R v Relph [2002] ACTCA 6

Court of Appeal (ACT)|2002-11-07|Before: Crispin P, Cooper JJ, Spender J

The sentences imposed in respect of all but the second arson be confirmed.

The sentence imposed for the second arson be set aside and in lieu thereof the respondent is sentenced to four (4) years imprisonment, to be suspended immediately upon the respondent entering into a recognizance in the sum of three thousand dollars ($3,000) with the following conditions:

To accept the supervision on probation of the Director of ACT Corrective Services or his or her nominee and to obey all reasonable directions of that Director or nominee and in particular, to reside as directed, not to consume any drugs except those prescribed by a medical practitioner, to attend for urinanalysis as directed, to be assessed and if found suitable to participate in and complete any rehabilitation treatment and/or programs thought appropriate by corrective services in the "Thinking for a Change" Cognitive Behavioural Therapy Program, and to continue medication and counselling.

A warrant be issued for the arrest of Mark Adrian Relph, to lie in the Registry for seven (7) days and to be discharged upon the respondent entering into the recognizance referred to in Order 3, above.

IN THE SUPREME COURT OF THE ) No. ACTCA 20 of 2002

1. I will ask Justice Spender to give the first judgment.

2. This is a Crown appeal against the sentences imposed on Mark Adrian Relph by a judge of the Supreme Court of the Australian Capital Territory. On 21 February 2002 Mr Relph pleaded guilty in the ACT Magistrates Court to a number of charges and was remanded for sentence to the ACT Supreme Court.

3. On 27 June 2002 he pleaded guilty to an indictment in the ACT Supreme Court containing two counts of arson, one count of burglary and two counts of theft. Arson, which is an offence contrary to s 117(1) of the Crimes Act 1900 (ACT) ("the Crimes Act") attracts a maximum penalty of fifteen years imprisonment. Burglary, an offence contrary to s 93(1) of the Crimes Act renders an offender liable to a maximum penalty of fourteen years imprisonment. Theft, an offence contrary to s 89 of the Crimes Act attracts a maximum penalty of ten years imprisonment.

4. On 28 June 2002 the respondent was sentenced as follows. On the first count of theft, which involved the theft of a ride on mower from the Mitchell Lawnmower Centre, the respondent was released upon entering into a recognizance in the sum of $3,000 with the following conditions: to be of good behaviour for a period of three years; and to accept supervision on probation of the Director of ACT Corrective Services or his/her nominee and to obey all reasonable directions of that Director or nominee and in particular, to reside as directed, not to consume any drugs except those prescribed by a medical practitioner, to attend for urinanalysis as directed, to be assessed and if found suitable to participate in and complete any rehabilitation treatment and/or programs thought appropriate by Corrective Services in the "Thinking For a Change" Cognitive Behavioural Therapy program, and to continue medication and counselling.

5. On the first count of arson, which involved arson of a Woolworths Supermarket, the respondent was sentenced to eighteen months imprisonment, to be suspended forthwith upon his entering into the recognizance to which I have just referred. The second count of arson is at the centre of this appeal. On that count, which involved the arson of a motor vehicle parked in an open carport which adjoined a dwelling house in which three people were asleep, Mr Relph was sentenced to two years imprisonment, to be suspended forthwith upon his entering into the recognizance earlier indicated.

6. On the count of burglary he was sentenced to twelve months imprisonment, to be suspended forthwith upon his entering into the above recognizance. And on the remaining count of theft he was ordered to perform 208 hours of unpaid work under s 408 of the Crimes Act. He was also ordered to pay compensation in the amount of $7,133 at the rate of $100 per month for twelve months, with that rate to be reviewed by the sentencing judge on 27 June 2003.

7. The Crown has appealed against the sentences, essentially on the ground that the sentences imposed were manifestly inadequate and that they failed to give sufficient weight to the overall seriousness of the offences to which he pleaded guilty.

8. The offences occurred within a relatively short period of time. Mr Relph was visited at his home by his two co-offenders, a David Jeffress and a Matthew Norman Eaves, and there they consumed a quantity of alcohol. It is relevant to note that the respondent was born on 7 November 1980, Mr Jeffress on 30 December 1981 and Mr Eaves on 23 April 1976.

9. At about 11 o'clock on the evening of Sunday 1 July 2001, the three men travelled to the Mitchell Lawnmower Centre in Mr Jeffress' white Ford utility. There Mr Eaves cut the cyclone fence of the Centre and the three men entered and stole a ride on mower valued at $2,000. They drove to the residence of Mr Eaves where the mower was unloaded and stored.

10. A short time later they drove the Kippax Shopping Centre and parked near the entrance to the Woolworths Supermarket. They had with them a container filled with petrol. A pile of plastic bread and milk crates was gathered and doused with petrol by the three men and set alight by Mr Relph. The fire took hold immediately, with flames reaching above the height of the building. The fire damaged the refrigeration equipment, ventilation system and brickwork of the Supermarket, with the amount of damage exceeding $40,000.

11. A number of people attended the scene of the fire, many of whom were working inside the building at the time of the fire. Mr Relph and his co-offenders ran away from the scene and from a nearby floodway observed the fire and the attendance of the Fire Brigade.

12. Mr Jeffress then returned to the car and drove away while Mr Eaves and Mr Relph walked towards Higgins. According to the agreed statement of facts, as the respondent and Mr Eaves walked they discussed setting fire to a motor vehicle and Mr Eaves told the present respondent that he, Mr Eaves, wanted to see a car burn.

13. Near 45 Kriewaldt Circuit, Higgins, Mr Eaves continued to walk and distanced himself from the present respondent. At that home three persons, a married couple and their son, were asleep. The female resident's 1998 Daewoo Lanos Sedan was parked about a metre from the house in an open carport attached to the house.

14. Mr Relph poured petrol over the right side of the vehicle and then trailed the petrol from there along the driveway to the road. He lit the petrol and watched it burn towards the car. The fire proceeded up the trail, destroying the car and other property at the residence. No attempt was made by Mr Relph to alert the residents, and he observed from a nearby parkland the attendance of the Fire Brigade who extinguished the fire. Damage in excess of $25,000 was caused as a result of that second and very serious arson.

15. In relation to the burglary and theft, Mr Relph rejoined Mr Eaves and they again met up with Mr Jeffress in Mr Jeffress' utility. They then went to premises at Discount Tronics which were familiar to Mr Relph who had previously worked there, and after a discussion he and Mr Jeffress left Mr Eaves, who remained at his home and took no part in the burglary and theft.

16. Mr Relph and Mr Jeffress drove to Mr Relph's home where they obtained some tools, then drove to Fyshwick. They entered the premises by using tools to cut through a fence and a fibro wall. On approaching a Corvette parked inside the building a security alarm was activated, causing Mr Relph to run from the premises taking a small quantity of goods valued at about $500. The damage caused to the premises in gaining entry was of approximately the same value.

17. Quite importantly, at about 9.40 pm on Wednesday 4 July 2001, Mr Relph attended at the Belconnen Police Station and made admissions to the police about his involvement in the offences.

18. In giving evidence before the sentencing judge, he was asked,

"You accept responsibility for what you did?---Yes. Do you accept that you could have left at any point during the evening?---Yes. Why did you go and see the police on I think it was 4 July?---I couldn't live with the guilt. It's something that would stand over me and I don't want to hide it."

19. He participated later in a taped record of interview with police and made full admissions. He assisted police in providing the names of his co-offenders. All three were sentenced together by the sentencing judge.

20. Neither Mr Jeffress nor the present respondent had any previous convictions. The older man, Mr Eaves, had a criminal history which was described by the sentencing judge in these terms:

"... you have an appalling record in relation to various matters, not as appalling as some but nevertheless it extends over two pages."

21. There are a number of driving offences as well as a number of offences of dishonesty, including burglary, in that history. Mr Eaves' prior criminal record thus differentiated him from the other two. However, he was not charged with the second arson, nor did he have any participation in the last burglary and theft. Each of the three offenders were sentenced to similar terms in respect of each of the offences for which they were convicted, and as a consequence none of them was ordered to serve any actual prison time.

22. The legal principles in relation to a Crown appeal against sentence are well known. It is only necessary to refer to the well known statement in R v Tait & Bartley (1979) 24 ALR 473 where the court said at 476:

"Although an error affecting the sentence must appear before the appellate court will intervene in an appeal either by the Crown or by a defendant, a Crown appeal raises considerations which are not present in an appeal by the defendant seeking a reduction in his sentence. Crown appeals have been described as cutting across 'time-honoured concepts of criminal administration' (per Barwick CJ, Peel v R [1971] HCA 59; (1971) 125 CLR 447 at 452; [1971] HCA 59; [1972] ALR 231 at 233). A Crown appeal puts in jeopardy 'the vested interest that a man has to the freedom which is his, subject to the sentence of the primary tribunal' (per Isaacs J, Whittaker v R, supra at 248). The freedom beyond the sentence imposed is, for the second time, in jeopardy on a Crown appeal against sentence. It was first in jeopardy before the sentencing court."

23. It is also helpful in the context of this Crown appeal to record the observations of the present presiding judge in Cruse v Treminio [2001] ACTSC 59 where his Honour noted at par [18]:

"... there is a principle of restraint in Crown appeals based upon the doctrine of double jeopardy which makes it inappropriate for an appellate court to simply impose upon a respondent the sentence that should have been imposed when he or she was first sentenced. Hence, in R v Cobb [1999] FCA 158; (1999) 84 FCR 450 at 453 Spender, Higgins and Weinberg JJ observed that in a Crown appeal it would not ordinarily be appropriate to substitute for a wholly suspended term of imprisonment a sentence requiring the respondent to actually serve a short period of imprisonment."

24. And importantly in the circumstances of this present case reference should be made to the observations in the High Court case of Lowe v R [1984] HCA 46; (1984) 154 CLR 606 at 623 where the principle of parity is explained in these terms:

"There is no rule of law which requires co-offenders to be given the same sentence for the same offence even if no distinction can be drawn between them. Obviously where the circumstances of each offender or of his involvement in the offence are different then different sentences may be called for. But justice should be even-handed and it has come to be recognised both here and in England that any difference between the sentences imposed upon co-offenders for the same offence ought not be such as to give rise to a justifiable sense of grievance on the part of the offender with the heavier sentence or to give the appearance that justice has not been done."

25. In the light of those principles it seems to me to be plain that the sentence that was imposed in respect of the second arson, that involving the motor vehicle in the carport adjoining the dwelling house, is manifestly inadequate and the objective seriousness of that offence is not reflected in the sentence that was imposed, either by reference to the head sentence or to its suspension.

26. Arson is an offence of great gravity, particularly if there is an element of recklessness or intent in relation to the possible endangering of human life. This is particularly the case in relation to the second arson, but it also is true of the first arson, and for my part the sentence of eighteen months wholly suspended for each of the three offenders in respect of the Woolworths arson does not truly reflect the seriousness of that offence.

27. It is a fact nonetheless, and a very relevant fact in the circumstances of this appeal, that the Crown has not sought to appeal against the sentences that were imposed on Mr Eaves or on Mr Jeffress. However, the present respondent was the only person who was charged and pleaded guilty to the arson involving the motor vehicle and that has to be regarded as a very, very serious offence.

28. That offence, in my opinion, calls for a condign punishment, notwithstanding the extraordinarily impressive subjective features that so obviously moved the sentencing judge in the circumstances of the present respondent. Not only did he have no previous convictions, but two police officers put material before the sentencing judge which obviously created a very favourable impression concerning him.

"Turning to the subjective features. Each of the offenders has pleaded guilty at the earliest opportunity, and each is of course to be given credit for that. Each of the offenders, I'm satisfied, is remorseful for the offences they've committed, even Mr Eaves whose offences go back for a longer period of time. For the others, perhaps, it's not surprising that they would be, seeing as the offences to which they pleaded guilty occurred probably over a 24 hour period, or even less, and were clearly impulsively entered into rather than a result of a criminal character.

Mr Relph also has this in his favour, that he was after the offences diagnosed with ADHD [Attention Deficit Hyperactivity Disorder]. He's now on medication which makes a great difference to his prospects for rehabilitation. What relationship the ADHD had to his impulsive behaviour is difficult to say precisely, but it certainly wasn't irrelevant to it.

He, like Mr Jeffress, has no prior convictions, but despite that there is an immediate attraction in Mr Standish's submission that at least in relation to the second arson he should be imprisoned, to a period that he should actually serve. The only thing that persuades me against that is that in contrast with the other two, he doesn't simply have an absence of an adverse record. I'm impressed by Sergeant Sobey's evidence concerning the contribution he's made to the Police Citizens Youth Club and it goes without saying that that's a very significant factor, at least in my mind."

30. Another police officer also commended Mr Relph in relation to the assistance he provided.

31. Notwithstanding those compelling subjective features, in particular the medical aspect of the matter, the absence of any previous convictions and the extraordinarily promising prospects of complete rehabilitation, the second arson is in my opinion so serious that the sentence that was imposed in respect of that offence is manifestly inadequate and must be set aside.

32. It would be a difficult matter, having regard to how the other two offenders have been dealt with, to impose a substantial period of actual imprisonment as well as a much increased head sentence in respect of the second arson, and there is no point in imposing merely a short or token period of actual imprisonment.

33. Having regard to what are the actual and unique features of the present Crown appeal, I think that justice can best be served if the sentence imposed by the primary judge in respect of all of the offences bar the second arson be confirmed. In respect of the second arson, the sentence of two years imprisonment to be suspended forthwith upon Mr Relph entering into the same recognizance in respect of the other offences should be set aside.

34. In lieu thereof, I would suggest that for the offence of arson at the premises at Kriewaldt Circuit, Higgins, a head sentence of four years imprisonment be imposed and that that sentence be suspended forthwith upon Mr Relph entering into a recognizance in the sum of $3,000 with the following conditions. That Mr Relph be of good behaviour for a period of four years; and that he accept the supervision on probation of the Director of ACT Corrective Services or his/her nominee and to obey all reasonable directions of that Director or nominee and in particular, to reside as directed, not to consume any drugs except those prescribed by a medical practitioner, to attend for urinanalysis as directed, to be assessed and if found suitable to participate in and complete any rehabilitation treatment and/or programs thought appropriate by Corrective Services in the "Thinking for a Change" Cognitive Behavioural Therapy Program, and to continue with medication and counselling.

35. To give effect to that sentence I would order that a warrant issue for the arrest of Mark Adrian Relph, but that it lie in the Registry for seven days from today, and that it be discharged upon Mr Relph entering into the recognizance on which the suspension of the four year term of imprisonment depends.

I certify that the preceding thirty-four (34) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Spender.

IN THE SUPREME COURT OF THE ) No. ACTCA 20 of 2002

36. I agree and wish only to add one comment. But for the significant subjective circumstances of the respondent and the suspended head sentence imposed on the other offenders with respect to the first arson, the respondent could not reasonably have expected to be sentenced in respect of the second arson in the circumstances in which it occurred to less than a period of four years imprisonment with a not inconsiderable non-parole period imposed. I would not like it to be thought that I agree that the head sentence of eighteen months in respect of the first arson was, in all the circumstances, an appropriate sentence.

I certify that the preceding numbered paragraph is a true copy of the Reasons for Judgment herein of the Honourable Justice Cooper.

IN THE SUPREME COURT OF THE ) No. ACTCA 20 of 2002

37. I also agree, and I agree with the additional comments by Justice Cooper, but would wish to add just some short remarks of my own. This was, in my opinion, a case in which both offences of arson were objectively so serious as to require a substantial term of imprisonment. However, in the present case I agree with the course proposed because of a combination of quite exceptional subjective factors.

38. Firstly, the respondent was previously of good character.

39. Secondly, he not only suffered from a condition of Attention Deficit Hyperactivity Disorder but there was psychological evidence to the effect that it may have contributed significantly to his antisocial behaviour.

40. Thirdly, he expressed immediate remorse, going to the lengths of waking his mother on the night in question to tell her that he had done something terrible.

41. Fourthly, he spontaneously reported the incident to the police, having told his mother that he had done some terrible things, that he knew he couldn't keep going as he had, that he had to put an end to it, and that the only way that he could do so was to come clean.

42. Fifthly, he then acheived a substantial rehabilitation, both as a result of medication and counselling and also, no doubt, as a result of the exercise of his own determination.

43. Sixthly, there was impressive evidence of his continued good character and of the fact that he had assisted at the Police Citizens' Youth Club by providing practical carpentry assistance, starting a carpentry course for young people, working in a bicycle area and mentoring young people. In particular, there was evidence given by a Sergeant of Police to the effect that he had found the respondent to be a very honest, very open person, who worked very well with other young people, and who having been in this sort of trouble could relate to the difficulties that young people were experiencing and that Police had found it very useful to have people of the respondent's calibre able to talk to young people and to relate to them.

44. Seventhly, he provided assistance to investigating police in relation to this incident, and offered to give evidence against the co-accused.

45. Eighthly, he had offered to and has been making reparation.

46. Having regard to the combination of these circumstances, I agree that the imposition of a sentence which would have had the effect of denying him any opportunity to remain at liberty and to consolidate the rehabilitation that he has already achieved would have been disproportionate to the sentence that was imposed upon Mr Eaves.

47. For these reasons I agree with the sentences that have been imposed.

I certify that the preceding eleven (11) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Crispin.

Solicitor for the Appellant: The Director of Public Prosecutions

Solicitor for the Respondent: John Nicholl and Company

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