R v BISHOP - [2008] SASC 186

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v BISHOP
[2008] SASC 186
Judgment of The Court of Criminal Appeal
(The Honourable Chief Justice Doyle, The Honourable Justice Bleby and The Honourable Justice Anderson)
9 July 2008
CRIMINAL LAW - PARTICULAR OFFENCES - PROPERTY OFFENCES - ARSON AND LIKE OFFENCES - OTHER MATTERS
CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - JUDGMENT AND PUNISHMENT - SENTENCE - FACTORS TO BE TAKEN INTO ACCOUNT - MISCELLANEOUS MATTERS
Appellant pleaded guilty to two counts of damaging property by fire contrary to the provisions of s 85(1)(a) of the Criminal Law Consolidation Act 1935 - maximum penalty for each count was life imprisonment as the property damage exceeded $30,000 in each incident - the appellant was sentenced to a period of imprisonment of 11 years and 3 months with a non-parole period of 8 years - appeal on basis that the sentence, including the non-parole period, was manifestly excessive.
Held: head sentence and non-parole period not excessive - both counts of arson resulted in extensive damage and loss - element of personal and general deterrence emphasised - impact on school and rural communities significant - appeal dismissed.
Criminal Law (Sentencing) Act 1988 (SA) s 10(1)(eb) and s 10(3); Criminal Law Consolidation Act 1935 (SA) s 85(1)(a) and s 85(2), referred to.
R v Davies (2006) 164 A Crim R 353; R v James (1981) 27 SASR 348, discussed.

R v BISHOP
[2008] SASC 186
Court of Criminal Appeal: Doyle CJ, Bleby and Anderson JJ

DOYLE CJ: I would dismiss the appeal against sentence. I agree with the reasons of Anderson J.
BLEBY J: In my opinion the appeal should be dismissed. I agree with the reasons of Anderson J.
ANDERSON J. The appellant in this matter pleaded guilty in the Magistrates Court to two counts of damaging property by fire contrary to the provisions of s 85(1)(a) of the Criminal Law Consolidation Act 1935 (the Act). This is the offence of arson pursuant to s 85(2) of the Act. The maximum penalty for each count in this matter was life imprisonment because the damage to property exceeded $30,000 in each incident.
The appellant was committed for sentence to the District Court where he was sentenced to a period of imprisonment of 11 years and 3 months for the offences. A non-parole period of 8 years was fixed and the sentence commenced on 12 March 2008.
The appellant was granted permission to appeal on the basis that the sentence, including the non-parole period, is arguably manifestly excessive.
Background
The first offence occurred on 21 April 2007 at the Para Hills West primary school. The appellant set fire to rubbish bins which were kept in a shed at the school. The fire which resulted destroyed both the shed and its contents. The cost of replacing the damaged property was in excess of $90,000.
The second offence occurred on 1 May 2007 at Freeling when the appellant set fire to a…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v BISHOP

Details

AGLC: R v BISHOP [2008] SASC 186
Case: [2008] SASC 186
Decision Date: 9 July 2008

CaseChat Overview and Summary

The appellant was convicted of two counts of damaging property by fire and appealed against the sentence imposed, arguing that it was manifestly excessive. The appellant set fire to rubbish bins at Para Hills West primary school and a hayshed at Freeling, causing extensive damage exceeding $30,000 in each case. The appellant was sentenced to 11 years and 3 months imprisonment with a non-parole period of 8 years. The appeal was heard by the South Australian Court of Appeal.

The court was required to determine whether the sentence, including the non-parole period, was manifestly excessive. The court had to consider the severity of the offences, the need for personal and general deterrence, and the appellant's prospects of rehabilitation. The court also had to assess the proportionality of the non-parole period to the head sentence.

The court found that the sentence and non-parole period were not excessive. The court emphasised the importance of personal and general deterrence given the appellant's criminal conduct and the extensive damage caused. The court also considered the appellant's criminal history and prospects of rehabilitation, which were not strong. The court concluded that the sentence, although at the high end of the range, was appropriate in the circumstances. The appeal was dismissed.

The court did not make any additional orders.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

The appellant was granted permission to appeal on the basis that the sentence, including the non-parole period, is arguably manifestly excessive.Background The first offence occurred on 21 April 2007 at the Para Hills West primary school. The appellant set fire to rubbish bins which were kept in a shed at the school. The fire which resulted destroyed both the shed and its contents. The cost of replacing the damaged property was in excess of $90,000. The second offence occurred on 1 May 2007 at Freeling when the appellant set fire to a hayshed. It was a very large hayshed full of hay at the time and the fire totally destroyed the shed and its contents. This time the property damaged was valued at about $700,000. The appellant was aged 29 years at the time he was sentenced. As I have indicated, the appellant pleaded guilty to both charges. The sentencing judge indicated that but for the guilty plea for the school fire he would have imposed a sentence of 5 years but reduced that to 3 years and 9 months on account of the plea. In relation to the Freeling fire, the sentencing judge indicated that he would have imposed a sentence of 10 years which he then reduced to 7 and a half years on account of the guilty plea. He made both sentences cumulative. There was no apparent motive for either of these fires. Mr Mead, counsel for the appellant, described the appellant’s actions as “idiotically stupid criminal behaviour” as distinct from being malicious, spiteful, vindictive or greedy. It seems that both offences took place in circumstances where the appellant had been consuming alcohol and/or drugs. The appellant has an extensive criminal record but has spent little time in custody. The appellant’s record includes many offences involving motor vehicles and also dishonesty. As I have indicated, the appellant made admissions in relation to each offence. However, he did not come forward in the early days following the fires. It was the result of an investigation involving the theft of a radio from a tractor at the Freeling property which led police to initially investigate his brother and then the appellant. The police took the appellant’s mobile phone. It showed pictures taken during the time of the school fire. It could be said, therefore, that at that point of time the decision to assist the police and then later to plead guilty was because there was an overwhelming case against him. There seems to have been no motivation for the criminal conduct other than the stupidity referred to by Mr Mead. Firelighters were used by the appellant in relation to both fires. As I have indicated, photographs were taken by the appellant with the mobile phone when the fires were in progress. Some photographs were also taken after the fires. When questioned by the police the appellant admitted that his acts were stupid. He also said he was drunk on the night he lit the fire in the school shed. In relation to the hayshed fire, there was apparently a group, including the appellant and his brother, who went to the hayshed, where the appellant’s brother started illegally driving the tractor. The appellant then started the fire in the hayshed using firelighters. It was not an isolated random act because the firelighters were spaced out by the appellant along the length of the hayshed, which caused the fire to spread very quickly. He said on this occasion he was probably affected by methylamphetamine and alcohol.The sentence imposed

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

ANDERSON J

Finally Mr Mead submitted that the proportion that the non-parole period bears to the head sentence is inappropriate. I consider that the proportion is within appropriate limits, albeit at the upper end of a range, and that there is no basis for interfering with the non-parole period. In my view, the non-parole period appropriately allows for the aspects of both general and personal deterrence which should be reflected in the non-parole period as well as the head sentence.Conclusion It is my view that the head sentence, although at the high end of the range, is appropriate in this case. It was a very serious matter and the element of personal and general deterrence becomes very important. The deliberate lighting of fires in schools has become prevalent in the community. It is important to send a message to offenders of the seriousness of such conduct. Not only does a fire in a school cause immediate disruption but it also has a profound effect on the school community, including students, teachers and their families. The reduction by the sentencing judge for the guilty pleas of 25% was quite appropriate, in my view. As I have already indicated, the appellant has not spent very much time in custody for his previous offences. Despite that, his overall prospects of rehabilitation could only be described as mild to moderate at best. They are not enhanced by his recent deceitful breach of bail conditions. Given that the only justification for the appellant’s acts was stupidity, it is necessary to send a message to both the appellant and the community. Because of the potential for such widespread damage as occurred in this case, it is my view that the sentence and non-parole period, albeit at the severe end of an available range of penalties, is nevertheless appropriate. I would, therefore, dismiss the appeal.

Ratio Decidendi

Legal Principle Established

Established by: ANDERSON J

Full text does not contain this section.