R v Cooper

Case [2021] QCA 169

SUPREME COURT OF QUEENSLAND

CITATION:

R v Cooper [2021] QCA 169

PARTIES:

R
v
COOPER, Narelle Ann
(applicant)

FILE NO/S:

CA No 201 of 2020
DC No 205 of 2020

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

District Court at Mackay – Date of Sentence: 3 September 2020 (Chief Judge Devereaux SC)

DELIVERED ON:

20 August 2021

DELIVERED AT:

Brisbane

HEARING DATE:

4 June 2021

JUDGES:

Morrison and Bond JJA and Callaghan J

ORDER:

Application dismissed.

CATCHWORDS:

CRIMINAL LAW – APPEAL AGAINST SENTENCE –– SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the applicant was convicted of one count of attempted arson at trial – where the offending occurred against a background of financial distress – where the applicant was sentenced to four years imprisonment – whether sentence manifestly excessive

Barbaro v The Queen (2014) 253 CLR 58; [2014] HCA 2, cited
Hili v The Queen (2010) 242 CLR 520; [2010] HCA 45, cited
Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25, cited
R v Ahmetaj (2015) 256 A Crim R 203; [2015] QCA 248, cited
R v Briones[2017] QCA 265, considered
R v Drinkwater[2006] QCA 82, cited
R v Francis[2014] QCA 258, cited
R v Gwilliams[2008] QCA 40, cited
R v Johnson[2005] QCA 265, cited
R v Leigh[1996] QCA 561, cited
R v Lilley[2021] QCA 52, cited
R v O’Rourke[2010] QCA 122, considered
R v Porter[2014] QCA 14, cited
R v Potts (2019) 88 MVR 156; [2019] QCA 74, cited
R v Rhode[2001] QCA 328, cited
R v Robertson (2017) 268 A Crim R 240; [2017] QCA 164, considered
R v Silasack[2009] QCA 88, considered
R v Sparks[2004] QCA 454, considered
R v Tout[2012] QCA 296, cited
R v Williams[2015] QCA 276, cited
Ross v Commissioner of Police[2019] QCA 96, cited

COUNSEL:

B J Power for the applicant
D Nardone for the respondent

SOLICITORS:

Beckey Knight & Elliot for the applicant
Director of Public Prosecutions (Queensland) for the respondent

  1. MORRISON JA:  I have the advantage of reading the draft reasons of Bond JA and Callaghan J.  Though I substantially agree with Bond JA, I wish to add some observations of my own.

  2. The applicant seeks leave to appeal from a sentence imposed upon her on 3 September 2020, after a trial in the District Court.  She pleaded not guilty and was convicted of attempted arson.  She was sentenced to four years’ imprisonment.  The sole ground is that the sentence is manifestly excessive.

    Background

  3. The applicant owned a newsagency where she worked six days per week.  She had not drawn a wage for some time and was in financial distress.  The applicant and her husband faced several financial threats, in particular: (i) they had defaulted on bank loans; and (ii) the mortgagee had commenced recovery action in…

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Details
AGLC
R v Cooper [2021] QCA 169
Case
[2021] QCA 169
Decision Date

CaseChat Overview and Summary

The applicant, who was convicted of attempted arson, seeks leave to appeal against her four-year imprisonment sentence, claiming it is manifestly excessive. The applicant was in severe financial distress at the time of the offence, having not drawn a wage from her newsagency business for some time and facing default on bank loans and recovery action on her home. On 30 July 2018, she set a fire in the newsagency premises, resulting in significant damage and a substantial loss to the building owners and the business itself. The applicant denied any involvement in the fire and was convicted after a trial. The sole ground for the appeal is that the sentence is manifestly excessive.

The primary legal issue the court had to determine was whether the sentence imposed on the applicant was manifestly excessive. The court considered the financial distress the applicant was experiencing, the nature of the offence, and the lack of evidence of remorse. The applicant argued that the sentence was beyond the permissible exercise of the sentencing judge's discretion, but the court found no misapplication of principle in the exercise of the sentencing discretion. The court also noted that the sentence was for attempted arson rather than arson, which was a relevant distinction in assessing the severity of the sentence.

The court held that the applicant had not identified any misapplication of principle in the exercise of the sentencing discretion such that one could conclude that the sentence imposed was unreasonable or plainly unjust. The court was unable to conclude that the four-year sentence imposed on the applicant was beyond the permissible exercise of the sentencing judge's discretion. The court agreed with the order proposed by Bond JA, which was to dismiss the application.

ORDER:
Application dismissed.

Orders

Orders of the court

Application dismissed.

Background

Background to the litigation

The applicant seeks leave to appeal from a sentence imposed upon her on 3 September 2020, after a trial in the District Court. She pleaded not guilty and was convicted of attempted arson. She was sentenced to four years’ imprisonment. The sole ground is that the sentence is manifestly excessive.Background The applicant owned a newsagency where she worked six days per week. She had not drawn a wage for some time and was in financial distress. The applicant and her husband faced several financial threats, in particular: (i) they had defaulted on bank loans; and (ii) the mortgagee had commenced recovery action in respect of their home. On 30 July 2018 the applicant’s insurance company sent her an email, reminding her that the renewal date for a policy that insured their business for $700,000 was approaching. The same day, the applicant left the newsagency at approximately 5.30 pm, having set a fire in the premises. Shortly after, a tenant at a nearby shop contacted emergency services after seeing a fire within the newsagency. As it happened no other tenancy was damaged but the damage to the newsagency was significant. The owners of the shop premises suffered a loss of approximately $174,000. The business itself suffered loss, in that about $80,000 in stock was lost in the fire, and $65,000 damage was done to fixtures and air-conditioning. The applicant denied setting the fire both in her interviews with police and when giving evidence at trial. She was convicted for attempted arson and sentenced to four years’ imprisonment. The applicant was 57 years old at the time of the offence. She had no previous convictions. She and her husband had raised a child (by then an adult). She had been in employment all her life. At the time of the trial she was employed as a machine operator at a mine.Approach of the learned sentencing judge The learned sentencing judge was, of course, dealing with a sentence imposed after a trial and not a plea of guilty. During the trial the applicant had denied any involvement in or knowledge of the fire. Her abandonment of the appeal against conviction means that this Court must proceed on the basis that the applicant now accepts responsibility for setting the fire. The sentencing judge concluded that, for the purpose of sentencing, the applicant was in very serious financial trouble; there was evidence about legal processes brought against the business and that the applicant’s family home was in jeopardy because it was mortgaged to secure two loans with one being over the business. His Honour found that the act of setting the fire was an act of desperation which had led to “great personal loss”. By an act of desperation his Honour referred not just to the setting of the fire, but the intention in doing so to make a fraudulent claim on the insurance. So much appears clear from his Honours remarks:“People must know that if they set about burning things, even if they do it in desperation to get the insurance, the Court will impose a heavy penalty because it is not just highly destructive conduct. It has a potential for damaging innocent property and injuring innocent people.”

Evidence

Evidence Before The Court

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Decision

Reasons for decision

While the above cases are for offences of arson rather than attempted arson, they remain relevant. In Sparks and Briones, this Court found that the sentences imposed were not manifestly excessive. While it is possible to contend that the sentence in the present case is higher than the sentences imposed in Sparks and Briones, the fact that the Court simply found not to be manifestly excessive, and the fact that the sentence in the present case is for attempted arson rather than arson, prevents them from being of utility on the issue of manifestly excess in the present case.Conclusion The applicant has not identified any misapplication of principle in the exercise of the sentencing discretion such that one could conclude that the sentence imposed is unreasonable or plainly unjust. I am unable to conclude that the four-year sentence imposed on the applicant was beyond the permissible exercise of the sentencing judge’s discretion. I agree with the order proposed by Bond JA. BOND JA: The applicant and her husband conducted a newsagency business in leased premises within a larger shopping complex. The business and the lease were held via a family trust arrangement. The applicant was in serious financial stress. She had not been able to draw a salary from the business for some time. The family home was security for a home loan and a loan for the business and a default had the result that the lender had commenced a recovery action. The family home was in jeopardy. There was also a tax debt which was the subject of a payment plan. The applicant started a fire in the newsagency premises, creating a risk of damage to property and injury to other people present in other tenancies within the shopping complex and, necessarily, to the firefighters called to the scene. Luckily, the firefighters were able to extinguish the fire quickly. Although no one was hurt and the building itself was not structurally damaged, the inside of the newsagency premises was damaged causing in excess of $174,000 loss to the owners of the building and a loss to the applicant and her husband in excess of $145,000 in lost stock and damage to fixtures and air-conditioning. After a five-day trial before a jury, the applicant was convicted of attempted arson. The sentencing judge took into account the foregoing facts. Further, he was prepared to infer that the applicant had been motivated to start the fire because of the financial stress she was under and with a view to claiming on the business’s $700,000 insurance policy. The applicant does not challenge the appropriateness of that inference. The sentencing judge also took into account that:(a)The applicant was 54 at the time of the offending and 57 at the date of sentencing.(b)She had no prior criminal convictions.(c)She was a hardworking person who had worked very hard for a long period of time.(d)She was in financial stress, had perhaps acted in desperation, and had certainly suffered great personal loss.(e)It could not be said that there was any evidence of remorse on behalf of the applicant.

Ratio Decidendi

Legal Principle Established

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