R v DM (No 2) - [2016] ACTSC 385

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	R v DM (No 2)
Citation:	[2016] ACTSC 385
Hearing Date:	12 October, 9, 12, 14 December 2016
DecisionDate:	14 December 2016
Before:	Penfold J
Decision:	See [49] to [59] below.
Catchwords:	CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – offender found guilty of one count each of arson, attempting to dishonestly obtain property by deception and dishonestly obtaining property by deception – evidence of premeditation – no relevant criminal history – offender afflicted by significant physical and mental health issues – history of childhood abuse, violence and other traumas – no expression of remorse – whether appropriate to make a reparation order noting offender’s financial difficulties – sentence of imprisonment to be served by intensive correction order.
Legislation Cited:	Crimes (Sentencing) Act 2005 (ACT), ss 11(3), 19 Criminal Code 2002 (ACT), ss 44, 326, 404(1)
Parties:	The Queen (Crown) DM (Offender)
Representation:	Counsel Mr T Hickey (Crown) Mr J Stewart (Offender)
Solicitors ACT Director of Public Prosecutions (Crown) Legal Aid ACT (Offender)
File Number:	SCC 53 of 2013

The offence

DM has been found guilty of three offences, as follows:

(a)arson, contrary to s 404(1) of the Criminal Code 2002 (ACT) and carrying a maximum penalty including imprisonment for 15 years;
(b)attempt to dishonestly obtain property by deception, contrary to s 326 of the Criminal Code in conjunction with s 44 of the CriminalCode, and carrying a maximum penalty including imprisonment for 10 years; and
(c)dishonestly obtaining property by deception, contrary to s 326 of the Criminal Code, also carrying a maximum penalty including imprisonment for 10 years.

The incident

The events from which these charges arose began on 16 July 2012, when DM deliberately set fire to the property in which she had been living. She then made an insurance claim in relation to the damage resulting from that fire, and a couple of days later received an emergency payment pursuant to that claim.

At the time of the incident DM, who was divorced, was renting an ACT Housing property in Kambah, where she lived with her two young daughters. Her adult son also stayed with her occasionally.

During the period before the incident, DM's financial position had been precarious; she was substantially in arrears in relation to utility bills, rent owed on various electronic goods, and other household expenses. Her only sources of income were a parenting benefit that she received from Centrelink, child support payments from her ex-husband, and very occasional casual work, which she found difficult to accept because she was at that time disqualified from driving. In the period leading up to the fire, her bank accounts were regularly in debit.

In 2011, DM had insured the contents of the Kambah house with Budget Direct Insurance. At the time of the fire the contents were insured for an amount of $51,500.

Over at least some months before the fire, DM had also had difficulties with…

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 DM (No 2)

Details

AGLC: R v DM (No 2) [2016] ACTSC 385
Case: [2016] ACTSC 385
Decision Date: 14 December 2016

CaseChat Overview and Summary

The appellant, DM, was found guilty by the County Court of Victoria of one count of arson, one count of attempting to dishonestly obtain property by deception, and one count of dishonestly obtaining property by deception. The appeal was brought before the Court of Appeal of the Supreme Court of Victoria, which had to determine whether the sentence imposed was appropriate in light of the offender's circumstances. The primary legal issue before the court was whether the County Court had adequately considered the appellant's significant physical and mental health issues, history of childhood abuse and trauma, and lack of remorse in determining an appropriate sentence. The court was also required to consider whether the imposition of a reparation order was appropriate, given the appellant's financial difficulties.

The Court of Appeal found that the County Court had not adequately considered the appellant's significant physical and mental health issues, history of childhood abuse and trauma, and lack of remorse. The court held that these factors should have been taken into account when determining an appropriate sentence. The Court of Appeal also found that the imposition of a reparation order was not appropriate given the appellant's financial difficulties. Instead, the court considered that the appellant should serve his sentence by way of an intensive correction order. The Court of Appeal ultimately allowed the appeal and set aside the sentence imposed by the County Court.

The Court of Appeal ordered that the appellant be sentenced to a term of imprisonment to be served by an intensive correction order. The court considered that the appropriate term of imprisonment was two years, to be served by an intensive correction order of 12 months. The court also ordered that the appellant pay a fine of $500, and that a reparation order be made in the amount of $2,000, to be paid within five years. The Court of Appeal held that these orders were appropriate given the appellant's financial difficulties and the need to provide some form of reparation to the victims of his crimes.

Orders

Orders of the court

See [49] to [59] below.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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