REGINA v BAKER [2000] NSWCCA 85

New South Wales Court of Criminal Appeal

CITATION : REGINA v BAKER [2000] NSWCCA 85 revised - 28/03/2000 FILE NUMBER(S) : CCA 60113/99 HEARING DATE(S) : 17/03/00 JUDGMENT DATE : 17 March 2000

PARTIES : Regina Kelly Anne Baker JUDGMENT OF : Spigelman CJ at 1; Grove J at 22; Hidden J at 23

LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 97/21/1181 LOWER COURT JUDICIAL Payne DCJ OFFICER :

COUNSEL : M Grogan (Crown) P Byrne SC (Respondent) SOLICITORS : S E O'Connor (Crown) T A Murphy (Respondent) CATCHWORDS : CRIMINAL LAW - sentencing - Crown appeal - malicious damage by fire - Crimes Act 1900, s195(b) - CRIMINAL LAW - sentencing - manifestly inadequate sentence - "weight" - "special circumstances" - Sentencing Act 1989, s5(2) LEGISLATION CITED : Crimes Act 1900 Sentencing Act 1989 DECISION : Appeal dismissed

IN THE COURT OF CRIMINAL APPEAL

60113/99

SPIGELMAN CJ GROVE J HIDDEN J

Friday 17 March 2000

REGINA v Kelly Anne BAKER

JUDGMENT 1 SPIGELMAN CJ: This is a Crown appeal against the alleged inadequacy of a sentence. 2 On 11 February 1999 the Respondent pleaded guilty before her Honour Judge Payne in the Penrith District Court to one count of malicious damage by means of fire, contrary to s195(b) of the Crimes Act 1900. 3 The maximum penalty for the offence is ten years. Her Honour imposed upon the Respondent a sentence of a minimum term of three months and an additional term of nine months. Her Honour specified that the sentence would commence on 6 November 2000, being the day after the expiry of a minimum term imposed upon the Respondent for an offence of armed robbery. 4 The offence with which the present proceedings are concerned was committed on 20 February 1997. At that time the Respondent was on bail pending prosecution for the armed robbery offence. 5 The act constituting the offence was the throwing against a garage roller door of what has been referred to in these proceedings as a "fire bomb", namely, a glass bottle containing an inflammable substance with a tightly rolled piece of cloth that had been lit prior to the bottle being thrown. 6 The garage adjoined, it appears quite closely, a dwelling at 127 Kildare Road, Blacktown. The dwelling was at the time of the offence occupied by Barbara Gilmore (who was pregnant), David Fleming and their two children. The house was owned by the Department of Housing. 7 The fire was reported to the Police and Fire Brigade services. However, it was extinguished by Mr Fleming prior to their arrival. Property damage amounting to approximately $700 was caused. 8 According to the evidence of Ms Gilmore before her Honour, tension had developed between herself and Ms Baker because the latter had alleged that Ms Gilmore had taken some of the cards in her collection of Marilyn Munro cards, a collection to which she was particularly attached. 9 Four days before the offence the Respondent telephoned Ms Gilmore and said: "You had better watch the yellow Monaro and your Commodore because I am going to fucking fire bomb them." 10 The Crown asserts on this appeal that the sentence imposed was manifestly inadequate and, particularly, that the minimum term imposed was manifestly inadequate. Its submission was that, "There was no reasonable proportionality between the sentence and the objective gravity of the crime". Its basic submission was: "This would appear to be because her Honour failed to give any sufficient weight to the principle of general deterrence or because she allowed the Respondent's objective features far to outweigh the objective seriousness of the offence". 11 The use of terminology such as "sufficient weight" highlights the difficulty for the Crown case. Questions of weight in the exercise of a discretion are matters for the first instance judge. The circumstances in which matters of "weight" will justify intervention by an appellate court are narrowly confined. 12 This is one of those cases in which the Court is asked to infer a legal error from the mere inadequacy of the sentence. The Appellant's submissions did not direct attention to any part of the conduct of the proceedings, or of her Honour's reasons on sentence, which disclosed any form of legal error. 13 The gravity of the offence, in terms of the use of fire, is recognised in s195 itself. For malicious damage to property the maximum sentence is five years penal servitude but, in the case of destruction or damage caused by fire or explosives, the maximum becomes ten years. 14 The thrust of the submissions on behalf of the Crown was that her Honour failed to give adequate weight to the danger which may have been caused by the act, directed at the garage, but which adjoined a dwelling that was at the time occupied by a family, including two children. 15 It was also submitted, and emphasised in oral submissions, that her Honour failed to give appropriate weight to the circumstances that this offence was committed whilst the Respondent was on conditional liberty, a relevant factor in the sentencing discretion and one to which her Honour referred. 16 It can be accepted that the circumstance of the possible spread of fire is a circumstance entitled to be taken into account by the trial judge in determining the appropriate sentence. Such circumstances are not, however, determinative of the appropriate sentencing range. The weight to be given to the potential consequences of the use of fire depends on all the circumstances of the case. In the present case those circumstances include an express threat to attack the victim's cars and a "fire bomb" directed at the garage. 17 In her reasons on sentence her Honour noted a number of factors relevant to determination of sentence, including: · The Crown case was not an "overwhelming" one and accordingly significant weight was entitled to be attached to the plea of guilty. · Her Honour made express reference to the need for general deterrence in a case of a person "seeking retribution about what she perceived to be wrong". · The subjective considerations included an addiction to heroin, continued ill-health, her victimisation on two subsequent occasions as a victim of a crime herself and a participant in a car accident, which caused the Respondent to suffer two head injuries; and also her Honour took into account the detailed contents of a psychologist's report tendered before her Honour and available to this Court. 18 Her Honour gave two reasons for finding special circumstances within s5(2) of the Sentencing Act. The first was that the very fact that she was accumulating a sentence upon the minimum term of the sentence for armed robbery was itself a "special circumstance". It does not appear to me that the mere fact of accumulation is such. However, the consequence of accumulation on a minimum term may be, as indeed it would have been in this case, to significantly attenuate an additional term for the other offence. It is not necessary to finally decide this point. The Crown accepted that there were special circumstances by reason of the second factor on which her Honour relied, namely, the desirability of an extended period of supervision to foster her rehabilitation. 19 In my opinion there is no warrant for this Court to interfere with the sentencing discretion by her Honour. The authorities make it clear that Crown appeals should be rare. It may be that present practice does not reflect that restriction, nevertheless, successful Crown appeals should be rare. This is particularly so with respect to that category of appeals in which no particular error can be identified in the sentencing process and the Crown must rely on an assertion of manifest inadequacy as a basis for a conclusion that some error of principle must have occurred. 20 In the present case the personal history of the Respondent was entitled to weight as a counterbalance to the objective circumstances of the offence, including the minimal actual damage to property, the potential for greater damage to persons and property and the element of an offender taking the law into her own hands. In my opinion the striking of that balance was not such as to require a sentence higher than that imposed by her Honour. 21 I would dismiss the appeal. 22 GROVE J: I agree. 23 HIDDEN J: I agree. 24 SPIGELMAN CJ: The order is that the appeal is dismissed. **********