R v Moran

[1998] QCA 453

COURT OF APPEAL

[1998] QCA 453

de JERSEY CJ
McPHERSON JA
CHESTERMAN J

CA No 312 of 1998

THE QUEEN

v.

ROBERT ERIC MORAN  Applicant

BRISBANE

..DATE 04/12/98

JUDGMENT

McPHERSON JA:  The applicant was convicted in the District Court at Toowoomba of one count of arson of a motor vehicle.  He was sentenced to two years' imprisonment, but it was wholly suspended with an operational period of four years.  He was ordered to pay $1500 by way of compensation to the complainant which was AGC, it being either the owner or, in effect, the mortgagee of the car in question.  The order was that he should pay $1500 within six months, in default imprisonment for four months.

The applicant who is aged 39 committed the offence in conjunction with co-offenders named Leeson and Nowicki, as well as a juvenile whose name is not disclosed.  Leeson owned a 1985 Holden Commodore which was being financed through AGC for some $10,000.  Leeson was unable to meet his monthly repayments.  He mentioned this to the applicant who suggested that the car be burnt.  However, it was eventually resolved that Leeson would leave the car unlocked with the ignition in the condition in which it could be started without the keys.  The arrangement was that the applicant would take the car and Leeson would lodge a theft insurance claim. 

It was expected that Leeson would be able to obtain the market value of the car which was reckoned to be about $5,500.  At the last minute Leeson, who had previously told the applicant he could do what he liked with the car, changed his mind and told the applicant to burn it.

Nowicki drove the vehicle away and the applicant took his vehicle and trailer to retrieve some parts of the car before it was burnt.  In fact, as I understand it, he received the gearbox from the vehicle; but it was not of much value and, to use his expression before us, "It blew up within a week."

Leeson and Nowicki were each sentenced to 18 months' imprisonment wholly suspended for an operational period of four years.  That sentence was imposed by another judge and not the one who heard the sentencing proceedings from which this application arises.

The applicant, who appeared in person before us, applied for leave to appeal against his sentence on the ground that it is manifestly excessive.  It emerged from what he said in the course of his submission to this Court that he was concerned only with the order that he pay compensation of $1,500.

He has, in fact, no previous convictions and has a good work history, and in the end he cooperated with the police and he pleaded guilty before his Honour.  The question is whether we should remove the order for compensation (which was not made in the case of the other two applicants who have been sentenced, on the footing) as it was put by the applicant here, that it was unfair that he should be ordered to pay anything and they were ordered to pay nothing.

It may or may not have been the case that the judge in the other two sentencing matters overlooked the question of compensation, or there may have been some other reason why he decided not to make such an order.  One possible such reason in the case of Leeson may have been that he had become bankrupt, and it may be added that the other person sentenced, namely Nowicki, was aged only 19, and may not have looked as if he would have been worth powder and shot.

The fact is, however, that all four of these individuals who became involved in this activity were criminally responsible for it.  They were also responsible under the general civil law, each of them for the whole amount.  It may be added that, of course, the person who suffered, and I take it to be AGC, would not be entitled to recover the whole amount from all of them.  His Honour fixed the compensation figure in this case at $1,500, which is roughly a quarter of what was said to be the value of the car. 

Now, Mr Moran, as the applicant, is liable under the ordinary civil law to pay that amount, and it does not seem to me, therefore, that there is any great hardship in ordering him to pay it as a compensation provision in the course of these sentence proceedings.  In point of fact, as I have already mentioned, he is civilly liable for a larger sum equivalent to the full value of the car.  So on one view of it, he may have escaped rather more lightly than the civil law would recognise. 

All things considered, I do not think that the matter of complaint before us, which is essentially one of unfairness, can properly be sustained in the case of an individual who is certainly responsible for the burning, and may have been responsible for the original idea of burning, the car, and who has been ordered to pay no more than a quarter of its full value.  I would therefore refuse the application.

THE CHIEF JUSTICE:  I agree.

CHESTERMAN J:  I agree.

THE CHIEF JUSTICE:  The application is refused.

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