R v Davies - [2006] SASC 232

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v DAVIES
[2006] SASC 232
Judgment of The Court of Criminal Appeal
(The Honourable Justice Perry, The Honourable Justice Gray and The Honourable Justice Vanstone)
3 August 2006
CRIMINAL LAW - PARTICULAR OFFENCES - PROPERTY OFFENCES - ARSON AND LIKE OFFENCES
CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - JUDGMENT AND PUNISHMENT - SENTENCE - FACTORS TO BE TAKEN INTO ACCOUNT - CIRCUMSTANCES OF OFFENDER
After initially absconding, the appellant pleaded guilty to one count of arson - the offence resulted in the total destruction of the building occupied by Family & Youth Services in Mount Gambier - the appellant had an unusually dysfunctional upbringing resulting in borderline personality disorder, rendering her suicidal, depressed and anxious - whether sentence of 8 years and 2 months imprisonment with a non-parole period of 4 years and 8 months was manifestly excessive - discussion of principles relating to mercy in sentencing - Held: by a majority sentence and non-parole period were within, albeit towards, the upper end of the range - appeal dismissed.
Criminal Law (Sentencing) Act 1988 s 10(1)(eb) and s 10(3); Criminal Law Consolidation Act 1935 s 85, referred to.
R v James (1981) 27 SASR 348; R v Goldsmith (1995) 65 SASR 373; R v Molner (unreported) Court of Criminal Appeal, 21 November 1988; R v Spinks (1996) 185 LSJS 141; R v Miceli (1997) 139 FLR 309; Cobiac v Liddy (1969) 119 CLR 257; R v Osenkowski (1982) 30 SASR 212; R v Penno [2004] SASC 354; R v Lowery (1992) 14 Cr App R 485; Richard G Fox "When Justice Sheds a Tear: The Place of Mercy in Sentencing" (1999) 25 Monash University Law Review 1, considered.

R v DAVIES
[2006] SASC 232
Court of Criminal Appeal: Perry, Gray and Vanstone JJ

PERRY J. This is an appeal by leave against the sentence imposed upon the appellant in the District Court sitting at Mount Gambier following the appellant’s plea of guilty to a charge of arson.
The offence was committed on 22 April 2004 when, in the early hours of the morning, the appellant set fire to the building at Mount Gambier occupied by Family & Youth Services (“FAYS”) (now known as Children, Youth & Family Services) after spreading petrol as an accelerant in the front foyer/reception area.
The building was totally destroyed by the fire. An assessment of the cost of the total physical damage is in excess of $3 million. This includes the cost of demolition of what remains of the building on its present site and the rebuilding and refitting of it.
The building was owned by the State.
On her arraignment in the District Court, the appellant entered a plea of not guilty. In July 2005, while on bail, she failed to appear in court and a warrant was issued for her arrest. She was arrested in Queensland on 1 February 2006, when she was returned to this…

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 Davies

Details

AGLC: R v Davies [2006] SASC 232
Case: [2006] SASC 232
Decision Date: 3 August 2006

CaseChat Overview and Summary

The appeal in R v Davies involved the appellant who had pleaded guilty to one count of arson, an offence that resulted in the total destruction of the building occupied by Family & Youth Services in Mount Gambier. The appellant had an unusually dysfunctional upbringing, which resulted in a borderline personality disorder, rendering her suicidal, depressed, and anxious. The appeal was concerned with whether the sentence of eight years and two months imprisonment, with a non-parole period of four years and eight months, was manifestly excessive. The appellant's counsel argued that her personal circumstances called for a more merciful approach, particularly with respect to the length of the non-parole period.

The legal issues before the court included the appropriate sentence for the offence of arson and the consideration of the appellant's personal circumstances in determining the sentence. The court had to consider whether the sentence imposed by the sentencing judge was manifestly excessive, taking into account the immediate gravity of the crime, its consequences, and the appellant's personal circumstances. The court also had to consider the principles relating to mercy in sentencing and whether there was any overt error by the sentencing judge in his sentencing remarks.

The court held that the sentence and non-parole period were within, albeit towards, the upper end of the range. The court acknowledged the considerable difficulties posed for the staff of Family & Youth Services to continue working in a satisfactory way after the destruction of much of their records and documentation, including case notes, some of which were irreplaceable. The court also emphasised the importance of general deterrence in sentencing for arson. While the court recognised the appellant's personal circumstances, it found that they did not warrant a more lenient sentence. The appeal was dismissed.

The final orders of the court were that the appeal be dismissed, and the sentence and non-parole period imposed by the sentencing judge be upheld.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

PERRY J VANSTONE J

Ms Mealor emphasised the very considerable difficulties posed for the staff of FAYS to continue working in a satisfactory way after much of their records and documentation, including case notes, were destroyed, some of which being irreplaceable. This meant that the extent of the loss was not limited to the physical damage to the building, but extended to the FAYS staff and their clients.Conclusion One cannot help but feel a good deal of sympathy for the appellant, given her personal circumstances. It was accepted by both counsel that the penalty under appeal is severe. However, destruction of a public building causing millions of dollars of property damage and much consequential loss and disruption to the functioning of an important government agency, puts the case into an unusually serious category. There is no tariff or fixed penalty range applicable to sentencing for arson. In R v James[1] Walters, Zelling and Williams JJ in their joint judgment observed:In our view, the crime of arson cannot be regarded as a crime so usually or so often dealt with in this Court as to be identified with any particular tariff or range of penalty. We doubt very much whether any sophisticated formulation of tariff can be devised, or any precise guidelines laid down, for a crime where there can be so many different, aggravating or mitigating circumstances. Varying factual situations must necessarily be encountered in relation to the crime of arson and, to our minds, there can be no established pattern of dealing with any particular set of facts. The legislature has seen fit to provide a maximum penalty of life imprisonment for arson, leaving the Court a discretion exercisable within wide limits in fixing a sentence in respect of each offender. It seems to us that ordinarily a substantial sentence of imprisonment is called for by reference to the immediate gravity of the crime and its consequences. Arson, in all its forms, is an extremely serous and dangerous crime, and the element of general deterrence must be given proper weight, in order to reflect the Court’s condemnation of the crime, especially where it is committed with an appreciation of what is being done and there is a calculated act of vengeance. We entirely agree with her Honour’s remarks that “it is important that people who are likely to seek revenge by setting another’s property alight should know that, if they do so, they are likely to be visited by condign punishment”.[1] (1981) 27 SASR 348 at 351. Mr Stokes was not able to point to any overt error by the sentencing judge in his sentencing remarks, but submitted in effect that the sentence was simply too heavy, and that his client’s circumstances called for a more merciful approach, particularly with respect to the length of the non-parole period. I have carefully considered his submissions. It may well be that if I had been the sentencing judge, I might have been inclined to set a somewhat lower non-parole period. But that is not the test on appeal.

Ratio Decidendi

Legal Principle Established

Established by: PERRY J, VANSTONE J

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