R v Johnson

SUPREME COURT OF QUEENSLAND

CITATION: R v Johnson [2005] QCA 265

PARTIES: R / v / JOHNSON, Paul Richard / (applicant)

FILE NO/S: CA No 127 of 2005 / DC No 488 of 2004

DIVISION: Court of Appeal

PROCEEDING: Sentence Application

ORIGINATING COURT: District Court at Cairns

DELIVERED EX TEMPORE ON: 29 July 2005

DELIVERED AT: Brisbane

HEARING DATE: 29 July 2005

JUDGES: McMurdo P, Williams and Jerrard JJA / Separate reasons for judgment of each member of the Court, each concurring as to the order made

ORDER: Application refused

CATCHWORDS: CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - APPEAL BY CONVICTED PERSONS - APPLICATIONS TO REDUCE SENTENCE - WHEN REFUSED - PARTICULAR OFFENCES - PROPERTY OFFENCES - - SEDcted after plea of guilty to one count of arson - ondetng as to the order made applicant convicted after plea of guilty to one count of arson - sentenced to four years imprisonment with recommendation for post-prison community based release after 12 months - applicant set fire to upstairs part of house he owned with his wife by distributing accelerant and turning on gas jets - apparent suicide attempt - Police and Fire and Rescue officers alerted by tenant in downstairs granny flat - no significant structural damage but a considerable degree of charring and smoke damage - potential danger in commission of offence to tenant in downstairs granny flat and neighbouring house - 48 years of age - no criminal history - applicant carried all resulting financial burden - whether sentence manifestly excessive / R v Barling [1999] QCA 16; CA No 304 of 1998, 5 February 1999, considered / R v Henderson [1993] QCA 336; CA No 198 of 1991, 16 August 1993, considered / R v Pike [2002] QCA 242; CA No 132 of 2002, 15 July 2002, considered / R v Sharkey [1994] QCA 121; CA No 28 of 1994, 29 March 1994, considered

COUNSEL: S J Pearson for the applicant / M J Copley for the respondent

SOLICITORS: MacDonnells Solicitors for the applicant / Director of Public Prosecutions (Queensland) for the respondent

THE PRESIDENT: In the District Court at Cairns on 22 April 2005 the applicant was convicted on one count of arson of a dwelling on 25 April 2004. He was sentenced to four years imprisonment with a recommendation for consideration for post-prison community based release after 12 months. He contends that the sentence was manifestly excessive and that the learned primary judge gave insufficient weight to the many mitigating factors.

The case is, in many ways, a sad one. The applicant was 48 at the time of the offence and 49 at sentence. He had no previous convictions.

Police and Fire and Rescue Service officers were called to a fire at Smith Street, North Cairns on 26 April 2004 in the late morning. They located the unconscious applicant in an upstairs rear bathroom of a charming Queenslander house where the applicant had lived with his wife and children. A tenant lived in the granny flat downstairs and raised the alarm. The applicant was taken to Townsville hospital and treated. He had screwed shut the doors and windows of the upstairs part of the house, making it more difficult for Fire and Rescue officers to reach him. They found an empty 20 litre steel jerry can containing accelerants in the middle of the living room and all the jets on the gas stove top in the kitchen had been turned on. Accelerants had been poured around the carpet in the main living area. A cigarette lighter was found nearby.

The fire travelled from the centre of the lounge room outward and upward. The heat and fire damage was confined mainly to the centre of the house and caused extensive charring and burning to furniture but no significant structural damage. We have seen the photographs of the house and despite the absence of significant structural damage, a considerable degree of charring and smoke damage resulted.

After the applicant was released from hospital, he told police he had been drinking heavily and was depressed because of a recent split with his wife. The night before his wife had telephoned him from the Gold Coast and said she was not returning. He commenced to drink heavily. He admitted the jerry can was his and that it normally contained petrol. He said he must have brought the can inside the house although he had no recollection of this. He agreed that it was possible that he was trying to commit suicide in lighting the fire. It seems that he told his wife that he would not see her and the children again and he left money concealed in places underneath the house for them.

The prosecution case was that his offence was a suicide attempt which would have succeeded but for the tenant's actions. The prosecution initially submitted that there was some danger to the tenant but because the fire had been lit in the late morning it was unlikely that he would have been asleep. Fortunately, the tenant was able to move valuables and a motor vehicle out of his flat and did not sustain any loss.

The house belonged to the applicant and his wife and he has subsequently paid out his wife's share so that he carried financial loss resulting from the crime. No doubt, however, there were many personal items of significance to his wife and children that were lost in the fire. There was no element of insurance fraud.

The prosecutor submitted at sentence that comparable cases established that the sentencing range was about three years imprisonment with additional recognition for mitigating factors, presumably suspension or a parole recommendation. The learned primary judge questioned that submission, noting that there was risk to the tenant and to a neighbouring house which was also wooden. The prosecutor then agreed with that observation and suggested the appropriate sentencing range might be about four years imprisonment.

The applicant's counsel at sentence emphasised that the applicant had completed an apprenticeship as a motor mechanic and had an excellent work history despite suffering cerebral palsy at birth. He married in 1990 and he and his wife have two children. The breakdown of that relationship was the catalyst to his involvement as a mature man with no previous convictions in this serious criminal behaviour. After learning that his wife and children did not intend to return to Cairns, he drank heavily and became intoxicated and depressed. He has no memory of committing the offence. He was seriously injured in the fire and spent several weeks in Townsville hospital. He has permanently injured his windpipe. Of even more significance to him is that his relationship with his wife and children has, at least for the present, broken down as a result of his offending and he had no contact with them. His wife has not suffered financially as a result of his actions and he has carried all the resulting financial burden. Although the offence was serious and always potentially dangerous because of the time of the fire, the risk to others was objectively not great.

His Honour regarded the offence as a serious example of arson. The applicant distributed an accelerant and turned on gas jets before lighting the fire. There was a tenant downstairs and a wooden neighbouring house. Great damage to property and to people's lives could have resulted. His Honour considered that the range of sentence, even with the many mitigating factors, was four to five years imprisonment. He imposed a sentence of four years imprisonment but recommended parole after 12 months because of the plea of guilty and the other mitigating factors.

The applicant's counsel today Ms Pearson emphasises the applicant's plea of guilty, good history, his cerebral palsy and that he is the only real victim of his own offending. Ms Pearson contends he should be sentenced to three years imprisonment with immediate release on a suspended sentence.

The parties have referred us to a number of decisions said to be comparable. In R v Pike [2002] QCA 242; CA No 132 of 2002, 15 July 2002, the applicant pleaded guilty to arson of the matrimonial home. He was an alcoholic who suffered from depression. He had previously threatened to burn down the home and on the morning of the offence he was particularly depressed about the matrimonial relationship. As here the arson was not committed for financial gain. He was 37 years old and had only a minor criminal history. He was sentenced to three years imprisonment suspended after nine months with an operational period of four years. This Court determined the sentence imposed was not manifestly excessive.

In R v Barling [1999] QCA 16; CA No 304 of 1998, 5 February 1999, the applicant pleaded guilty to arson of a caravan. He was sentenced to five years imprisonment. He was 22 at the time of the offence and had a minor criminal history. The caravan was the property of the applicant's female companion with whom he was in dispute. He had previously destroyed some of her property and in a fit of remorse gave her the caravan as compensation. Later, after accusing her of having sex with others, he set fire to the caravan after first ascertaining no one was in it. The destroyed property was valued at over $10,000. He was remorseful and attempted suicide shortly afterwards. The Court referred to the decision of R v Henderson [1993] QCA 336; CA No 198 of 1991, 16 August 1993, where the Court of Appeal noted at p 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."

Barling's sentence was reduced to three years imprisonment with a recommendation for release on parole after 12 months.

In R v Sharkey [1994] QCA 121; CA No 28 of 1994, 29 March 1994, the applicant was convicted of one count of arson of a Housing Commission house rented jointly by him and his wife. The crime was an act of revenge against his wife who was separated from him. He caused $6,800 worth of damage. He had consumed a large quantity of alcohol. No other persons were occupying the house. He was 28 years old and had a relatively minor criminal record. He offered to pay $1,000 towards compensation and to make further payments from his wages if he was not sentenced to imprisonment. The learned primary judge did not consider the offer of compensation realistic. It was of concern that the applicant had had a history of setting minor fires within the home. Relying on Henderson, the primary judge sentenced Sharkey to three years imprisonment with a recommendation for release after nine months. This Court dismissed Sharkey's application for leave to appeal against sentence.

These cases all accepted that where the safety of others was not a significant consideration in the offending, the appropriate sentence is one of three years with an early recommendation or suspension to reflect mitigating factors. The learned primary judge considered, rightly, that on the facts of this case, there was a real risk to the safety of others here. Those cases, therefore, can and should be distinguished.

The sentence imposed of four years imprisonment, with a recommendation for release on parole after 12 months to reflect the mitigating factors, was within the appropriate range, even bearing in mind this applicant's early plea of guilty, remorse, prior good history and the fact that he was the physical and financial victim of his own crime. There was potential danger in the commission of this offence which was properly recognised by the primary judge. There was a neighbouring wooden house and an occupied downstairs wooden flat immediately below the seat of the fire in the wooden Queenslander. The applicant used accelerant and turned on the gas jets. It is perhaps fortunate that more serious damage, both to property and to lives, did not occur. Conduct such as this, in the context of broken relationships, is not something that can be tolerated by the community. A salutary penalty was appropriate. The early recommendation for parole gives adequate and proper recognition to the mitigating factors. I would refuse the application.

WILLIAMS JA: I agree.

JERRARD JA: I agree with the order proposed by the President and with her reasons.

The sentencing principle declared in this Court in R v Henderson [1993] QCA 336 and then repeated in R v Sharkey [1994] QCA 121 and restated in R v Cramond [1999] QCA 11, is very clear. This is that, where there is no question of fraud and where the safety of others is not a consideration, the appropriate head sentence for the offence of arson is about three years.

Although this case has as its most significant feature that Mr Johnson intended only to hurt himself and he also had no prior convictions, his actions did risk killing or injuring the downstairs tenant. It follows that the four year head sentence imposed was consistent with the sentencing principles declared by the Court in Henderson, Sharkey and Cramond.

The sentencing judge has recommended that Mr Johnson be released on parole after he has served 12 months and there is no reason to think that Mr Johnson will serve more than that 12 months. That is not a manifestly excessive punishment as an outcome in the case.

THE PRESIDENT: Yes. The order is that the application is refused.