Donoghue v State of Tasmania

[2023] TASCCA 12

[2023] TASCCA 12

COURT:	SUPREME COURT OF TASMANIA (COURT OF CRIMINAL APPEAL)
CITATION:	Donoghue v State of Tasmania [2023] TASCCA 12
PARTIES:	DONOGHUE, Kirsten Jade
v
STATE OF TASMANIA
FILE NO:	517/2023
DELIVERED ON:	12 October 2023
DELIVERED AT:	Hobart
HEARING DATE:	30 August 2023
JUDGMENT OF:	Estcourt J, Geason J, Jago J
CATCHWORDS:

Criminal Law – Appeal and new trial – Appeal against sentence – Grounds for interference – Sentence manifestly excessive or inadequate – Burglary – Stealing – Two counts of unlawfully setting fire to property – Destruction of property valued at $588,574 carried out on behalf of another and motivated by financial gain – Sentence of three years' imprisonment with eighteen month non-parole period not

manifestly excessive.

DPP v Pearce [2015] TASSCA 1; R v Di Simoni [1981] HCA 31, 147 CLR 383; Inkson v The Queen (1996) 6
Tas R 1, referred to.

Aust Dig Criminal Law [3521]

REPRESENTATION:

Counsel:

Appellant:	K Baumeler
Respondent:	E Burrows-Cheng

Solicitors:

Appellant:	Liverpool Chambers
Respondent:	Director of Public Prosecutions

Judgment Number:	[2023] TASCCA 12
Number of paragraphs:	25

Serial No 12/2023 File No 517/2023

KIRSTEN JADE DONOGHUE v STATE OF TASMANIA

REASONS FOR JUDGMENT	COURT OF CRIMINAL APPEAL ESTCOURT J GEASON J JAGO J 12 OCTOBER 2023
Orders of the Court:

1            That the appeal is dismissed.

Serial No 12/2023 File No 517/2023

KIRSTEN JADE DONOGHUE v STATE OF TASMANIA

REASONS FOR JUDGMENT	COURT OF CRIMINAL APPEAL ESTCOURT J 12 OCTOBER 2023
The appeal

1   This is an appeal against sentence on the sole ground of manifest excess.

2            On 20 February 2023 Blow CJ sentenced the appellant to three years' imprisonment with a non- parole period of 18 months in relation to four criminal charges.

3   The details are as follows:

	One count of burglary, contrary to s 244 of the Criminal Code. The appellant entered the complainant's address with the intention of committing the crime of unlawfully setting fire to property.
	One count of stealing, contrary to s 234 of the Criminal Code. The value of the property was approximately $5,000.
	Unlawfully setting fire to property, contrary to s 269 of the Criminal Code. The damage caused was $84,726.
	Unlawfully setting fire to property, contrary to s 269 of the Criminal Code. The damage caused was $503,848.

The comments on passing sentence

4   On passing sentence the learned sentencing judge set out the facts before him as follows:

"Ms Donoghue has pleaded guilty to two charges of unlawfully setting fire to property, a charge of burglary, and a charge of stealing. The estimates of the losses caused by the fires in question total $690,000. An accomplice was paid $500 to start the fires. There were two fires, on consecutive nights in December 2021. The victims were a couple named Chris Kline and Rebecca Kline, and a company that they controlled, Concrete Tas Pty Ltd.

In the beginning that company was controlled by two couples – a Mr and Mrs Minehan

and Mr and Mrs Kline. At some stage Mrs Minehan left her husband and apparently ceased to be involved in the company. Mr Minehan acquired a new partner, Ms King. The business relationship between Mr Minehan and the Klines deteriorated. On 10 December 2021 they caused him to be removed as a director of the company. It had been named JDM Concrete, but its name was changed to Concrete Tas Pty Ltd.

During December 2021 Ms Donoghue was living with a Mr Booth. She was and is a single mother. A few days before the fires, Mr Booth told her that Ms King had offered him money to burn a truck and cause damage to a storage container. She urged Mr Booth to go along with that arrangement, and said that she would help him.

At about 2.30am on 15 December 2021 she drove Mr Booth in her vehicle to the Klines' home in Snug. At the request of Ms King, they set fire to a Toyota Hilux vehicle. They arrived with a can of petrol. Mr Booth smashed a window of the vehicle, threw petrol into it, threw in the empty can, lit a lighter, and threw it into the vehicle. He and Ms Donoghue ran back to her vehicle and drove away. The estimated losses from that fire

2   No 12/2023

were $80,000 in respect of the vehicle, which was totally destroyed, and $10,000 for
its contents, which included a number of tools.

The next morning at about 2.30am Ms Donoghue and Mr Booth drove to the company's premises in Cambridge with another can of petrol. They went to a storage container there. Mr Booth smashed a window of the container. They entered the container and stole a diesel heater, a welder and a radio. These were placed in Mr Booth's vehicle. Mr Booth smashed a window of an Izuzu truck, threw petrol into it, threw the empty can in, lit a lighter, and then threw that in. The vehicle burst into flames. The couple ran back to their vehicle and drove away. The fire spread and caused significant damage to the storage container. The loss assessment for that fire comprises $100,000 for the container and $500,000 for its contents.

At 2.44am on that morning Mr Booth sent Ms King a text message saying, 'Done'. At 6.24am he sent Ms King another message saying, 'Trucks fucked and I grabbed what eva I could but it was still going on when I drove back past it last night lol'.

Police officers found the welder and the radio in Mr Booth's vehicle during a search that afternoon. Mr Booth also had a map of the company's premises and evidence that he had received $500 from Ms King at 2.43am on the morning of the first fire."

5             The appellant was interviewed by police officers on 18 December 2021. She made full admissions. She was arrested, charged, processed and bailed. She pleaded guilty to the charges of unlawfully setting fire to property on her third appearance in the Magistrates Court on 5 July 2022.

6             She was 28 years old when she committed these crimes and is now 29. She had a number of minor prior convictions, mostly for driving offences. She had a long history of alcohol and drug use. She started drinking heavily when she was 13 years old. She began using crystal methamphetamine very heavily about a year before the fires. She had a reasonable employment history until her use of the drug increased to the point where she stopped going to work.

7             The learned sentencing judge noted that the appellant did not know the Klines or the Minehans, that she was promised $1,000 for her commission of the crimes but received nothing and that she became involved because she wanted money to buy drugs.

8             His Honour had been provided with a comprehensive report on the appellant by a forensic psychologist. He considered that she presented with symptoms consistent with aspects of complex post- traumatic stress disorder, as well as borderline personality traits. No formal diagnosis had been made. It appeared that she was exposed to domestic violence and sexual abuse when she was 9 years old, and multiple instances of violence in her intimate relationships as an adult. However, the psychologist considered that her symptoms did not contribute causally to her offending behaviour.

9            At the time of sentencing the appellant had a three year old daughter who was to be cared for by the appellant's mother if, as in fact transpired, a custodial sentence was to be imposed.

Discussion

10   Counsel for the appellant, Ms Baumeler, submits that the following matters are mitigatory:

	The appellant did not become involved to further a plan for further criminal conduct such as a fraudulent insurance claim.
	Though there was an element of planning, it was not sophisticated, and the police investigations had already identified Mr Booth as a suspect on 16 December, which was subsequently confirmed by seized mobiles phones which disclosed Snapchat messages.
	No lives were put at risk by the fires that were lit.

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	The appellant was arrested on 18 December and was cooperative with investigating police making full and frank admissions when interviewed.
	Two of the stolen items from the burglary were recovered when police searched Mr Booths' vehicle.
	A plea of guilty was entered at an early stage to the first two counts on the complaint when the matter was still listed in the Magistrates Court and the appellant was committed to the Supreme Court for sentence.
	The appellant was the first of the four co-accused to plead guilty and accordingly was entitled to a significant discount in sentence.
	The appellant was 27 at the time of the offending and had a three year old daughter at the time of sentencing. The child was to be cared for by her mother if a custodial sentence was to be imposed.
	At three years of age a custodial sentence was going to have a significant impact upon bonding with her child in important formative years.
	The appellant was the victim of family violence and a report tendered prepared by Mr Minehan provided a diagnosis of Complex Post Traumatic Stress Disorder.
	Involvement in the criminal conduct was to gain money to assist the appellant to relocate out of the state with her daughter.

11           Some of those matters are of little weight in mitigation and, even assuming that it was true, I do not regard the last of them as mitigatory at all. Indeed I am of the view that the very reason that the sentence in this case cannot be regarded as manifestly excessive is because these crimes were carried out against the property of another, for another, as a matter of contract. This is a factor not always seen in the crime of unlawfully setting fire to property. I wholly agree with the learned sentencing judge when he commented on passing sentence that:

"There are factors that weigh in favour of some leniency in this case, particularly Ms Donoghue's co-operation with the police, her taking of responsibility at an early stage, her remorse, the steps that she has taken towards rehabilitation, her early pleas of guilty, and the likely impact of imprisonment on her daughter and herself. However these fires caused enormous damage to commercial assets. Starting them was at an act of great cruelty to the couple who operated the company in question."

12          Counsel for the appellant concedes the following aggravating features surrounding the commission of the crimes:

	The appellant became involved in criminal conduct where the offending appears to have been instigated by the co-accused Minehan and King to seek revenge after Mr Minehan was removed as a company director of the business.
	The appellant became involved in the matter for quick financial gain and was to be paid $1,000 for her involvement.
	The appellant encouraged the co-accused, Mr Booth, to become involved in the offending.
	The offending took place over two days and involved destruction of property at two addresses linked to the complainants.
	There was an element of planning involved in committing the crimes.

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13           Mr Burrows-Cheng, in his helpful written submissions, has set out contemporary sentencing data collated by the Sentencing Advisory Council in respect of each of the crimes of which the appellant was convicted, however in my view they are of little assistance in this somewhat unique case. Notwithstanding that, I do accept his submissions that:

"39 Against this background, it is submitted that the sentence was, whilst at the higher end, within the range and the sentencing judge gave appropriate weight to the sentencing considerations at hand.

40 The honourable sentencing judge imposed a sentence of imprisonment to

reflect the gravity of the offending and it was a lengthy period given the clear need for
retribution, general and personal deterrence and protection of society."

14          This case involved the deliberate destruction of the very valuable property of another on two separate days where the motivation for the crimes was the promise of monetary payment.

15 I am wholly unable to say that the sentence was "unreasonable or plainly unjust"; DPP v Pearce
[2015] TASSCA 1, 28 Tas R 1 per Pearce J at [8], citing House v The King (1936) 55 CLR 499 at 505.

16           For completeness I add that, as I apprehend it, there is nothing about the length of the single sentence imposed or in the learned sentencing judge's comments on passing that sentence, which would suggest in any way that the principle in R v Di Simoni [1981] HCA 31, 147 CLR 383 was infringed.

Disposition

17   I would dismiss the appeal.

5   No 12/2023

File No CCA 517/2023

KIRSTEN JADE DONOGHUE v STATE OF TASMANIA

REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL
GEASON J
12 OCTOBER 2023

18   I agree with Estcourt J

6   No 12/2023

File No CCA 517/2023

KIRSTEN JADE DONOGHUE v STATE OF TASMANIA

REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL
JAGO J
12 OCTOBER 2023

19          I have had the benefit of reading the reasons of Estcourt J. I agree with those reasons. I agree the appeal should be dismissed. I wish to add the following comments.

20           As with many crimes it is difficult to accurately discern a range for the crime of unlawfully setting fire to property as the level of criminality associated with the same can vary widely. Whilst a useful measure of assessing the appropriateness of a sentence can be its consistency with other past sentences imposed by the Supreme Court for like cases, caution is needed because of the multiplicity and diversity of factors which may be operational in respect to any particular case. Here, there were several circumstances of particular seriousness associated with this crime, which justified the learned sentencing judge imposing a sentence which was towards the higher end of any purported sentencing range. The first was the value of the property damaged in the fires. The estimate of the losses caused by the fires was $588,574. In his Comments on Passing Sentence, the learned sentencing judge said

"The estimate of losses caused by the fires in question totalled $690,000."

21 On a subsequent application pursuant to s 94 of the Sentencing Act, the learned sentencing judge was informed that it was common ground that the actual losses resulting from the two fires was $588,574. The appeal proceeded on the basis of that figure. It was a significant amount of damage to be caused to commercial premises. It was an amount that would inevitably have adverse consequences for the ongoing operation of the business.

22           Even though in respect to the second fire the appellant was charged with unlawfully setting fire to an Isuzu truck, the consequence of the fire spreading and causing damage to the storage container was readily foreseeable (given the truck was parked within the storage container), and therefore properly taken into account in sentencing (see Inkson v The Queen (1996) 6 Tas R 1).

23           The appellant became involved in the criminal conduct for monetary gain in circumstances where she knew others were seeking to exact revenge upon the complainants by damaging commercial assets. She agreed to assist in carrying out the plan for financial reward, and also encouraged another (Mr Booth) to enter into the arrangement to burn the truck and cause damage to the storage container. The motive for the crime was not personal angst, emotional stress or spontaneous stupidity, but rather it was a calculated endeavour to gain financially. The criminal conduct was premeditated. There were two fires on consecutive nights. The appellant had ample time to reflect upon and reconsider her decision.

24           There appears to be some conflict as to what the appellant intended to do with the money she obtained. The learned sentencing judge was told she wanted money to buy drugs. This Court was told the money was to assist the appellant in relocating from Tasmania. In my view, neither explanation justifies in any way that is mitigatory, the appellant's decision to become involved in these crimes.

25   For these reasons and the reasons expressed by Estcourt J, I am not persuaded that the sentence

is manifestly excessive.