Citation: R v Dinos [1999] NSWCCA 208
Court: New South Wales Court of Criminal Appeal
Date: 21 July 1999
Judge(s): Simpson J, Studdert J
Background
The appellant was convicted by jury of two offences arising from events in 1991: dishonestly destroying property by fire (arson), and publishing a false statement with intent to obtain money (a fraudulent insurance claim). The charges related to a chicken shop in Lane Cove, New South Wales, which the appellant co-leased and which was in significant financial difficulty.
After midnight, the appellant poured petrol around the shop and ignited it. The resulting explosion and fire completely destroyed the shop and caused substantial damage to neighbouring premises, including a barber shop and a computer store. Total assessed damage exceeded $1.2 million, with further damage remaining unquantified at sentencing. A fraudulent insurance claim was subsequently lodged that was inflated by approximately $50,000 to $60,000 above the true value of the destroyed property. The insurer declined the claim and suffered no actual financial loss.
The appellant was sentenced in November 1998, more than seven years after the offences. On the arson count, Hosking DCJ imposed a total term of four years penal servitude (minimum three years, additional term one year). A concurrent fixed term of nine months was imposed for the fraud offence. The appellant sought leave to appeal against the sentences as manifestly excessive.
Legal Issues
- Whether the sentencing judge erred in finding that the explosion posed extreme potential danger to the community, by reference to the remark that it was "little short of a miracle that no one was killed or seriously injured"
- Whether the sentence failed to give adequate weight to the appellant's age (60), clean prior record, strong character evidence, and personal circumstances including depression and injuries
- Whether the extraordinary delay of over seven years between the offences and sentencing, for which the appellant bore no responsibility, was given sufficient weight as a mitigating factor
- Whether Judicial Commission statistics showing that only 12 per cent of offenders under the relevant provision received full-time imprisonment indicated that the sentence was manifestly excessive
Decision
The Court rejected the argument that the sentencing judge's assessment of potential danger was unsupported by the evidence. The explosion occurred in a shopping precinct where members of the public were present nearby, including patrons from an adjacent open restaurant and staff from a hotel that was closing. The Court agreed that the potential danger to the community was extreme.
On the personal circumstances of the appellant, the Court accepted that the clean prior record and character evidence were relevant mitigating factors and confirmed the sentencing judge had acknowledged them. The sentencing judge had identified a specific reduction from an initial starting point of five years to the four-year term actually imposed. Although age and lack of prior offending diminished the need for specific deterrence, the Court found no basis to conclude that the mitigating factors had been given inadequate weight, given the objective gravity of the offence.
Regarding the lengthy delay, the Court characterised the delays as "extraordinary and unacceptable" and accepted they were a significant matter in the appellant's favour. However, the sentencing judge had expressly acknowledged the delay and factored it into the reduction he applied. The Court found no error in how that consideration was handled.
The Judicial Commission statistics attracted the most sustained analysis. The statistics showed that only 12 per cent of offenders under the arson provision received full-time imprisonment and, of only three recorded cases, the longest total term was 42 months. The Court applied caution to this material, consistent with earlier authority, noting the sample was too small and the underlying factual circumstances of those cases were unknown. No reliable comparison could be drawn with the serious facts in the present case.
Orders Made
- Leave to appeal granted
- Appeal dismissed
Key Takeaways
- Judicial Commission sentencing statistics must be approached with considerable caution where the sample size is small and the circumstances of the underlying cases are unknown, as they may provide no meaningful guide for comparison with a particular offence.
- A sentencing court's reduction of a head sentence by one year to reflect mitigating factors, including delay and prior good character, will not constitute error simply because the appellant argues the reduction was insufficient, provided the judge expressly acknowledged and applied those factors.
- In dismissing the appeal, the Court of Criminal Appeal confirmed that the extraordinary length of delay between offence and sentencing, where not attributable to the appellant, is a relevant mitigating consideration, though how much weight it receives will depend on the facts of each case.
- An observation that serious harm was narrowly avoided is a legitimate sentencing consideration where the physical evidence supports an inference of extreme danger to persons in the vicinity, even if no one was actually injured.
- Injuries and other adverse consequences that a convicted person brought upon themselves through their own criminal conduct are entitled to little weight in mitigation at sentencing.
Legislation and Cases Referenced
Legislation:
- Crimes Act 1900 (NSW), s 197(b) (dishonestly destroying or damaging property by fire; maximum 14 years penal servitude)
- Crimes Act 1900 (NSW), s 178BB (publishing a false statement with intent to obtain money; maximum 5 years imprisonment)
Cases:
- R v Bloomfield (1998) 44 NSWLR 734 (caution in using Judicial Commission statistics)
- R v Bragias (1997) 92 A Crim R 330 (impact of delay on sentencing)
- R v Todd [1982] 2 NSWLR 517 (mitigating effect of long pre-trial delay not attributable to the accused)