R v Streeton [1997] QCA 178

In oral statements to this Court, the appellant said that he had indicated, or would indicate, that he accepted that he was guilty of attempted murder if the prosecution had accepted that statements to police were true and he added that he knew the child could die but did not know what the outcome would be. His motive, he said, was not to kill the child but retribution against society.

The evidence which was, for present purposes, uncontested, demonstrated that the victim, OT, a child aged six years and two months, was not known to the appellant. Three days prior to the offence the appellant went to a service station in Cairns and purchased a fuel drum which was filled with two stroke mixture. He also purchased a cigarette lighter at that time and after initially storing the fuel, the two stroke mixture, the appellant abandoned it, seemingly because he was unsure as to how it would operate and how effective its operation would be when placed upon a human being and lit.

In statements to police he said that describing that a two stroke mixture was actually fuel for lawnmowers, "and I thought it would probably be flammable but I wasn't certain so I ditched it" - I have omitted some parts of the passage - and later, again omitting some parts, "I didn't want to sort of take any chances so I sort of just got sort of petrol."

On the day of the offence the appellant purchased another five litre petrol tin, this time having it filled with super grade petrol. The boy, OT, was playing tiggy with other grade one children in his school playground and the appellant went up to him and poured the contents, or most or part of the contents of the fuel tin over him and set fire to the petrol with the cigarette lighter which he had earlier purchased. The appellant, who was not affected by alcohol or drugs, then approached a police officer on traffic duty saying, "I want to turn myself in to police, I want the death penalty" - and again I leave out part - "I've just attacked a kid and set him alight."

The child suffered a total of 70 per cent full thickness burns to his posterior, scalp, arms, legs, back and trunk, both front and back, and such injuries were proved to be life-threatening and indeed might well have caused the death of the child but for actions taken, especially by the deputy principal of the school, which prevented worse consequences.

When subsequently interviewed about the incident, the appellant said, amongst other things, "I actually was thinking about what I did today for a long time." The question was asked, "What did you believe would happen to the child when you set the child alight?", and the answer was, "Oh, be burnt - it was either have been badly burnt or it would have died." Later he said, "I had the idea of choosing of a child to sort of - because I thought that would hurt the parents more than if I sort of attacked an adult ... also I know I'm not very physically strong and I sort of wanted to succeed."

The submission made on behalf of the prosecution in its written outline of submissions to this Court was that given the premeditation, the choice of what is described as accelerant, the act itself, and the immediate request for the death penalty, it was well open for the jury to find an intention to kill. I agree that that was so. What the intention of the appellant was when he acted, as he did, was a matter for the jury to infer from all the evidence and it was certainly not bound to find that only grievous bodily harm was or might have been intended simply because that was the appellant's claim.

The appellant has also applied, as I said, for leave to appeal against sentence. In case I have not made it clear, it follows from what I have said that the inference of an intention to kill was open to the jury, that the appeal against conviction must be dismissed.

In relation to the application for leave to appeal against sentence, in his notice of appeal the appellant said, and I will read it as it appears: "(2) That the sentence is manifestly excessive; (3) The Judge was incorrect in saying I had no remorse or no interest in the child's progress." Those matters were elaborated upon in the written submissions placed before the Court by the appellant in the following terms with which I will interpolate some statements made by the appellant today when he appeared to represent himself before this Court.

The first of the matters in the written submissions provides as follows: "The trial was seriously one-sided. On the heels of a virtual trial by media; the prosecution demonised me and insinuated all sorts of falsehoods about my nature and motives. My defence lawyers did little or nothing to counter this negative caricature and present a more positive alternative view of me. In addition, my lawyers had seriously misled me about the nature of the maximum sentence which left me ill prepared for the trial."

As to the first of the matters, there is no suggestion, at any stage in the trial or in this Court that as a result of publicity - or no justifiable suggestion that the appellant did not, or could not receive a fair trial and the statement that his defence lawyers did little or nothing to counter a negative caricature seems to me to be nothing more than a recognition of the reality of the way ordinary right-thinking members of the community, who are aware of what the appellant did, would consider him.

He elaborated in relation to his statement that his lawyers had misled him concerning the maximum sentence to the following effect. He said that he was not told that he could receive a life sentence but led to believe that it would be a sentence of about 15 to 20 years. He said that he had no objection to such a sentence and accordingly did little to press his case. He would have done much more to seek a lighter sentence had he known that he could be sentenced to imprisonment for life. He did not, he said, present evidence which might have affected his sentence, namely, evidence of conversations in which he had engaged subsequent to his crime, and it may be subsequent to conviction and sentence in which he indicated remorse.

The next point in his written submissions was as follows. "My crime was not 'cold', but a crime of strong emotions. Also, it was not premeditated in every way, as the Judge claimed. My subconscious substitution of 'it' for 'he' was unfairly interpreted in the most negative way possible. At my appeal I want my side on these issues and many others to be given a fair hearing this time." Dealing in particular with the use of the word, "it" as a description for the child whom he harmed so grievously, the appellant said that, far from that word correctly indicating insensitivity towards the child, by an indication that he had de-personalised the child by calling the child "it," he felt sensitivity towards the child and in relation to the injuries which he had caused the child.

The Court declined to hear further elaboration on this aspect of the matter which does not loom large in the determination of the application for leave to appeal against sentence. That is to say, I do not think the use of the word, "it" on the occasion when the appellant did use it concerning the child, is a matter which needs to be taken into account against the appellant in any significant way.

The third point raised by the appellant in his written submissions was,

"The Judge didn't seem to take much time to consider much detail in the case as she wrote up her sentence pronouncement in just over twenty minutes. She made spurious, unjustified claims of my (supposedly) lacking remorse or interest in the child's recovery. I have a lot to say to the contrary. Unfortunately, the Judge seemed to have made up her mind already and rather than try to inform herself about what kind of person I am, just wanted to listen to the prejudiced view of the prosecution."

Before this Court, in his oral submissions, the appellant said that the Judge was selective in what she considered in evidence, for example, in relation to her finding that the appellant showed no remorse and to a statement that he had no prospect of rehabilitation. He drew our attention to parts of Exhibit 8, which he said indicate remorse. In particular, the following passages. Firstly, he said, on page 3 of the typescript of Exhibit 8 which appears in the record commencing at page 122, "I do realise that I've hurt innocent people who didn't deserve to be hurt." The sentence continued, "... I really do believe though that things could have been done different so that my life could have been better."

On the following page, he said, "I didn't have any ill will against the child," and he also said, "I feel both very upset about what I've done to innocent people and also still angry about what's been done to me." Passing over some passages to which no reference was made, he said, "I know I've done something very cruel. It's always been my belief that in order to have a happy life it is important to be able to feel happy about what you've done and that is a priceless asset. I don't think it's possible to have a happy life if you're not happy about what you've done to other people."

Later, he returned to the subsequent passage, which is as follows, "When I see programmes like Doctor Who or MASH, sometimes it's pretty painful to watch because characters like the Doctor or Hawkeye, I remember wanting to be like, and when I see them now I feel alienated from them."

The latter sentence the appellant explained to us should be taken as indicative of an admission of shame on his part because he had not lived up to his role models.

Further down on the same page he drew our attention to two other passages. The first was, "I feel very depressed about hurting innocent people," and the other was, "In a way I've given up interest in life, after what I've done." In another complaint made in his oral submissions, the appellant said that he objected to being called callous despite accepting that his crime was barbaric and cruel.

The sentencing Judge referred to the following matters in her sentencing remarks, and I take this from the sentence form of the prosecution which was not made the subject of dispute by the appellant. Paragraph 10 is as follows: "Additional matters referred to by sentencing Judge: (a) Applicant deliberately poured almost five litres of petrol over the little boy in the school playground and set him alight intending to kill him." The latter finding was, of course, involved in an acceptance of the jury's verdict. "(b) Not one moment of remorse or regret was expressed, e.g. use of the pronoun 'it' to refer to the child." I have already referred to the appellant's submissions in relation to this aspect of the matter and indicated that I do not consider myself that the use of the pronoun, "it" was of particular significance. I have also noted the passages in which the appellant said he expressed remorse and regret. "(c) That it was a premeditated crime," which is plainly correct. "(d) That he chose a small child because the applicant is a coward; "(e) The child was left with permanent physical disability; (f) The crime has challenged the community perception that children were safe within their school grounds;" (g) is set out as a quote from Her Honour's sentencing remarks, "This must be regarded as as bad a case as one could get in respect of a charge of attempted murder," and I interpolate to say that is a matter with which I agree. "(h) The offence is one which requires the maximum penalty."

It needs only to be said, in addition to the matters I earlier referred to in discussing the conviction appeal, that the child was fortunate not to die and that that may well have been due to efforts made by others, not including the appellant, to assist him. However, the child has been required to live through 12 operations and four months in hospital, to heal with full thickness burns to 70 per cent of his body. Even at the time of trial he was required to wear a pressure suit for some 18 months to two years. He lost two-thirds to three-quarters of both his ears and 70 per cent of the sweat glands in his body. He is now, and will most likely remain, bald and daily extensive physiotherapy is required. Naturally, psychological harm has been suffered by the child and caused to members of his family and to his community, including other school children and staff at the school.

There was no obligation on the trial Judge to accept anything said by the appellant in the statement, Exhibit 8, or otherwise, whether in his police interview or in statements made on his behalf.

It was not only open to Her Honour but, in my opinion, correct to find that the appellant, in fact, has no remorse. He is, as I perceive the material that has been made available to us and watching him and listening to him, completely without any understanding or interest towards others except himself.

I propose to say no more about the sentence than that it was not merely within the exercise of a sound sentencing discretion, but the penalty called for was appropriate to this heinous crime.

I would accordingly refuse the applicant for leave to appeal against sentence.

In summary, I would dismiss the appeal against conviction and refuse the application for leave to appeal against sentence.

MOYNIHAN J: I agree with the orders proposed for the reasons given.

THE PRESIDENT: The order of the Court is appeal against conviction dismissed. Application for leave to appeal against sentence refused.