R v. Henderson [1993] QCA 336 (16 August 1993)

Mr Long, who appears for the appellant, does not quarrel with the recommendation should the head sentence remain unchanged but should it be reduced, he submits that the recommendation should be altered commensurately.

The appellant is a 35 year old married man who moved from his home in Melbourne with his family to Caloundra, in an effort to re-establish themselves, in 1991. The marriage deteriorated and in October 1992 the appellant's wife asked him to leave. The appellant had a drinking problem. He continued to visit the family and his wife, concerned at the frequency of the visits, purportedly made an attachment to another man.

The appellant reacted to this information with violence by pulling the telephone from the wall. His wife decided to move away, which she did, leaving their rented home unoccupied except for her belongings which were packed up to await removal. On 3 December 1992 the appellant, after consuming a considerable quantity of alcohol repaired to the former home and seeing the belongings packed up decided to revenge himself upon his wife by burning her things.

He apparently had difficulty in getting a fire going and tipped the lawn mower contents upside down on the smouldering blaze. It blew up causing damage to the rented home of just under $20,000. The next day the appellant told a friend of the fire and in consultation with his family in Melbourne returned to Melbourne where his siblings say that he was in a very distressed state. He was traced by the police and in a telephone conversation said that he would return, which he did, on 14 December 1992 and surrendered himself up to the police.

He indicated at an early stage that he would plead guilty to the offence. Thereafter, he made efforts to restrict his drinking and was reconciled with his wife. He has the support of his employer at Caloundra Party Hire. The appellant had an extensive previous criminal history starting at 15 years. His most recent serious offences were charges of theft and burglary in May 1979 and robbery in company in September of that year. It is thus 14 years since he has been convicted of a serious offence after what can only be described as a very wild youth.

It has been urged by Mr Long that either the head sentence was outside the appropriate range or, if within range, no proper account was taken of the timely plea of guilty by the appellant. 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.

The Court was referred to R v Watson CA No 162 of 1990 where, it would seem, there was some risk to the inhabitants but the Attorney-General's appeal was unsuccessful in increasing the effective sentence of three years. No motive was there advanced for burning the house which contained the prisoner's mother and stepfather.

In R v O'Donnell, CA No 44 of 1987 the appellant pleaded guilty to burning down a police station. He was apparently motiveless and he was drunk. The Court of Criminal Appeal reviewed a number of authorities and concluded that the sentence of three years on .an Attorney-General's appeal should not be disturbed. These cases were distinguished from the earlier case of R v Evans, No 91 of 1985, where risk to the inhabitants of a nearby police station was a consideration in the sentence when the appellant set fire to a police car.

In this case the house was known to be unoccupied. Even though the appellant's plea of guilty accepts that he was reckless as to the result of starting the fire, his motive was a more limited one. It seems then that consistently with previous authorities of the Court of Criminal Appeal, an appropriate head sentence should have been three years.

Consistently with that, it is considered that the recommendation for early release should be reduced to nine months. The appellant has the support of his family and he will have the additional support and direction of the parole system when he is released, which he seems to need.

In my view, the sentence of the Court below should be set aside and instead, a sentence of imprisonment for a period of three years imposed with a recommendation that the appellant be considered eligible for release on parole after serving nine months of that sentence.

PINCUS JA: 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. Keeping in mind the plea of guilty, it appears to me that one cannot avoid the conclusion that the sentence of four years was somewhat beyond the permissible range. I would therefore agree that the order proposed by Justice White should be made.

PINCUS JA: The order will be as I have indicated.