R v Leigh

[1996] QCA 561

[1996] QCA 561

COURT OF APPEAL

THOMAS J 
de JERSEY J 
DOWSETT J

CA No 202 of 1996

THE QUEEN

v.

NOEL ERNEST LEIGH

BRISBANE

..DATE  21/08/96

JUDGMENT

DOWSETT J:  The applicant pleaded guilty to attempting to procure another person called Joyner to burn down a house property at the Gold Coast which was owned by a Mrs McGoldrick.  The house was unoccupied and was surrounded by vacant land which was used as a car park. 

The owner had been approached by a representative of the owner of the adjoining land seeking to acquire the property from her.  She was not interested in selling.  It appears that the prospective purchaser placed a substantial amount of pressure on her to try to induce her to sell.  One can only infer that the property was seen as having a substantial commercial value.  Subsequently, the offer to purchase was withdrawn.

The person Joyner had been employed by the present applicant on a number of occasions, performing small jobs.  He had made it clear to the applicant that he was in financial difficulty and was subsequently approached by the applicant with the suggestion that he burn down the house in question for reward. The applicant expected to be paid $5,000 of which he would pass on $4,000 to the person Joyner to carry out the offence.

Joyner was appropriately shocked by the proposal, although he did not disclose this to the applicant, and went to the police. As a result, a third person in company with Joyner, spoke to the applicant and the conversation was recorded. The applicant was charged with the present offence to which he pleaded guilty. 
He said that he thought he had been approached by a member of the owner's family, Mrs McGoldrick's family, to burn down the house and whether that be so or not, there can be no doubt that the offence of which he stands convicted, that is, attempting to procure the commission of the offence of arson, is a very serious one.

He was motivated by the expectation of financial gain and although it is not appropriate to speculate as to who may have been his principal in fact, the circumstances surrounding the previous dealings with Mrs McGoldrick are strongly suggestive of a particular conclusion.

The Crown submitted that the range of sentence for this offence was two to four years and that this was a matter where the sentence should be towards the higher end of the range.  The applicant was born on 18 December 1928 and was therefore 67 years of age at the time of the offence.  He is married with a young child.  He has a not insignificant criminal history going back over some years, but it is fair to say that between 1953 and 1990 he had no criminal conviction.

In 1990, however, he was convicted of a number of offences arising out of the sale of prescribed interests, as that term is defined in the appropriate companies legislation.  He was convicted on three counts and sentenced to five years imprisonment.  A fine was also imposed but this was subsequently quashed by the Court of Criminal Appeal. The sentences of imprisonment were upheld.

Obviously, these offences were offences which could broadly be described as offences of dishonesty, as can the present offence.  The fact that he had, within a relatively short period prior to the offence in question, been convicted of other offences of dishonesty, was a compelling feature in the sentencing process here, leading to the conclusion that a substantial period of imprisonment was called for.

Given that the period of imprisonment there imposed had not operated as a deterrent to subsequent criminal misconduct, my own view would have been that a longer period than four years was called for, but the Crown conceded that the range was probably two to four years.

The only circumstances of mitigation were the age of the applicant, his family circumstances and the fact that he pleaded guilty.  The learned sentencing Judge appears to have taken those matters into account, but it is suggested by counsel for the applicant that if the sentence of four years reflects those matters of mitigation, then the learned sentencing Judge must have started from a wrong premise as to the appropriate head sentence because the appropriate head sentence is not more than four years.

I find it difficult to accept this proposition in light of the previous sentence of five years for offences of dishonesty.  In my view a period in excess of four years could well have been supported in the present circumstances, and I do not take the concession made by the Crown as to the appropriate range to be other than a concession as to the appropriate range in this case,taking into account all of the circumstances. 

For those reasons, I cannot see that the sentence can be said to reflect an erroneous starting point.  I can see no basis for making a recommendation for early parole.  I consider that any appeal has no prospects of success and the application should be refused.

de JERSEY J:  I agree.

THOMAS J:  I agree.

The order will be application refused.

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