SUPREME COURT OF QUEENSLAND
CITATION:
R v Robertson [2017] QCA 164
PARTIES:
R
v
ROBERTSON, Lisa June
(applicant)FILE NO/S:
CA No 43 of 2017
DC No 465 of 2017
DC No 2635 of 2016DIVISION:
Court of Appeal
PROCEEDING:
Sentence Application
ORIGINATING COURT:
District Court at Brisbane – Date of Sentence: 10 March 2017DELIVERED ON:
4 August 2017
DELIVERED AT:
Brisbane
HEARING DATE:
27 April 2017
JUDGES:
Morrison and Philippides JJA and Atkinson J
Separate reasons for judgment of each member of the Court, Morrison JA and Atkinson J concurring as to the orders made, Philippides JA dissentingORDERS:
1. Application for leave to appeal granted.
2. Appeal allowed.
3. Appeal allowed only to the extent of replacing the two and a half years’ imprisonment for attempted arson with a term of two years’ imprisonment.
4. The sentences imposed upon the applicant are otherwise affirmed.
CATCHWORDS:
CRIMINAL LAW – SENTENCE – RELEVANT FACTORS – NATURE AND CIRCUMSTANCES OF OFFENCE – GRAVITY OF OFFENCE – where the applicant pleaded guilty to attempted arson and other offences – where the applicant was sentenced to two years and six months imprisonment on the count of arson and concurrent periods of imprisonment for the other offences – where the applicant submitted that the sentencing judge erred in relying on an inference that the offending was more serious than it was – where the applicant submitted the sentencing judge erred in imposing the sentence on the basis that the applicant “torched” her ex-landlord’s house – whether the sentencing judge mischaracterised the applicant’s offending
CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – OTHER MATTERS – where the applicant submitted that the learned sentencing judge erred by imposing a parole release date without alerting defence counsel that he was considering such a measure – where the applicant submitted this resulted in a failure to afford natural justice to the applicant whose counsel could have made submissions as to why parole was not necessary – whether the sentencing judge was required to alert counsel that he was considering imposing a parole release date
CRIMINAL LAW – SENTENCE – PURPOSE OF SENTENCE – GENERALLY – where the applicant submitted that the sentencing judge erred in not applying the principle that a sentence of imprisonment is a last resort – where the applicant submitted the sentencing judge erred in not considering wholly or partly suspending the sentence – where the applicant submitted the sentencing judge erred in suggesting a period of actual imprisonment was required to send a message to the community denouncing the applicant’s behaviour – where the applicant submitted the sentencing judge erred in failing to consider that the need for specific deterrence was not high – whether the sentencing judge considered all of the sentencing options available to him – whether the sentencing judge took into account that a sentence of imprisonment should be imposed as a last resort
CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE –…
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- AGLC
- R v Robertson [2017] QCA 164
- Case
- [2017] QCA 164
- Decision Date
CaseChat Overview and Summary
The court examined the submissions made by the applicant regarding the sentencing judge's approach. It was argued that the sentencing judge mischaracterised the attempted arson as more serious than it actually was, and that this was not supported by the facts of the case. The court noted that while the judge tested the propositions put by defence counsel, it was the sentencing remarks that should be considered to understand the judge's reasoning. The court found that the sentencing judge had comprehensively addressed the circumstances of the attempted arson and concluded that the conduct was indeed very serious. The judge's characterisation of the offending as serious was upheld based on the circumstances, including the risk of extensive damage and the breach of a domestic violence order.
The court also considered whether the sentencing judge was required to alert defence counsel that he was considering imposing a parole release date. The court held that while there may be circumstances where such a requirement would be appropriate, this was not such a case. The sentencing judge had given comprehensive reasons for the sentence, and the court found no error in this respect. Additionally, the court found no merit in the applicant's submissions that the sentencing judge erred by not considering alternative sentencing options or by not applying the principle that imprisonment is a last resort. The court held that the sentencing judge had adequately considered all relevant factors and that the sentence was not manifestly excessive or inadequate.
The court allowed the appeal only to the extent of replacing the two and a half years’ imprisonment for attempted arson with a term of two years’ imprisonment. The sentences imposed upon the applicant for the other offences were otherwise affirmed. The application for leave to appeal was granted, and the appeal was allowed in part.
Orders
Orders of the court
1. Application for leave to appeal granted.
2. Appeal allowed.
3. Appeal allowed only to the extent of replacing the two and a half years’ imprisonment for attempted arson with a term of two years’ imprisonment.
4. The sentences imposed upon the applicant are otherwise affirmed.
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
It was submitted that the judge was nonetheless entitled to determine that the offending was a serious example of attempted arson given that the fire was lit inside a dwelling at night with intent to cause damage. There was a risk of further more extensive damage being occasioned. The motive for the applicant’s offending was vengeance and the offending was committed in breach of a domestic violence order. It was submitted that the absence of a specific intention to kill or harm another by lighting the fire did not preclude the characterisation of the attempted arson as being to the upper end of seriousness. Had such an intention existed it would itself have constituted the commission of further criminal offending.Consideration The learned sentencing judge, as one might expect, tested the propositions put to him by defence counsel in his submissions. The fact that propositions are tested does not signify that a sentencing judge has formed a concluded view. For that one must consider the sentencing remarks. I respectfully agree with the remarks made by Margaret Wilson AJA in R v Hyatt[10] where her Honour dealt with the extent to which an appeal court should have regard to exchanges between the judge and counsel during submissions. Her Honour held:“I think a cautious approach is warranted. Exchanges between the bench and counsel are designed to draw out and test submissions, and remarks made by a judge during such exchanges are often at odds with a conclusion at which he or she ultimately arrives after hearing both sides and giving their submissions due consideration. In my respectful opinion a practice of relying unduly on exchanges between the bench and counsel should not be allowed to develop.”[10][2011] QCA 55 at [13]. This is not to suggest that there may not be cases in which the exchanges between Bench and Bar are properly used to amplify the reasons for sentence that are given but this is not such a case. His Honour comprehensively dealt with the circumstances of the attempted arson in his sentencing remarks which fully justify his conclusion that the applicant’s criminal conduct had to be viewed very seriously. His Honour said of the offending:“Now, as you’ve probably worked out in my discussions with your counsel Mr Sibley, I consider this to be very serious conduct. Luckily, the fire didn’t take hold outside of the toilet but that’s entirely good luck rather than good management, quite frankly, and that’s what leaves you with an attempted arson rather than an arson. But, when we step back and look at your conduct, it can only be viewed very seriously. Now as I said to your counsel it was irrational – and I’ve got no doubt about that because you’re caught up in a relationship that’s ended and that’s sad but that’s reality. Relationships end every day. To respond to the ending of a relationship by torching or, at least, attempting to torch not even your ex’s house but the house out of which you say, through your counsel, you were certain that your ex has moved out with the dog means that you’re torching a completely innocent third party, the landlord, stealing his lawnmower and whipper snipper from his shed and pawning them.Again, you say through your counsel somehow to get back at your partner because you thought they were hers but that doesn’t sit easily with working out that she’s left, but even if that is your thinking, that’s irrational as well. And all of this is very serious criminal conduct. I accept there was no-one in the house – there could have been. I accept the fire didn’t take hold of the rest of the house – it could have done. I accept that you were deeply distressed, upset and behaving irrationally – there’s no doubt about it, because when you think about it rationally, none of this makes sense. But you’ve still committed a series of very serious criminal offences and as sympathetically as I’m able to look at them – and I acknowledge that you’ve provided an apology, but I’ve not heard anything about a single cent being paid.”