour had regard solely to the question of rehabilitation of the respondent to the exclusion of matters of deterrence and the general protection of the community. The Crown submitted that his Honour's error is manifest from an examination of first, the inherent nature of the offences themselves; second, the circumstances surrounding the commission of the offences; third, the character of the respondent particularly when consideration is given to his antecedents, and fourth, the future prospects of rehabilitation of the respondent as opposed to the very real prospect of a repetition by him of the same sort of offence.

The maximum penalty prescribed for the offence, the subject of the first count, is fourteen years' imprisonment.

type of case falling within the relevant prohibition. The observance of this principle

-9~ provides the flexibility in sentencing which secures proportion and comparability among sentences imposed...The prescribing of a maximum | penalty in respect'of an offence not only marks the limits of the court's discretionary power as to sentence, it also ordinarily prescribes what the penalty should be in the worst type of case which falls within the relevant class of offence... That is not to say that a maximum penalty should not be imposed in a case which otherwise required it merely because a worse case could be imagined. ».eThat principle requires that both the nature of the crime and the circumstances of the criminal be considered in determining whether the case is

The circumstances surrounding the commission of the offence and the antecedents of the respondent require imposition of a substantial sentence.

The deterrent aspect of punishment is of considerab] importance in cases of this kind. The sentence should demonstrate to others tempted to engage in offencesof a like nature that punishment will be imposed calculated to protect society from serious attacks upon it.

It was submitted by counsel for the respondent that it would not be in the best interest of the respondent to be sentenced to a term of imprisonment 'as he was a person suffering from deep-seated psychological problems. A great deal of psychiatric and psychological material was before th learned sentencing judge. His Honour gave great weight to what he regarded as the respondent's prospects of rehabilitation. I have no doubt that the respondent impress himself upon the learned sentencing judge as a man with distinct disorders of personality. His Honour clearly held the view that the respondent was capable of being rehabilita provided he had the support of "probation officers, psychiat-

rists and psychologists. I have considered the psychiatric

and psychological evidence placed before his Honour but have come to the conclusion it does not support his Honour'ts conclusion as to the respondent's prospects of rehabilitatio The maximum penalty prescribed for the first offenc namely fourteen years' imprisonment, reflects its seriousnes Less than-.eight months before he committed that offence the respondent had been released from prison in Western Australi having earlier committed offences of a like nature there. I am left with the strong impression that the respondent is quite likely to offend again in a similar way. In my opinion the reformative aspect was given too much weight by the learned sentencing judge. The result of his Honour's decision when the sentence is viewed as a whole, is to produce a sentence so lenient that it does not accord with the general moral sense of the community and is unlikely to be a sufficient deterrent to the respondent or to others. See R. v. Geddes (1936) 36 S.R. (N.S.W)554; Channon v. R.

(1978) 20 A.L.R. 1; R. v. Prindable - a decision of the Ful Bench of this court delivered 9 March 1979, not yet reportec

The error in the sentence of the learned sentencin; judge is manifested particularly by the provision for the release of the respondent on 2 July 1979 and as well by the term of the non-parole period.

In my opinion the case calls for a sentence imposing a term of imprisonment without such release and

'the fixing of a longer non-parole period. I do not think

it necessary to alter the term of the head sentence.

I agree with-the conclusion of Gallop J., whose reasons for judgment I have read, that no order should be made by this court in respect of the sentence on the

In the result I would allow the appeal and order that in substitution for the sentence imposed on the first count the respondent be imprisoned for a period of four years ten months. I specify a period of two years six month during which he will not be eligible for parole. The sentence will date from 20 April 1979.

the sentences imposed on both counts should be served

"NORTHERN TERRITORY DISTRICT REGISTRY ) No. NIG 11 of 1979 , ) )

ON APPEAL FROM THE SUPREME COURT OF THE NORTHERN TERRTYORY OF AUSTRALIA

• This is an appeal by the Crown against the sentence imposed in the Supreme Court of the Northern Territory by fuirhead J. on 20 April 1979. The respondent was arraigned

on an indictment presented in the name of Graham Richerd

Nicholson, a person appointed by the Attorney-Genefal pursuant

to s.13 of the Criminal Law and Procedure Act and containing two ccunts:

Unlawfully and maliciously setting fire to a building: centrary to section 8€ of the Criminal Law Consolidation Act and Ordinance.

Phillip Graham Hall did on the 20th day of 'November 1978, in Lambell Terrace Darwin in the Northern Territory 'of Australia, unlawfully

and maliciously set fire to a building, namely the Red Cross Society Clothing Store.

Unlawfully and maliciously setting fire to a building used by or for a department of government: contrary to section 85 of the Criminal Law Consolidation Act and Ordinance. PARTICULARS Phillip Graham Hall on the 20th day of November 1978 in Lambell Terrace, Darwin, in the Northern Territory of Australia unlawfully and maliciously set fire to the Day Centre of Darwin Hospital,

being a building used by or for a department of government, namely the Health Department."

' The accused pleaded not guilty to both counts. After the trial had proceeded for two days the Crown applied to have the accuse re-arraigned on the first count, indicating that if he pleaded guilty to the first count, that is if he changed his plea from 'one of not guilty to guilty, the Crown-would then seek leave to enter a nolle prosequi on the second count in the indictment in its original form. His Honour then raised the question whether there sheuld be a verdict of the jury on the second cot The Croxn Prosecutor informed his Honour that the accused was 1 in the charge of the jury on that count at that juncture. His Honour acceded to this statement, which, it is now, conceded, was incorrect. The accused was indeed in the charge of the jury on the second count. The accused was then re-arraigned o1 the first count, pleaded guilty to it and the Crown applied te adc a fresh count to the indictment, indicating that it would enter a nolle prosequi in relation to the second count in the indictment in its original form. His Honour accepted an under taking from the Crown that this would be done and thereupon th

Crown 'applied to substitute another count for the second cont

namely a charge of unlawful and malicious damage in the night, particulars whereof were that the accused did on the 20th November 1978 at Lambell Terrace, Darwin, unlawfully and maliciously commit damage in the night to real and personal property, namely the Day Centre of Darwin Hospital and chattcl: therein, such damage amounting to $100.00. Counsel for the accused censented to:that amendment. The accused was then arraigned on the substituted second count (as it was called) and pleaded guilty to that count. The result of this procedivre was that the accused had pleaded guilty to the original firs: count in the indictment and to a further count added ty the leave cf the trial judge cn the third day of the trial. The learned trial judge then ¢irected the jury to enter a verdict of guilty in relation the first, count and the seccnd ccunt whic: had been added by leave. I make seme comments later about the propriety ef this procedure, but the following facts are como, ground on the hearing of the appeal before us: (1) The Crown gave an undertaking te file a nolle prosesui in respect of the criginal

, _ second count in the indictient. (2) The nelle prosequi was in fact filed in the

Nicholson or anyone else. (3) The application, to amend the indictment sc

(4) The learned prosecutor who made that application to add the count was not a person anpointed ky

{5) The whole procedure before the trial judge was taken with the consent cf the resnendent.

In the course of the hearing of this appeal certain matters were raised by the Court relating to the appropriateness or otherwise of filing a nolle prosequi in relation to the original second count, the fact that it was apparently filed by a person holding an appointment from the Attorney-General under s.13 of the Criminal Law and Procedure Act to prosecute by indictment but no authority to decline to prosecute, the fact that the application to add the count of malicious damage to property in the night was made orally and never reduced to writing (except by his Honour) so that it was not apparent on its face that that count was presented by a person authorised in that behalf, and was in fact made by a persoa who was not authorised by the Attorney~General to prosecute by indictment pursuant to an aprointment under s.13. These matters having been raised, it was cenceded by the appellant that the nrocedur whereby the criginal second count was disposed ef was irregular in the circumstances. It was conceded that the aporenriate course, having regard to the fact that the accused was then in the charge of the jury on the second count as well as the first count, was to direct the jury to enter a verdict of not guilty in relation to that count.- It is a matter of no little cencerr that the Crown suggested a conrse to the learned trial judge which was wholly inappropriate in all the circumstances. The irregularity was exacerbated by the fact that when the nolle proseaui was filed apparently it was filed by the same person who had presented the original indictment and it was argued on behalf of the Crown that this waS a proper course because of the provision of s.43 of the Interpretation Act. This

"43, Where an Act confers a power to take an action or to make, grant or issue any instrument of a legislative or administrative character, the power shall be construed as including a power exercisable in a like manner and subject to the like conditions to repeal, rescind, revoke, amend or vary any such action or instrument."

On the hearing of this appeal the Crown's argument was that a person who had been authorised by the Attorney-General to prosecute by indictment in his own name could pursuant to s.43 of the Interpretation Act repeal, rescind, revoke, amend

or vary any indictment so presented. In my view this argument

is fallacious. Certainly s.43 of the Interpretation Act would

operate so as to invest in the Attorney-General the power to repeal, rescind, revoke, amead or vary any appointment of a person to prosecute by indictment in his own name, but that is not to say that an appointment under s.13 would invest in the appointee a power to enter a nolle prosequi in proceedings wher that person had already prosecuted by indictment in his own name. Apart from ordinary construction of s.43 and the nature of a nolle prosequi the reason for this is clear. It is a very significant matter for the Crown to decline to proceed further in circumstances where the ordinary precedure cf committal for trial before a court of summary jurisdiction and the finding of a bill of indictment have taken place. It is not surprising and accords with sound executive government that the Attarney- General would wish to preserve to himself the power to make the ultimate and important decision of declining to prosecute further where these administrative acts have been completec as part of the ordinary preliminaries to a prosecution of an indictable offence (sce Archbold 39th ed., para. 142: Watson &

Purnell, Criminal Law in New South Wales, para. 1060; ane

In my view, therefore, the nolle prosequi, if for no other reason, was ineffective in this case. Even if the document filed had been in proper form and presented by a person who had authority to file a nolle prosequi, I think that it should have been seen on its face to have been executed by such a person and not be an unsigned document. For the present purposes, however, nothing further turns upon this series of irregnlarities. I consider it important to point out that the procedures adopted in this case were irregular and should be avoided in the future. .

The next matter to which attention should be directed is that the procedure whereby another charge was preferred against the accused was irregular. The application to add the count

was an oral application made, as I said earlier, by a Crown

Prosecutor who was not a person appointed by the Attorney- ] Pp Pp 3 3

General pursuant to s.13 of the Criminal Law and Procedure Act. It is plain from the terms of the Indictments Act s.7 that an indictment should indicate the name of the persoa by whom it is presented and the authority of that person to present it. Prior to the Indictments Act 19€& there was no legislation regulating the presentation of indictments or theiw form in' the Northern Territory; consequently indictments were formerly presented in common law Language and form. The Indictments Act 1968 provides for the manner of presentation of indictments foi the prosecution of criminal offences in the Northern Territory and makes it plain that indictments should charge the apprecorié offences in intelligible and plain langnage.

On the hearing of this appeal the Crown sought to rely

upon. s.1S of the Indictments Act as authority for the way in.

which this indictment was amended, if that is the proper term,

by the addition of another count of an offence of a-different

"18, (1) Where, before trial or at any stage of a trial, it appears to the court that the indictment is defective, the court shall make such order for the amendment of the indictment as the court thinks necessary to meet the circumstances of the case, unless, having regard to the merits of the case, the required amendments cannot be made without injustice, and may make such order as to the payment of - any costs incurred owing to the necessity for amendment as the court thinks fit.

. (2) Where an indictment is so amended, a note of the order for amendment shall be endorsed on the indictment, and the indictment Shall be treated for the purposes of the trial and for the purposes of all proceedings in connexion therewith as having been presented . in the amended form." This provision is no justification for the course which was adopted at the trial. This indictment was not defective. It may well be that the evidence Led by the Crown was insufficient to support a conviction on the second count in its original form. But that is not the same thing as saying that the indictment was defective. The purpose of s.18 is to permit amendment of an indictment so as to meet the circumstances of

the case provided this can be done without injustiee to the

accused. I reject the Crown's arguments in so far as they are based upon s.18.

It was further conténded by the Crown that the irregularities referred to are of no account because the accus consented to the course adopted by the Crown. The Crown has a duty to the Court to assist it in the task of conducting a

criminal trial, including the arraignment of the accused, the

recording of his pleas and the presentation of any evidence

in accordance with proper rules of criminal procedure. The Crown should be meticulous to ensure that strictly appropriate criminal procedures are adopted. For the Crown to rely upon the consent of the accused as an absolution for its failure to assist the court in important matters of procedure is a dereliction of its all important duty to the court. The Crown is under a duty to assist the court 'to avoid any departures from proper criminal procedure, especially if those departures might result, as they did in this case, in a plea of guilty to a charge improperly presented and a sentence being imposed pon an accused person on snch improperly presented charge.

There would be few cases indeed where an appellate court would intervene on an appeal by the Crown against sentence to correct au alleged sentencing error by increasing the sentence ii the Crown had not done what was reasonably required to assis the sentencing judge to avoid errors in procedure. What I havc saic already is sufficient to indicate that if an application was made to quash the conviction and sentence on the substitut: count of malicious damage to property in. the night under s.129

of the Criminal Law £ Consolidation Act, I would be disposed tx

quash the conviction and sentence. No such application has be made at the present time but the Crown should itself apply for such an order. The powers of this Court under s.28(1) of the

Federal Court cof Australia Act are sufficient anthority for

On the first count the respondent was sentenced to imprisonment for four years and ten calendar monzhs with hard labour and the sentencing judge specified a period of twa vear

during which the respondent would not become eligible for paro

In relation to the second count the respondent was sentenced to two years imprisonment with hard labour and the sentencing judge: Specified a period of one year during which the responden would not become eligible for parole. The learned judge ordere that both sentences be served concurrently and further ordered, pursuant to the Criminal Law (Conditional Release of Offenders) Act, that the respondent bereleased after serving part of his sentence, namely on 2 July 1979, on his entering into a recognizance in the sum of $500,00 (1) to be of good behaviour for a period of 3 years, (2) upon release to report forthwith to the probation office and submit himself to the supervision of a probation officer and subject himself to such medical treatment as may be regnired, (3) to pay by way of restitution the sum of £3800, 00 in' part payments as shown hereunder: (i) $300.00 by 20 December 1979; (ii) © $1000.00 by 20 December 1986; (iii) $1500.00 by 26 December 1981; (iv) $1006.00 by 30 June 1982.

It has been contended eon this appeal that the sentencing judge improperly exercisee his discretion, acted upon wreng principles and failed to take into account relevant consicerati the result of which was that he was wrong in ordering the suspension of the cperation of the head sentences and nen-paro: periods, and that the head sentences and non-parcle periods we: in themselves inadequate in all the circumstances. The Crown contended that the sentencing judge should have imposed a substantial head sentence on each count and should have found

that. in all the circumstances the. duty to specify a non-parcle

did not apply because of the nature of the offences and the' antecedents of the offender. Section 4(3) of the Act provides that the duty does not apply "if the court considers that the nature of the offence or offences and the antecedents of the offender do not warrant the specifying of the lesser term of imprisonment",

In The Oueen v. Tait & Bartlev (unreported decision of this Court delivered on 1 May 1979) the Court set out the principles governing the review of the sentencing discretion by an appellate court, particularly in a case of an appeal by the Crown on the ground that the sentence is inadequate. It is not necessary to repeat what was set out in that judgment; it is sufficient to observe that this Court will only interfere if it be shown that the sentencing judge was in error in acting or a wrong principle or in misunderstanding or wrongly assessing some salient' feature of the evidence. The error may appear in what the jucge said in the proceedings or the sentence itself may be so excessive or inadecuate as to manifest such error. As stated in that case, the relevant provisions of the Federal

Court ef Australia Act do not provide any basis for distin-

guishing between the general principles to ke applied by the Court on a Crown appeal against sentence and the principles to be applied on an appeal against sentence by a convicted person.

The facts giving rise to the counts against the responde all took place on 20 November 1978. At that time he was residing at 1 Lambell Terrace which is opposite the Darwin Hospital. He had been living there for-about two monthe.

Premises run by the Red Cross, known as the Red Cross Cpportun

Shop, are also in the same street. During the six or seven months pricr to 20 November the respondent had done some voluntary work for the Red Cross. On Sunday 19 November 1978 the respondent, one Findlay, and another person arranged to dine at a restaurant in Darwin. They arrived at the restaurant at 6.30 p.m. and the observation then made of them, including o the respondent, was that they were not intoxicated, They had some mixed drinks and then four bottles of wine with dinner. The respondent and Findlay left the restaurant between 12.15 a. and 12.45 a.m. and the respondent's condition was then describe as being "a bit intoxicated" or "three parts drunk". The respondent was driven home to 1 Lambell Terrace and Findlay went to bed. The premises were owned by the proprictoress of the restaurant and she came home about half an hour later. The respondent and the proprietoress then had two bottles of beer. The proprictoress went to bed at about 3 a.m. bx which time the respondent was fairly drunk. When:she went to bed there were four or five bottlics of Crown Lager beer still to be consumed; when she got up the next morning she found that they had indee: been consumed. At about 3.35 a.m. on the morning of 20 Novemb« 1978 the ccrtrol room of the Northern Territory Fire Brigade received a message that there was a fire in Schulz Street, whi is close te Lambell Terrace, a fire tender was qiickly despatched and on arrival the fire brigade found the. opportuni shop on fire. It took about ten minutes to bring the fire und control. It was deduced that the fire had ccmmenced in the bedroom in those premises, but there was no-one in residence. Electrical fault as a cause of the fire was ruled ont but,

although three "hot spots" which apparently are the ignition

points of a fire were identified, the fire brigade officers were unable to pinpoint the cause of the fire. At 4.11 asm. on the same day another message was received, of a fire at the Day Centre in the Darwin Hospital. This is a centre for psychiatric treatment. Again a fire tender was despatched and it was found that there was a fire in a small storage room in the Day Centre. The storage room contained such highly inflammable articles as toilet and paper rolls. Between

4.43 a.m. and 7.03 a.m. the police station at Darwin head- quarters received four telephone calls from a person claiming to have lit the two fires. These calls were taped and transcripts of the tapes were produced in evidence. The calls were made by the respondent. While he was making the last telephone call the police arrived at 1 Lambell Terrace, the 'telephone calls having been traced to that address. The pclice were admitted, epprehended the respondent and he was taken to the police station.

At about & a.m. at the police station the respondent was questioned by Det. Const. Bainbridge. When asked about his. movements the previous night the respondent tcld Det. Const. Bainbridge tha. he had been to the restaurant withelom (Findlas and Melissa (the preprietoress of the restaurant). He said that he had been there until just after midnight and, having been driven home,when Melissa arrived he spoke to her fer about an hour and then went to bed. He said he had gone to the restaurant at about half past six and did not leave the house after he hed get home. He claimed to have slept until seven in the morning. Ue denied that he had made any phene calls

curing the morning and said that he was asleep. Ile denied any

knowledge of the fires at the Red Cross Centre and the Day Céntre. He then sought legal advice and having obtained it declined to answer any further questions.

Damage by fire to the Red Cross Opportunity Shop was considerable. Damage to the Day Centre was restricted to the contents rather than structural damage. It was contended on the appeal that the fires lit by the accused were of the graves character, because of the nature of the buildingsthemselves and their contents. The Crown contended that it would be appropria to take account of the possibility of danger to life and property. In particular the Crown centended that the second fire in the Day Centre was in an integral: part of the hosnital ata time when the premises were virtually deserted, making it more probable that a fire would be quite out of control before anybody became aware of its existence. These facts were not disputed by the respondent either on his trial or on appeal. The facts, of course, had already been proved in evidence when the conduct of the trial changed as indicated earlier. There was really only one matter which yas asserted by the Crown and not accepted by the resncondent on the appeal, namely that the lighting of the fires was a potential danger to life. I am of the view that the trial judge was ccrrect in finding that the respondent's conduct amounted to a danger to the lives of people.

When the course of the trial changed, the Crewn furnishe material to the sentencing judge by way of statements from the bar table. Included was the fact that the respondent had been

. released frem prison in Western Australia on & April 1978,

having been sentenced in Janvary 1976, meaning that he had

served a period of two years and three months. Later, an antecedents report was furnished stating that the accused had been released on 8 April 1978 after serving two years, five

When Mr. Livingstone, psychologist, gave evidence on behalf of the respondent he referred to the respondent having been very aware that he had been in gaol for two years, seven months and thirteen days. A pre-sentence report requested by the sentencing judge stated that the respondent had hbcen convicted on two counts of arson on 13 January 1976 and sentenced to three years imprisonment on each, to be served concurrently. He was imprisoned at the Fremantle Gaol and then transferred to the Wocloorce Training Centre. The sentencing judge on that occasion had declined to specify a

non-parole period. The precise partici:lars of this previous . °

ed to the sentencing judge by the Crewn at the trial. In this respect also I am of tue view that the Crown failed properly tc discherge its funcemental cuty to give the court full assistance. Prior convictions of the accused were a very material consideration _fer the exercise cf the sentencing discretion. .

As events turned out the responcent admitted the previon convictions anc sentences in respect of offences apparently committed in August 1975, anc although his ccunsel indicatec that at an aeporepriate stage he would furnish to the sentencin judge the remarks passed by the West Australian judge when sentencing the accused on the prior cecasion, such remarks wer

never furnished te the sentencing judge, and despite reference

being made to this apparent oversight at the trial they were never furnished to this Court at the hearing of the appeal. The consequences are that this Court is in a similar position of not having very precise particulars of the previous convictions. This is a very unsatisfactory situation, where the Crown appeals-te this Court against the inadequacy of sentence. The Crown has a duty to this Court also to see that it is fully informed on all relevant matters, and it is so obvious as to be unnecessary to state that prior cenvictions for offences of a similar nature are extremely important on the qvestion of penalty in this appeal.

The common facts which emerged in various ways before

the learned sentencing judge were that early in January 1976

in the Supreme Court ef Western Australia in Perth the resnonde

was convicted and sentenced te three years imprisc al

counts cf arson. The sentencing judge accepted t! ane the respondent has not centended otherwise on the hearing of this appeal. I repeat that there was «2 naucity of evidence about this important issue and it was the Crounts uty te ens: that the court was fully informed.

The more recital of the facts of the offences now ulider review and the respondent's antecedents warrant consideration of substantial gaol sentences for each cffence. the maxinvim pre seribec for the effeace of arson as charged in the first

count is fourteen years: the maximrm penalty prescribed Fer

the substituted second count is five years. On behclf of the respendent it was centendec at the tria that he had a nmiumber of recognisable deep-seated psyenclogical

¢@ thet it wenld not be in his best interests to be

sentenced to a term of imprisonment. A considerable body of psychiatric and psychological material was placed before the sentencing judge in this respect. There was also some evidence of general good character. Before the sentencing judge the respondent also offered to make restitution of the sum of $3800.00 at the rate of $25.00 per weck, provided that he was at liberty, not in custody, and able to gain satisfactory employment. He indicated, through his counsel, that if the trial judge was disposed te order his conditicnal release, repayment ef the cest of the damage could be a condition of

the release subject to his ability to pay. The cost cf the damage as asserted by the respondent's counsel was not accepted by the Crown. The evidence available to the Crown was that a loss assessor had assessed the damage at $20,336.00. This was an estimate cf the cost of repairs befere any repairs were unéertaken. The sentencing judge made ne finding cf Fact about the cost of rerneirs though it seems implicit from the terms of the sentences impcsed and in particular the terms of the conditicnal release of the respondent,-that he acceptec the figure of $3800.00 asserted by the respondent. In my view the evidence wes too flimsy on this metter and it was surcly a relevant censideration for the trial judge. The Crovn should have been in a position and should have discharged its duty to inform the ceurt either by evidence or facts accepted by the accused person of the cost of the damage to the Red Cross premises referred to in the first count. I cannot over~ emphasise the high duty on the Crown in criminal cases to

render the utmost assistance to a, sentencing judge in his

In endeavouring to strike a balance between the various considerations which a sentencing judge must take into account, his Honour gave considerable weight to the respondent's prospects of rehabilitation. He said that the only true solution lay in the provision of an opportunity to the respondent of making a useful life for himself. For these reasons he imposed sentences which can only be described as extremely merciful. The Crown has contended that the degree of leniency inherent in the sentences renders them inadequate and inappropriate, having regard to the gravity of the offences

In my view the reformative aspect has been given too mich weight and is disproportionate to the circumstances of the offences and the respondent's antecedents. Nor are the prospects of rehabilitation supported by the psychological and psychiatric evidence. The respondent presented as a person with recognisable personality disorders, but ecaqually he does not appear to have learned any lesson from his convictions and sentences in Western Australia in January 1976. One is left with the general impression that, given the comb- ination of alcholic influence and resentment at his fellow hume beings,the respondent is quite likely to offend again ina similar way. He has never expressed any contrition for what he did. When speaking to the police officer in one of the taped telephone conversations he maintained that he was not at all sorry for what he had done. There was nothing in the psychological and psychiatric evidence called on his behalf which indicated any remorse or contrition for his conduct despite very extensive counselling since his release frem prison in April 1978 and subsequent to his arrest on the

The result of the sentences imposed was not to provide condign punishment, nor to reflect the general moral sense of the community (Channon v. R. (1978) 20 A.L.R. 1). In my view

the sentencing discretion has miscarried and this Court should

intervene. As this Court said in The Queen v. Prindable (unreported decision, delivered in Brisbane on 9 March 1979) the review by an appellate court of a sentencing judge's discretion to suspend sentences involves the same principles as a review of the judicial discretion to impose the head sentence itself (The Queen v. Shueard (1972) 4 S.A.S.Re. 36 at 43) and if the sentence as a whole is seen to be so dis- proportionate to the sentence which the circumstances reanire as to indicate an error of principle, the appellate court should intervene.

There were two separate invasions of property committcd

on the same night. One matter to be considered is whether the

sentencing judce was correct in ordering that the sentences be served concurrently, particularly as they were cuite distinct sentences. They were committed on the same night in the same locality and when the respondent was tinder. the influence of intoxicating licuor. I think the sentencing jucgesmust have taken these matters into account in ordering thet the sentence be' served concurrently and that he was not in error in deing s For the reasons indicated, however, I do not think that this Court should make any order in respect of the sentence on the

substituted second count. In relation te the first count, one

is reguired to consider what sentence would represent the

appropriate, duly proportionate and pronerly bLalanced

(per Smithers J. in Anderson v. Re (1977) 19 AJL.R. 212 at 221

In my view the head sentence on the first count was unappealable and should stand. In order to provide an appropriate, duly proportionate and properly balanced sentence I think it is appropriate to specify a period of two ycars, six months during which the respondent will not be eligible for parole. I do not think that the sentencing judge should have suspended the dneraticn of any portion of the respondentts sentence.

In the result IT would aliew the apreal and order thar jh substitution for the sentence imposed on the first cennt the respendencs be imprisancd fos a peried of four yeors act tem rontis and 1 would specify a peried of tuo years. Six

mentkhs Guring which he will net be eligible for parole.

I certify that this and the eighteen preceeding pages are a true copy of the Reasons for Judgment