R v Hart

[1992] QCA 333

COURT OF APPEAL [1992] QCA 333

MACROSSAN CJ
DAVIES JA

AMBROSE J

CA NO 225 OF 1992
THE QUEEN
v.
WILLIAM LANCE HART Respondent

ATTORNEY-GENERAL OF QUEENSLAND Appellant

CA NO. 224 OF 1992

THE QUEEN

v.

RAYMOND SHANE BROUGHTON Respondent

ATTORNEY-GENERAL OF QUEENSLAND Appellant

BRISBANE
... DATE 09/09/92
JUDGMENT

DAVIES JA: These are two appeals by the Attorney-General against

sentence, the sentences in each case being imposed for the
offence of arson.

The first of them was a sentence imposed on Broughton of three years probation with 240 hours community service of which I should mention, he has already served 140 hours. That sentence was imposed for two counts of arson of a motor vehicle, the first

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count being on 15 June 1991 and the second on 26 May 1991. Broughton has a number of previous convictions, all of them having been between 1961 and 1971. He has apparently been blameless for nearly 20 years

The subject of the first count was a Ford Louisville prime mover.
It had been stolen by a man called Hearn on 24 February 1991.
Hearn had apparently been known to Broughton for 30 years and it
was said that Broughton felt some loyalty towards him. The day
after the vehicle was stolen, Broughton at Hearn's request,
allowed the stolen vehicle to be placed in his shed. Hearn had
apparently conspired with the owner of the vehicle from whom he
had stolen it against the insurer to defraud it. During the
period immediately after the offence of stealing, Broughton kept

the vehicle in his shed, did so until the end of April 1991, when

the insurance company had paid out a sum of $96,000.

Hearn then removed the truck from the shed. Some time later Broughton agreed to set fire to the vehicle and burn it, which he did, the agreement being that he would do so for a sum of $1,000.

The subject of the second count was another prime mover, a Western Star prime mover which Hearn himself had on lease from Esanda Finance. Apparently, hearing that Esanda Finance was about to repossess, Hearn again engaged Broughton for a sum of

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$1,000 to set fire to and burn that vehicle, the loss resulting
to Esanda being in the sum of $185,000.

Broughton made a full admission to the police when he was finally apprehended although he did not initially volunteer himself to the police. He also cooperated with the police thereafter and he has agreed to be a witness in the proceedings against Hearn in circumstances in which it is said he takes a considerable personal risk.

It is said in Broughton's defence that his gain was small and that others stood to gain a lot more. That is certainly true. Nevertheless, he knew of the scheme to defraud the insurers, he involved himself in the scheme and he derived financial benefit from it. He is of Aboriginal extraction. He had a difficult childhood. He had a good work history despite that and in fact it was really only when his business failed, that he for the first time in his working life commenced the receipt of unemployment benefits. The failure of his business apparently has left him with substantial debts.

There is no doubt of the seriousness of both of these offences. Moreover, the cases which were cited to us seem to me to support the view that a custodial sentence is indicated in a case such as this, deterrence being a most important factor. Notwithstanding,

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therefore, the matters which have been referred to in Broughton's favour and that he has already completed 140 hours of his community service, I would substitute a custodial sentence. I would accordingly allow the appeal and set aside the orders of probation and community service and substitute a sentence in relation to each count of three years imprisonment with a recommendation for parole at the expiry of 12 months. These sentences are to be served concurrently.

In the second appeal the respondent Hart was involved as a co- offender in the second of the counts, which I have referred involving Broughton. His part though was a very much more minor part, as I will mention in a moment.

He is a younger man. He is 28 years of age. He has no previous convictions. On this offence, the learned sentencing Judge sentenced him to three years probation. The contribution of Hart to the offence involving the Western Star prime mover commenced with a conversation which he had with Broughton in a hotel, as a result of which he agreed for the sum of $500 to be involved in the offence by driving either the prime mover or a car - it does not appear clear from the record which - out to the place where the prime mover was to be burnt. In fact, it is said he never received the $500, though I think that is an irrelevant fact.

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Deterrence, of course, in Hart's case, also in an important factor but having regard to the very small part which he played compared with the facts that there appeared to be no great prior planning on his part and that he has no previous convictions, I would not interfere with the sentence imposed by the learned sentencing Judge.

THE CHIEF JUSTICE: I agree with what Mr. Justice Davies has said in respect of both appeals.

AMBROSE J: I agree with what Mr. Justice Davies has said with respect to the appeal against the man Broughton. I regret that my views with respect to the appeal against Hart differ. I find myself in substantial disagreement with the sentence imposed upon Mr. Hart, being of the view that a custodial sentence ought to have been imposed in the circumstances. In view of the orders proposed by my brothers however, it is unnecessary and unhelpful for me to deal further with the matter.

THE CHIEF JUSTICE: The Court's orders are then as indicated by

Mr. Justice Davies.

MR. MEREDITH: I'd ask for a warrant for the arrest of ---

THE CHIEF JUSTICE: All right. We so order, a warrant for the

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apprehension for the respondent Broughton will be issued.

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