R v Christopher Jason Kerr No. SCCRM 92/572 Judgment No. 3706 Number of Pages 2 Criminal Law and Procedure

[1992] SASC 3706

COURT IN THE FULL COURT OF THE SUPREME COURT OF SOUTH AUSTRALIA COURT OF CRIMINAL APPEAL KING CJ(1), PERRY(2) AND DUGGAN(3) JJ

CWDS
Criminal law and procedure - Sentence - 4 years' imprisonment for arson and 1 year for shopbreaking suspended - 20 year old man who was drunk at time - sentence not excessive having regard to total criminality involved in the two crimes.

HRNG ADELAIDE, 16 November 1992 #DATE 16:11:1992
Counsel for appellant:     Mr G P G Mead
Solicitors for appellant:    Reilly Downs and Humphries
Counsel for respondent:     Mr B J Jennings QC with
   Ms H M Lines
Solicitors for respondent: Director of Public Prosecutions

ORDER
Appeal dismissed.

JUDGE1 KING CJ This is an appeal against a sentence imposed in the Supreme Court whereby the appellant was sentenced for the crimes of arson and housebreaking. The appellant was sentenced to imprisonment for four years for the crime of arson. He was sentenced to imprisonment for one year for the crime of shopbreaking and larceny. Those sentences were ordered to be served concurrently with one another and a non-parole period of three years was fixed. 2. The sentences were suspended upon the appellant entering into a bond for a period of three years to be of good behaviour and to perform community service for a period of 240 hours over a period of 18 months and also to attend a medical practitioner for advice as to alcohol related problems. 3. The appellant, who is 20 years of age, broke into a shop at Mt Gambier and stole the sum of $70. Whilst there he set alight to the shop causing damage to the extent of $32,350. 4. The appellant was drunk at the time of committing these offences. The learned judge in passing sentence said:
    "In dealing with you for this offence I take into account
    that it was not a deliberate and wilful setting fire to the
    premises in the sense that you had clear intention of causing
    harm or damage to the proprietor of the shop. Rather, your
    actions were those of a person very much under the effects of
    alcohol, and not conscious of the likely harm that you could
    cause." 5. In view of the plea of guilty and its implications I think it is clear that his Honour there meant that by reason of the effects of alcohol the appellant was not fully aware of the full extent of the harm which he might cause by the actions which he took. The plea of guilty implies, of course, that he intended to cause damage to the property, or at least, was recklessly indifferent as to whether such damage was caused. 6. The appellant has prior convictions but they are for offences of a different kind from that in question on the present appeal. He was convicted in November 1990 for assault and ordered to perform community service, and he has three drink driving convictions. 7. It is apparent that alcohol is at the root of the appellant's problems and it is for that reason, of course, that the learned judge made it a condition of the bond that he obtain advice as to his alcohol problem. 8. The crime of arson is, of course, a serious crime and carries a maximum sentence, where the damage exceeds twenty-five thousand dollars, of imprisonment for life. 9. The learned judge's finding as to the appellant's condition as to drink at the time of the commission of the offence mitigates the offence to some extent, at least to the extent that he was not as aware as a sober man might have been of the harm which could be caused by his actions. Nevertheless, the lighting of a fire is an exceedingly dangerous act and can have widespread consequences, not only for the property set fire to but often to surrounding properties. The appellant could not have been unaware of that, even in a drunken condition. I think that the learned judge has given effect to what can be said in mitigation of this offence and what can be said as to the personal circumstances of the appellant by suspending the sentence. The sentence of four years imprisonment, in the circumstances of this crime, may be somewhat on the high side, but it is to be remembered that because the sentences were made concurrent the sentence of four years is required to reflect the total criminality involved, not only in the arson, but also in the shopbreaking. 10. In those circumstances, I am unable to say that it is manifestly excessive and I would dismiss the appeal.

JUDGE2 PERRY J Mr Mead, of counsel for the appellant, was unable to point to any misapprehension of fact or error of law on the part of the learned sentencing judge. 2. Insofar as he contends that the sentence imposed was manifestly excessive, I agree with the reasons given by his Honour, the learned Chief Justice, and I agree with the order that he proposes, namely that the appeal should be dismissed.

JUDGE3 DUGGAN J I also agree that the appeal should be dismissed for the reasons given by the Chief Justice.