REGINA v. PRIEST [2000] NSWCCA 27

1 GROVE, J: I will now ask Greg James, J. to deliver the judgment. 2 GREG JAMES J: The applicant seeks leave to appeal in respect of a sentence of four years penal servitude comprising a minimum term of two years, six months, and an additional term of one year, six months imposed upon him in the District Court sitting at Taree by his Honour Judge Howie, QC. for the crime of maliciously damaging property by fire. 3 In a careful and detailed judgment his Honour reviewed the facts of the applicant's crime and noted his initial plea of guilty before the magistrate under the provisions of s.51A of the Justices Act 1902, a plea to which he adhered before his Honour. It is not necessary to set out in detail those facts. 4 In summary, the applicant had been residing with a young woman who had separated from her husband and lived with her four children in Taree. It had been a relationship of some considerable duration. The applicant had been contributing to the family expenses of the young woman and her children. She had been renting a home from the Housing Commission and the relationship had generally been a good one. However, on 10 December 1998, whilst they were at the home of a friend, the two became intoxicated and fell out. During the hot words that accompanied the altercation, the young woman left the premises, leaving the children and the applicant behind. She became quite emotional. He became quite distraught because of her absence. He took the children home and at that time, several hours having passed, he had become very angry and was well under the influence of alcohol. 5 His Honour found that during the conversations he had with her he, at least, was of the view that she had told him that she would prostitute herself throughout Taree in order to earn money to pay the bills. He told a neighbour that he intended to burn her house down. He went to the premises and ensured they were not occupied. He told another neighbour to move a truck so that it would not be damaged. He handed to the first neighbour the young woman's two cats so they might be removed from danger. He asserted to her that the young woman had been "out slutting around". He was muttering things which the neighbour could not entirely understand but heard him say a number of times, "I am going to burn the house, my boys are safe, I am going to burn the house". She raised with him the prospects of danger to her own house. When she decided that her efforts to dissuade him could not be successful, she left the premises to call the police. After she left he set fire to the house and walked next door, sat on the verandah of the neighbouring home and conversed with the neighbour's husband, confirming to him also that he had intended to set fire to the house. After watching the premises for a few minutes, he started to leave, saying that the fire must not have taken but when he could see smoke was coming from the premises, he said, "Let it burn, let it burn, don't worry about it". 6 The Fire Brigade was alerted to the fact that the fire was under way but the home of the young woman was completely gutted and almost all the property inside was lost, including the uninsured personal effects of the young woman and her children. The accused, as a result of his own actions, lost valuable property of his own, in particular, his tools which also were uninsured. 7 No-one was injured. In part that was due to his warnings to the neighbours and his removal of the children. In part it was due to sheer luck. 8 He went, after the fire, to the home of a friend and confessed. He asserted that he had taken the course of burning down the home rather than physically assault the young woman. He was, however, highly emotional and believed by his friends to be suicidal. He did indicate he wished to go to the police the following day and give himself up, but he was arrested by the police, having returned to the scene of his crime. To the police he described the crime as "one hell of a domestic". He apparently prided himself on not having assaulted the young woman saying, "Yeah, I don't hit women but when the slut fucks around on me I burn everything I earn". The latter part of that sentence is apparently a reference to some belief on his part that as he had contributed economically to the family's circumstances, he had somehow acquired some right in the disposition of the family's home and property. 9 He made a record of interview in which he referred to the argument and he asserted provocation by the young woman arising from her alleged statement and asserted that when she said she would prostitute herself he "went ballistic". He referred to his actions of making sure that the children and domestic animals were safe and other people were not going to have their property damaged and his then setting fire to the house. Initially he said he wished to have it destroyed, subsequently, that what he did was intended merely to produce some smoke. He told the police that once before he had threatened to do such a thing in response to an earlier assertion by the young woman that she would prostitute herself to pay bills but later he denied that threat. The young woman said in her statement that he had previously made such a threat. 10 He said that he regretted what he had done but was glad he had done it and would do it again if the young woman were unfaithful to him. She has denied she ever said that she would prostitute herself but said that he became jealous from time to time and accused her of doing so. 11 The trial judge found for the purposes of sentencing that the applicant believed that she had prostituted herself or was about to do so and was emotionally distraught and outraged at her contemplating such a course. In addition he found there was also an additional element in the applicant's motivation, that he was also aggrieved, because he considered that he had been doing the best he could to provide for her and her children and she had, as it were, disparaged his performance of that role. 12 It was urged upon us in submissions here that his Honour fell into material error, that it was not open to reach such latter finding and that in doing so he had reached a finding adverse to the applicant. I would reject such a submission. In my view there was clear evidence sufficient to support the finding in the various statements made by the applicant to police and to others, and in the light of that evidence the finding that his motivation included a reaction to that infidelity in the context of providing economic substance to the family was not only open to the trial judge but inevitable. 13 One cannot quarrel with his Honour's view that what the applicant did was a cruel act intended to punish the young woman for what he considered to be her infidelity to him and the disparagement to which I have referred. What the applicant sought to do was to punish her in such a way as to avoiding physically inflicting damage upon her person but to damage the things that to her were essential as providing a home for herself and her children. The applicant's reasons for his crime show he sought to exercise sexual and economic dominion over the young woman and reacted adversely to a challenge to that dominion. 14 His Honour pointed out that insofar as the prisoner regarded the house his own, it was not his own in any sense of the word, and what he did was a matter of grave criminality. His Honour referred to the aggravation of the offence in that the prisoner knew that the personal effects were not insured, and knew of the financial effects his conduct would have upon his victims. He found, properly, no mitigation in the prisoner's destruction of his own property. There was no error either in his Honour's findings or reasoning. 15 His Honour did have regard to the prisoner's intoxication as affecting his judgment. He had regard to the psychiatric material tendered. There was no suggestion of lack of mental responsibility. There was irrationality but that irrationality seemed to be solely due to the applicant's emotional state and alcohol. His Honour found those matters and treated them in the applicant's favour. 16 Further, it was put that there was insufficient weight given to the plea of guilty, insufficient weight to the applicant's remorse and contrition, and insufficient weight given to his Honour's view that it was unlikely a similar offence would be committed by this applicant again. It is sufficient answer to all of those submissions that all of those matters were expressly dealt with by his Honour in his judgment and to some degree the applicant given the benefit of them. Matters of weight are peculiarly a matter for the trial judge. It is only if he descends into error on fact-finding either as to law or as to a basic finding of fact that, in general, this court will intervene. 17 Having regard to the matters of motivation, the submission was put to us that, overall, the sentence was excessive, even considering the objective seriousness of what was done. One should remark expressly that his Honour did give the applicant the benefit insofar as any benefit was called for, of a finding that he had committed the offence under what he believed to be severe provocation. 18 Despite the very detailed and extensive written submissions provided by counsel for the applicant and having regard to the careful and detailed reasoning of the trial judge, I am not persuaded that there is any error of principle or any error in the result in this sentence. 19 I would consider that the appropriate course this court should take is to grant leave to appeal but dismiss the appeal. 20 GROVE, J: I agree and the orders of the court will be as proposed by Greg James, J.

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