R v Stallworthy
[2002] VSCA 135
•28 August 2002
SUPREME COURT OF VICTORIA
COURT OF APPEAL
No.162 of 2001
| THE QUEEN |
| v. |
| MARK ANTHONY STALLWORTHY |
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JUDGES: | PHILLIPS, C.J., ORMISTON and EAMES, JJ.A. | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 28 August 2002 | |
DATE OF JUDGMENT: | 28 August 2002 | |
MEDIUM NEUTRAL CITATION: | [2002] VSCA 135 | |
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Criminal Law - Sentencing - Arson to house - 3½ years for that count - Degree of deliberation - Suspended sentence inappropriate - Totality - Not manifestly excessive.
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| APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr J.D. McArdle QC | K. Robertson, Solicitor for Public Prosecutions |
| For the Applicant | Mr P.F. Tehan QC | Leanne Warren & Associates |
PHILLIPS, C.J.:
I shall ask my brother Ormiston to give the first judgment in this matter.
ORMISTON, J.A.:
The applicant seeks leave to appeal against sentences handed down in the County Court after he had pleaded guilty to one count of intentionally causing damage to property, for which the maximum term of imprisonment is ten years, and one count of arson, for which the maximum term is 15 years. After admitting three convictions (or, more precisely, findings of guilt) arising out of one court appearance in 1997 also in respect of intentionally causing damage to property and after hearing a plea made on his behalf, the applicant was sentenced to 12 months' imprisonment on count 1 and three and a half years' imprisonment on the arson count, that is count 2. Three months of the sentence on count 1 was directed to be served cumulatively on the sentence imposed on count 2, making a total effective sentence of three years nine months. The learned sentencing judge directed that the applicant serve a minimum of two years six months before becoming eligible for parole. There was the customary declaration in respect of detention of the applicant before sentencing in respect of only some six days and the applicant was ordered to pay $16,459 to Peter Donaldson whose house was damaged by the acts constituting both of the counts.
The applicant has raised effectively five grounds of appeal. By his notice of application he has claimed, in the first place, that the judge erred in failing to give sufficient weight to matters of mitigation, including his personal circumstances, the impact of incarceration on his family, his prior criminal history, his background, the expression of a "substantial degree" of remorse and his plea of guilty. Secondly, the applicant claims that both the head sentence and minimum term were manifestly excessive. Thirdly, he claims that the sentence is crushing. By amendment last week the applicant has added a fourth ground asserting that the judge failed to place any or any sufficient weight upon a submission of the Crown relating to the serving of the term in custody and a fifth ground claiming that the judge erred by ordering any cumulation between the two counts (or as to the extent of cumulation) and by imposing head and minimum terms which infringed the principle of totality.
The regrettable and unfortunate events which gave rise to the charging of the applicant may be summarised as follows. On 18 January 2001 the applicant was dropped off at about a quarter to six in the evening at the house in which he had been boarding in Cambridge Road, Montrose, a three bedroom brick veneer house which was owned by Peter Donaldson, with whom the applicant had become a friend and had remained a friend for some 13 or 14 years. The applicant, who had been drinking spirits, both with another friend and at a local hotel, continued drinking after he returned home. Shortly afterwards he decided to smoke some cannabis, some of which he had purchased that day. Unfortunately the applicant could not find the cannabis he had bought and as a result became enraged. In his fury he smashed a large internal sliding glass door with his fist, threw a can of baked beans outside through the kitchen window and ripped the telephone from the wall. These events form the basis of count 1.
The applicant then came to the full realisation that he had damaged his friend's house and was at first undecided about what to do. He then took the sliding door outside to the rear yard placing it on the lawn and went back inside still trying to work out what to do. The applicant then foolishly decided to try to conceal the damage he had caused to the house by burning it down. He used a kitchen stool to remove the smoke detector from the hallway ceiling and then took its battery out to prevent the alarm from sounding. He then went to the rear bedroom where he used his cigarette lighter, or a cigarette lighter he had found, to set fire to the curtains. Once they were alight he made his way to the front lounge room where he again used the cigarette lighter to set fire to the couch, although he did not use any accelerant. Some $56,000 or so worth of damage was caused to Mr Donaldson's house which was burnt very severely and almost all his possessions were destroyed.
The applicant then went out to the rear yard to retrieve a friend's dog and from there went to the front of the premises. He waited there but made no attempt whatsoever to call the fire brigade or to put the fire out, seeming to act as a stunned spectator. After a short while neighbours observed the house on fire and telephoned the fire brigade. After the fire brigade came the applicant walked to his mother's house and, showing remarkable insouciance, he returned shortly afterwards to the scene with his mother and his aunt. At that stage investigating police spoke to the applicant during which he stated he knew nothing about the fire or its cause and made a signed statement to that effect.
The following day the applicant attended at the Lilydale Police Station to ask about his friend who was being interviewed about the incident. Subsequently the applicant himself was arrested and interviewed concerning the matter, during which again he denied at first any involvement in the matter. However, after being presented with some of the evidence, he made full admissions concerning the criminal damage and fire to his friend's house, which were contained in a detailed but confused record of interview. The applicant gave only the following reason for his offending: "I haven't got one". Shortly afterwards he was charged.
The applicant pleaded guilty at the earliest opportunity. In the course of his plea a number of witnesses were called and character references and medical reports tendered. It appears, among other things (and it is not practical to set out all the matters which were said therein in his favour), that the applicant was 29 years of age when the offence was committed and is now 30. He had a modest education and is said to be illiterate. He appears to have had a relatively consistent work history, at least until the age of 22. At the time of offending he had addictions both to cannabis and alcohol. Mr Cummins, called for the applicant, said that, although he needed urgent psychological treatment, he did not appear to be psychotic or schizophrenic or as having a personality disorder. He was, however, of below average intelligence and severely depressed. Neither Mr Cummins nor his mother could provide any real explanation for his behaviour. After being charged the applicant appears to have given up using cannabis and reduced his drinking very considerably.
Counsel for the applicant in the course of his customary well ordered and comprehensive argument dealt with the grounds in three groups. One group consisted of the first three grounds, which in essence asserted that the sentences were manifestly excessive having regard to the applicant's personal circumstances and attitude. Counsel said that there were a number of factors which significantly mitigated the offences, in particular that the offences were impulsive, took place while the applicant was heavily intoxicated, that no accelerants were used, that there was no premeditation or planning and that there was no criminal motive. As to these matters I would say only this: there was no planning to cause deliberate damage to his friend's house before he arrived home. However, whatever may be said of the foolish and destructive first episode (i.e. the basis of count 1) which does not seem to have been planned, there was some motive and a degree of planning so far as the second and more serious count of arson was concerned. His motive was simply to destroy evidence of the first foolish episode, so that his friend would not blame him. His concern can be seen from his denial in the first stages of his interview of any involvement and then, even after admitting accidental responsibility for the fire, by still denying the damage in the second stage of the interview. Moreover, there was a degree of planning and premeditation on the night. He chose to use fire to destroy evidence of the damage and he deliberately removed the smoke alarm to avoid, no doubt as he hoped, immediate discovery and to prevent timely putting out of the fire if that were possible. The applicant's attitude of deliberation was emphasised by his callous watching of the fire from outside the house without making the slightest attempt to call the fire brigade. In other words, it cannot be gainsaid that, whatever the condition he was in, he wanted the fire to burn the house to a significant extent. These conclusions deny much of the weight of the first submission, but in any event they were merely factors the presence of which might otherwise have aggravated the applicant's criminality.
Counsel then relied on the applicant's relative youth, the fact that he was illiterate and an alcoholic (at least to some extent) and that he suffered from a chronic and reactive depression, which meant he was in need of psychological treatment. All these matters were put to the learned sentencing judge and it would seem from his reasons fairly taken into account. In many ways the applicant is a sad case: an inadequate personality who bursts forth occasionally into inexplicable bouts of destructiveness. His alcoholism cannot be employed as a mitigating factor of significance, although it is not to be entirely ignored, neither in principle nor on the facts of this case. His ingestion of Bourbon may have released his inhibitions, may even have led him to the first bout of damage, but it did not prevent him from planning the fire for a specific purpose or from taking steps to ensure its success, in particular, by his failing to call the fire brigade.
Likewise counsel relied on his plea of guilty, his remorse and attempts at rehabilitation. So far as I understand his reasons the judge accepted all of these matters. There was some discussion as to the evidence of remorse in this Court, which is always difficult as it is evidence of a state of mind, in which direct evidence from the offender is more persuasive than the drawing of inferences by others. However, counsel for the Crown accepted that there was evidence of genuine remorse and the various passages read to us show that a number of witnesses, including Mr Cummins, had drawn the same inference. It seems therefore reasonable to conclude that the applicant has expressed remorse. The Court therefore rejected the need for further evidence, even if that had been permissible. The issue before this Court is whether the judge was in error in the manner in which he considered these factors and in particular this one of remorse. In my opinion he recognised that there was evidence of remorse in his reasons and there is no reason to believe that he rejected it.
As to rehabilitation the judge likewise noted this and it was recognised that the applicant had given up the use of cannabis and reduced considerably his intake of alcohol. The only employment he had presently been in was casual work, but one must recognise his difficulties in this regard, though there was relatively little other evidence as to what the applicant was shown to have achieved. Perhaps the best that can be said is that he has shown a willingness to reform. However the judge likewise dealt with that evidence, appeared to accept it and certainly did not reject it.
No specific aspects of grounds 1, 2 and 3 have been shown to have been made out as to specific errors and I shall defer my conclusions as to manifest excess, as counsel did, until I have completed dealing with the other particular grounds.
As to the first of the new grounds, the fourth ground, it is submitted that the judge failed to give any proper weight to an alleged submission by the Crown that the applicant should be given a suspended sentence. Although we have been taken to the transcript to show that prosecuting counsel made some concession that not all the sentences had to be served in custody, there was no real concession that a suspended sentence was in fact appropriate. Rather, prosecuting counsel contended that the offence was serious, citing for that purpose R v. Mazur[1], and, as he put it, "that exceptional circumstances should be shown before suspension ought to be ordered in the case of arson". In any event, as counsel has conceded, he left that question to the sentencing judge. Nobody could have been misled by the submissions below, nor was the judge, nor this Court bound by them. The judge's statement was not erroneous and so there is no proper basis for the contention and it should be rejected.
[1](2000) 113 A.Crim.R. 67.
Finally I turn to the last ground which complains specifically of an incorrect consideration and generally of breach of the totality principle. One part of that ground complained of a failure to properly consider the desirability of cumulation and, at least in its written form, contended that there should have been no cumulation, but counsel very fairly and properly in my opinion abandoned that particular contention.
One comes then to the grounds alleging want of totality and the final part of the third ground, that of manifest excess. In my opinion there is no reason to believe that the learned judge offended against that principle of totality or that he imposed sentences beyond the range. In my opinion that applies both to the head sentences, the total effective sentence and the minimum term which ought to be served. Whatever be the sad circumstances of the applicant's life, arson is nevertheless a most serious offence. Indeed, of the property offences it is frequently, with the exception of armed robbery, the most dangerous and the most intrusive of that class of case in the criminal calendar. This case was perhaps not the most serious but it had one characteristic which called for both condemnation and a reflection of the need to deter other offenders. It was a deliberate setting fire to a house and the contents of an individual. Though Mr Donaldson was not at home, the result was an almost total destruction of his most personal assets, his own home and the contents contained within it. Moreover, it was committed by one whom he had trusted to live in the house and to look after it. One can well understand the sense of outrage and offence felt by the victim at this intrusion into his own personal domain and the loss thereby caused to him.
On the other hand, the applicant is a person for whom one cannot help having some sympathy, in that he suffers many disadvantages of a personal kind, exacerbated by unhappy youthful experiences. At the end of the day the judge chose to impose a fully custodial term, in the sense that it was not suspended, but one with a reasonable minimum term. I cannot see that in reaching that conclusion he erred. He fixed on a term of three and a half years for the arson count which meant in any event he could not suspend it and in the circumstances I do not believe that was outside the range. The applicant had a prior conviction for damage to property, but he had not learnt from it. In any event an offence as serious as arson committed to destroy a person's home must ordinarily call for a custodial term of imprisonment. The suitability of a suspended term therefore must be doubted and in the light of the particular term chosen was impractical.
At the end of the day the question is whether manifest excess has been shown. In my opinion whatever other cases in different circumstances have decided, this sentence was within the range and appropriate to the kind of offence and the nature of the offending and the criminality and circumstances of the offender, especially having regard to what this Court has said in Mazur. I would therefore dismiss the application.
PHILLIPS, C.J.:
I agree.
EAMES, J.A.:
I also agree.
PHILLIPS, C.J.:
The order of the Court is that the application for leave to appeal against sentence stands dismissed. I shall add to that, in order that it be a matter of record, that the learned Registrar has reported to me that the amended grounds were in fact drawn to the attention of his Honour Judge Cullity and his Honour did not wish to make any comment thereon.
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