R v A

[1995] QCA 208

IN THE COURT OF APPEAL [1995] QCA 208

SUPREME COURT OF QUEENSLAND

Brisbane	C.A. No. 50 of 1995
[R. v. A]

THE QUEEN

v.

A

Applicant

C.A. No. 80 of 1995

[R. v. Moenoa]

THE QUEEN
v.
MICHAEL SENETENARI MOENOA

Applicant

DAVIES J.A.
de JERSEY J.

BYRNE J.

Judgment delivered 06/06/1995
Judgment of the Court

IN RESPECT OF BOTH OF THE APPLICANTS, THE APPLICATIONS FOR LEAVE TO APPEAL ARE GRANTED, THE APPEALS ALLOWED AND THE SENTENCES IMPOSED BELOW ARE SET ASIDE; IN LIEU THEREOF, THE APPLICANTS ARE TO BE PLACED ON PROBATION FOR A PERIOD OF THREE YEARS.

C	ONVICTIONS SHOULD BE RECORDED IN EACH CASE.
CATCHWORDS:	CRIMINAL LAW - ARSON AND BREAKING AND ENTERING WITH INTENT - youthful first offenders; whether cultural background and life experience, remorse, youth and prospects of rehabilitation warrant non-custodial sentence in respect of first offender; whether insignificant involvement in offence, cultural background and youth of second offender warrants non-custodial sentence.
Counsel:	Mr. S. J. Hamlyn-Harris for the applicant A Mr. J. Farmer for the applicant Moenoa Mr. J. Fraser for the respondent
Solicitors:	Legal Aid Office for the applicant A Legal Aid Office for the applicant Moenoa Director of Public Prosecutions (Queensland) for the respondent

Hearing Date: 3 April 1995

REASONS FOR JUDGMENT - THE COURT
Judgment delivered the 6th day of June 1995

These are applications for leave to appeal against sentence by two youths convicted on pleas of guilty of arson and of an associated offence of breaking and entering with intent. Moenoa also pleaded guilty to a separate offence of breaking, entering and stealing. At the time of commission of the joint offences Moenoa was almost 19 and A was 16. Neither had any previous criminal history. Both are of Samoan descent.

Moenoa was sentenced to 12 months imprisonment in respect of each of the joint offences and to three months imprisonment, in respect of the separate offence of breaking, entering and stealing, all sentences to be served concurrently. A was sentenced to 18 months detention, with an order for release after serving one half of that term, in respect of each of the joint offences, those sentences also to be served concurrently.

The circumstances which gave rise to the commission of the joint offences were as follows. A was employed by a company which manufactured packaging. During the week before the commission of the offences he told a number of co-workers at the factory where he worked that he intended to burn that factory down. He persuaded several friends to join him in that enterprise. On the night of 10 January 1994 A and some other co-offenders broke and entered the factory, spread paint thinners about and lit the fire. Moenoa stayed outside and acted as lookout. Although A had earlier told him of his intention Moenoa did not take him seriously until he saw A and other co-offenders spreading the paint thinners around the floor of the factory. After the fire had been lit all then fled.

There were no persons, other than the offenders, in the factory at the time the fire was lit or at any subsequent time before the fire brigade arrived. Some shift workers employed in a factory over the road saw the fire and called the fire brigade who extinguished the fire, but not before approximately $73,000 worth of damage had been done. Had the fire brigade not been called and the factory destroyed as much as $5M worth of damage could have been done.

During a conversation with some co-workers on the following day A admitted to having lit the fire. He also made that admission when first interviewed by the police, giving as his reason that he did not like the way his employer ran the staff.

He said that it was his idea to burn the factory down and that

his co-offenders just agreed.
Moenoa also admitted his involvement to the police. Both indicated promptly their intention of pleading guilty.
Moenoa's other offence, which had been committed in September 1992 was of breaking into a school and stealing $30 worth of stationery. He volunteered his involvement in that event and promptly indicated his intention of pleading guilty to it.

There can be no doubt that arson may be a very serious offence. It carries a maximum term of life imprisonment, or in the case of a person of A’s age, ten years detention. But at least where it does not involve a serious risk to human life, sentences for it have rarely exceeded three to four years imprisonment, as the summary of cases which have come before this Court and the Court of Criminal Appeal since 1980, tendered by Mr. Hamlyn-Harris who appeared for A, shows.

There was no serious risk to human life in the present case. Moreover although A planned the offence, in the sense that he had formed that intention some time before he committed it, it does not have the characteristics of a sophisticated criminal operation. On the contrary he had nothing to gain from it, he told his co-workers of his intention beforehand and he admitted his involvement to them afterwards. Although his act had serious economic consequences and was deliberate, his age and background provide some explanation for it.

A was born in New Zealand but when he was only one his family sent him back to a village in Western Samoa to live with his grandparents. He stayed there until he was about seven when he returned to live with his family in New Zealand. He found it extremely difficult to adjust to western culture in New Zealand and when he was about 12 he was again sent back to his grandparents in Samoa. He remained there until he was about 14 when he came with his family to Australia. Once again he found adjustment to living in a western culture, living with his natural family and integrating into a new school system all difficult. He also had problems reading and writing English. His difficulties resulted in his leaving school about half way through his grade 10 year. A said that his eagerness to be accepted into a peer group, which included people who offended regularly, his desire "to be like them", caused him to commit the offences. This is at least consistent with the openness with which the offence was committed.

A appears to have been in fairly consistent employment both
before and after the commission of this offence. Since its
commission he has been employed with one employer for some time.
He has severed his association with the peer group whose
members he had earlier admired and has felt a sense of humility
and shame for his action. He has, in accordance with Samoan
traditions, formally apologised to his family members and the
extended Samoan community for his actions. He has formed a
permanent relationship with a young woman and is about to become
a father. He has also been an active member of a Samoan youth
group called "Unity" and a very favourable reference, speaking

highly of his involvement in that group, was given by its co-

ordinator to the Court.
A’s extreme youth and absence of any prior criminal history, the circumstances giving rise to the commission of his offence, his remorse and what appear to be very good prospects of rehabilitation are together, in our view, strong reasons for giving A the benefit of a non-custodial sentence, having regard also to the seriousness of the offence, if such a sentence is consistent with the pattern of previous sentences.
Moenoa was, at the time of commission of the joint
offences, a little older than A; he was a month short of his
19th birthday. But his involvement was very much less than A’s.
As appears from what has already been said he had no intention

of being involved in the offence until, at the earliest,

immediately before it was committed.

Although the separate offence of breaking, entering and stealing cannot, in considering Moenoa's overall criminality, be ignored, it could not justify the imposition of a custodial term if, without it, it were thought that his involvement in the commission of the joint offences, having regard also to his personal factors would not justify such a term.

Although it was not suggested on his behalf that Moenoa had experienced the difficulties which A had, he came from a similar background, had committed only one previous minor offence, had not intended to be involved in the commission of the offence until immediately before it took place and had only a small involvement even then. For these reasons, notwithstanding that he was a little older than A it is difficult to distinguish between the two as to the severity of the sentence which should be imposed. That was the view which the learned sentencing Judge also took.

Notwithstanding the summary of sentences for arson imposed or considered by the Court of Criminal Appeal or this Court tendered by Mr. Hamlyn-Harris, the Court was of the view, on the completion of argument, that it had insufficient material with respect to the pattern of sentences imposed on young offenders for arson. Accordingly it asked counsel to produce jointly a schedule showing that sentencing pattern, both on appeal and at first instance. The Director of Prosecutions, whose counsel appeared for the respondent, in response to that request forwarded to the Court a schedule of sentences considered by the Court of Criminal Appeal or this Court between 1980 and the present for arson by young offenders of buildings. It provides a useful guide and is annexed to these reasons.

Two other cases on Mr. Hamlyn-Harris' summary should be mentioned. Both involved arson of motor vehicles. The first is Hart (C.A. No. 255 of 1992). Hart was a 28 year old man with no prior criminal history who aided his co-accused in destroying by fire a prime mover motor vehicle. He was to receive $500 for his part. He pleaded guilty. A sentence of three years probation was not interfered with, on an appeal by the Attorney- General.

The second is Hunia (C.A. No. 308 of 1994). Hunia was a 21 year old man who arranged for someone to burn his car in order to collect the insurance moneys. He was convicted on his own plea of arson and of false pretences in making the insurance claim. At first instance he was sentenced to 120 hours community service. On appeal by the Attorney-General an order placing him on probation for two years was added.

The pattern of sentences which emerges from that schedule and those cases, in our view, supports the conclusion that, in the case of each of the applicants, the appropriate sentence should have been a non-custodial one. The Director of Prosecutions also produced schedules of sentences imposed at first instance upon 16 and 19 year olds respectively for arson of a building. These were too few in number (none were produced for 17 or 18 year olds), especially in respect of offenders with no previous criminal history, to enable any safe inference to be drawn. Nevertheless there was nothing in them which requires a conclusion other than that expressed above.

In A’s case we would grant the application, allow the appeal and set aside the sentence imposed below. We would in lieu order that he be placed on probation for a period of three years. We would make a similar order in Moenoa's appeal.

In view of the seriousness of the offence convictions should be recorded in each case.

i

SCHEDULE TO JUDGMENT

ARSON (BUILDING) - YOUNG OFFENDERS

COURT OF APPEAL

R. v. A (C.A. No. 50 of 1995); R. v. Moenoa (C.A. No. 80 of 1995)

PREVIOUS

NO	ACCUSED	INDICTMENT	PLEA	CRIMINAL	FACTS	SENTENCE
HISTORY

1 ADAMS, 1) Arson Guilty Nil 17 yrs old - accused and 1) 3 yrs

Brian 2) B&E with another broke into a school imp., rec.

Anthony I and set fire to some paper parole after

CA 178/84 which caused the building to 12 mths

catch fire. Damage totalled 2) 6 mth imp.

$225,000. concurrent

2 KEYES, Arson Guilty Nil 18 yrs old - offender set 3 yrs prbtn

CA 156/87 fire to the Yarrabah Police and 100 hrs

Station causing extensive community

damage	-	2	police	officers	service
were	inside,	one	of	whom	was

asleep,	but	no	personal
injury	was	suffered.	The

offender was said to be a

person	of	some	quality	and
some	promise	-	the	offence
was	out	of	character	and

resulted from some recently

formed grudge.

3 AYLING Arson Not Nil 20 yrs - appellant caused 4 yrs imp.

CA	319/88	guilty	previous	substantial	damage	to	public
for	property.
similar offence

4 DODD, 1) Arson Guilty Two Arson of a dwelling by 16 yr 6 weeks imp.

Jayne 2) House- Child- old offender causing $80,000 3 yrs prbtn

Louise breaking ren's damage to house and $35,000- on each

CA 345/88 3) 2 x Court $40,000 damage to contents. charge

stealing offences Psychiatric report referred

4) - rec'd to personality disturbance

Imposition fines and a major degree of

ii

PREVIOUS

NO	ACCUSED	INDICTMENT	PLEA	CRIMINAL	FACTS	SENTENCE
HISTORY

depression.

5 RIDDOCK 1) 3 X Guilty Nil 20 yrs - substantial damage 1) 2½ yrs

CA 224/89 arson motor previous to church building imp.

vehicle	for	($350,000).	Psych.	report	2)	4	yrs	imp.
2)	1	x	similar	revealed	schizoid	3)	6	mths

arson	bldg.	offences	personality,	fire	lighting	imp.
3)	B&E	with	compulsion.	4-7)	3	mths
I	imp.

4) Wilful Rec. for

damage parole after

5) Wilful 15 mths

destruction

6)  BES

7)  Att

arson motor

vehicle

6 WATSON Arson Not Minor Deliberately set fire to his Effective

CA 162/90 guilty history parent's house. sentence of 3

going yrs imp.

well	back
to	child-

hood

7 SHAXON 1) Arson Guilty Nil 18 yr old - arson of a 1) 4 yrs imp.

CA 355/90 2) Stealing caravan annex by throwing a parole after

lighted tea towel at the 12 mths.

annex knowing there was an 2) 1 mth imp.

elderly lady inside, in the concurrent

early	hours	of	the	morning.
No	injury,	no	great	damage.

Intoxicated by liquor.

8 DRUMMOND 1) Arson Guilty Nil 20 yr old broke and entered 1) 3½ yrs

CA 283/93 2) Burglary previous house while residents were imp.

3) Stealing for away. Stole property and set 2) 2 yrs imp.

similar fire to the house to prevent 3) 12 mths

offences detection from fingerprints. imp.

Damage to the house of To be

$80,000 and contents stolen considered

iii

PREVIOUS

NO	ACCUSED	INDICTMENT	PLEA	CRIMINAL	FACTS	SENTENCE
HISTORY

or	damage	amounted	to	for	parole
$56,000.	The	resident	family	after	12

had lived in the home which mths.

they rented for 18 years.