R v Briones - [2017] QCA 265

SUPREME COURT OF QUEENSLAND

CITATION:

R v Briones [2017] QCA 265

PARTIES:

R
v
BRIONES, Eunice
(appellant/applicant)

FILE NO/S:

CA No 220 of 2016
DC No 6 of 2015

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction & Sentence

ORIGINATING COURT:

District Court at Roma – Date of Conviction: 14 April 2016; Date of Sentence: 15 April 2016 (Moynihan QC DCJ)

DELIVERED ON:

7 November 2017

DELIVERED AT:

Brisbane

HEARING DATE:

26 July 2017

JUDGES:

Sofronoff P and McMurdo JA and Douglas J

ORDERS:

1. The appeal against convictions be dismissed.

2. The application for leave to appeal against sentence be refused.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO EVIDENCE – APPEAL DISMISSED – where the appellant was convicted of setting fire to her house and attempting to dishonestly obtain money from her insurer – where the appellant’s house near Roma was substantially damaged by a fire and, on the following day, made a claim under her fire insurance policy for the loss –where, six weeks prior to the fire, the appellant caused the value of her home insurance policy to increase from $280,000 to $400,000 – where there was evidence that the appellant intended to sell her house and move to the Philippines and had already begun making payments for that purpose – where three lay witnesses and an expert witness described the fire in ways consistent with it being deliberately lit – where the Crown alleged that the appellant had procured a Mr Hameed to set the fire – where there was extensive evidence linking the appellant to Mr Hameed, such as phone records and money transfers to him totalling nearly $30,000 – where there was extensive evidence linking Mr Hameed to the fire, such as a booking on a bus into Roma the day before the fire, a one night stay in a Roma hotel on the day of the fire, a bus booking out of Roma on the day after the fire, and hire car documentation – where the appellant had been stockpiling about five “doona bags” full of clothing at a friend’s house – where the appellant had stored items of apparent sentimental value, such as 300 family photographs and her citizenship papers, in her car – where the appellant’s explanations for the suspicious circumstances were unconvincing – whether it was open to the jury to conclude, beyond reasonable doubt, that there was arson or that she was a party to such an offence – where the applicant also argued that her sentence of three and a half years’ imprisonment was manifestly excessive – where the offending was premeditated and presented a danger to neighbours, their property, and fire-fighters – where the sentence was consistent with other authorities from this Court – whether the sentence was manifestly excessive

R v Leigh[1996] QCA 561, cited
R v Sparks[2004] QCA 454, cited

COUNSEL:

The appellant/applicant appeared on her own behalf
M T Whitbread for…

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 Briones

Details

AGLC: R v Briones [2017] QCA 265
Case: [2017] QCA 265
Decision Date: 7 November 2017

CaseChat Overview and Summary

In the case of R v Briones, the appellant was convicted of setting fire to her house and attempting to dishonestly obtain money from her insurer. The house, located near Roma, was substantially damaged by a fire, and the appellant made a claim under her fire insurance policy for the loss the following day. Prior to the fire, the appellant had increased the value of her home insurance policy from $280,000 to $400,000 and had begun making payments towards selling the house and moving to the Philippines. Several witnesses described the fire in ways consistent with it being deliberately lit. The Crown alleged that the appellant had procured Mr Hameed to set the fire, and there was extensive evidence linking the appellant to Mr Hameed, as well as Mr Hameed to the fire. The appellant had stockpiled clothing and sentimental items in a friend's house and her car, and her explanations for the suspicious circumstances were unconvincing.

The legal issues in this case revolved around whether it was open to the jury to conclude, beyond reasonable doubt, that there was arson or that the appellant was a party to such an offence. Additionally, the appellant argued that her sentence of three and a half years' imprisonment was manifestly excessive, and she claimed that the sentence was imposed without reference to any comparable sentences.

The court concluded that none of the appellant's arguments revealed any basis for setting aside her convictions. The evidence presented a strong circumstantial case that the appellant procured the man called Hameed to set fire to her house. If the arson charge was proved, the attempted fraud was also proved. The appeals against conviction were dismissed, and the application for leave to appeal against sentence was refused.

In summary, the appeal against convictions was dismissed, and the application for leave to appeal against sentence was refused.

Orders

Orders of the court

1. The appeal against convictions be dismissed.

2. The application for leave to appeal against sentence be refused.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

Lastly, there is a complaint that the police did not “listen to” the appellant’s mobile phone. That was not an issue which was explored by her counsel. The appellant does not suggest how an examination of her phone, beyond the evidence of the calls which she made to the phone of Mr Hameed, would have been relevant and exculpatory.Conclusion on the appeals against conviction None of the appellant’s arguments reveals any basis for setting aside her convictions. This was a strong circumstantial case that the appellant procured the man called Hameed to set fire to her house. If the arson charge was proved, the attempted fraud was also proved. The appeals against conviction should be dismissed.The appeal against sentence No ground for an appeal against sentence is set out in the notice of appeal, but the appellant’s outline argues that her sentence of three and a half years’ imprisonment was excessive. And she complains that it was imposed without reference by the judge to any comparable sentences. The sentencing judge described this offending as premeditated and planned. His Honour said that burning a house in a residential area presented a danger to neighbours, their property and fire fighters. He also remarked that the appellant had not assisted police to locate her accomplice. That last comment is criticised by the appellant. In her outline, she claims that she did not know “that police wanted him to be located”. She claims that she did not know that he was a suspect until the second interview. She now says that she had telephone conversations with Mr Hameed in the end of June, during July and in early August 2014, when she says that he was in Syria. Yet in her police interview conducted on 19 August 2014, she made no reference to these conversations. Importantly, she then told police that she did not know where Hameed was or how to contact him.[4] The complaint about the judge’s remark about her lack of assistance is baseless.[4]Transcript of interview, 19 August 2014, page 39. At the sentencing hearing, the prosecutor relied upon two decisions of this Court: R v Leigh[5] and R v Sparks.[6] In Leigh, the offender pleaded guilty to attempting to procure another person to burn down a house. The applicant was aged 67 at the time of the offence and had what was described as “a not insignificant criminal history”. He was sentenced to a term of four years’ imprisonment. Dowsett J, with the agreement of the other members of the Court, said that a period of in excess of four years could well have been supported. In Sparks, after a trial, the applicant was convicted of offences of arson and fraud. She was sentenced to a term of four years for the arson offence and two years for the fraud offence, to be served concurrently. She was aged 41 at the time of the offences. She successfully appealed against those sentences, but only to the extent of a declaration being added about a period of 73 days of pre-sentence custody.[5][1996] QCA 561.[6][2004] QCA 454.

Ratio Decidendi

Legal Principle Established

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CITATION:	R v Briones [2017] QCA 265
PARTIES:	R v BRIONES, Eunice (appellant/applicant)
FILE NO/S:	CA No 220 of 2016 DC No 6 of 2015
DIVISION:	Court of Appeal
PROCEEDING:	Appeal against Conviction & Sentence
ORIGINATING COURT:	District Court at Roma – Date of Conviction: 14 April 2016; Date of Sentence: 15 April 2016 (Moynihan QC DCJ)
DELIVERED ON:	7 November 2017
DELIVERED AT:	Brisbane
HEARING DATE:	26 July 2017
JUDGES:	Sofronoff P and McMurdo JA and Douglas J
ORDERS:	1. The appeal against convictions be dismissed. 2. The application for leave to appeal against sentence be refused.
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL – VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO EVIDENCE – APPEAL DISMISSED – where the appellant was convicted of setting fire to her house and attempting to dishonestly obtain money from her insurer – where the appellant’s house near Roma was substantially damaged by a fire and, on the following day, made a claim under her fire insurance policy for the loss –where, six weeks prior to the fire, the appellant caused the value of her home insurance policy to increase from $280,000 to $400,000 – where there was evidence that the appellant intended to sell her house and move to the Philippines and had already begun making payments for that purpose – where three lay witnesses and an expert witness described the fire in ways consistent with it being deliberately lit – where the Crown alleged that the appellant had procured a Mr Hameed to set the fire – where there was extensive evidence linking the appellant to Mr Hameed, such as phone records and money transfers to him totalling nearly $30,000 – where there was extensive evidence linking Mr Hameed to the fire, such as a booking on a bus into Roma the day before the fire, a one night stay in a Roma hotel on the day of the fire, a bus booking out of Roma on the day after the fire, and hire car documentation – where the appellant had been stockpiling about five “doona bags” full of clothing at a friend’s house – where the appellant had stored items of apparent sentimental value, such as 300 family photographs and her citizenship papers, in her car – where the appellant’s explanations for the suspicious circumstances were unconvincing – whether it was open to the jury to conclude, beyond reasonable doubt, that there was arson or that she was a party to such an offence – where the applicant also argued that her sentence of three and a half years’ imprisonment was manifestly excessive – where the offending was premeditated and presented a danger to neighbours, their property, and fire-fighters – where the sentence was consistent with other authorities from this Court – whether the sentence was manifestly excessive R v Leigh[1996] QCA 561, cited R v Sparks[2004] QCA 454, cited
COUNSEL:	The appellant/applicant appeared on her own behalf M T Whitbread for…