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Court of Criminal Appeal 10 August 2007

Gunes v Regina

[2007] NSWCCA 242

Theft & property
CRIMINAL LAW SENTENCE APPEAL MALICIOUS DAMAGE TO PROPERTY BY FIRE OBJECTIVE GRAVITY OF OFFENCE

Citation: Gunes v Regina [2007] NSWCCA 242
Court: New South Wales Court of Criminal Appeal
Date: 10 August 2007
Judge(s): McClellan CJ at CL, Howie J, Harrison J

Background

The appellant was the son-in-law of a restaurant proprietor who, unbeknown to the appellant, had planned to deliberately destroy his own restaurant by fire. On 28 December 2004, the appellant accompanied his father-in-law to the restaurant in the early hours of the morning, believing the purpose of the trip was to retrieve cash from the safe. He waited in the car while his father-in-law entered the premises.

After approximately 15 minutes, the appellant grew concerned and entered the restaurant. He discovered his father-in-law pouring petrol inside and immediately challenged him. An argument followed, but the appellant ultimately assisted by briefly holding a jerry can and waiting near the rear exit while the fire was lit. He did not witness the fire being ignited. The blaze gutted the entire building and caused damage to an adjoining residential property.

The appellant pleaded guilty in the District Court to malicious damage to property by fire under section 195(1)(b) of the Crimes Act 1900, carrying a maximum penalty of 10 years imprisonment. He was sentenced to four years imprisonment with a non-parole period of two and a half years. He appealed on the grounds that the sentencing judge had not properly accounted for his limited role and that the sentence was manifestly excessive.

  • Whether the sentencing judge correctly assessed the objective gravity of the offence having regard to the appellant's limited and reactive degree of participation, as distinct from the conduct of the principal offender.
  • Whether sufficient weight was given to the appellant's contrition and cooperation with authorities.
  • Whether the sentence of four years imprisonment with a non-parole period of two and a half years was manifestly excessive.

Decision

The Court of Criminal Appeal found that the sentencing judge had not given proper independent consideration to the appellant's own conduct when assessing objective criminality. The appellant had no prior knowledge of the plan, received no financial benefit from the offence, and became involved only after stumbling upon his father-in-law mid-act. The Court found it critical that the father-in-law had plainly intended to carry out the arson entirely without the appellant's knowledge or assistance, and that the fire would in all probability have succeeded regardless of the appellant's involvement.

The Court accepted that the sentencing judge had formed the view that a very serious crime had occurred, which was undisputed. However, the objective seriousness of the principal offender's conduct could not be permitted to overshadow a proper and independent assessment of what the appellant himself did. The appellant's acts, assessed on their own terms, were materially less serious than those of his father-in-law.

The Court also noted significant personal circumstances. The appellant had no prior criminal history, came from an unblemished background, and was placed without warning into what Harrison J described as an almost irreconcilable conflict of loyalties. His involvement had already cost him his marriage and would likely affect his future employment. The sentence imposed by Sorby DCJ was found to be manifestly excessive, warranting the substitution of a lesser sentence.

Orders Made

  • Leave to appeal granted.
  • Appeal allowed.
  • Sentence imposed by Sorby DCJ quashed.
  • In lieu thereof, the appellant sentenced to a fixed term of imprisonment commencing 22 September 2006 and expiring 6 August 2007.

Key Takeaways

  • When sentencing a co-offender, a sentencing court must independently assess that offender's own conduct and not allow the greater criminality of the principal to distort the evaluation of a lesser participant's role.
  • A conviction entered by guilty plea does not relieve the sentencing court of its obligation to carefully calibrate the sentence to the actual acts performed by the specific offender before it.
  • Where a co-offender had no prior knowledge of the criminal plan, received no financial benefit, and became involved only reactively and briefly, those facts bear directly on the objective seriousness of that offender's participation.
  • The Court of Criminal Appeal confirmed that the degree to which an offence would have been completed regardless of a particular participant's contribution is a relevant consideration in assessing that participant's criminality.
  • Significant personal circumstances, including an unblemished prior record and the absence of any prospect of future offending absent the particular circumstances, remain relevant factors when assessing whether a sentence is proportionate.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 112(1), 195(1)(a) and (b)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 21A

Cases:
- Lowe v R (1984) 154 CLR 606
- R v Burns [2007] NSWCCA 228
- R v De Simoni (1981) 147 CLR 383
- R v Gould [1999] NSWCCA 177
- R v Ponfield (1998) 48 NSWLR 327
- R v Saad [2007] NSWCCA 98