R v Matheson

[2006] QCA 150

COURT OF APPEAL

McMURDO P
WHITE J
PHILIPPIDES J

CA No 62 of 2006

THE QUEEN

v.

ANTHONY JAMES MATHESON  Applicant

BRISBANE

..DATE 08/05/2006

JUDGMENT

MR A J RAFTER SC (instructed by Legal Aid Queensland) for the applicant

MR M J COPLEY (instructed by Director of Public Prosecutions (Queensland)) for the respondent

THE PRESIDENT:  Justice White will deliver her reasons first.

WHITE J:  The applicant for leave to appeal against sentence was convicted on his plea of guilty of one count of arson and one count of stealing in the District Court at Bundaberg on 14 February 2006.  His plea was taken on the morning of the commencement of his trial.  He was sentenced to three years' imprisonment in respect of the arson and six months' imprisonment to be served concurrently for the stealing offence.  The pre-sentence declaration of 132 days was made.

At the time the offences were committed the applicant was 38 years.  He had been employed as a truck driver by a company that did carrying work for a farm company.  He became angry because, as he expressed it to a co-accused, he was not paid by his employer the same as other drivers.  In the company of two brothers, Dennis Pershouse, aged 21, and his brother, Michael, aged 17, on the evening of 13 June 2004, he went to the 80 hectare citrus orchard at Avondale owned by the complainant company.

The men entered through a locked gate by cutting the bolts.  They stole some items including radios and an ignition coil and 2,200 litres of diesel and 1,200 litres of unleaded fuel.  The applicant and Dennis Pershouse made two fuel trails from the fuel tanks to a forklift and cut the hoses to the tanks so that the fuel poured out onto the ground.  The applicant lit the two trails and they ignited.

Numerous local residents heard an explosion and saw a glow of fire coming from the orchard.  The Fire Service, as the Prosecutor related to the court below, found the fire came from two distinct areas, from the fuel tanks to the covered shed area where the forklift was and then to the fuel tanks.  The fire completely destroyed the three fuel tanks and an area surrounding them and a herbicide tank next to the fuel tanks.  A smaller shed and some of the surrounding trees were partially destroyed as was the forklift.

The court below was told that the total value of the property destroyed or damaged was approximately $11,638 and his Honour, without contradiction, estimated the stolen fuel at about $3,000.

On 7 September 2004, police executed a search warrant at the applicant's residence and located a number of items that had been stolen from the orchard.  He declined to be interviewed.  Police interviewed the applicant's accomplices who told police of the applicant's anger about the lower wages and that he wanted to exact some revenge against the owners of the orchard.  He had told his co-accused that fuel could be obtained from the orchard.

The applicant maintained that he had no recollections of the events of the night notwithstanding the stolen fuel that remained at and was at his home and was used by him.  He accepted the Crown case on the morning of his trial.  Not surprisingly, the learned sentencing judge expressed some scepticism about his failure of memory.

Michael Pershouse, the younger of the co-accused, was without criminal convictions when he was sentenced by her Honour, Judge Dick QC on 10 August 2005.  He was sentenced to probation for 12 months and ordered to perform 100 hours of community service.  He was minimally involved in the arson.  Dennis Pershouse, who was 21 and who had a relatively serious criminal history, was sentenced to a term of imprisonment of 18 months wholly suspended for a period of two years.  Her Honour crafted that sentence in a way to reflect the 12-month period of custody which could not be declared which he had already served.  Her Honour indicated that, in effect, he had been sentenced to the equivalent of three and a half years.  It should be noted that her Honour also sentenced Dennis Pershouse to six months' imprisonment concurrent for the arson of a motor car.  It is that point which Mr Rafter emphasises as a point of distinction with respect to this applicant.

The applicant had a criminal history as a juvenile in Western Australia and also in New South Wales, described as difficult to decipher below, and no one, I think, in this Court, would disagree with that description but it was, as his Honour said, "minor" but "sustained".  He also has a criminal history in Queensland which has involved breach of a domestic violence order, obstruction of police, failure to take reasonable care in respect of the disposal of a syringe, possession of drugs and serious assault for which he was convicted and fined $600.

Mr Rafter, for the applicant, contends that the appropriate sentence is one of three years' imprisonment, suspended after 12 months with an operational period of three years.  That was the sentence contended for below on behalf of the applicant and it was not one that the Crown actively disagreed with.

Although the applicant pleaded guilty and there was necessarily some saving to the prosecution, nonetheless, in my view, his Honour rightly recognised that it was a late plea and would have imposed a sentence of four to four and a half years had there been no plea.  His Honour was mindful of the need for some parity with Dennis Pershouse that identified that the applicant was the instigator of the crime which, for him, was an act of vengefulness.  His Honour noted the disparity in age between himself and Dennis Pershouse recognising, however, that Pershouse had a more serious criminal history and had himself played an active role in the arson.

A number of cases referred to by Mr Rafter, in my view, support the sentence which was imposed.  Notwithstanding that Judge Dick was at the time she was sentencing him for arson of a car as well as the present offences, she regarded the present criminal offence, that is, when I spoke of Judge Dick's sentence, that was of Dennis Pershouse.  She regarded the present criminal offence as much more serious and described it as "straight out vandalistic, vengeful, criminal behaviour."  Dennis Pershouse was also on probation.  Her Honour's description correctly, with respect, describes this offence.

A broad sentencing principle was identified in R v Cramond [1999] QCA 11, CA No 411 of 1998, 4 February 1999, by Justice Mackenzie, page 3, where he said:

"Support can be found for the view that where there is no suggestion of fraud and where the safety of others is not a consideration the head sentence of up to three years may appropriately be imposed".

That guideline was endorsed by Justice Jerrard in R v Collins [2003] QCA 154, CA No 23 of 2003, 9 April 2003, at page 7 and his Honour further endorsed this approach in R v Johnson [2005] QCA 265, CA No 127 of 2005, 29 July 2005. Mr Copley referred the Court to two older conspiracy to commit arson cases of R v Scrivener, CA No 195 of 1991 and R v Leigh [1996] QCA 561, CA No 202 of 1996, 21 August 1996. Those cases suggest that a sentence of five years for conspiracy to arson was not inappropriate after a plea.

Although it was not part of the Crown case that life was endangered, the recklessness here in spreading flammable material in a rural setting meant that great loss of property and the potential for personal injury were always present.  The applicant was the instigator motivated by revenge, misdirected as it was, but also motivated by a gain, the stealing of the fuel.  Bearing in mind the previous authorities, the late plea of guilty, the positive matters personal to the applicant and the issue of parity with Dennis Pershouse, in my view, it cannot be said that in not suspending the sentence after 12 months or some other time his Honour imposed a sentence that was manifestly excessive and I would refuse the application.

PHILIPPIDES J:  I agree.

THE PRESIDENT:  I also agree.  The application for leave to appeal against sentence is refused.

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