R v Silasack [2009] QCA 88

[1]

CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE - where applicant convicted of one count of attempted arson and of multiple offences of dishonesty and summary offences - where applicant sentenced to seven years imprisonment for the count of attempted arson and concurrent two year terms of imprisonment for the dishonesty offences, with eligibility for parole after serving two years imprisonment - where applicant also ordered to pay restitution of $24,231 within 12 months of his release from imprisonment, and if in default of payment by that time, that the applicant be imprisoned for six months - whether sentence manifestly excessive

[2]

Penalties and Sentences Act 1992 (Qld), s 36(2), s 39(2)(b), s 182A(2)(b)

[3]

Lowe v The Queen (1984) 154 CLR 606; [1984] HCA 46, cited

[4]

Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25, cited

[5]

R v Ball [2001] QCA 201, cited

[6]

R v Clements (1993) 68 A Crim R 167; [1993] QCA 245, cited

[7]

R v Cramond [1999] QCA 11, cited

[8]

R v Crompton [2009] QCA 19, cited

[9]

R v Drinkwater [2006] QCA 82, considered

[10]

R v Henderson [1993] QCA 336, cited

[11]

R v Johnson [2005] QCA 265, cited

[12]

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

[13]

R v Leigh [1996] QCA 561, considered

[14]

R v Nagy [2004] 1 Qd R 63; [2003] QCA 175, cited

[15]

R v Rhode [2001] QCA 328, considered

[16]

R v Robinson; ex parte A-G (Qld) [2004] QCA 169, cited

[17]

B G Devereaux SC, with S L Crofton, for the applicant/appellant

[18]

Director of Public Prosecutions (Queensland) for the respondent

[19]

[1] KEANE JA: I have had the advantage of reading the reasons for judgment prepared by Fraser JA. I agree with his Honour's reasons and with the orders proposed by his Honour.

[20]

[2] FRASER JA: On 14 November 2008 the applicant was convicted on his plea of guilty of attempted arson. On 19 November 2008 he was convicted on his pleas of guilty of stealing, fraud, attempted fraud, and various summary offences. On 20 November 2008 the applicant was sentenced to seven years imprisonment for the attempted arson and to concurrent terms of two years imprisonment for the offences of dishonesty. He was convicted and not further punished for the summary offences. It was ordered that the applicant was eligible to be released on parole on 20 November 2010, that is, two years after the date of sentence. Eighty days pre-sentence custody was declared to be time served in respect of the concurrent sentences of two years imprisonment.

[21]

[3] In respect of the fraud offence, it was also ordered that the applicant make restitution of $24,231 to the Registrar for transmission to the bank which had sustained that loss, that amount to be paid within 12 months of the applicant's release from imprisonment, and in default of payment by that time the applicant be imprisoned for a period of six months.

[22]

[4] The applicant applies for leave to appeal against sentence on the ground that it is manifestly excessive. At the hearing of the application, the Court gave the applicant leave to amend the application to make a specific challenge to the order for restitution.

[23]

[5] The applicant was born on 1 December 1977, and he was therefore 31 years old when he committed the attempted arson on 1 February 2008.

[24]

[6] A relationship between the applicant and the complainant had earlier broken down. Their seven year old son resided with the complainant and her parents. On 27 November 2006 a protection order was issued in the complainant's favour under the Domestic and Family Violence Protection Act 1989 (Qld). It obliged the applicant to be of good behaviour towards the complainant and it prohibited him from, amongst other things, being within 100 metres of the complainant's residence. In breach of that order the applicant, who was apparently jealous about the complainant seeing other men, threatened her on a number of occasions before the evening of 1 February 2008.

[25]

[7] On 1 February 2008 in the evening the applicant's 18 year old friend, Kregenbrink, visited the applicant. The applicant told Kregenbrink that some woman had to pay, he was going to burn her house down, and he wanted Kregenbrink to drive him to the woman's house. The applicant asked Kregenbrink if he owned a gun. Kregenbrink telephoned Lucas, a 20 year old man, who drove to the applicant's house. The applicant told Lucas that he wanted to fire-bomb a house. He gave Lucas money to buy two bottles of pre-mixed liquor and fuel for a jerry can. Lucas did as he had been asked. When he returned, the applicant told him to go and buy another bottle of liquor, which Lucas also did.

[26]

[8] After the bottles were emptied the applicant rinsed them with water and filled them with fuel. Kregenbrink tore some tea-towels into shreds. The applicant inserted the cloth shreds into two bottles as wicks. The applicant then wrapped the bottles in tea-towels.

[27]

[9] Lucas drove the applicant to the complainant's house. After driving past the house they returned half an hour later. The applicant said he could not go through with it and he asked Lucas to throw the bottles. He told Lucas to direct one bottle to a particular window (of the complainant's room) and the other bottle under the veranda. Lucas left the car carrying the bottles and walked towards the complainant's house. He lit the wicks.

[28]

[10] At that time the complainant, the seven year old boy, and the complainant's parents were at the house. The complainant's father had noticed Lucas' car driving past. He went outside with a torch, followed by his wife whom he had woken up, and he asked Lucas what he was up to. Lucas then threw one of the bottles at the veranda of the house and one at a window of the complainant's room. Lucas then ran back to his car, in which the applicant had moved into the driver's seat. The applicant then drove the car to a hotel and left it to walk to his home.

[29]

[11] The first bottle thrown by Lucas hit a windowsill and fell onto the ground, where flames began burning. The complainant's father attempted to extinguish that fire: it appears to have done no damage to property. The second bottle smashed through the window and landed inside the complainant's room on the floor. Curtains, a cane basket and some clothes caught fire. The complainant heard the window smash and ran from the bathroom, where she had been showering, into her son's bedroom. She told him to leave the house. She then went to her own room and attempted to extinguish the fire.

[30]

[12] In the course of assisting in the attempts to put out one of the fires, the complainant's mother suffered some minor burns to her hand. The fire was extinguished completely by the fire brigade. The damage caused by the fire was relatively minor, involving scorched paintwork, burnt curtains, a burnt cane basket and the smashed window.

[31]

[13] Two days later the applicant was interviewed by police and he made full admissions. On the following day Kregenbrink and Lucas were interviewed by police and they both also made full admissions. The applicant was charged and granted bail. It was a condition of bail that he not have direct or indirect contact with the complainant or her family.

[32]

[14] About 10 days later the applicant telephoned the complainant a number of times, abused her, and told her that two other men wanted to kill her. The applicant made so many calls that the complainant had to put the phone off the hook. On the following morning the applicant again telephoned the complainant. After speaking with the complainant's father the complainant took the phone and told the applicant that he was breaching his bail and also the domestic violence order. These telephone calls constituted breaches of bail conditions. They, and the attempted arson, also constituted breaches of the protection order. The applicant was quickly located by police at his home address where he was charged with those summary offences. Again he made full admissions to police.

[33]

[15] On 25 June 2008, whilst the applicant was on bail in relation to the attempted arson and in relation to the two breaches of the protection order and the breach of bail, he stole 27 blank cheques from his adoptive father, with whom the applicant and the applicant's mother resided. The applicant forged his adoptive father's signature on cheques which were subsequently paid on presentation, in the total amount of $24,231. One forged cheque was not met because the account was then overdrawn. Those were the facts constituting the offences of stealing, fraud and attempted fraud. The applicant made full admissions when interviewed by police. He gave as his motive that he was angry with his adoptive father and saw this as an opportunity for retribution.

[34]

[16] The prosecutor submitted, with reference to authorities, that the appropriate sentence for the attempted arson was four years imprisonment; that for the offences of dishonesty it was between 12 and 18 months; that it was in the order of six to 12 months for the breach of the protection orders; and that the punishment for the offences of dishonesty and breach of the protection order should be imposed cumulatively upon the punishment for the attempted arson. In the course of submissions by defence counsel the sentencing judge indicated that he did not propose to order cumulative sentences. Defence counsel (who did not nominate any particular sentence in the course of submissions) sought a global head sentence to take into account the whole course of the applicant's criminal conduct.

[35]

[17] After summarising the circumstances of the offences, the sentencing judge referred to the applicant's personal circumstances: he was 31 years of age when he committed the offences, he had no criminal history, and he had a good work history. The sentencing judge noted that the applicant had pleaded guilty to the four indictable offences and the three summary charges.

[36]

[18] The judge referred also to the sentences imposed upon the applicant's accomplices. On 27 August 2008 Kregenbrink, who was 18 years old when he committed the offence and who had only a limited criminal history, was sentenced to 18 months imprisonment, wholly suspended. The judge who sentenced him noted that without Kregenbrink's cooperation under s 13A of the Penalties and Sentences Act 1992 (Qld) Kregenbrink would have served six months in custody before being released on parole. On the same day, the same sentencing judge sentenced Lucas, who was 20 years old when he committed the offence and had no criminal history, to three years imprisonment with release on parole after three months. But for the cooperation of Lucas under s 13A, he would have been required to serve 12 months in custody before being released on parole.

[37]

[19] The sentencing judge observed that the applicant had procured those accomplices to be involved in the applicant's pre-meditated and callous attempt to burn down the house in which, as the applicant knew, the complainant and three other people were then present.

[38]

[20] Of the authorities cited by counsel, the sentencing judge found R v Leigh [1996] QCA 561 of the most assistance. The judge regarded the instant case as more serious than Leigh. The attempted arson could have had fatal consequences for the four occupants of the house if the fire had really taken hold. The victim impact statements showed the terrifying and devastating effects that it had on the complainant and her parents.

[39]

[21] The sentencing judge took into account that the maximum penalty for attempted arson was 14 years imprisonment, the applicant's plea of guilty, his cooperation with the authorities as well as the admissions he made to police, and the absence of any criminal history.

[40]

[22] Mr Devereaux SC, who appeared with Mr Crofton for the applicant, submitted that the range of sentences for the applicant's offence of attempted arson was four to five years imprisonment. He referred to Jerrard JA's statement in R v Johnson [2005] QCA 265 (adopting the similar declaration in R v Henderson [1993] QCA 336, repeated in R v Sharkey [1994] QCA 121, and restated in R v Cramond [1999] QCA 11) 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."

[41]

[23] The applicant's counsel accepted that where there is substantial damage to property, higher sentences have been imposed. He referred to the following decisions concerning sentences for arson after the breakdown of a domestic relationship: R v Ball [2001] QCA 201 (five years imprisonment suspended after 16 months for an operational period of five years); R v Johnson (2007) 173 A Crim R 94, [2007] QCA 249 (four years imprisonment with parole eligibility after 15 months); and R v Johnson [2005] QCA 265 (four years imprisonment with a recommendation of parole after 12 months). The applicant's counsel acknowledged that those decisions were distinguishable. None included the serious feature that the offender conscripted youthful accomplices to participate in the offence. Those decisions also did not involve risks of the same magnitude as the very serious risks to life and health involved in this fire-bombing of a house at night, when its occupants (including the applicant's own young son) might all have been asleep (and one occupant was in fact asleep), and where (as the applicant's counsel conceded was a fair inference) the applicant had directed an accomplice to throw one of the bombs through the window which the applicant knew to be a window of the complainant's bedroom (although in R v Johnson [2005] QCA 265, where the applicant set fire to the upstairs part of a house in the late morning when a tenant downstairs was likely to be awake, the President accepted that the arson there did involve a "real risk to the safety of others").

[42]

[24] The applicant's counsel argued though that those serious features of this case were offset by two facts which were common to the decisions he cited: first, the offence charged in those other cases was arson, which carried a maximum penalty of life imprisonment rather than the maximum of 14 years for the attempted arson charged in this case; secondly, in those other decisions there was substantial property damage and concomitant financial loss, which was absent here.

[43]

[25] The applicant's counsel referred to two decisions concerning sentences for offences that included attempted arson by the use of petrol bombs. In R v Rhode [2001] QCA 328 the Court refused an application for leave to appeal against sentences of two years imprisonment for attempted arson, 18 months imprisonment for entering a dwelling house with intent with a circumstance of aggravation, and 12 months for assault occasioning bodily harm, all suspended after six months with an operational period of three years. In R v Drinkwater [2006] QCA 82 the Court refused an application for leave to appeal against sentences, following conviction after a trial, of six years imprisonment for extortion, three years for attempted arson and 12 months for wilful damage. The applicant's counsel argued that his attempted arson was less serious than that in R v Drinkwater.

[44]

[26] In relation to the offences of dishonesty, the applicant's counsel referred to R v Myles [2006] QCA 566, R v Vinson [2002] QCA 379 and R v Robinson; ex parte A-G (Qld) [2004] QCA 169. In R v Robinson, McMurdo P analysed comparable decisions involving misappropriation over a nine year period up to R v Vinson in which the sums misappropriated range between $11,000 and $51,000. All of those applicants had no prior convictions and appeared to have pleaded guilty. Head sentences of two to three years were imposed, with the applicants being required to spend time in custody. The President stated that, "Breaches of trust of this magnitude by an employee ordinarily demand an actual period of imprisonment be served to show the community's grave disapproval of such conduct and to deter those who might be inclined to act in a similar way."

[45]

[27] It was contended for the applicant that where no such breach of trust was involved, the offences were unsophisticated, the applicant was then 31 years old, he had no criminal history, and he pleaded guilty, the component of the overall sentence which was referable to the dishonesty offences should be no more than one year.

[46]

[28] It was also contended for the applicant that the sentencing judge erred in structuring the sentence. The applicant referred to the following statement by Williams JA in R v Nagy [2004] 1 Qd R 63, [2003] QCA 175 at [39]:

[47]

"Where a judge is faced with the task of imposing sentences for a number of distinct, unrelated offences, there are a number of options open. One of those options is to fix a sentence for the most serious (or the last in point of time) offence which is higher than that which would have been fixed had it stood alone, the higher sentence taking into account the overall criminality. But that approach should not be adopted where it would effectively mean that the offender was being doubly punished for the one act, or where there would be collateral consequences such as being required to serve a longer period in custody before being eligible for parole, or where the imposition of such a sentence would give rise to an artificial claim of disparity between co-offenders. The list is not necessarily exhaustive. Such considerations may mean that the other option of utilising cumulative sentences should be adopted."

[48]

[29] At the hearing the applicant's counsel disclaimed any argument that disparity between the penalties imposed upon the applicant and his co-offenders itself justified appellate interference. (I interpolate that this concession was appropriate, having regard to the applicant's much higher degree of culpability for the offence: cf Lowe v The Queen [1984] HCA 46; (1984) 154 CLR 606 at 609; [1984] HCA 46). The applicant's counsel submitted instead that there has been a "distortion of the appropriate range for the most serious offence". This was said to flow largely from the sentencing judge's failure to identify whether or not the seven year sentence for attempted arson reflected also the applicant's criminality in the other offences for which he was sentenced at the same time.

[49]

[30] The applicant contended that a head sentence of five to six years, whether by fixing a more severe head term for the attempted arson offence or (preferably) by accumulating the sentence for that offence with the sentence for the offences of dishonesty should be imposed, with a parole eligibility date after one third of the term had been served.

[50]

[31] As to the order for restitution, the applicant accepted that s 36(2) of the Penalties and Sentences Act 1992 (Qld) empowered the sentencing judge when making an order for restitution or compensation under s 35 to order also that the applicant be imprisoned if he failed to comply with the order. The applicant's counsel accepted that, because the prosecutor had sought an order for restitution of $24,231 and defence counsel had made no submission in opposition to that, there was no denial of procedural fairness to the applicant in that respect; but it was submitted that the inclusion of the order contributed to the sentence being manifestly excessive. The applicant's counsel pointed out that no consideration had been given to the question whether the applicant would be able to pay the amount ordered or to whether a direction should be made under s 39(2)(b) that the applicant must subsequently appear, if called on by notice to him, to show cause why the imprisonment should not be enforced because of the failure to comply with the order. The applicant's counsel submitted that there must be doubt about the applicant's capacity to pay after he had been imprisoned for the minimum period of two years required by the sentence.

[51]

[32] The respondent's counsel, Mr Copley SC, submitted that the present was a very serious case of attempted arson because the applicant intended the house to be burnt knowing that people, including the applicant's own young son were in it. The applicant set out to terrorise the occupants. He put their lives in jeopardy and one occupant was injured (albeit in a relatively minor way). The applicant acted in breach of an existing court order. He was a man of mature years who procured two young men, one of whom had no criminal history, as his accomplices. Mr Copley SC argued that R v Ball [2001] QCA 201 and R v Johnson [2005] QCA 265 suggested that a term of up to five years was warranted. Having regard to the number of lives put in danger and the defiance of a court order in this case it was submitted that the attempted arson offence itself justified a term of up to six years.

[52]

[33] On the footing that the term of imprisonment imposed of seven years was inferentially intended to reflect all of the applicant's criminality, it was submitted that a head sentence of seven years for the attempted arson was not manifestly excessive. The respondent contended that a sentence of two years imprisonment was within range, although at the top of the range, for the dishonesty offences.

[53]

[34] Mr Copley SC submitted, however, that the inclusion of the restitution order, with the default provision for six months imprisonment, made the overall sentence manifestly excessive, for the following reasons. The respondent accepted that it must be doubtful whether the applicant would have the capacity to pay after he was released from prison. The six month term in default was required to be served cumulatively with the other terms the applicant was sentenced to serve because the judge had not ordered otherwise: that is the effect of s 182A(2)(b) of the Penalties and Sentences Act 1992 (Qld). The overall sentence was therefore seven and a half years, which, in Mr Copley SC's submission, was manifestly excessive in light of the authorities. The respondent contended that this error should be cured merely by omitting the order for restitution and otherwise leaving the sentence intact, including the provision for eligibility for parole after two years.

[54]

[35] I would accept as accurate the respondent's concessions that the overall effect of the sentence involved a term of imprisonment of seven and a half years, for the reasons just explained. In light of the authorities (to which I will shortly refer) I would accept also the concession that, despite the manifest seriousness of this attempted arson, seven and a half years imprisonment was a manifestly excessive sentence. Accordingly, this Court should re-sentence afresh.

[55]

[36] This was plainly a very serious example of attempted arson. Like many similar offences, it courted a real risk of damage to property and to the safety of those, including the emergency services personnel, who would be called upon to extinguish the fire. Perhaps the attempted arson also risked endangering neighbouring properties, but that does not appear from the record. Those features themselves call for a significant penalty, but the applicant's criminality was aggravated by features properly acknowledged by his counsel: the applicant corrupted two young men to participate in his offence, he organised the fire- bombing of a house which, as he knew, was then occupied by four people, including his own seven year old child, and he directed an accomplice to throw the bomb through the window of the complainant's bedroom. Further, the applicant engaged in that appalling conduct in breach of a protection order, and he continued to offend afterwards and in further breach of the order and his bail conditions.

[56]

[37] On the other hand, the applicant was not charged with arson but with attempted arson, which carries a much less severe maximum penalty. Whilst the serious consequences for the occupants which are testified to in the victim impact statements must be borne in mind, fortunately no serious property damage or serious physical injury was in fact sustained.

[57]

[38] R v Leigh [1996] QCA 561, which the sentencing judge cited, is of some relevance as a comparable decision, in my respectful opinion. That 67 year old offender was sentenced to four years imprisonment for attempting to procure another person to burn down an unoccupied house for a $5,000 reward. Dowsett J with whose reasons de Jersey and Thomas JJ agreed, regarded the fact that Leigh had been sentenced to five years imprisonment in 1990 ("within a relatively short period prior to" the instance offence) as a "compelling feature" and calling for a substantial period of imprisonment. Dowsett J considered that a longer period of imprisonment than four years was called for because that offender had not been deterred by his earlier, lengthy imprisonment. The applicant had no prior convictions, but that consideration in his favour is diminished by his persistent criminal campaign against the complainant including his repeated breaches of the protection order. I also regard the objective features of this offence as calling for a more severe penalty.

[58]

[39] As the applicant's counsel recognised, Jerrard JA's statement in R v Johnson [2005] QCA 265 (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) is in terms inapplicable here, just as it was inapplicable in that case because of the risks to the downstairs tenant present in the house when that offender started a conflagration upstairs: in that case, a sentence of imprisonment of four years, with a recommendation of release on parole after 12 months, was held not to be manifestly excessive. Here, the risks of loss of life and serious injury created by the applicant's attempted arson (and the fact that injury, albeit thankfully not serious, was in fact suffered by one of the occupants) were also very material considerations for the sentencing judge.

[59]

[40] It would in any event be wrong in principle to construe Jerrard JA's statement in R v Johnson [2005] QCA 265 as confining a sentencing judge's discretion in a case in which a more severe punishment than three years imprisonment is called for by factors of a character which were not material in that case or in the leading decisions cited in it. In R v Ball [2001] QCA 201 (in which a five year term of imprisonment, suspended after 16 months for five years, was held not to be manifestly excessive for an arson offence) McPherson JA (with whose reasons Muir JA and Atkinson J agreed) observed of the similar statement in R v Henderson [1993] QCA 336 that, "It is, of course, not correct to regard this as intended to be a binding determination; but, in any event, there are features of the present case that are capable of being regarded as justifying a higher sentence." Similarly, in R v Johnson (2007) 173 A Crim R 94, [2007] QCA 249 (where a term of four years imprisonment with eligibility for parole after serving 15 months was held to be not manifestly excessive for an arson offence), R v Johnson [2005] QCA 265 was distinguished because, unlike in that earlier case, the arson had caused substantial financial loss.

[60]

[41] Personal and general deterrence are important factors in sentencing for this pre-meditated, anti-social offence. This Court must send the strong message that an offender who fire-bombs an occupied house can expect to receive a condign sentence. Even bearing 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. Such a sentence is therefore consistent with the decisions I have discussed. It would, however, be difficult to reconcile a substantially more severe sentence in this case with the general level of sentencing for arson and attempted arson offences reflected in the decisions cited by counsel. It was not submitted that the Court should embark on a broad ranging review of all of the relevant authorities with a view to now establishing a higher range of sentences for arson and related offences.

[61]

[42] R v Rhode [2001] QCA 328 and R v Drinkwater [2006] QCA 82, upon which the applicant relied, do not suggest that a five year term is excessive here. In R v Rhode, in which the offender was sentenced for various offences, including to two years imprisonment suspended after six months for an attempted arson by fire- bombing an occupied residence, the offender did not commit the offence in breach of a previous court order, he did not enlist youthful accomplices, he did not persist in his offending after the failed arson attempt, and he had some favourable personal circumstances not present here. The Court's decision was only that the sentence was not manifestly excessive; and Byrne J observed that he regarded the sentence as lenient.

[62]

[43] In R v Drinkwater a 44 year old offender with only a limited criminal record threw eight petrol bombs at his extortion victim's occupied house. No one was injured and there was no serious property damage. The Court's focus was on the term of six years imprisonment after a trial for the extortion offence, which reflected also the criminality in the attempted arson (for which a 12 month concurrent term was imposed) and other offences. The Court held that the need for general and personal deterrence "amply" supported the sentence. Again, that decision is not inconsistent with the five year term I propose in this case.

[63]

[44] The respondent did not seek any variation of the sentencing judge's decision to impose no additional punishment for the breaches of the protection order. I would adopt that approach. In that respect, I have taken into account in arriving at the sentence for the attempted arson that it involved the most serious breach of the protection order.

[64]

[45] In my respectful opinion the sentencing judge should have made clear that he had (as I infer) adopted the approach of increasing the sentence imposed for the attempted arson offence to take into account also the applicant's criminality in other offences. Information of that kind is significant not only for the parties (who, as participants at the hearing, may have readily appreciated the approach which the judge adopted), but also for others for whom the sentencing remarks (or some précis of them) may be their only source of information about the basis of a sentence: victims of offences, the general public, and other judges who may refer to the sentence as bearing upon the appropriate sentence in a subsequent case. The reasoning underlying a sentence must be accessible: Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25 at [39].

[65]

[46] Given the importance of the sentence for the attempted arson in this case, the preferable course in this Court at least is to impose a separate, cumulative term for the dishonesty offences (moderated to avoid the total period of imprisonment from being crushing), rather than to reflect that criminality in the attempted arson offence: cf R v Nagy (supra). There is here a powerful case for exercising the discretion to order a cumulative sentence, given the significant period between the attempted arson and the later offences of dishonesty, the markedly different character of and motivation for those offences, and the fact that the applicant committed the later offences whilst on bail for earlier offences with which he had been charged: see R v Clements (1993) 68 A Crim R 167, [1993] QCA 245; R v Crompton [2009] QCA 19 at [30] - [32].

[66]

[47] Whilst I accept that a two year prison term was not outside the range for the dishonesty offences, it was (as the authorities cited for the applicant suggest and as the respondent conceded) at or towards the top of the range. I would moderate the cumulative term I would impose for the dishonesty offences, so as to ensure that the totality of the punishment is not crushingly severe, by sentencing the applicant to concurrent terms of one year for each of those offences.

[67]

[48] The overall term of imprisonment would then amount to six years. I would order that the applicant be eligible for parole after he has served one third of that term to reflect his cooperation with the administration of justice, his plea of guilty and the other personal matters in his favour: I understood the respondent not to oppose a parole eligibility order of that character. Taking into account the 80 days the applicant spent in pre-sentence custody, the applicant will have served one third of the six year term by 31 August 2010. I would order that the applicant be eligible for parole on 31 August 2010, instead of the date (80 days later) fixed by the sentencing judge. It will of course be a matter for the parole authorities to determine whether the applicant is then released on parole.

[68]

[49] The bank in whose favour the restitution order was made is at liberty instead to take any available civil proceedings against the applicant seeking recovery of any losses the bank has sustained in that respect. For the reasons I have already given, I would set aside the restitution order made by the sentencing judge.

[69]

1. Grant the application, allow the appeal, and instead of the sentence imposed in the District Court substitute the following sentence.

[70]

2. For the count of attempted arson, sentence the applicant to five years imprisonment.

[71]

3. For each of the counts of stealing, fraud and attempted fraud, sentence the applicant to imprisonment for one year, each such term of imprisonment to be served concurrently with each other such term.

[72]

4. Order that the one year term of imprisonment for those counts of stealing, fraud, and attempted fraud is to be served cumulatively upon the five year term of imprisonment imposed for the count of attempted arson.

[73]

5. Declare that the period of pre-sentence custody of 80 days from 2 September 2008 to 20 November 2008 be deemed to be time served in respect of the term of imprisonment of five years for the count of attempted arson.

[74]

6. Order that the applicant be eligible for release on parole on 31 August 2010.

[75]

7. In respect of each of the summary matters, confirm the order made by the sentencing judge that the applicant is convicted and not further punished.

[76]

[51] WILSON J: I respectfully agree with the orders proposed by Fraser JA and with his Honour's reasons for judgment.

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