AUNG -v- THE STATE OF WESTERN AUSTRALIA [2022] WASCA 175 (20 December 2022)

1. The appellant was 38 years of age at the time of sentencing. He was the elder of two sons born in Burma. He described a childhood marred by his mother's distance from him and her favouritism of his younger brother, and by his father's alcoholism and sudden death when the appellant was 13 years of age.
2. Soon after his father's death, the appellant's family moved to Australia. The appellant has support from his mother, grandparents and brother.
3. After completing year 12 at school, the appellant successfully completed a commercial cooking apprenticeship. He has a strong employment history in that field and could be expected to gain employment within a short time after release.
4. The appellant has a history of depression, anxiety, and problematic alcohol use.
5. The appellant's relationship with the victim commenced in 2007 and ended in 2019. They have a 10‑year‑old son for whom they share the responsibility of raising.
6. The appellant has a history of offences of violence, a number of which he committed against his ex‑wife. These include convictions for: aggravated common assault in 2014 and 2015; breaching a family violence restraining order in 2015, 2019 and 2020; breaching protective bail conditions in 2019; breaching a community-based order in 2014; and aggravated assault occasioning bodily harm in 2019.
7. The appellant was placed on a conditional suspended imprisonment order for the offence of aggravated assault occasioning bodily harm in 2019, which order he breached by committing offences of breaching a family violence restraining order. The appellant engaged in five individual counselling sessions as part of a departmental domestic violence programme, and also in private counselling. Despite that, he was subsequently convicted of further offending against the same victim.

1. The author of the pre-sentence report considered that the contributing factors associated with the appellant's offending were his propensity toward violence, his alcohol abuse, lack of consequential thinking, poor impulse control and poor emotional regulation. The author considered that, in the event that the appellant failed to actively manage his treatment needs, his risk of recidivism and harm to the victim was significant.
2. The appellant told the author that his offence arose because he was told that the victim had been on a dating website, which was contrary to her 'promise' that, if she wanted to see other people, she would tell him before doing so. He said that he wanted to demonstrate the level of emotional pain he was in, having found out she wanted to see other people. The author observed that, in stating that his intent was to show the victim how he was feeling and not to provoke fear in the victim, the appellant demonstrated a lack of insight into his offending behaviour.

1. The judge identified the following serious features of the appellant's offending. The offending occurred in the context of a history of domestic violence. At the time of the offending, the appellant was subject to a family violence restraining order in relation to the victim and her father (as well as other members of the victim's family). The appellant's offending was deliberate and persistent. It occurred in a built-up residential area where the potential risk to people and property was catastrophic.
2. The judge also referred to the victim impact statement which reflected the adverse psychological and financial impacts of the appellant's offending on the victim and her family.
3. As to mitigating factors, the judge identified the appellant's pleas of guilty, for which her Honour discounted the sentences by 25% pursuant to s 9AA of the Sentencing Act 1995 (WA), and the appellant's acceptance of responsibility, which evidenced his remorse.
4. The judge referred to the explanation for the appellant's offending, proffered by his counsel, that the offence was triggered when he found out she was on a dating website, following which he had consumed one and a half bottles of vodka. The judge noted that while that may explain the appellant's conduct it certainly did not excuse it.
5. The judge observed that references provided by the appellant's grandmother and cousin spoke highly of the appellant.
6. The judge expressed concern that the appellant had offended against the same victim in the past on multiple occasions, observing that it highlighted a concerning pattern.
7. The judge said that general and personal deterrence were important considerations. Her Honour observed, by reference to authority in this court, that there was no sentencing tariff in relation to arson offences and that relevant considerations included motive, the extent of damage caused, the extent to which the offence endangered human life, and the nature of the property damaged. The judge quoted authority that the real gravity of the offence lies in the intention of the offender.
8. The sentencing judge noted the defence counsel's concession that a term of immediate imprisonment was the only appropriate disposition.
9. The judge then imposed the sentences set out in [2] above. The judge ordered that the sentence for count 2 be served concurrently so as to give proper effect to the totality principle. The judge ordered that the appellant be eligible for parole and that the sentence be backdated to commence on 13 April 2021.

1. The appellant advances two grounds of appeal:[1]

(1) The learned sentencing judge imposed a sentence with respect to count 1 that was, in all the circumstances, manifestly excessive.

(2) The learned sentencing judge imposed a sentence with respect to count 2 that was, in all the circumstances, manifestly excessive.

1. The appellant requires an extension of time to appeal as he commenced his appeal more than three months out of time. His solicitor's affidavit seeks to explain the delay, although it is rather lacking in detail. It is convenient to return to the question of an extension of time after consideration of the merits of the appeal.

Ground 1: was the sentence of 3 years' immediate imprisonment on count 1 manifestly excessive? Appellant's submissions

1. The appellant submits that, bearing in mind the 25% discount afforded under s 9AA, the judge's starting point must have been at least 4 years.[2]
2. The appellant's submissions rely essentially on a comparison with three cases: Harris v The State of Western Australia,[3] Squance v The State of Western Australia[4] and Biruta v The State of Western Australia.[5]
3. In Harris, the offender was sentenced, after trial, to a term of 4 years' imprisonment for the offence of arson. The appellant submits that the offending in Harris, which the court described as serious, deliberate and borne out of anger and revenge, was more serious than in this case because of the significant risk in Harris to property and to injury or life.[6]
4. In Squance, the offender was sentenced to 3 years' imprisonment after an early plea of guilty. The appellant submits that the offending in Squance, which involved starting a fire in a public place, was more serious than the appellant's as it caused greater damage and had a greater potential for damage.
5. The appellant submits that the offending in Biruta, which resulted in a sentence of 2 years' imprisonment after a late plea of guilty, was more serious than in the present case because it was premeditated, done for commercial gain as part of an intended insurance fraud, and done in concert with others. Further, in Biruta, unlike in the present case, the vehicle caught fire.
6. As can be seen, there is no challenge to the sentencing judge's decision to impose terms of immediate imprisonment. The appellant challenges only the length of the terms.

1. The following general principles concerning appeals against sentence are well established:

(1) Sentencing is a discretionary exercise. An appellate court can intervene only if the appellant demonstrates either an express or implied material error. Express error involves acting on a wrong principle, for example by mistaking the law or facts or taking into account an irrelevant matter. Implied error arises where the end result is so unreasonable or unjust that the court must conclude that a substantial wrong has occurred. Thus, an appellate court cannot substitute its own opinion for that of the sentencing court merely because the appellate court would have exercised a sentencing discretion differently.

(2) In order to determine whether a sentence for an individual offence is manifestly excessive, the offence should be viewed in light of the maximum sentence prescribed by law for the crime, the standards of sentencing customarily imposed with respect to it, the place that the criminal conduct occupies on the scale of seriousness of crimes of that type, and the offender's personal circumstances.

(3) The first limb of the totality principle requires that the total effective sentence imposed on an offender who has committed multiple offences bears a proper relationship to the overall criminality involved in all of the offences (including those offences, if any, in respect of which the offender is still serving or is yet to serve a term of imprisonment), viewed in their entirety, having regard to all relevant facts and circumstances including those referable to the offender personally (and including, for example, the desirability of accommodating any wish to rehabilitate), all relevant sentencing factors, and the total effective sentences imposed in comparable cases.

(4) The range of sentences customarily imposed for a crime does not establish the range of a sound exercise of the sentencing discretion. Sentences customarily imposed in comparable cases provide a yardstick or reference point for ensuring broad consistency in sentencing, bearing in mind the scope for significant variations in relevant sentencing factors and that there is no single correct sentence. What is important is the unifying principles which sentences imposed in comparable cases reveal and reflect.

(5) When this court dismisses an appeal against sentence and when it resentences on a successful appeal, its decision does not fix the upper or lower limit of the range.

(6) Where there is a challenge on totality grounds, the severity of a sentence imposed on an individual count generally falls to be assessed in light of the sentences imposed in respect of the other counts and its contribution to the total effective sentence. A heavy individual sentence (that is not manifestly excessive) may be softened by an order that it be served concurrently with sentences imposed in relation to the other counts. A relatively light sentence (that is not manifestly inadequate) may, as a practical matter, have increased severity if it is ordered to be served cumulatively. The real question is whether the total effective sentence is unreasonable or plainly unjust.

1. The seriousness of an offence of criminal damage by fire, or arson as it is commonly termed, is reflected in its maximum penalty of life imprisonment. General deterrence is the dominant sentencing factor; the personal circumstances of an offender carry less weight than they might do in other cases involving different offences.[7] Among the considerations relevant to the seriousness of an arson offence is the motive with which the offence was committed, the extent of the damage caused by the offence, the extent to which the offence endangered human life, and the nature of the property damaged.[8]
2. In 2009, Parliament increased the maximum penalty for arson from 14 years' imprisonment to life imprisonment.[9] Prior to this increase in the maximum penalty, in very serious cases, the offence of arson commonly attracted sentences within a range of 2 years 8 months to 4 years 8 months and, in less serious cases, 2 years to 3 years 4 months.[10] This range provided general guidance to sentencing judges, but did not fix an upper or lower limit.[11]
3. Since the increase in the maximum penalty, patterns of sentences for arson have not yet emerged.[12] However, it is well-established that an increase in the maximum penalty for an offence is an indication that sentences for that offence should be increased.[13]

1. We agree, with respect, with the sentencing judge's identification of the several serious features of the appellant's offending. The appellant committed count 1 in the context of previous offences of domestic violence against the victim and while subject to family violence restraining orders protecting the victim, her father and other family members. The offending was deliberate and persistent. It was directed to the victim, who had already suffered domestic violence at the appellant's hands. While the appellant denied an intention to cause her fear and trauma, that was the very likely - if not practically inevitable - consequence of his offending behaviour. Given the location of the offending, there was a real risk of much more significant damage.
2. Further, the victim impact statement revealed the devastating psychological and financial impacts of the appellant's offence.
3. The cases to which the appellant points fall well short of demonstrating that his sentence of 3 years on count 1 was manifestly excessive.
4. Because the dismissal by this court of an appeal against sentence does not fix the upper (or lower) bounds of a proper exercise of the sentencing discretion, individual comparison with the sentence in another case, or in a few cases, provides little assistance in discerning whether a particular sentence reveals implied error. That position is all the more so where, as occurred in Harris and Biruta, leave to appeal was refused. As Quinlan CJ observed in Pedrochi v Brown,[14] where a sentence is not even arguably excessive it provides little assistance as a marker of the upper limits of the proper exercise of discretion.
5. The offender in Harris had mental illness as a material mitigating factor. The different circumstances in which the offences in Harris and in the present case occurred mean that Harris is of little assistance.
6. Nor does the decision in Biruta assist the appellant. In that case, leave to appeal was refused and the court explicitly agreed with the sentencing judge's observation that a higher sentence was justified. Further, the character, motivation for and effect of the offences in this case and in Biruta are of such a different nature that the sentence imposed in Biruta does not assist in discerning whether error can be inferred from the sentencing outcome in the present case.
7. In Squance, the offender pleaded guilty to one count of criminal damage by fire. He went to the Barrack Street Jetty in the early hours of the morning and, using a tarpaulin and fuel that were in a barge moored there, set fire to the deck of a barge. After a 25% discount for his plea of guilty, he was sentenced to 3 years' imprisonment. While this court found a specific error on the part of the sentencing judge, the court dismissed the appeal finding that no different sentence should have been imposed. In Squance, the offender was suffering from a serious mental illness, namely treatment resistant schizophrenia, which materially contributed to his offending, reducing his moral culpability and the importance that would ordinarily be afforded to general and personal deterrence.
8. Having regard to:

(1) the maximum penalty of life imprisonment;

(2) the serious features of the appellant's offending the subject of count 1, as summarised in [42] above;

(3) the place the appellant's offence occupies on the scale of seriousness of offences of criminal damage by fire;

(4) the effect of the offence on the victim;

(5) all mitigating factors including the appellant's pleas of guilty - for which a discount of 25% was afforded - and his remorse; and

(6) the patterns of sentences imposed in reasonably comparable cases,

the sentence of 3 years' imprisonment cannot be said to be manifestly excessive.

1. In our view, it cannot reasonably be argued that the sentence of 3 years on count 1 is manifestly excessive. Thus, we refused leave to appeal on ground 1.

Ground 2: is the sentence on count 2 manifestly excessive? Appellant's submissions

1. The appellant relies on the principles and authorities referred to in relation to ground 1.
2. The appellant points to the findings that the clothing suffered minimal damage and no damage was done to the vehicle. The appellant submits that the manner in which the offending was carried out meant that there was limited risk to property or to persons. He submits that, having regard to Harris, Squance and Biruta, error can be inferred from the sentence imposed.

1. While the damage caused in count 2 is relatively minor, the offence nevertheless had other serious elements. We refer to what we have already said in [42] in relation to count 1. The offence was premeditated and committed with the motivation and likely effect on the victim to which we have referred. There was a real risk that the fire would spread to the vehicle and set fire to fuel or other flammable material in the vehicle. The fact that, due to the weather conditions, this did not occur was despite the efforts of the appellant.
2. Moreover, the court's assessment of the severity of an individual sentence, and therefore whether the individual sentence is manifestly excessive (or inadequate), is to be undertaken in light of the sentences imposed in respect of other counts and the contribution by the sentence under consideration to the total effective sentence. A heavy individual sentence may be softened by an order that it be served concurrently with the sentences imposed in relation to other counts. That may affect, although it does not control, the court's assessment of whether the individual sentence is unreasonable or plainly unjust.[15]
3. In our view it is not arguable that the sentence of 18 months' imprisonment on count 2 is manifestly excessive. Consequently, we refused leave to appeal on ground 2.

1. For the above reasons, we made the following orders:
   1. The extension of time to appeal is refused.
   2. Leave to appeal on each of grounds 1 and 2 is refused.
   3. The appeal is dismissed.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.

[1] The appellant abandoned proposed ground 3 at the hearing of the appeal.

[3] Harris v The State of Western Australia [2016] WASCA 34.

[4] Squance v The State of Western Australia [2018] WASCA 25.

[5] Biruta v The State of Western Australia [2019] WASCA 52.

[6] Appellant's submissions [32], [43].

[7] The State of Western Australia v Bennett [2009] WASCA 93; (2009) 194 A Crim R 137 [48]; McLaughlin v The State of Western Australia [2012] WASCA 204; (2012) 224 A Crim R 134 [49]; Rimington v The State of Western Australia [2015] WASCA 102 [42].

[8] Newton v The State of Western Australia [2006] WASCA 247 [13]; Rimington [67].

[9] Arson Legislation Amendment Act 2009 (WA) s 11(1).

[10] Bennett [48], [53]; McLaughlin [49] ‑ [50].

[12] McLaughlin [65]; Morcom v The State of Western Australia [2013] WASCA 31 [50]; Biruta [37].

[13] Muldrock v The Queen [2011] HCA 39; (2011) 244 CLR 120 [31]; McLaughlin [61]; Morcom [49].

[14] Pedrochi v Brown [2021] WASC 81 [43]; see also GUE v The State of Western Australia [2022] WASCA 121 [59].

[15] MHE v The State of Western Australia [2019] WASCA 133 [59].