Legal Analysis For Natural Justice: R V Robertson [2017] QCA 164

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The appellant in the case of R v Robertson [2017] QCA 164[1] had pleaded guilty in relation to attempting arson. The appellant had been sentenced for a period of two and a half years by the district court because of the attempted arson and other offences which had been identified in his act. It was appealed by the appellant that the judge of the lower court was not accurate towards determining the appropriate sentence for the crime, and the judge analyzed the seriousness of the crime much more that it actually was as pleaded by the appellant. It was further submitted by the appellant that the sentencing judges was also incorrect towards imposing the sentence based on the findings that the appellant had torched the house of her ex-landlord. The question before the court of appeal was that whether the sentencing judge had made an inaccurate judgment in relation to the case. It was further submitted by the judge made an error towards the imposition of a parole release date without discussing it with the defense council that they were considering such actions and such actions did not allow the appellant to gain natural justice as his counsel could have been a submission before the court that why no parole is granted. Thus the court of appeal had to consider whether or not this was an error on the part of the district judge.

It was further submitted by the appellant that the judge did not take into consideration that a sentence has to be provided as the last resort and no consideration was made in the part of the judge to partly or wholly suspend the judgment. In addition it was provided by the appellant that the consideration made on the part of the judge that an actual sentence was required for the purpose of setting an example to the community in relation to the behavior of the appellant was also incorrect as the judge did not considered that the requirement for specifically providing the sentence was not high. The judge further did not consider other sentencing options for the appellant. The question before the court of appeal was that whether the judge should have considered that the sentence should be the last resort.

Thus the facts giving rise to the appeal are that the appellant pleaded guilty to attempted arson, He was sentenced for two and a half years in jail for attempted arson, Sentence was for attempted arson and other concurrent offences like trespass and theft and fraud, the court took the offence more seriously than it actually was and the sentence provided by the court was excessive manifestly[2].

Grounds of Appeal

The themes in which the grounds of appeal was set out in are Mischaracterization of the applicant’s criminality, Failure to afford procedural fairness, Prison a last resort and Manifest excess of the punishment[3]. 

The judge admitted present case was less serious than Silasack and Rhode[4] . She agrees with trial judge regarding the seriousness of this offence comparing the offences to other cases where similar or more punishment was given[5]. The judge agreed to the findings related to arson by Atkinson J[6]. The judge held that the breach of domestic violence order resulted in the constitution of seriousness[7].As the parole release date considerably below the conventional 1/3 mark. This was an additional ground for justifying that the head sentence is not excessive[8].

Philippides JA held the view that the sentence which was given to the appellant for attempting arson was totally within the discretionary power of the sentencing judge. He was not able to find that the head sentence which was provided by the sentencing judge was excessive and thus he suggested that no interference of this court was required with the sentence[9]. It was further provided by him that there was no authority which would allow the interference with a decision based on the fact that it was manifestly excessive[10]. It was further provided by the judge that as the attempted arson took place while a domestic violence order was imposed on him such circumstances would require deterrent and denunciatory sentence. In addition the judge stated that even if the submission made by the appellant that there was no intention to destroy the entire building, an attempted arson is in itself a very serious conduct[11]. The judge added that attempted arson was committed as there was an intention on the part of the appellant to unlawfully and will fully set the building on fire, the intention was brought into practicality by finding the best possible way to achieve the intension, the intention was manifested by an act and the intention was not fulfilled to the extent which would constitute an offence of arson[12].

In relation to Mischaracterisation of applicant’s criminality contention is the judge erred by characterising the intention of the applicant as trying to “torch” the house, when instead her intention was just to throw a lit phonebook onto a tiled floor to create a mess, harass, and cause financial detriment[13].The supposed mischaracterisation was made during oral exchanges in the course of submissions[14]. Atkinson J accepted the trial judge used it merely to mean “set fire” rather than to destroy[15]. It was agreed by the judge that it was a serious offending[16]. The judge was convinced that the trial judge adequately set out his sentencing remarks[17].  Atkinson J provided that the trial judge’s approach is “entirely orthodox” in relation to procedural fairness[18]. The judge provided that the trial judge had considered all option and then provided prison to be the last resort[19].In R v Johnson it was provided by Jerred J that where there is no fraud  or no danger to safety of others, arson head sentence should be 3 years[20].The judge provided attempted arson should carry a less severe sentence than arson[21]. Her Honour proceeds to consider a list of cases and appropriate sentences imposed for arson and attempted arson to determine whether the trial judge’s imposition of a 2 and a half year head sentence was manifestly excessive such as the case of  R v Heckendorf[22] and  Wong v The Queen (2001)[23]. The judge held that the need of punishment and deterrence was obvious in this case[24]            

Sentencing Judge's Decision

In relation to mischaracterization of the criminality of the appellant it was provided by Atkinson J that there was no error made by the sentencing judge that actions which was indulged into by the appellant could be considered as a significant example with respect to the offence of attempted arson. Therefore the appeal made by the appellant on this ground must fail[25]. In relation to failure of observing procedural fairness by the sentencing judge it was provided by Atkinson J that if the court had not imposed a probation order, an intensive correction order or an order where the sentence would be suspended wholly or partially, it is the duty of the judge to comply with section 160B C or D of the Punishment and Sentencing Act 1992[26]. In the given circumstances the section 160B was applicable which provides that parole date must be fixed by the judge where a sentence provided is less than 3 years and if the sentence is not related to sexual or serious violent offences. In this case the sentencing judge had set out and early payroll release date in accordance to the evidence and submission made before him and therefore the ground for application for leave to appeal is not valid[27]. In relation to the sentence of imprisonment been imposed as a last resort it was provided by Atkinson J that a sensible suggestion which would provide that the sentencing judge did not take into account all the options of punishments available before him before imposing a sentence did not exist, this implies that all other options were properly considered by the sentencing judge. Therefore this ground for appeal was also rejected by Atkinson J[28].  In relation to the decision being manifestly excessive it was provided by the judge that the offence which was related to this case was not as serious as the offences which has attracted higher punishment in some other cases. The offence which was committed by the applicant was not planned as she did not carry any material with her into the premises for causing the fire. She set the phone book on fire by placing it on the tiles of the bathroom which was insulated and therefore no further consequences were caused. To this extent it was decided by Atkinnson J that the sentence which have been imposed on the appellant is manifestly excessive and should be only limited to two years without any alteration to the parole date which was clearly below the one third mark[29].

Court of Appeal's Judgment

Section 461 of the criminal code states that a person commits arson if he sets fire on a building unlawfully or wilfully[31]. Section 4 of the criminal code further said that a person has said to have made an attempt to commit an offence if the intention to commit the offence was initiated to be brought into execution, however such attempt did not reach its objectives to an extent that it would comprise of the offence[32]. Therefore in this case as no harm was caused to the house the actions of the appellant would be considered as attempted arson[33]. In R v Silasack two bottles were thrown. First bottle fell outside and extinguished without damaging t the property. Second bottle landed inside and ignited curtains, cane basket and some clothing. The judge classified this act as attempted arson. The necessary element of this section is that the person wanted to commit arson but was not able to[34]. 

The effect of the decision provided by the court of appeal on the amount of time Robertson would serve actually in prison would be that she would be in prison for a period of more one and a half years excluding Parole as she has already served six months of a sentence and her sentence have been brought down to two years from two and a half years.

As provided by section 160 of the Punishment and Sentences Act 1992 if an imprisonment term is imposed on a person by a court section 160B to 160D are applicable. In this case as a sentence was less than 3 years section 160B is applicable. The section states that is this section is applicable the court has a duty to fix a parallel release date for the offender. Therefore the only requirement for the sentencing judge was to set parole release date and he had full discretion over the period of the parole even if it was less than one third.

In the provided hypothetical scenario the sentence for Robertson would have been increased to a maximum of life imprisonment as an actual offence of arson would have been committed and not merely attempted arson.

While solving the case of Hart v Rackin 1979 WAR 144, I got to know that consecutively serving one year’s imprisonment for three charges was excessive and the appeal changed the serving of the sentence to concurrent serving of sentence. While submitting the assignment I need to be careful that I have correctly answered all questions and reference to the answers correctly. I will need to proofread my answer to ensure that there are no grammatical errors in it.