R v Robertson [2017] QCA 164

CRIMINAL LAW - SENTENCE - RELEVANT FACTORS - NATURE AND CIRCUMSTANCES OF OFFENCE - GRAVITY OF OFFENCE - where the applicant pleaded guilty to attempted arson and other offences - where the applicant was sentenced to two years and six months imprisonment on the count of arson and concurrent periods of imprisonment for the other offences - where the applicant submitted that the sentencing judge erred in relying on an inference that the offending was more serious than it was - where the applicant submitted the sentencing judge erred in imposing the sentence on the basis that the applicant "torched" her ex-landlord's house - whether the sentencing judge mischaracterised the applicant's offending

CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - OTHER MATTERS - where the applicant submitted that the learned sentencing judge erred by imposing a parole release date without alerting defence counsel that he was considering such a measure - where the applicant submitted this resulted in a failure to afford natural justice to the applicant whose counsel could have made submissions as to why parole was not necessary - whether the sentencing judge was required to alert counsel that he was considering imposing a parole release date

CRIMINAL LAW - SENTENCE - PURPOSE OF SENTENCE - GENERALLY - where the applicant submitted that the sentencing judge erred in not applying the principle that a sentence of imprisonment is a last resort - where the applicant submitted the sentencing judge erred in not considering wholly or partly suspending the sentence - where the applicant submitted the sentencing judge erred in suggesting a period of actual imprisonment was required to send a message to the community denouncing the applicant's behaviour - where the applicant submitted the sentencing judge erred in failing to consider that the need for specific deterrence was not high - whether the sentencing judge considered all of the sentencing options available to him - whether the sentencing judge took into account that a sentence of imprisonment should be imposed as a last resort

CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE - where the applicant pleaded guilty to arson and other offences - where the applicant was sentenced to two years and six months imprisonment on the count of arson and concurrent periods of imprisonment for the other offences - where the applicant submitted that the offending in the cases referred to at first instance were more serious than the applicant's offending - whether the head sentence was manifestly excessive

Penalties and Sentences Act 1992 (Qld), s 9, s 160B

R v Barling [1999] QCA 16, considered

R v Cunningham [2005] QCA 321, cited

R v Drinkwater [2006] QCA 82, considered

R v Francis [2014] QCA 258, considered

R v Gwilliams [2008] QCA 40, considered

R v Hyatt [2011] QCA 55, considered

R v Johnson [2005] QCA 265, considered

R v Johnson (2007) 173 A Crim R 94; [2007] QCA 249, cited

R v Kitson [2008] QCA 86, cited

R v Leigh [1996] QCA 561, considered

R v Matheson [2006] QCA 150, cited

R v McDougall & Collas [2007] 2 Qd R 87; [2006] QCA 365, cited

R v Porter [2014] QCA 14, considered

R v Rhode [2001] QCA 328, considered

R v Silasack [2009] QCA 88, considered

R v Wilson [2016] QCA 301, cited

Director of Public Prosecutions (Queensland) for the respondent

[1] MORRISON JA: I have read the reasons of Atkinson J and agree with those reasons and the orders her Honour proposes.

[2] PHILIPPIDES JA: I have had the benefit of reading the reasons for judgment of Atkinson J. I agree with the conclusions reached in respect of the grounds of appeal other than that concerning whether the head sentence of two and half years imprisonment for the offence of attempted arson was manifestly excessive. There was no challenge to the order fixing the parole release date at 8 September 2017 (that is after some six months).

[3] In advancing the submission that the head sentence was manifestly excessive and advocating for a head sentence in the range of 12 to 15 months, reliance was placed on R v Johnson,[1] where Jerrard JA stated that in circumstances where there was no question of fraud and where the safety of others is not a consideration, the appropriate sentence for arson is about three years. Those remarks were qualified by Jerrard JA in (the unrelated case of) R v Johnson[2] by limiting them to circumstances where it was also the case that the damage caused was not a significant factor.

[4] Of the authorities referred to this Court, only R v Silasack[3] and R v Rhode[4] concerned the offence of attempted arson. The present case was clearly less serious than Silasack, where five years was imposed for attempted arson in circumstances where the offending involved aggravated features: the corrupting of others to participate in the offending and the organising of the firebombing of the premises knowing they were occupied.

[5] On the other hand, the present case cannot, in my view, be said to have extenuating circumstances such as were found to exist in Rhode, which attracted a two year sentence, described as "lenient".[5] As in Rhode, it was more a matter of good fortune than management, as the sentencing judge remarked, that no one was hurt because the fire did not take hold.

[6] Relevant to the seriousness of the offending is the characterisation of the applicant's conduct. I note the statements made by Atkinson J at [45], [48] and [128] and make the following observations. The elements of the offence of attempted arson, to which the applicant pleaded, comprise:

"erred in concluding that the applicant's conduct constituted an unfocused, dangerous and damaging response to the break-up, and that this was worse [than perhaps a deliberate planned act], and it did not mitigate the applicant's criminality. Further, by sentencing the applicant on the basis that her offending was at the very serious end of an attempted arson, his Honour mischaracterised her criminality."

[14] The applicant was sentenced on a schedule of facts agreed between the prosecution and the defence which was made an exhibit in the proceedings.

[15] The schedule of facts shows that in 2014 the owner of a house in Billabong Place, Deception Bay, rented it to the applicant and her then partner, Meleigh McKenzie. The applicant moved out of the house in 2014 but continued her relationship with Ms McKenzie until late October/early November 2015. On 26 November 2015, Ms McKenzie obtained a temporary protection order against the applicant which was served on the applicant on 9 December 2015.

[16] Prior to the offending the subject of this application, between 9 December 2015 and 13 December 2015, the applicant fraudulently used a Visa card belonging to Ms McKenzie on 17 occasions for the purchase of items valued at $774.00. Ms McKenzie made a complaint to police on 15 December 2015. Between 14 and 18 December 2015, the applicant contacted Ms McKenzie by text or email in breach of the temporary protection order. Ms McKenzie made a complaint to police on 18 December 2015, however the police did not contact the applicant until 24 January 2016. The applicant was then issued with a notice to appear for the breach of the order.

[17] The applicant was removed from the lease in January 2015. Ms McKenzie stayed at the property at Billabong Place until 10 January 2016 when she vacated the property.

[18] In the early hours of the morning of 23 January 2016, a neighbour heard crashing and the sound of breaking glass coming from the house. Upon further inspection, the neighbour saw a white sedan reverse into the property's driveway before driving away. The neighbour saw fire and smoke coming out of one of the small rooms. He telephoned 000 and reported the fire. The circumstances of the setting of that fire constitute the offence of attempted arson.

[19] A short time after the neighbour telephoned 000, police and the Queensland Fire and Rescue attended the property and the fire was extinguished. When police entered the dwelling they saw that the fire was mainly contained to the toilet room of the house. The toilet seat and cistern were destroyed by the fire. The walls were covered in black soot and the police located some grass clippings and a phone book in the toilet room which both appeared to be burnt. There was a strong smell of fuel in the room. The insurance estimate was that approximately $18,000 damage was caused.

[24] After dealing with the circumstances of the offences, the learned sentencing judge referred to the serious nature of this conduct, which was irrational and occurred after the end of a relationship. His Honour referred to the fact that she had attempted to "torch" a house where her partner had lived which belonged to another person and, in addition, stole the landlord's lawnmower and whipper snipper and pawned them believing them to belong to her ex-partner. His Honour referred to the fact that there was no-one in the house and the fire did not take hold of the rest of the house although both could have been the case. He also referred to the fact that although she had apologised she had not paid any compensation for the damage caused.

[25] His Honour also referred to her current relationship and employment but that, regardless of those circumstances, there must be a substantial and appropriate penalty which directly reflected the very serious nature of her offending, which involved not just attempted arson but also breaking into the house, breaking into the shed, stealing items from the shed and fraudulently pawning them, as well as trespassing. He referred to her difficult personal circumstances and weighed that against the seriousness of her conduct and the necessity to send very clear messages to the community and to her personally about the consequences of her behaviour. His Honour also took into account that she had apologised, co-operated and had been dealt with by an early plea. His Honour had regard to prior relevant decisions and said that it was not a case that could ever have been dealt with by a non-custodial sentence that did not involve some period of actual custody.

[26] Neither the written or oral submissions made on behalf of the applicant follow precisely the grounds of appeal nevertheless it is necessary to address each of the grounds of appeal set out in the application for leave to appeal against sentence to determine whether any of them has merit. In view of the way in which the applicant's submissions were framed, it is convenient to group some of the grounds of appeal and deal with them in the order in which they appear to be covered in the applicant's written submissions.

Mischaracterisation of the applicant's criminality

[27] This appears to cover ground 2: that the learned sentencing judge erred in relying on an inference that the offending was more serious than it was, when this was not supported by the facts; and the additional ground (ground 8): that the judge erred in concluding that the applicant's conduct constituted an unfocused, dangerous and damaging response to the break-up, and that this was worse [than perhaps a deliberate planned act], and it did not mitigate the applicant's criminality. Further, by sentencing the applicant on the basis that her offending was at the very serious end of an attempted arson, his Honour mischaracterised her criminality.

[28] This appears to cover ground 5: that the learned sentencing judge erred by imposing a parole release date without alerting defence counsel that he was considering such a measure.

[29] The written submissions appear to cover grounds 1, 3, 4 and 6 which were as follows. Ground 1: that the learned sentencing judge erred in not applying the principle that a sentence of imprisonment is a last resort; ground 3: that the judge erred in not considering wholly or partly suspending the sentence; ground 4: that the judge erred in suggesting that sending a message to the community denouncing the behaviour necessitated a period of actual imprisonment; and ground 6: that the judge erred by failing to consider the need for specific deterrence was not high.

[30] To the extent that this represents a separate ground of appeal it appears to relate to ground 7: an undisclosed error.

Mischaracterisation of the applicant's criminality

[31] The applicant submitted that by sentencing her on the basis that she intended to "torch" the landlord's house, or that her criminality was at the more serious end of an attempted arson due its being unfocused, the learned trial judge erred. In support of that submission the applicant's counsel referred to a remark made by the sentencing judge in response to defence counsel's submission that the applicant knew that the house where she set the fire was empty and that her former partner had moved out of the house. His Honour responded to that submission that he was not sure that it made it any better that the applicant's partner had moved out of the house and that she had "torched" her ex-landlord's house or at least attempted to do so. The applicant's counsel submitted that it was "accepted by the defence" that her conduct was reckless and the fire could easily have taken hold, but it was not her intention that it do so, and it did not in fact take hold.

[32] The applicant's counsel then referred to a submission he made before the learned sentencing judge that it was apparent that the applicant went there without any intention to light the fire. He submitted that the sentencing judge should take account of the fact that the applicant had lived in the house and knew that the room had a tiled floor and that her act of throwing the phone book onto that floor was designed to create a mess, harass and ultimately result in financial detriment to the complainant in terms of having to pay for additional clean up fees. It was submitted before this court that the applicant should not have been sentenced on the basis that she intended something more, such as to "torch" the house of an unrelated landlord, or that her recklessness went beyond the risk of the fire taking hold, or that her conduct would suggest that (at least in her mind at the time) that was not a probable outcome.

[33] The applicant's counsel referred to the fact that the Crown Prosecutor below had submitted that there was a spotlight at present, and rightly so, on domestic violence and to try and burn down the house her ex-partner had left was malicious and vengeful and required a strong deterrent sentence, both generally to discourage other people from behaving in this way, and personally, the applicant, whose behaviour was concerning and escalating in that couple of weeks' period. The applicant's counsel submitted that the Crown submission that this was an attempt to burn down the landlord's house was not supported on the facts and was not pursued. It was not referred to by the Prosecutor in the submissions in reply.

[36] The respondent submitted that a cautious approach is warranted when having regard to exchanges in the course of submissions as being an amplification for the reasons for sentence: R v Hyatt.[9] Moreover it was submitted by the respondent that the applicant wrongly characterised or understood the nature of the judge's remarks in the course of submissions. The respondent further submitted that the applicant wrongly understood the words "torch" as used by the sentencing judge to mean to burn the whole house down. Rather it should be understood in its context to mean "set fire to". There was no reference in the sentencing remarks to any finding that there was a specific intention on the part of the applicant to destroy the entire house.

[37] It was submitted that the judge was nonetheless entitled to determine that the offending was a serious example of attempted arson given that the fire was lit inside a dwelling at night with intent to cause damage. There was a risk of further more extensive damage being occasioned. The motive for the applicant's offending was vengeance and the offending was committed in breach of a domestic violence order. It was submitted that the absence of a specific intention to kill or harm another by lighting the fire did not preclude the characterisation of the attempted arson as being to the upper end of seriousness. Had such an intention existed it would itself have constituted the commission of further criminal offending.

[38] The learned sentencing judge, as one might expect, tested the propositions put to him by defence counsel in his submissions. The fact that propositions are tested does not signify that a sentencing judge has formed a concluded view. For that one must consider the sentencing remarks.

[39] I respectfully agree with the remarks made by Margaret Wilson AJA in R v Hyatt[10] where her Honour dealt with the extent to which an appeal court should have regard to exchanges between the judge and counsel during submissions. Her Honour held:

"I think a cautious approach is warranted. Exchanges between the bench and counsel are designed to draw out and test submissions, and remarks made by a judge during such exchanges are often at odds with a conclusion at which he or she ultimately arrives after hearing both sides and giving their submissions due consideration. In my respectful opinion a practice of relying unduly on exchanges between the bench and counsel should not be allowed to develop."

[40] This is not to suggest that there may not be cases in which the exchanges between Bench and Bar are properly used to amplify the reasons for sentence that are given but this is not such a case. His Honour comprehensively dealt with the circumstances of the attempted arson in his sentencing remarks which fully justify his conclusion that the applicant's criminal conduct had to be viewed very seriously. His Honour said of the offending:

"Now, as you've probably worked out in my discussions with your counsel Mr Sibley, I consider this to be very serious conduct. Luckily, the fire didn't take hold outside of the toilet but that's entirely good luck rather than good management, quite frankly, and that's what leaves you with an attempted arson rather than an arson. But, when we step back and look at your conduct, it can only be viewed very seriously. Now as I said to your counsel it was irrational - and I've got no doubt about that because you're caught up in a relationship that's ended and that's sad but that's reality. Relationships end every day. To respond to the ending of a relationship by torching or, at least, attempting to torch not even your ex's house but the house out of which you say, through your counsel, you were certain that your ex has moved out with the dog means that you're torching a completely innocent third party, the landlord, stealing his lawnmower and whipper snipper from his shed and pawning them.

Again, you say through your counsel somehow to get back at your partner because you thought they were hers but that doesn't sit easily with working out that she's left, but even if that is your thinking, that's irrational as well. And all of this is very serious criminal conduct. I accept there was no-one in the house - there could have been. I accept the fire didn't take hold of the rest of the house - it could have done. I accept that you were deeply distressed, upset and behaving irrationally - there's no doubt about it, because when you think about it rationally, none of this makes sense. But you've still committed a series of very serious criminal offences and as sympathetically as I'm able to look at them - and I acknowledge that you've provided an apology, but I've not heard anything about a single cent being paid."

[41] Did those remarks mean that the judge erred in the way in which he characterised the applicant's criminality?

[42] The offence of arson is found in s 461 of the Criminal Code:

(1) Any person who wilfully and unlawfully sets fire to any of the things following, that is to say -

[43] The maximum punishment for an offence under s 461 is life imprisonment.

[44] The applicant was however charged with attempted arson, which means that s 461 must be read with s 4 of the Criminal Code which relevantly provides:

(1) When a person, intending to commit an offence, begins to put the person's intention into execution by means adapted to its fulfilment, and manifests the person's intention by some overt act, but does not fulfil the person's intention to such an extent as to commit the offence, the person is said to attempt to commit the offence.

(2) It is immaterial, except so far as regards punishment, whether the offender does all that is necessary on the offender's part for completing the commission of the offence, or whether the complete fulfilment of the offender's intention is prevented by circumstances independent of his or her will, or whether the offender desists of his or her own motion from the further prosecution of the offender's intention."

[45] Because of the operation of s 536(2) of the Criminal Code, the maximum punishment for attempted arson is 14 years' imprisonment. It is a necessary ingredient of the offence of attempted arson that the person intended to commit arson but did not. In this case the elements of the offence were that the applicant intended to set fire to the landlord's house whether intending to destroy it or reckless as to its destruction, carried out the overt act in furtherance of that intention of setting fire to a telephone book with accelerant added and throwing that inside a room of the house, but failed to set fire to the landlord's house as the fire was extinguished before it could ignite the building itself.

[46] There was some attention given in the submissions to precisely what the intention of the applicant was when she committed the offence. The Crown's submissions refer to the need for deterrence when her actions were "to try to burn down the house" where her ex-partner had lived, albeit in a circumstance when she knew the house was unoccupied and that there was no risk to any person's safety. The defence submission was that her actions were "an attempt to create a mess" in circumstances "that are very dangerous in terms of the potential that it could have caught fire to the rest of the house" but "was not intended to destroy the whole building".

[47] In light of the difference in submissions as to intention, the sentencing judge was entitled to make his own finding as to the applicant's intention which he characterised as attempting to "torch" the landlord's house. The word "torch" is in this context used colloquially and does not have a precise meaning. The Macquarie dictionary, which is probably the best guide to modern Australian usage, shows that as a verb used colloquially, torch can be used to mean to set fire to a building (for insurance) or to destroy a building by setting fire to it. As noted, the respondent submitted on appeal that the sentencing judge must have meant the term "torch" to mean to set fire to the building rather than to destroy it by setting fire to it. The applicant committed the offence of attempted arson rather than arson as she attempted to set fire to the building but failed.

[48] The respondent also submitted on appeal that the sentencing judge did not make any finding that the applicant intended to destroy the house. It would appear that when one considers the whole of the sentencing remarks, the judge concluded that the proper characterisation of the applicant's behaviour was that she attempted to set fire to the landlord's house not intending to destroy it but reckless as to the consequences of her dangerous, irrational behaviour. That, together with the other criminal offending, can properly be described, as the sentencing judge described it, as very serious criminal conduct.

[51] The applicant submitted that, before the learned sentencing judge, her counsel submitted that there was a range of options available to the judge in sentencing the defendant. If his Honour was considering imprisonment then it should be in the range of 12 to 18 months and in all of the circumstances the discretion to wholly suspend the sentence could be exercised. Alternatively it was submitted that the judge could consider probation with or without recording a conviction particularly given the benefit the applicant would obtain if she continued to receive counselling.

[52] Relying on the decisions discussed in R v Francis,[11] all of which referred to more serious circumstances, the Crown submitted that a sentence in the range of three to four years was appropriate with the sentence being towards the bottom end of that range. The applicant's submission is that the learned sentencing judge "did not alert the defence that he was considering a much higher head sentence than 12 to 18 months." The applicant further submitted that the judge did not alert the defence that he was considering imposing a parole release date. Accordingly it was submitted there was a failure to afford natural justice to the applicant whose counsel could have made submissions as to why parole was not necessary.

[53] The respondent submitted that it was consistent with the applicant's submissions at first instance that probation, which would mean that the applicant would continue to receive assistance while she was in the community, was the appropriate sentencing regime and that, if the learned sentencing judge determined that an appropriate sentence included a term of imprisonment, then it would be of advantage to the applicant and the community if she were released on parole.

[54] Further the respondent submitted that it was not incumbent upon the learned sentencing judge in the circumstances to alert the parties that he was considering requiring the applicant to be subject to parole upon her release. The imposition of parole is one of the consequences of the application of s 160B to s 160D of the Penalties and Sentences Act 1992 (PSA).

[55] The learned sentencing judge's approach to the appropriate penalty in this case was entirely orthodox. A sentencing judge is not obliged to set out each and every alternative available to that judge in sentencing a defendant who appears before the judge. Counsel who appear before judges on sentences are expected to know the provisions of Queensland's sentencing law and to make relevant submissions.

[56] Unless the judge is considering imposing a sentence which may be considered unusual or an additional penalty which is unusual, there is no obligation upon a sentencing judge to advise counsel of the sentence that may be imposed and to seek specific submissions on that.[12] Both the prosecution and the defence have the opportunity to make all submissions on appropriate and alternative penalties that may apply in the circumstances and that happened in this case. A judge may remain completely silent while the submissions are made or test propositions made by counsel during their submissions, but a suggestion that the sentencing judge in this case failed to afford procedural fairness is without merit.

[57] In this case, as is orthodox, the prosecution made submissions as to the appropriate sentence and then defence counsel had the opportunity to make any submissions counsel wished to make. The sentence imposed by the learned sentencing judge was in fact below the range suggested by the prosecution.

[58] His Honour imposed a sentence of imprisonment. The provisions of Part 9 of the PSA deals with imprisonment. Division 3 within that Part deals with parole. Section 160A of the PSA provides that sections 160B to 160D apply if the court is imposing a term of imprisonment on an offender for an offence. Unless the court imposes an intensive correction order, a probation order or an order that the whole or a part of the term of imprisonment be suspended, then the sentencing judge is obliged to comply with either , or of the PSA, whichever is the appropriate section. In this case the appropriate section was which applies to a sentence imposed of three years or less which is not a sentence for a serious violent offence or a sexual offence. provides that the court must fix a date for the offender to be released on parole. In this case the learned sentencing judge set a parole release date for the applicant much earlier than might ordinarily be expected and set out his reasons for doing so which were based on the evidence and submissions before him.

[60] As mentioned earlier the submissions under this heading appear to cover not only ground 1 but also grounds 3, 4 and 6.

[61] The applicant submitted that the learned sentencing judge did not appear to consider s 9(2)(a)(i) and (ii) of the PSA which provide that a sentence of imprisonment should only be imposed as a last resort and that a sentence that allows the offender to stay in the community is preferable. As no physical harm was caused to another person and the applicant had not committed or threatened actual violence in the past, there was no fraud involved and no actual intended risk to the safety of others and the damage was minimal, that should have given rise to a consideration of a non-custodial sentence.

[62] It was submitted that the sentencing judge unduly fettered his discretion by appearing not to consider suspending the sentence or considering that a different non-custodial penalty such as probation or an intensive correction order could be imposed. It was submitted that the judge's view that a custodial term of imprisonment was required was only explicable on the basis that his Honour sentenced the applicant as though she had in fact intended to "torch' the landlord's house, or that an unfocused act was at the more serious end of an attempted arson.

[63] The respondent submitted that there is no basis to conclude that the sentencing judge did not consider the principle that a sentence of imprisonment is the last resort as part of the exercise of his sentencing discretion. Merely because a non-custodial sentence was not imposed does not evidence error in this regard. That his Honour considered the submission made on behalf of the applicant that a non-custodial sentence should be imposed but considered that the appropriate sentence was a term of imprisonment is expressly identified in his Honour's sentencing remarks.

[64] The respondent submitted that ground 4 of the application, which suggests that the learned sentencing judge erred by suggesting a message to the community denouncing the behaviour necessitated a period of actual imprisonment, misconstrued the statements of the learned sentencing judge. The judge identified that one of the matters of relevance in the exercise of the sentencing discretion included, but was not limited to, sending a message to others that such serious offending would be met with "very serious criminal consequences".

[65] So far as the need for specific deterrence was concerned, the respondent submitted that this was a relevant factor in the exercise of the sentencing discretion. The respondent submitted that the factors which suggested a need for personal deterrence were that the offending was committed out of revenge and malice, the offending was directed at causing harm to the applicant's ex-partner, a domestic violence order was in place, and the offending for which the applicant was being sentenced was not limited to the circumstances of the attempted arson, but included the decision to steal and pawn property which the applicant believed belonged to her ex-partner. Further the offending occurred in the context of the applicant having attended at the home of her ex-partner in the middle of the night and the offending was described as irrational. The offending, when considered in the context of the applicant's criminal history, also represented a concerted course of conduct on the part of the applicant and not for example a one off aberration. Finally, that while the applicant's employment and rehabilitation from prescription drug use were matters to be seen in her favour, those were not features which had changed since the commission of the offences such that they might need lead to a view that deterrence was less significant than it may otherwise have been.

[66] Part 2 of the PSA sets out the governing principles for sentencing. Section 9(1) lists the only purposes for which sentences may be imposed on an offender. One of those purposes, found in s 9(1)(c) is "to deter the offender or other persons from committing the same or a similar offence". In many ways this is part and parcel of the sentencing principle found in s 9(1)(d) which is to make it clear that the community, acting through the court, denounces the sort of conduct in which the offender was involved.

[67] This behaviour was committed in the context of a domestic violence order and the end of a relationship. It was committed irrationally for revenge not against the property which belonged to the applicant's former partner but against the property of an innocent third party. The consequences could have been more serious than they in fact were. Using an accelerant such as petrol to set fire inside an enclosed room in a residence is a dangerous act. It was a correct exercise of the sentencing judge's discretion to consider that an actual term of imprisonment was necessary to punish such behaviour and to deter the applicant and others from engaging in dangerous vengeful behaviour after a relationship has ended.

[68] There can be no sensible suggestion that the sentencing judge did not consider all of the sentencing options available to him before imposing the sentence he did which implicitly took into account that a sentence of imprisonment should only be imposed as a last resort.

[69] These grounds of the application must also fail.

[70] The applicant submitted that the head sentence of two and a half years' imprisonment was manifestly excessive and would only have been appropriate if there had been an actual arson and that as it was an attempted arson the head sentence should have been much less severe. It was submitted that the cases referred to by the prosecution below were more serious and that the appropriate range for an attempted arson should be determined with reference to the statement made by Jerrard JA in R v Johnson:[13]

"[W]here 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."

[71] The applicant also referred to the decision of Fraser JA in R v Silasack[14] where his Honour observed:

"[B]earing in mind the facts that attempted arson carries a very much less severe penalty than arson and the related consideration that no substantial property damage or personal injury in fact resulted from the applicant's offence, the aggravating features of the applicant's attempted arson offence so significantly increased his criminality as to call for a sentence of five years imprisonment in this case."

[72] It was submitted that the applicant's conduct could not be characterised as premeditated and was at the low end of an attempted arson. It was submitted that where the circumstances do not disclose a more serious level of criminality, then attempted arson should in the normal course attract a "much less severe penalty" than actual arson. The written submissions on this ground conclude "it is submitted that the applicant's criminality an objective view would justify a head sentence higher than 12 - 18 months and that she was a suitable person to have a wholly suspended appointment."

[73] The respondent submitted that what must be considered is whether with the benefit of comparable authorities, and having regard to all the relevant sentencing factors, this court is driven to conclude that there must have been some misapplication of principle in coming to the ultimate sentence.[15] The respondent also pointed to decisions of this court where it has been held that it would be wrong in principle to construe Jerrard JA's statement in R v Johnson[16] as confining a sentencing judge's discretion.[17]

[74] It is appropriate to consider sentences imposed for offences of arson and attempted arson and related offences which have been dealt with in this court to determine whether or not the sentencing discretion miscarried and the sentence imposed was manifestly excessive. In doing so it is appropriate to look both at the head sentence and at the parole release date.

[75] In R v Johnson,[18] the applicant had been convicted of one count of arson of a dwelling and was sentenced to four years' imprisonment with a recommendation for consideration for post-prison community based release after 12 months. The applicant contended that the sentence was manifestly excessive.

[76] The applicant was located by rescue services unconscious in the upstairs rear bathroom of a house where he had previously lived with his wife and children. The applicant had screwed shut the doors and windows of the upstairs part of the house. A tenant lived in the downstairs area and raised the alarm. An empty 20 litre steel jerry can containing accelerants was found 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 living area. A cigarette lighter was found nearby.

[77] Extensive charring and burning was caused to furniture but there was no significant structural damage as a result of the fire. The tenant was not injured and sustained no loss.

[78] The applicant told police he had been drinking heavily and was depressed because he had recently split up with his wife. He admitted the jerry can was his. He said he must have brought it inside but he had no recollection of this. He agreed it was possible that he was trying to commit suicide in lighting the fire. The applicant had told his wife he would not see her or their children again and had left money concealed in places underneath the house for them.

[79] The applicant was 48 at the time of offending and had no previous convictions. He had an excellent work history. He had no memory of committing the offences and was seriously injured as a result of the fire. The applicant's wife did not suffer financially as a result of the offending and the applicant bore all of the financial loss.

[80] The sentencing judge regarded the offence as a serious example of arson. This was particularly given the risk to the tenant who lived downstairs and to a neighbouring wooden house.

[1] [2005] QCA 265.

[2] [2007] QCA 249; (2007) 173 A Crim R 94 at [8]. See also R v Porter [2014] QCA 14 at [22].

[3] [2009] QCA 88.

[4] [2001] QCA 328.

[5] [2001] QCA 328 at 8.

[6] That intention in question concerns the actual subjective intention to set fire to the building: see Zaburoni v The Queen [2016] HCA 12; (2016) 256 CLR 482 at [10], [14] per Kiefel, Bell and Keane J and at [55] per Gageler J.

[8] See [2014] QCA 258 at [39].

[9] [2011] QCA 55 at [13] per Wilson AJA and R v Miller [2012] QCA 168 at [34].

[10] [2011] QCA 55 at [13].

[11] [2014] QCA 258, R v Silasack [2009] QCA 88 and R v Gwilliams [2008] QCA 40.

[12] R v Wilson [2016] QCA 301 at [79]; R v Kitson [2008] QCA 86 at [21]; R v Cunningham [2005] QCA 321 at [5]; R v McDougall & Collas [2006] QCA 365; [2007] 2 Qd R 87 at 96; [2006] QCA 365.

[13] [2005] QCA 265 at [9].

[14] [2009] QCA 88 at [41].

[15] R v Heckendorf [2017] QCA 59 at [23] per McMurdo JA citing Wong v The Queen [2001] HCA 64; (2001) 207 CLR 584 at 605; Barbaro v The Queen [2014] HCA 2; (2014) 253 CLR 58 at 79; R v Pham [2015] HCA 39; (2015) 256 CLR 550 at 559.

[16] [2005] QCA 265.

[17] R v Johnson [2007] QCA 249; (2007) 173 A Crim R 94 at [2] per Williams JA and [6]-[8] per Jerrard JA; R v Silasack [2009] QCA 88 at [40] per Fraser JA and R v Porter [2014] QCA 14 at [20]- [22] per Gotterson JA.

[18] [2005] QCA 265.

[19] [1999] QCA 16.

[20] [2008] QCA 40.

1. [21] [2009] QCA 88.

[22] [1996] QCA 561.

[23] [2001] QCA 328.

[24] [2006] QCA 82.

[25] [2014] QCA 14.

[26] [2014] QCA 258.

[27] [2005] QCA 265.

[28] [2006] QCA 150.

[29] [2008] QCA 40.

[30] [2011] QCA 113.

[31] [2014] QCA 14.