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Court of Criminal Appeal 5 December 2003

R v Cairns

[2003] NSWCCA 395

Assault & violencePublic order & justice offences
DELAY IN GIVING ASSISTANCE

Citation: Cairns v R [2003] NSWCCA 395
Court: NSW Court of Criminal Appeal
Date: 5 December 2003
Judge(s): Smart AJ; Hidden J

Background

The appellant was 19 years old when, following a nightclub altercation in which he was struck and injured, he obtained the home address of the man he blamed and made a series of threatening phone calls to him. About twelve days later, after a lengthy drinking session, the appellant and two friends assembled petrol bombs, drove to the victim's family home, and threw a large petrol-filled bottle through a front window. The resulting fire gutted the interior of the house, which had to be demolished entirely. Rebuilding costs reached up to $400,000, contents worth approximately $88,000 were uninsured and lost, and the family suffered significant personal and financial disruption.

The appellant was arrested after police traced the threatening phone calls back to him. He confessed at his recorded interview but initially refused to name his co-offenders. Three months later he identified them to police and agreed to give evidence against them. At the time of sentencing, however, neither co-offender had been charged, and the delay in naming them had made prosecution more difficult.

In the District Court, Holt ADCJ sentenced the appellant to 4 years and 6 months imprisonment with a non-parole period of 3 years. The appellant sought leave to appeal on the ground that the sentence was manifestly excessive.

  • Whether the sentence of 4 years and 6 months with a 3-year non-parole period was manifestly excessive in all the circumstances
  • Whether sufficient weight was given to the appellant's youth, immaturity, intoxication, psychiatric condition (adjustment disorder), and good prospects of rehabilitation
  • What discount, if any, should apply for the assistance given to police, taking into account the delay in providing that assistance

Decision

The Court of Criminal Appeal accepted that the offence was undoubtedly serious. The fire caused substantial damage to a family home, severe personal loss to the Wakeling family, and disrupted the victim's university studies by a full year. The sentencing judge had correctly found that the offence involved a degree of planning, including the deliberate sourcing of incendiary materials and travel to the victim's address. The Court agreed that condign punishment was warranted.

At the same time, the Court found that the head sentence of 4 years and 6 months was not warranted in the circumstances. A head sentence of 4 years was appropriate, reflecting the applicant's youth, his first time in custody, his prior good character, his early guilty plea, his expressed remorse, and his good prospects of rehabilitation. The Court also noted, at the hearing of the appeal, that the appellant had written a letter of apology to the family, to which the father responded generously.

On the non-parole period, the Court agreed with the sentencing judge that special circumstances existed, including the applicant's youth, his first time in custody, good rehabilitation prospects, and the need for extended supervision on release. Those circumstances justified setting the non-parole period at 2 years, leaving a 2-year balance of sentence during which the appellant would be supervised on parole.

The Court treated the delay in the appellant's cooperation with police as a relevant factor reducing the weight of the assistance offered. While the Crown accepted that identifying the co-offenders was valuable, the late disclosure made their prosecution more difficult, and that qualification was reflected in the overall sentencing outcome.

Orders Made

  • Leave to appeal against sentence granted
  • Appeal allowed
  • Sentence quashed
  • In lieu of the sentence imposed, the appellant is sentenced to imprisonment for 4 years commencing 3 April 2003, with a non-parole period of 2 years expiring 2 April 2005, on which date the appellant is eligible for release on parole

Key Takeaways

  • The Court of Criminal Appeal confirmed that a head sentence of 4 years was appropriate for maliciously damaging property by fire where the offence involved planning, serious damage to a family home, and significant harm to the victims, but where the offender was a youthful first offender with strong rehabilitation prospects.
  • Where an offender's assistance to police is delayed and that delay materially hinders prosecution of co-offenders, the value of the assistance is reduced, and this reduction properly influences the sentencing outcome.
  • Special circumstances justifying an extended parole period (and thus a shorter non-parole period relative to the head sentence) were established by the combination of the offender's youth, first time in custody, good rehabilitation prospects, and the need for supervised reintegration.
  • A sentencing court must weigh the gravity of the offence and its impact on victims against the genuine rehabilitative needs of a young offender, and the Court here found those considerations required adjustment of both the head sentence and the non-parole period.
  • Post-sentence expressions of remorse, including a letter of apology and a generous response from the victim's family, were received by the Court on appeal, though the primary weight given to such matters occurs at first instance.

Legislation and Cases Referenced

Legislation:
- None cited

Cases:
- Blackman & Walters [2001] NSWCCA 121
- Pham & Ly (1991) 55 A Crim R 128