/

/

R v Relph [2002] ACTCA 6 | Case summary | Zoe

ACTACTCA

R v Relph [2002] ACTCA 6

[2002] ACTCA 6

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

View on the ACT Courts

At a glance

Source facts

Court

Court of Appeal (ACT)

Decision date

2002-11-07

Before

Crispin P, Cooper JJ, Spender J

Source

Original judgment source is linked above.

Judgment

Source: the ACT Courts (www.courts.act.gov.au). Converted to plain text by ZoeLaw. Not the official version.

THE QUEEN v MARK ADRIAN RELPH [2002] ACTCA 6 (7 November 2002)

CATCHWORDS

CRIMINAL LAW – appeal against sentence – respondent pleaded guilty to two counts of arson, one count of burglary and two counts of theft – whether sentences imposed were manifestly inadequate and failed to give sufficient weight to overall seriousness of offences – significant subjective considerations – respondent attended police station of his own free will and made full admissions to police about his involvement in offences and assisted police in investigation – remorse shown and reparation made – respondent had no previous convictions – respondent suffering Attention Deficit Hyperactivity Disorder – very promising prospects of complete rehabilitation – evidence of continued good character – doctrine of double jeopardy – sentencing considerations where multiple offenders – sentence in respect of second arson manifestly inadequate with objective seriousness not reflected in sentence imposed

Crimes Act 1900 (ACT) ss 89, 93(1), 117(1), 408

R v Tait & Bartley (1979) 24 ALR 473, followed

Cruse v Treminio [2001] ACTSC 59, affirmed

Lowe v R (1984) 154 CLR 606, followed

ON APPEAL FROM THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

No. ACTCA 20 of 2002

No. SCC 21 of 2002

Judges: Crispin P, Spender and Cooper JJ

Court of Appeal of the Australian Capital Territory

Date: 7 November 2002

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

) No. SCC 21 of 2002

AUSTRALIAN CAPITAL TERRITORY )

)

COURT OF APPEAL )

ON APPEAL FROM THE SENTENCE OF THE HONOURABLE JUSTICE HIGGINS OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

BETWEEN: THE QUEEN

Appellant

AND: MARK ADRIAN RELPH

Respondent

ORDER

Judges: Crispin P, Spender and Cooper JJ

Date: 7 November 2002

Place: Canberra

THE COURT ORDERS THAT:

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

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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.”
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.
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:

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

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.
Firstly, the respondent was previously of good character.
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.
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.
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.
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.
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.
Seventhly, he provided assistance to investigating police in relation to this incident, and offered to give evidence against the co-accused.
Eighthly, he had offered to and has been making reparation.
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.
For these reasons I agree with the sentences that have been imposed.