McDonough v The Queen

[2011] VSCA 310

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2010 0048

TIMOTHY BARRY McDONOUGH
	Appellant
v
THE QUEEN	Respondent

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JUDGES:	ASHLEY and HANSEN JJA and ROSS AJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	13 October 2011
DATE OF JUDGMENT:	13 October 2011
MEDIUM NEUTRAL CITATION:	[2011] VSCA 310
JUDGMENT APPEALED FROM:	DPP v McDonough (Unreported, County Court of Victoria, Judge Hampel, 2 March 2010)

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CRIMINAL LAW – Sentence – Appeal against total effective sentence of six years and six months’ imprisonment with non-parole period of four years and six months’ for offences of arson, reckless conduct endangering life, burglary and theft – Whether sentence on count of arson manifestly excessive – Whether sentences on some of dishonesty offences manifestly excessive – Sentence for arson offence outside permissible range of sentencing discretion – Appellant re-sentenced.

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APPEARANCES:	Counsel	Solicitors
For the Appellant	Mr R Edney	Victoria Legal Aid
For the Crown	Mr B L Sonnet	Mr C Hyland, Solicitor for Public Prosecutions

ASHLEY JA:

1. On 2 March 2010 the appellant, Timothy McDonough, was sentenced for 12 offences as follows:

Charge	Offence	Maximum		Sentence		Cumulation
1	Theft	10 years’ imp [S 74 Crimes Act 1958]		6 months’ imp		6 month’s imp
2	Burglary	10 years’ imp [S 76 Crimes Act 1958]		6 months’ imp		–
3	Burglary	10 years’ imp [S 76 Crimes Act 1958]		6 months’ imp		–
4	Theft	10 years’ imp [S 74 Crimes Act 1958]		6 months’ imp		–
5	Burglary	10 years’ imp [S 76 Crimes Act 1958]		6 months’ imp		–
6	Theft	10 years’ imp [S 74 Crimes Act 1958]		6 months’ imp		–
7	Burglary	10 years’ imp [S 76 Crimes Act 1958]		6 months’ imp		–
8	Theft	10 years’ imp [S 74 Crimes Act 1958]		6 months’ imp		–
9	Arson	15 years’ imp [s 197(1) and (6), Crimes Act 1958]		5 years’ imp		Base sentence
10	Reckless conduct endangering life	10 years’ imp [S 22 Crimes Act 1958]		4 years’ imp		1 year imp
11	Burglary	10 years’ imp [S 76 Crimes Act 1958]		6 months’ imp		–
Separate Presentment
1	Handling stolen goods	[S 88(2) Crimes Act 1958]		6 months’ imp		–
Total Effective Sentence:		6 years, 6 months’ imprisonment
Non-Parole Period:		4 years, 6 months’ imprisonment
Pre-sentence Detention Declared:		173 days
6AAA Statement:		Total effective sentence:  6 years, 9 months’ imp Non-parole period:  4 years, 9 months’ imp.

1. The appellant had earlier pleaded guilty to counts 1‑8 and 11 on the first presentment and to the single count on the second presentment.  He had gone to trial on counts 9 and 10 and been found guilty.  His defence to those counts had been that, although he accepted that he must have started the fire, the Crown could not exclude the reasonable possibility that he had done so accidentally.

Leave to appeal

1. On 18 March this year, Nettle JA granted the appellant leave to appeal against sentence on the following grounds.

1.        The sentence imposed on Count 9 is manifestly excessive.

2.The sentences imposed on counts 6 ‑ 8 and 11 are manifestly excessive.

The circumstances of the offending

1. The following events occurred on the night of 14 to 15 October 2008, the appellant then being aged 25. 

1. The appellant stole a dart board and three darts from the side of a house in Eddington Street, Warrnambool. (Count 1, theft)

1. The appellant entered a garage of another premises in Eddington Street.  He was disturbed and fled without taking anything. (Count 2, burglary)

1. The appellant broke into a garage at 79 Coulstock Street and stole a surfboard, mountain bike, three wet suits and an iPod. (Counts 3 and 4, burglary and theft)

1. The appellant broke into a garage at 71 Coulstock Street and stole a surfboard and mountain bike. (Counts 5 and 6, burglary and theft)

1. The appellant broke into a garage at 69 Coulstock Street and stole a poster and a bag of children's toys. (Counts 7 and 8, burglary and theft)

1. At approximately 3.30am on 15 October, the appellant set the garage at 69 Coulstock Street alight.  This caused very significant damage to both the garage and adjoining home and jeopardised the safety of the family which lived in the latter.  It also did damage to a neighbour's house. (Counts 9 and 10, arson and reckless conduct endangering life)

1. On 15 October, the appellant also entered a garage at 41 Grieve Street with intent to steal. (Count 11, burglary)

1. The appellant was arrested on 15 October.  A ‘Masport’ mower was found in his possession.  It had been stolen from a Warrnambool address on an earlier date. (Single count on the second presentment, handling stolen goods)

Personal circumstances

1. The appellant was born on 22 May 1983 and so was aged 26 at time of sentence.  He had left school at 15 and immediately found work in an abattoir.  But there he had found trouble of two kinds.  First, he had been introduced to cannabis use.  Second, by age 18, he had contracted Q fever.  The debilitating effect of that illness, which led on to him suffering depression, put him off work for a considerable time.  Despite eventual physical recovery, his depression persisted.  It may have had more than one cause.  In the event, his subsequent work history had been poor.  When he came to be sentenced, he had not been in paid work since about age 21.  In 2008, further adding to his problems, he had been diagnosed with epilepsy.  Thereafter, by reason of his physical and psychiatric disability, he had been unfit for work.  He had qualified for a disability pension, which requires an 85 per cent disablement for work.

1. The appellant had incurred a criminal history.  The judge found that it was reflective of his aimless existence, associated with drug and alcohol use and bad relationships.  His criminal history, I add, related to offences of a quite different kind to the offences of arson and reckless endangerment for which the appellant fell to be sentenced on this occasion.

1. The appellant had not previously been imprisoned, although in one instance an intensive correction order had been imposed and in another instance a suspended sentence had been passed upon him.

1. The appellant continued to have family support at time of sentence.  Whilst on bail he had undertaken drug and alcohol rehabilitation courses, the former successfully, the latter not.  He had formed a beneficial relationship whilst on bail.

Particular findings made by the sentencing judge

1. The judge found that the appellant had genuinely accepted responsibility for his conduct.

1. She found, in all the circumstances, that he had reasonable prospects of rehabilitation. 

1. She concluded that ‘punishment, denunciation and general deterrence clearly need[ed] weight’, but that there was little need for specific deterrence.

1. She accepted the significance for sentencing purposes of the appellant still being a relatively young man.

1. The judge also found that the appellant's epilepsy and continuing depression were blighting considerations on his future, and would affect his time in custody.  By that, I take her Honour to have meant that the burden of imprisonment would weigh more heavily upon the appellant than upon others.

Ground 1

1. The sentence which the judge imposed on the count of arson was, statistically, at the outer limit of current sentencing practices so far as the same are revealed by a Sentencing Snapshot.  The median sentence for the period 2003/04 to 2007/08 was shown to be two years' imprisonment.  In that period only three persons had received a sentence as long as that imposed upon the appellant and only one person had received a greater sentence.[1]  In that matter, a sentence of eight years' imprisonment had been reduced on appeal to six years.

   [1]R v Noonan [2007] VSCA 5.

1. The judge, when sentencing the appellant, noted the appellant's acknowledgment that he must have started the fire, his defence having been that it could not have been established that he had done so intentionally.

1. The judge found that the circumstances in which the fire started were consistent with unplanned and unsophisticated offending, with something not thought out rather than an act done for 'any more concrete and more culpable motive'.  Perhaps not quite consistently, she stated that she could not make any finding why the appellant started the fire.  Nonetheless, she said, the reason ultimately mattered little.  Whatever be the reason for him starting the fire, his conduct was dangerous, inexcusable and deserving of stern condemnation and punishment. 

1. By that last observation, I take her Honour to have been focussing upon the damage which the fire had caused – damage both physical and psychological, in the latter case upon the occupants of the premises.  In light of what she had otherwise said, it seems unlikely to have been an assessment of the appellant’s moral culpability.

1. The present case may, in my opinion, be contrasted with instances of multiple offences of arson involving the one offender, pre‑planned arson, arson in revenge, arson for reward, arson involving multiple attacks upon a single victim.[2]  Despite the judge's inability to make a finding why the appellant had lit the fire, the appellant's culpability, in my opinion, must have been less than in cases of those kinds.  There, the offending would not be described as unplanned, unsophisticated, and not thought out.  Lesser culpability in the present case would not be denied despite the offence of arson being committed after the appellant had engaged in a series of burglaries and thefts.  They were offences of a very different character, and of lesser gravity.  It was accepted that, in the ordinary course, they would have been disposed of in the Magistrates’ Court.

   [2]See, for instance, R v Mattheas [2003] VSCA 221, Hasan v R [2004] VSCA 137, R v Noonan [2007] VSCA 5, R v Foschini [2009] VCC 0783, R v Crowley [2009] VSCA 176, Hasan v The Queen [2010] VSCA 352.

1. In argument today, counsel for the appellant submitted that the circumstances of the present matter did not indicate culpability of a high order.  He accepted, on the other hand, that in assessing the seriousness of the offending it was right for the judge to have taken account of the damage that was caused.

1. Counsel for the Crown submitted that the judge had been entitled to find that the appellant’s level of culpability was somewhere between the mid point and the high end for this offence.  That was because the jury's finding on the count of reckless endangerment involved a finding that the appellant was aware of the probability that his acts would put others in danger of death.

1. In reply, counsel for the appellant accepted that the judge was required to sentence consistently with the verdict of the jury.  He submitted that she had done so.  I take him to have been referring particularly to the sentence passed on the count of reckless endangerment.

1. In my opinion, for the reasons which I have attempted to explain, having regard to the circumstances of the offending, the damage which resulted from it and the matters going in mitigation, the sentence which the judge passed on Count 9 was outside the permissible range of the sentencing discretion.

Ground 2 

1. The Crown conceded that the sentence imposed on Count 8 was manifestly excessive, and in my opinion that concession was rightly made. 

1. For my part, I am not persuaded that the attack on the individual sentences passed on the other counts which are attacked under cover of ground 2 is made out.

Disposition of the appeal

1. I would allow the appeal.  I would sentence the appellant to three years and six months' imprisonment on Count 9 and to three months' imprisonment on Count 8.  I would otherwise leave the individual sentences undisturbed.  I would treat the sentence on Count 10 as the base sentence.  I would cumulate one year of the sentence on Count 9 and three months of the sentence on Count 1 on each other and on the sentence on Count 10.  That would yield a total effective sentence of

five years and three months’ imprisonment.  I would fix a non‑parole period of three years.

HANSEN JA:

1. I agree.

ROSS AJA:

1. I also agree.

ASHLEY JA:

1. The orders are these: 

1.        The appeal is allowed.

2.        The sentences imposed below are set aside.

3.        In lieu thereof the appellant is sentenced as follows:

Count 1 ‑ six months’ imprisonment.

Count 2 ‑ six months’ imprisonment.

Count 3 ‑ six months’ imprisonment.

Count 4 ‑ six months’ imprisonment.

Count 5 ‑ six months’ imprisonment.

Count 6 ‑ six months’ imprisonment.

Count 7 ‑ six months’ imprisonment.

Count 8 ‑ three months’ imprisonment.

Count 9 ‑ three years and six months’ imprisonment.

Count 10 ‑ four years’ imprisonment.

Count 11 ‑ six months’ imprisonment.

On the second presentment, on the count of handling stolen goods, six months’ imprisonment.

4.        Direct that three months of the sentence on Count 1 and one year of the sentence on Count 9 be cumulated on each other and on the sentence on Count 10.  The total effective sentence is five years and three months’ imprisonment.  The Court fixes a non‑parole period of three years’ imprisonment.

1. The Court will make a declaration in the usual form that pre‑sentence detention is 764 days, including this day.

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