R v Leslie

Case [2016] QCA 15

SUPREME COURT OF QUEENSLAND

CITATION:

R v Leslie [2016] QCA 15

PARTIES:

R
v
LESLIE, Michael Vaino
(applicant)

FILE NO/S:

CA No 222 of 2015
DC No 35 of 2013

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:


District Court at Gympie – Date of Sentence: 26 August 2015

DELIVERED ON:

Orders delivered ex tempore on 2 December 2015
Further order and reasons delivered on 9 February 2016

DELIVERED AT:

Brisbane

HEARING DATE:

2 December 2015

JUDGES:

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

ORDERS:

Delivered ex tempore 2 December 2015:

1.     The application for leave to appeal is granted.

2.     The appeal is allowed to the extent of setting aside the order at first instance that the sentence is suspended after five months with an operational period of three years and instead it is ordered that the applicant’s parole release date is fixed at 17 December 2015.

3.     The sentence imposed at first instance is otherwise confirmed.

Delivered 9 February 2016:

The application to adduce further evidence is refused.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the applicant pleaded guilty to one charge of arson – where the applicant was sentenced to three years’ imprisonment, suspended after five months, with an operational period of three years – where the five months took into account 23 days of pre-sentence custody, which was declared pursuant to s 159A of the Penalties and Sentences Act 1992 (Qld) – where the applicant set fire to the housing commission unit in which he lived, attempting to kill himself – where the applicant did so by pouring 200 ml of acetone into a cupboard near the bathroom, and up the wall, then lighting it – where the unit was one of about 15 brick units in a housing commission block – where the fire was contained to the inside and doors of the cupboard – where there was smoke damage to the walls and ceiling, resulting in $3,519.21 worth of damage – whether the sentence was manifestly excessive

Penalties and Sentences Act 1992 (Qld), s 13A, s 159A

Director of Public Prosecutions v Bright (2006) 163 A Crim R 538; [2006] VSCA 147, cited
Director of Public Prosecutions v Derby (2007) 171 A Crim R 302; [2007] VSCA 92, cited
House v The King (1936) 55 CLR 499; [1936] HCA 40, cited
R v FN[2005] QCA 113, distinguished
R v Mazur (2000) 113 A Crim R 67; [2000] VSCA 111, cited
R v Perrone (1989) 43 A Crim R 366; [1989] VicSC 444, cited
R v Tout[2012] QCA 296, cited

COUNSEL:

B H Mumford for the applicant
S J Farnden for the respondent

SOLICITORS:

Legal Aid Queensland for the applicant
Director of Public Prosecutions (Queensland) for the respondent

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Details
AGLC
R v Leslie [2016] QCA 15
Case
[2016] QCA 15
Decision Date

CaseChat Overview and Summary

The case of R v Leslie involved the applicant appealing against his sentence for a charge of arson. The matter was heard in the Queensland Court of Appeal. The primary legal issue for the court was whether the sentence imposed on the applicant was manifestly excessive. The applicant had set fire to his housing commission unit, causing approximately $3,519.21 worth of damage. He was sentenced to three years’ imprisonment, which was suspended after five months, with an operational period of three years. The applicant argued that the sentence was manifestly excessive.

The court examined the nature of the offence, the applicant's personal circumstances, and the precedents set by previous cases. The court noted that the applicant had a history of depression, self-harm, and suicidal ideation, which was taken into account during sentencing. The court found that the sentencing judge had erred by requiring exceptional circumstances to be shown before departing from the usual custodial sentence. The court concluded that the sentence was manifestly excessive due to the applicant's mental health issues and the relatively minor damage caused by the fire.

The Court of Appeal allowed the appeal, setting aside the order that the sentence was suspended after five months with an operational period of three years. Instead, the court ordered that the applicant’s parole release date be fixed at 17 December 2015. The remainder of the sentence was otherwise confirmed.

Orders

Orders of the court

Delivered ex tempore 2 December 2015:

1. The application for leave to appeal is granted.

2. The appeal is allowed to the extent of setting aside the order at first instance that the sentence is suspended after five months with an operational period of three years and instead it is ordered that the applicant’s parole release date is fixed at 17 December 2015.

3. The sentence imposed at first instance is otherwise confirmed.

Delivered 9 February 2016:

The application to adduce further evidence is refused.

Background

Background to the litigation

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Evidence

Evidence Before The Court

He was remanded in custody as police feared he would attempt to self-harm again.[11][11]Dr Phillips’ report, AB 44.Medical evidence Medical evidence was tendered at the sentencing hearing.[12] It revealed that on 20 July 2010 (when he was about 17 years and a half) he had consulted a doctor because he had suicidal ideation. The notes show that:·he reported depressed mood with hopelessness, poor motivation, self-harm, alcohol abuse, and suicidal ideation for at least the previous 12 months; further, that Mr Leslie had “no fixed plan but thinks it would be easier to be dead”, he thought his family were selfish for not allowing him to go through with it, and he had tried cutting deep into arms “to get the vein”; and ·the decision was made not to start medication until consultation with another doctor who was to review the case; that explanation was given to Mr Leslie and his mother (who was pressuring for medication due to her own experience); and·after that consultation the aim was to see Mr Leslie twice weekly for risk assessment and therapy.[12]AB 27. On 9 November 2011 Mr Leslie was seen again (by the same doctor) for depression.[13] He had chronically depressed mood, fatigue, poor motivation, and inability to enjoy activities. He described having had “numerous attempts at counselling” but it had not helped. It was noted that he had a family history of major depression and mental illness. Anti-depression medication was prescribed, to be reviewed in two weeks.[13]AB 28. On 28 November 2011 he was reviewed.[14] Some improvement was noted, and the medication was increased. Mr Leslie had suicidal ideas but no plan. He was living with friends. He did not want to see a psychologist. Two weeks later he was reported to be feeling much better on the increased medication, and had no suicidal ideas. Then, when seen on 17 December 2011, with his mother, he was reported to have not taken his medication for about four days, and was back living with his parents.[14]AB 29. Mr Leslie was seen again on 7 June 2012,[15] at which time he was depressed and anxious, with low mood. He had poor appetite, poor memory and poor concentration, as well as panic attacks, but no suicidal ideas. Medication was continued as before.[15]AB 30. After the arson offence on 1 July 2012, Mr Leslie was seen again because of his depression and anxiety. He was noted to be on parole.[16] He was reported to have low energy and appetite, impaired memory and concentration, but his mood was stable and he had no suicidal ideas. The notes record a history of suicidal and self-harm attempts.[16]That probably meant bail, not parole. On 18 March 2013 Mr Leslie was seen again,[17] this time in respect of severe burns which had been treated at Royal Brisbane Hospital (RBH). He had lots of scars, and was moving to Ipswich because he needed physiotherapy at RBH. Evidently he was taking oxycontin and endone, as four months later the notes show that he had been weaned off those drugs.[17]AB 30.

Decision

Reasons for decision

The second was that the learned sentencing judge acted on a wrong principle by holding that exceptional circumstances had to be shown. This related to the following passage in the sentencing remarks:[8]“It is a very difficult sentencing exercise for me, Mr Leslie. In a long line of authority from the Court of Appeal, demonstrated by the decision of the Court of Appeal in R v FN [2005] QCA 113, persons who commit this offence, particularly where there is some danger to residents – as there clearly was here – ordinarily receive terms of imprisonment between three and four years and actual imprisonment is almost always ordered, although the authorities do permit of the proposition as a principle that an actual custodial sentence is not inevitable in cases of arson.Referring to paragraph 27 of the judgment in FN of the Court, exceptional circumstances have to be shown. In that case, the court referred to the unusual circumstances of that case which involved an 18-year old with no previous criminal history who had undertaken to cooperate in relation to his co-offenders. They also referred to cases of R v Collins and R v A which are referred to at paragraph 27 of the judgment.”[8]AB 20 line 43 to AB 21 line 7.Circumstances of the offending A synopsis of the offending conduct is set out in paragraphs [1] to [5] above. Some further detail is necessary.[9][9]This is largely taken from the agreed statement of facts, but some additional facts are drawn from other sources, such as the report from Dr Phillips (AB 42). Mr Leslie had been living in a block of 15 units used to house disadvantaged persons. He had been there for nine months. He had ceased taking his depression medication in the two days prior to 1 July 2012.[10][10]Dr Phillips’ report, AB 43. Mr Leslie and his friend, Mr Roberts, had been in the friend’s unit during the afternoon, drinking wine. Mr Leslie only had two glasses. He left and went back to his own unit, in the same block. About 20 minutes later Mr Roberts heard a fire alarm and saw smoke billowing from Mr Leslie’s unit. The front door and screen door were open so he went in and tried to find Mr Leslie. The unit was filled with smoke, and he could see a fire burning inside a cupboard near the bathroom door. He tried to open the door but could not. He eventually opened the door part way, and saw Mr Leslie on the floor behind the door. Mr Roberts was choking on smoke so he had to leave. Mr Roberts told another neighbour, Mr Hewitt, where Mr Leslie was. Mr Hewitt entered the unit but could not open the bathroom door. He was overcome by the heat and smoke and left the unit. Mr Roberts then told another neighbour, Mr McDowell, where Mr Leslie was. Mr McDowell wrapped cloth around his face and entered the unit. Visibility was very poor but he opened the bathroom door and found Mr Leslie propped against the bathroom wall. He dragged him out of the unit. Once outside Mr Leslie’s condition was described differently, one saying he was disorientated, another that he was distressed, while a third said he was “fairly OK”. When police arrived they spoke to Mr Leslie, who gave no explanation for what happened. Residents used fire extinguishers to try to put the fire out. That job was finished by the fire brigade.

Ratio Decidendi

Legal Principle Established

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