R v Francis

Case [2014] QCA 258

SUPREME COURT OF QUEENSLAND

CITATION:

R v Francis [2014] QCA 258

PARTIES:

R
v
FRANCIS, Russell Brett William
(appellant/applicant)

FILE NO/S:

CA No 208 of 2013
DC No 322 of 2013

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction & Sentence

ORIGINATING COURT:

District Court at Southport

DELIVERED ON:

14 October 2014

DELIVERED AT:

Brisbane

HEARING DATE:

3 June 2014

JUDGES:

Margaret McMurdo P and Muir JA and Dalton J
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDERS:

The appeal against conviction is dismissed.1.    

The application to adduce further evidence is refused.2.    

The application for leave to appeal against sentence is granted.3.    

The appeal against sentence is allowed.4.    

The sentence imposed at first instance is vacated and instead the appellant is sentenced to three and a half years imprisonment with parole eligibility on 8 November 2014.5.    

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL  – VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO EVIDENCE – where the appellant was in a de facto relationship for 28 years – where the appellant and his partner separated – where the appellant's former partner began dating another man – where the appellant confronted the new boyfriend and threatened to "blow up" his mother's house – where the appellant and the new boyfriend had a physical altercation – where the car belonging to the new boyfriend's mother was set alight – where the appellant attended hospital soon after, but did not wait to see a doctor – where police arrested the appellant later that night – where the appellant suffered burns to his hands and nose – where methanol based fuel was found in the appellant's car – where the appellant was convicted of arson of a motor vehicle – whether the appeal against conviction should be allowed

CRIMINAL LAW – EVIDENCE – GENERALLY – OTHER MATTERS – where the appellant applied to adduce further evidence – where the appellant sought to admit evidence by way of an affidavit of his former partner – where the evidence in the affidavit was not directly inconsistent with the evidence given by the appellant's former partner at trial – whether leave to adduce further evidence should be allowed

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the appellant was convicted of arson of a motor vehicle – where the appellant was sentenced to four years imprisonment with parole eligibility after 18 months – where the appellant's counsel contended that the sentence was manifestly excessive for an arson of a vehicle rather than arson of a house – whether the sentence imposed was manifestly excessive

Gallagher v The Queen (1986) 160 CLR 392; [1986] HCA 26, cited
Mickelberg v The Queen (1989) 167 CLR 259; [1989] HCA 35, cited
R v Cramond[1999] QCA 11, cited
R v Gwilliams[2008] QCA 40, cited

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Details
AGLC
R v Francis [2014] QCA 258
Case
[2014] QCA 258
Decision Date

CaseChat Overview and Summary

In the matter of R v Francis, the appellant, Francis, appealed against his conviction and sentence for the crime of arson of a motor vehicle. The appellant was in a de facto relationship with Ms Fagg for 28 years, and following their separation, Ms Fagg began dating another man. After the appellant confronted the new boyfriend, a physical altercation ensued, and the new boyfriend's car was subsequently set alight. The appellant was later arrested and charged with arson.

The legal issues that the court had to address were whether the jury's verdict was unreasonable or insupportable, whether the appellant could adduce further evidence, and whether the sentence imposed was manifestly excessive. The court concluded that the jury's verdict was not unreasonable or insupportable, as the evidence was sufficient to convict the appellant beyond reasonable doubt. The court also found that the appellant's application to adduce further evidence should be refused, as it did not demonstrate a significant or real possibility of acquittal. However, the court allowed the appeal against sentence, finding the sentence of four years imprisonment with parole eligibility after 18 months to be manifestly excessive for an arson of a vehicle rather than arson of a house.

The court considered the appellant's limited criminal history, his lack of remorse, and the seriousness of the offence. The court also took into account the comparable sentences for arson of a valuable car or a house. The court concluded that the sentence imposed at first instance was manifestly excessive, and therefore vacated the sentence. The appellant was instead sentenced to three and a half years imprisonment with parole eligibility on 8 November 2014. The appeal against conviction was dismissed, and the application to adduce further evidence was refused.

Orders

Orders of the court

The appeal against conviction is dismissed.1.

The application to adduce further evidence is refused.2.

The application for leave to appeal against sentence is granted.3.

The appeal against sentence is allowed.4.

The sentence imposed at first instance is vacated and instead the appellant is sentenced to three and a half years imprisonment with parole eligibility on 8 November 2014.5.

Background

Background to the litigation

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Evidence

Evidence Before The Court

After reviewing the whole of the evidence, I consider the jury were well entitled to be satisfied beyond reasonable doubt that the appellant was guilty of arson. As the sole ground of appeal is not made out, the appeal against conviction should be dismissed.The application to adduce further evidence The appellant sought leave to adduce evidence in the appeal by way of an affidavit from Ms Fagg dated 22 October 2013 to the effect that on the night of 10 April 2010 Mr Stephens left Ms Fagg's unit at about 1.00 am for 30 to 45 minutes. That evidence is not directly inconsistent with her evidence at trial that Mr Stephens left her home after she received the phone call from someone who sounded like the appellant stating that Mr Stephens should go to his mother's; she might need him. The fire probably started before 1.20 am when the fire brigade was called and up to 15 minutes before it was first observed. Ms Fagg said it was "about" 1.00 am when Mr Stephens left. The term "about" is imprecise. She texted Ms Stephens at 1.18 am. It seems unlikely that Mr Stephens left earlier than 1.18 am and drove the five to 10 minutes to his mother's. The fire brigade and police were there and the fire was out when he arrived. The fire brigade arrived at 1.35 am. He must have arrived after 1.35 am. It seems that he must have left Ms Fagg's unit much closer to 1.30 am than 1.00 am. The appellant has not demonstrated that if this further evidence from Ms Fagg were led and considered together with the other evidence at trial, there was a significant or a real possibility that the jury would have acquitted him: see Gallagher v The Queen[4] and Mickelberg v The Queen.[5] His application to adduce further evidence should be refused. The appellant was 41 at the time of the offence and 45 at sentence. He had a limited criminal history which commenced only in 2010 when his marriage failed and he committed an offence of wilful damage. He was the respondent in a domestic violence order in favour of Ms Fagg. In February 2010 he was fined for breach of a bail condition. In September 2011, he was placed on a nine month good behaviour bond for breaching the domestic violence order on the night of the arson and fined and placed on an 18 month bond for the earlier wilful damage. The present offence was a breach of the domestic violence order but not of the good behaviour bond. On 4 January 2013 he was fined $1,500 without conviction for a number of drug offences committed on 5 July 2012, subsequent to and whilst on bail for the present offence. He was in pre-sentence custody for 181 days, about six months. The prosecutor emphasised the seriousness of the offence; the fire could have spread and jeopardised the safety of Ms Stephens and others. The appellant had demonstrated no remorse. The complainant's insurer paid her $11,200, the market value of the vehicle. Comparable cases did not suggest there was any marked difference between sentences for arson of a valuable car or for arson of a house. The prosecutor referred to R v Cramond[6] where a sentence of four years imprisonment was imposed.[6][1999] QCA 11.

Decision

Reasons for decision

The appellant did not give or call evidence. The defence case was that the timing of the records of phone calls and messages and the fire service's records did not support the prosecution case. The fire which destroyed the car must have started when the appellant was having an altercation with Mr Stephens at Ms Fagg's unit complex. There was not enough time for him to travel to Ms Stephens' home and to burn her car. The warning text was sent to Ms Stephens by Ms Fagg at 1.18 am. The burns on the appellant's hands did not assist the prosecution case as the appellant gave a credible explanation for them. Dr Swain was not infallible; she could be wrong. The jury would be left in reasonable doubt and should find him not guilty.Conclusion on the appeal against conviction The appellant contended that the jury should not have accepted Mr Stephens' evidence; they should have accepted the version put to him in cross-examination. As the appellant told police in his record of interview, he went to Ms Fagg's unit on only one occasion on the night of the fire. Mr Stephens' account of the second altercation was implausible as the appellant's car window was faulty. The difficulty with that contention is that Mr Stephens denied the defence case put to him in cross-examination. He gave evidence that the appellant was at Ms Fagg's unit complex on two occasions and he maintained that account in cross-examination. There was no competing sworn evidence from the appellant. Mr Stephens' evidence was supported by Ms Fagg, who gave evidence that Mr Stephens left her unit twice that evening, first when they heard a noise and second after the appellant telephoned. Her evidence about the appellant's faulty car window did not mean the jury had to reject Mr Stephens' account of his two altercations with the appellant. The absence of any CCTV footage of the altercations is of no moment and does not assist the appellant. The jury were entitled to reject the appellant's account to police and to accept the evidence of Mr Stephens. The appellant questioned Dr Swain's expertise. While the doctor conceded she did not have specific expertise in burns, she explained that her training in general forensic medicine allowed her to give an expert opinion as to the age of the burns when she examined him. The jury were entitled to accept her evidence. The appellant emphasised Ms Dennis' evidence that she saw a navy or black car speeding off after the fire, while his car was a lighter blue. But even if the car Ms Dennis described was not the appellant's, it did not follow that the driver was the arsonist. This piece of evidence was not critical to the circumstantial case against the appellant and did not require the jury to be left in doubt about the prosecution case. It is true, as the appellant emphasised, that the phone records do not disclose any call or text from the appellant's mobile to Ms Fagg's phone preceding her text message to Ms Stephens at 1.18 am. Ms Fagg, however, was familiar with the appellant's voice after 28 years of marriage and said the caller sounded like the appellant. He may have called from a phone other than his mobile, perhaps a public phone. The absence of a record of this phone call did not mean Ms Fagg and Mr Stephens were lying. Nor was it fatal to the prosecution case that Mr Stephens thought this was a text message rather than a phone call.

Ratio Decidendi

Legal Principle Established

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