DPP v Ralph

[2004] VSCA 158

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No. 181 of 2004

DIRECTOR OF PUBLIC PROSECUTIONS

v.

WAYNE PATRICK RALPH

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JUDGES:	WARREN, C.J., WINNEKE, P. and ORMISTON, J.A.
WHERE HELD:	HORSHAM
DATE OF HEARING:	25 August 2004
DATE OF JUDGMENT:	25 August 2004
MEDIUM NEUTRAL CITATION:	[2004] VSCA 158

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Criminal law – Sentence - Crown appeal - Arson - Respondent having long criminal history including conviction for attempted arson - Appeal allowed - Sentence of two years with non-parole period of nine months increased to three years six months with minimum of two years three months.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr C.G. Hillman, S.C. with Ms E. Gardner	Ms K. Robertson, Solicitor for Public Prosecutions
For the Appellant	Mr P.G. Priest, Q.C. with Mr M.J. Croucher	Slades & Parsons

WARREN, C.J.:

1. I invite the President to state his reasons first.

WINNEKE, P.: 

1. On 23 June 2004, the respondent, who is now 47 years of age, pleaded guilty before the County Court at Geelong to one count of intentionally and without lawful excuse damaging property at Melton South by fire on 1 September 2002. This is the offence commonly known as arson. The property so damaged was a house which was jointly owned by a State Government department and one Pamela Yearsley. The offence of arson is described in s.197(1) and (6) of the Crimes Act 1958 and carries a maximum penalty of 15 years.

1. The respondent and Yearsley had been in a relationship for some 25 years.  They had three children.  Yearsley had a child by another man;  that child was 10 years of age at the time of the fire, and some years the junior of the children of the respondent and Yearsley.  Their relationship had, by the time when this offence occurred, become strained, and had for some eight years been punctuated by violence on the part of the respondent.  The respondent, as his long criminal history demonstrates, was a man who clearly became aggressive under the influence of alcohol. 

1. The house had been purchased by Yearsley in 1991.  She owed upon it about $73,000 when the arson occurred, and that arson occurred in the following circumstances.  At about 2.40 a.m. on 1 September 2003, the respondent came home drunk.  This was a situation which apparently was very much the respondent's habit at this time.  Yearsley put him to bed in the bedroom and she slept on the couch.  The respondent awoke at about 10.30 a.m.  Yearsley told him that she was "fed up" with his behaviour and further told him that their relationship was at an end.  This only encouraged the respondent to drink more alcohol.  Thereafter, in separate cars, they drove to the home of their son in Melton, where the respondent continued to drink. 

1. Later in the evening, when they had returned home, the respondent continued to drink more cans of beer.  An altercation occurred in front of those children who were there.  Yearsley drove away from the house with the children, and while she was absent she received a number of phone calls from the respondent, presumably on her mobile phone.  In more than one of those calls, the respondent told her that he was "going to burn the house down".  She sought to reason with him, but he would not listen.  At approximately 7.43 p.m. the respondent called her, for the fourth or fifth time, and declared, "I've done it, the house is up in flames, you'd better go and live with your mum or dad or your boyfriend."  Yearsley did not believe the respondent.  She told him to "get a life".  At 9 p.m. he rang again, boasting about having burnt the place down. 

1. Shortly after this last call, it appears that the police and fire brigade attended the house, which was, indeed, ablaze.  The respondent sought to hinder the fire fighters in their task.  He was, so the police said, intoxicated and abusive.  He tried to enter the house, but was blocked by police.  He yelled, "It's my fuckin' house and I'll go in there if I want."  He said that he "didn't give a fuck if the house burned".

1. The respondent was arrested, conveyed to the Melton police station and lodged in the cells.  He was quite unco-operative and refused to answer questions.  On the following morning he was again interviewed and denied causing the fire.  He was still unco-operative.  The house had been substantially destroyed and the damage to it and its contents was assessed at about $80,000.

1. Investigators found a fuel can in the lounge-room of the house following the fire.  The furniture appeared to have been strewn.  Forensic evidence was that the fire had spread through the ignition of petrol in several of the rooms.  Neighbours described being frightened by the flames coming close to their own houses.

1. After a brief plea hearing before the sentencing judge, in the course of which counsel informed his Honour that the respondent and Ms Yearsley had "made up", and explained (if it needed be) that the respondent's problems had been grounded in alcohol, his Honour imposed a sentence of two years' imprisonment and fixed a non-parole period of nine months.  The judge noted that the respondent had a long criminal history, including a previous conviction for attempted arson, and, despite noting that the courts had been "very lenient" in the past without result, imposed what appears to me to be another lenient sentence.  He noted that, since this offending, the respondent had again been before the courts for drink-related offences, including breach of an intervention order, and had been sentenced to a period of 143 days in prison;  which was due to expire on the day upon which he was standing for sentence for this offence.  Although it is not altogether clear from his Honour's remarks, it would seem that he factored this time spent into the low non-parole period which he fixed.  Ultimately, his Honour referred to the submission made to him that the court should have confidence that the respondent had gained insight into his drinking problem and was "attempting to rehabilitate himself", albeit in gaol.  Otherwise, his Honour said:

"Your conduct was stupid, dangerous and drunkenly pathetic.  Everybody has suffered as a result.  You must be deterred from this type of conduct, as must members of the public inclined to such criminal activity.  Accordingly, taking into account the matters personal to you, the time you have spent in gaol on other matters … and keeping in mind the principle of totality, you are convicted and sentenced to two years with a non-parole period of nine months."

1. The Director now appeals on the ground that the sentence imposed by his Honour is manifestly inadequate, in that it fails to adequately reflect the gravity of the offending;  gives too little weight to the aspect of general deterrence and too much weight to factors of mitigation.  Furthermore, the Director says, the judge misapplied the totality principle and failed to recognise the impact which this offending had on the members of the respondent's own family.  In support of the grounds, Mr Hillman, who appeared with Ms Gardner on behalf of the Director, submits that the sentence imposed for this wanton and unjustified act of property despoliation is so manifestly inadequate that it constitutes an error in principle and, if allowed to stand, will depreciate appropriate standards of punishment in this State.  On the other hand, Mr Priest, who appeared with Mr Croucher for the respondent, whilst conceding that the sentence is towards the bottom end of the range of those properly open and "very lenient", submitted that it was nevertheless a sentence which was open in this case.  He submitted that it is not easy to determine what sentence for this offence can be nominated as manifestly inadequate.  It is an offence which can be committed for many reasons and many purposes and provokes a range of sentences.  Mr Priest referred us to a passage in Fox & Freiberg to that effect at para. 12.802.  Statistics, the authors said, showed the range for a single offence of arson ranged from nine months to two-and-a-half years.  The sentence here imposed, Mr Priest submitted, approximates these statistics.  He reminded us that it is not our job to substitute our own view for that of the trial judge.  Nevertheless, it can be noted, I think, that the authorities to which he referred emphasise that the sentence for arson will in every case depend upon the circumstances in which it was committed.  Nevertheless, Mr Priest submitted, when one looks at other sentences for arson, this sentence can be said to be lenient, but not so lenient as to fall outside the range available.  Indeed it was put that, allowing for "double jeopardy", any sentence that this Court could impose could not exceed what his Honour had imposed by such a margin as to warrant interference.  It was also put by Mr Priest that in recent times superior courts had stressed that in Crown appeals of this type it is necessary for the Crown to show more than manifest inadequacy;  but to demonstrate that the sentence is vitiated by specific error.

1. For my own part, I cannot accept this latter submission, that is, that it is necessary to show more than manifest inadequacy on a Crown appeal;  and to demonstrate specific error.  Specific error can itself be demonstrated by the sentence which is imposed.  If indeed Mr Priest's submission in this regard were to be accepted, it would make a significant inroad into the ability of a State appellate court to maintain proper sentencing standards in its own arena.  It is to be acknowledged that, for very good reasons (which have frequently been explained), an appellate court should be slow to interfere with the sentencing discretion of a trial judge.  But if it is necessary to do so to maintain proper sentencing practices in this State, the appellate court should not hesitate.

1. In my opinion, and notwithstanding Mr Priest's eloquent submissions, this is a case in which the Court is required to intervene in order to maintain the appropriate standards to which I have referred.  Arson is a serious crime in this State's calendar, which not only has the capacity to severely impact upon the sense of security of its immediate victims, as occurred in this case, but also is destructive of the sense of safety and security of those who are indirectly affected by it, as likewise in this case were the neighbours.  This crime was, I think, a serious example of its type.  It was committed for no better reason than to exact revenge upon the person who had demonstrated loyalty to the respondent and restraint in the face of his unacceptable habits.  The fact that he was inebriated cannot excuse his conduct.  This was not a sentence which could be charactered as merely "lenient".  It was, in my view, manifestly inadequate to meet the wanton circumstances of the offending.  If it is permitted to stand, it will, in my view, set an inappropriate precedent for the crime of arson of property in this State.  I am therefore of the view that the sentence ought to be set aside and the respondent re-sentenced for his offending.

1. The principles of restraint which must be exercised by the Court in re-sentencing a person who is standing for sentence a second time are well known and need not be rehearsed.  They have been explained in such cases as Dinsdale v. R.[1];  R. v. Clarke[2];  D.P.P. v. Goldberg[3].  Bearing in mind those principles, I would re-sentence the respondent to a term of imprisonment of three years and six months.  I would direct that he serve a period of two years and three months before becoming eligible for parole.

WARREN, C.J.: 

[1](2000) 202 C.L.R. 321 at 341 per Kirby, J.

[2][1996] 2 V.R.520 at 522.

[3](2001) 184 A.L.R. 387 at 390-1.

1. I agree with the learned President.

ORMISTON, J.A.: 

1. I also agree.

WARREN, C.J.: 

1. The order of the Court is as follows:

The appeal is allowed and the sentence below is set aside and the respondent is re-sentenced as follows:

On count 1 (arson) - to a term of three years and six months' imprisonment.

It is ordered that a period of two years and three months be served before the respondent is eligible for parole.

It is declared that pursuant to s.18 of the Sentencing Act a period of 64 days as pre-sentence detention be noted.  It is directed that the period of pre-sentence detention be noted in the records of the Court.

A certificate is granted to the respondent pursuant to s.15 of the Appeal Costs Act.