Hamilton v The Queen [2001] FCA 44 (6 February 2001)

Last Updated: 7 February 2001

FEDERAL COURT OF AUSTRALIA

Hamilton v The Queen [2001] FCA 44

SANDRA LOUISE HAMILTON v THE QUEEN

A 55 OF 2000

HIGGINS, DRUMMOND & DOWSETT JJ

6 FEBRUARY 2001

CANBERRA

IN THE FEDERAL COURT OF AUSTRALIA
AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY	A 55 OF 2000

ON APPEAL FROM THE CHIEF JUSTICE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

BETWEEN:	SANDRA LOUISE HAMILTON APPELLANT
AND:	THE QUEEN RESPONDENT
JUDGES:	HIGGINS, DRUMMOND & DOWSETT JJ
DATE OF ORDER:	6 FEBRUARY 2001
WHERE MADE:	CANBERRA

THE COURT ORDERS THAT:

1. The appeal be dismissed.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY	A 55 OF 2000

ON APPEAL FROM THE CHIEF JUSTICE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

BETWEEN:	SANDRA LOUISE HAMILTON APPELLANT
AND:	THE QUEEN RESPONDENT

JUDGES:	HIGGINS, DRUMMOND & DOWSETT JJ
DATE:	6 FEBRUARY 2001
PLACE:	CANBERRA

REASONS FOR JUDGMENT

THE COURT:

1 The applicant was convicted in the Supreme Court of the Australian Capital Territory on one count of arson and one count of common assault. She was sentenced, on the count of arson, to imprisonment for a period of four years and on the assault count, to a concurrent period of imprisonment for one month. The non-parole period was fixed at two years, the sentences and non-parole period to date from 11 April 2000. The applicant did not appeal within the time prescribed but has sought an extension of time in which to appeal against sentence. The Crown does not oppose that application. Accordingly, the time for appeal should be extended until 5 February 2001. The draft notice of appeal should be treated as the notice of appeal for the purposes of these proceedings. We will hereafter refer to the applicant as the appellant. Obviously, the appeal relates only to the arson count.

2 The appellant was born on 27 July 1964. She has suggested that she is of Aboriginal descent, but that appears to be a matter of dispute. It is not of great significance for present purposes. Her upbringing and family life were deprived. Her father was an alcoholic and often committed acts of violence upon her mother. Her parents separated when she was sixteen. The appellant was first married at age nineteen and had four children from that marriage. They were all taken into care in 1989. The eldest child is now fifteen years of age. She has a long history of alcohol and drug abuse, although she now claims to be committed to abstaining from alcohol and illicit drugs. The appellant has undergone psychological assessment. She is described as having difficulties in accepting authority, low frustration tolerance and poor conflict management skills. She is of border-line intellectual functioning, which deficit is likely to have been compounded by her reported history of substance abuse.

3 She has an extensive criminal history, involving offences of dishonesty, drug-related offences and offences related to the administration of justice such as breach of recognizance and failing to appear. There was also one charge of offensive behaviour and one of malicious injury in 1985. The penalties suggest that they must have been minor offences. Her first conviction was in 1982 when she was dealt with in the Children's Court. Her offences thereafter were in 1985, 1987, 1990, 1991, 1996, 1997, 1998 and 1999. Between 1991 and 1996, she apparently refrained from offending. In more recent years her offences have been primarily offences of dishonesty or drug-related offences.

4 The appellant and her present husband were married on 21 August 1999. Until 10 April 2000 they resided in a flat at A'Beckett Street, Watson. Their relationship was in crisis from at least Saturday 8 April 2000 when police were called to the premises. Thereafter, a magistrate granted an order prohibiting the appellant from assaulting, threatening to assault, harassing, threatening or otherwise intimidating the complainant. This order was in force from 8 April to 10 April 2000. On the morning of 10 April 2000 the appellant assaulted her husband by striking him with a telephone handset. The police were called and observed that he had superficial cuts to the top of his head and to the right temple area. The appellant admitted having hit him during an argument about cigarettes. She was arrested and charged but granted bail conditional upon her not again assaulting her husband and with other conditions. A short time after her release, she returned to the flat. Another argument broke out between her and her husband. He told her to pack her belongings and leave, and then he left himself. The residents of one of the other flats in the block also spoke to her, asking her to leave. She told them to mind their own business.

5 At about 4.30 pm, neighbours heard the sounds of property being smashed within the flat. They then saw smoke coming from it. Apparently the appellant had spread turpentine on furniture and lit it. The furniture caught fire. Emergency services were called and the fire was extinguished. The flat was no longer habitable. The cost of repair was estimated at $23,375. There were seven other flats in the block, each tenanted at the time. A number of the tenants were present at the time of the fire.

6 After starting the fire, the appellant caught a bus, telling the driver that she had just burned down her flat. The driver rang for an ambulance. The appellant was taken to hospital. At the hospital she telephoned the police and made certain admissions. The eventual arresting officer attended at the hospital, and the appellant made further admissions. She said that if she could no longer live in the flat or use the property there, then nobody could. She was arrested and charged. On 19 May, she pleaded guilty in the Magistrates' Court and was committed to the Supreme Court for sentence.

7 At the time of sentence, the learned sentencing Judge was told that the appellant's husband had indicated his willingness to be reconciled with her and to resume co-habitation. Were this simply a case of violence directed at him, that may well have been of some significance in the sentencing process. However, for present purposes, a more serious consideration is that the lives of others were placed at substantial risk by this criminal conduct.

8 In passing sentence his Honour referred to a number of the matters to which we have already referred and in particular, to the seriousness of the offence and the fact that the appellant appeared to have a propensity to offend because of her mental or emotional condition. His Honour referred particularly to the danger to others posed by her conduct, to her criminal record and to the fact that she had not previously served a sentence of imprisonment. This was incorrect. She was imprisoned for four months in 1998. Further, at the time of these offences, she was subject to a suspended sentence conditional upon her being of good behaviour for eighteen months from 21 July 1999. Had his Honour had regard to these matters, it is quite likely that the sentence on the arson count would have been more severe than was the sentence actually imposed.

9 His Honour referred to "some of these more general aspects", apparently concerning the offence of arson and referred to two earlier decisions of his own including that of The Queen v Julius Horvath (ACT Supreme Court, 26 August 1997, unreported). His Honour said:

I do not accept the culpability of the present offender as being as great as that in Horvath, where the offender, or rather the offence, was the subject of careful planning over a period of time for the specific purpose of revenge. There are aspects of revenge, of course, in the present case but the offence was committed in much more impetuous circumstances.

This appears to be a fair assessment of the circumstances surrounding the present case.

10 The appellant pleaded guilty at an early stage, however it seems that this may have been prompted more by a sense of the inevitable than by any sense of remorse, given that she said to the author of one of the pre-sentence reports that she thought it was not wrong to do what she had done to a husband who had kicked her out. Nonetheless, the plea of guilty undoubtedly resulted in some saving to the criminal justice system and was a factor to be recognized in fixing the appropriate sentence. It seems that his Honour recognized this factor indirectly by basing his sentence upon that passed in Horvath. In that case a sixty-nine year old man residing in Hungary purchased a return ticket to Australia, apparently for the purpose of setting fire to the home of his ex-wife and son. The fire caused $86,000 worth of damage to the building and destroyed $50,000 worth of personal belongings. He apparently wished to prevent his ex-wife from residing in the home which, in his view, he had paid for. He used an accelerant and expressed no remorse. He had no previous criminal history and entered an early plea. He was sentenced to six years imprisonment with a non-parole period of two-and-a-half years.

11 The appellant appeared for herself. She said that she regretted her conduct. That is hardly surprising given the sentence to which she is subject and the time which she has already spent in prison. She said that she wants to go home and hopes to obtain custody of her children. As we have observed, the children were put into care some years ago. It seems unlikely that they would be entrusted to her in view of the arson conviction. She said that there was no benefit to be derived from her remaining in jail. No doubt that view is held by most people who are subject to sentences of imprisonment.

12 She was subject to a suspended sentence at the time of these offences. A period of actual imprisonment was therefore indicated. The maximum penalty for this offence is fifteen years imprisonment. Her history of drug and alcohol abuse may have contributed somewhat to the commission of this offence, but there is no doubt that her primary motivation was revenge. It may be accepted that she now regrets the offence and that she is anxious to resume co-habitation with her husband. Nonetheless, the seriousness of the offence and the need to deter both the appellant and others from such conduct is of considerable importance in the present case. Even having regard to the objective of rehabilitation, it is difficult to avoid the conclusion that a significant prison sentence was appropriate, given the appellant's record.

13 In Dinsdale v The Queen [2000] HCA 54, the High Court recently reconsidered the nature of a criminal appeal. Kirby J said at pars 57 and 58:

57. The legal process before the Court of Criminal Appeal was, as described, an appeal. This is a creation of statute. ... Here, that legislation, by providing for an appeal, required the demonstration of error before the appellate court enjoyed the authority to disturb the decision subject to appeal. In Lowndes v The Queen [(1999) 195 CLR 655 at 671-672], this Court remarked that:

"A court of criminal appeal may not substitute its own opinion for that of the sentencing judge merely because the appellate court would have exercised its discretion in a manner different from the manner in which the sentencing judge exercised his or her discretion. ... The discretion which the law commits to sentencing judges is of vital importance in the administration of our system of criminal justice."

58. The necessity to show error in such a case is fully accepted by courts deciding appeals against sentence. ...

See also par 3 (per Gleeson CJ and Hayne J) and par 24 (per Gaudron and Gummow JJ).

14 It is impossible to identify any relevant deficiency in the process by which his Honour fixed the sentence. Arson is a serious offence and has always been treated as such, largely because of the substantial risk to life and property and the great difficulty likely to be experienced in preventing or limiting damage once the fire has been started. This was, if anything, a relatively serious case of arson, given the presence of other people in the building, the use of an accelerant and the substantial amount of damage which was done. The sentence was clearly within the appropriate range. We can detect no error in principle. Although his Honour made a minor factual error, that error could only have operated in favour of the appellant. In the circumstances, the appeal must be dismissed.

I certify that the preceding fourteen (14) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Court.

Associate:

Dated: 6 February 2001

The Appellant appeared In Person.
Counsel for the Respondent:	Mr A Robertson
Solicitor for the Respondent:	ACT Director of Public Prosecutions
Date of Hearing:	5 February 2001
Date of Judgment:	6 February 2001