Citation: Cameron v R [2013] NSWCCA 224
Court: Court of Criminal Appeal, New South Wales
Date: 9 October 2013
Judges: Hoeben CJ at CL (with Bellew J and Barr AJ agreeing)
Background
The appellant, a man in his mid-fifties, broke into his brother's rural property near Tamworth and deliberately started a fire inside the home using petrol he had retrieved from a shed. The house sustained approximately $296,000 in damage and its contents, valued at over $80,000, were entirely destroyed. No one was physically injured; the brother's family had left the property earlier that afternoon.
The offending followed a confrontation between the appellant and his brother over a recently purchased boat, and occurred against a background of long-running family tensions, the appellant's dismissal from his farmhand position, and significant alcohol consumption over the preceding day and a half. The appellant pleaded guilty to one count of break, enter and commit a serious indictable offence (destroying property by fire) under s 112(1)(a) of the Crimes Act 1900, which carries a maximum penalty of 14 years' imprisonment.
At sentence, the District Court accepted that the appellant was clinically depressed at the time of the offence and took that into account in assessing his moral culpability. He was sentenced to a non-parole period of 3 years with a balance of term of 1 year and 10 months. He sought leave to appeal, arguing that the sentencing judge had erred in two respects.
Legal Issues
- Whether the sentencing judge erred by failing to reduce or eliminate the significance of specific deterrence given the appellant's depression at the time of the offence.
- Whether the sentencing judge's characterisation of the offending as involving "a considerable element of planning" was open on the evidence, particularly in light of the judge's own finding about the disinhibiting effect of alcohol on the appellant.
Decision
On the first ground, Hoeben CJ at CL found no error. The sentencing judge had not expressly invoked specific deterrence, and the circumstances of the case did not demand that she do so. The evidence showed that the appellant was remorseful, shocked by the consequences of his actions, and there was nothing to suggest he would contemplate similar conduct in the future. Even absent an explicit statement on the topic, the absence of any adverse reference to specific deterrence in the remarks permitted an inference that the judge did not apply it against the appellant.
On the second ground, the Court rejected the submission that the offending was spontaneous. Hoeben CJ at CL found it tolerably clear that, at least from the point when the appellant left a threatening telephone message for his sister-in-law, he had formed an intention to enter his brother's home and set fire to it. What followed was a sequence of purposeful and methodical steps taken over a substantial period: retrieving petrol, travelling by quad bike through paddocks, removing the keys from a parked ute, entering the house, spreading petrol through two rooms, and then locking up and returning home.
The Court noted that the appellant's own counsel had conceded at sentencing that some element of planning was present. Against that background, the characterisation of "a considerable element of planning" was well open to the sentencing judge and was not undermined by the concurrent finding about alcohol's disinhibiting effect. Both grounds of appeal failed.
Orders Made
- Leave to appeal granted.
- The appeal is dismissed.
Key Takeaways
- In dismissing the appeal, the Court of Criminal Appeal confirmed that a sentencing judge is not obliged to make express findings about specific deterrence in every case; failure to mention it does not automatically constitute error, particularly where the circumstances do not call for it to weigh adversely against an offender.
- A finding of clinical depression may reduce moral culpability at sentencing without necessarily displacing a separate finding that the conduct was purposeful and planned.
- Where an offender takes multiple deliberate and sequential steps over a meaningful period to execute an offence, a finding of considerable planning can be open even if alcohol was also a factor at the time.
- The concession by defence counsel at sentencing that some planning was involved may inform the scope of what findings remain open to the sentencing judge on appeal.
- No error was established merely because the sentencing judge characterised planning as "considerable" rather than the lesser characterisation sought by the appellant; the degree of characterisation was a matter properly within the sentencing judge's assessment of the facts.
Legislation and Cases Referenced
Legislation:
- Crimes Act 1900 (NSW), s 112(1)(a) (break, enter and commit serious indictable offence, maximum 14 years' imprisonment)
Cases:
No cases were cited in the metadata or in the portions of the judgment provided.