Jurisdiction : SUPREME COURT OF WESTERN AUSTRALIA

Criminal law - Application for leave to appeal against sentence - Criminal damage by fire - Attempt to gain a benefit with intent to defraud by deceit or fraudulent means - Alleged express error - Whether sentencing judge made an erroneous finding of fact - Alleged implied error - Whether sentencing judge erred in failing to suspend the terms of imprisonment

Sentencing Act 1995 (WA), pt 2 div 1

Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321

DKN v The State of Western Australia [2018] WASCA 87

Edmonds v The State of Western Australia [2013] WASCA 255

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

Morcom v The State of Western Australia [2013] WASCA 31

Muldrock v The Queen [2011] HCA 39; (2011) 244 CLR 120

R v Olbrich [1990] HCA 54; (1990) 199 CLR 270

The State of Western Australia v Hope [2018] WASCSR 40

1. This is an application for leave to appeal against sentence.
2. The appellant was charged on an indictment filed in the Supreme Court with two counts. Count 1 alleged that on 15 November 2015, at Palmyra, the appellant wilfully and unlawfully damaged a house by fire, contrary to s 444(1)(a) of the Criminal Code (WA) (the Code). Count 2 alleged that on a date between 14 November 2015 and 28 January 2016, at Palmyra and elsewhere, the appellant, with intent to defraud by deceit or fraudulent means, attempted to gain a benefit, namely an insurance claim payout for herself, contrary to s 409(1)(c) of the Code.[1]
3. On 29 November 2017, after a trial before Martino J and a jury, the appellant was convicted as charged.[2]
4. On 13 March 2018, the appellant was sentenced on count 1 to 2 years' immediate imprisonment, and on count 2 to 6 months' immediate imprisonment. His Honour ordered that the sentences be served cumulatively. Thus, the total effective sentence was 2 years 6 months' immediate imprisonment. The sentence was ordered to commence on 13 March 2018, and the appellant was made eligible for parole.[3]
5. By an amended appellant's case filed 22 August 2018, the appellant seeks to rely on three proposed grounds of appeal. Ground 1 alleges, in effect, that the learned sentencing judge erred in fact by finding that the appellant had been responsible for lighting an earlier fire at the house the subject of count 1 on or about 6 November 2015.
6. As explained by senior counsel, grounds 2 and 3, in effect, allege that the total effective sentence imposed infringed the first limb of the totality principle, not as to its length but as to its type. By grounds 2 and 3, the appellant contends that his Honour should have imposed a suspended imprisonment order.[4] It is not suggested something less than imprisonment was appropriate.
7. For the reasons which follow, we are of the view that none of the proposed amended grounds of appeal have a reasonable prospect of succeeding. Accordingly, the appeal against sentence must be dismissed.

1. In his opening address to the jury, the State prosecutor explained that the prosecution case on count 1 relied upon circumstantial evidence.[5]
2. As opened, the State case on count 1 may be summarised as follows. The appellant and her sister, Anastasia, lived in a house situated at 6B Weld Road, Palmyra (the house). Although the title was in Anastasia's name only, both the appellant and Anastasia accepted that they were joint owners of the property. The house was encumbered by a mortgage, to which the appellant and Anastasia contributed. The house and its contents were insured with Allianz Insurance.[6] Both the appellant and Anastasia were named on the policy.
3. On 6 November 2015, it was discovered that a fire had been deliberately lit in the house. Ultimately, it extinguished itself, causing soot and smoke damage.[7] The State alleged that the appellant lit this fire. The appellant was not charged with any offence with respect to this fire. Fire officers who attended the scene saw no signs of forced entry into the house. They also noted that there seemed to have been three separate ignition points: a pet cushion in the living room; a sofa in the living room; and a tea towel that was hanging in the kitchen.[8]
4. On the morning of 15 November 2015, the appellant and Anastasia were at the house. Anastasia left the house first, leaving the appellant inside on her own for approximately a few minutes. The appellant, who was a smoker, had ready access to matches or a cigarette lighter. The appellant left and then locked the house up. Together, she and Anastasia then went on their way. About 25 minutes later, the Department of Fire and Emergency Services were called because there was a fire in progress at the house. The fire caused a great deal of damage to the house and its contents. Arson squad police officers conducted an examination of the house and observed that there were no obvious signs of forced entry. In their opinion, the fire originated in the main bedroom and spread to the rest of the house. The State alleged that the appellant lit the fire when she was in the house by herself and while her sister was waiting for her outside. The State alleged that the appellant disliked living in the house.[9]
5. In the days following the fire on 15 November 2015, a claim was made to Allianz Insurance on the house and contents policy. The appellant represented to Allianz Insurance that she did not know how the fire started. The State alleged that the appellant deceitfully withheld from her insurers that she had deliberately lit the fire because she knew that had she revealed the truth, Allianz Insurance would not have paid to the appellant any benefit under the policy. As it turned out, a payment was later made to Anastasia, but not to the appellant.[10]

1. The appellant did not dispute that the house was jointly owned by her and Anastasia. Nor did the appellant dispute that the house was insured. Further, it was not disputed that there were two fires at the house on 6 and 15 November 2015. The appellant's case was that she had nothing to do with either fire, and that she did not fraudulently make a claim on Allianz Insurance.[11]
2. Defence counsel ridiculed the State's case that the appellant disliked the house, and that she burnt it down for the insurance money.[12]
3. Defence counsel asserted that the appellant was well settled in the house, and that she and her sister had 'embarked upon a program of spending a large amount of money on the house'.[13]
4. Defence counsel said that it was unknown how the fires started.[14]
5. Defence counsel referred to the appellant's video record of interview with police. He pointed out that the appellant denied the allegations against her from the outset. Defence counsel also referred to the appellant's 'quick' rejection of the notion that the fire on 15 November 2015 could have occurred accidentally or as a result of the spontaneous combustion of cleaning products. He suggested that someone who had deliberately lit a fire would be 'very happy' to embrace 'the idea that a fire had started by accident'.[15]

1. In the sentencing remarks, his Honour made the following factual findings, including as to the fire discovered on 6 November 2015:[16]

The property damaged by fire was a house in Palmyra. The house was owned by [the appellant] and [Anastasia]. The land on which the house stood was registered in [Anastasia's] name alone so that [Anastasia] could obtain a mortgage on favourable terms through her employment. [The appellant] and [Anastasia] purchased the house in March 2015. At the time, [the appellant was] unemployed and there were restrictions in [her] capacity to work. [The appellant's] income consisted of social security payments. [The appellant] also had some cash in the bank from a workers compensation payment [she] had received. [The appellant] did not like living in the house and the payment of [the appellant's] share of the mortgage placed [her] under financial pressure.

On Sunday, 15 November 2015, the day of the offence of criminal damage by fire, [the appellant] and [Anastasia] were staying at [their] mother's house. The house owned by [the appellant] and [Anastasia] had been damaged by an earlier fire. The damage from that earlier fire had been discovered on 6 November 2015. On 15 November, [the appellant] and [Anastasia] were at the house in Palmyra to collect items of personal property at the house to take them to [their] mother's house. After [the appellant] had loaded a car with boxes of personal property, [the appellant] and [Anastasia] decided to leave the house to go to [their] mother's house. [The appellant] arranged with [Anastasia] that [Anastasia] would go out through a sliding door to a patio area outside of the house. Once [Anastasia] went out that sliding door, [the appellant] remained in the house and locked the sliding door. While [she was] inside the house, after [she] locked the sliding door, [she] went to [her] bedroom where [she] deliberately set fire to items that were still in the bedroom. At the time of the offence, [the appellant] smoked cigarettes. I am satisfied beyond reasonable doubt that [the appellant] used a cigarette lighter to light the fire. When [she] set fire to those items, [she] intended the fire to damage the house. [The appellant] then left the house from the front door and met [Anastasia] outside the house. [She] and [Anastasia] then left the house in the car. The fire that [she] started spread through the house.

The Department of Fire and Emergency Services was alerted to the fire and firefighters arrived at the house to extinguish it approximately half an hour after [the appellant] had left it. When the firefighters arrived at the scene, they were obliged to place their safety at risk by entering the house while the fire was still in progress. They did so to see if there were people still inside the house and to extinguish the fire. The firefighters were unable to extinguish the fire until it had caused significant damage to the house and its contents. Those are the facts of the offence of criminal damage by fire.

[Anastasia] was unaware that [the appellant] had caused the fire. The house was insured. Both [the appellant] and [Anastasia] were named on the insurance policies being covered by it. [Anastasia] made a claim on the insurance policy. [The appellant was] interviewed by the investigation manager. [She was] aware that the interview was for the purposes of the insurance claim. [She] said that [she] did not know how the fire was started. That was not true. [The appellant] knew that [she] had started the fire. In telling [Allianz Insurance] that [she] did not know how the fire started, [she] attempted to obtain a benefit of half the proceeds of the insurance claim when [she] knew that [she was] not entitled to that claim because [she] had lit the fire. [Allianz Insurance] did not pay [her] share of the insurance claim and [her] attempt to obtain payment was not successful. Those are the facts of the offence of attempted fraud.

At trial, the State's case against [the appellant] was that [she] caused the fire that was discovered at the house on 6 November 2015 and that if the jury found that [she] did cause that fire, the jury could use that finding along with other evidence to draw the inference that [she] caused the fire on 15 November 2015. I am satisfied beyond reasonable doubt that [the appellant] caused the fire that was discovered on 6 November 2015. I have drawn that inference from a combination of the facts: that [the appellant] had access to the house, that [she] had been in the house before the fire occurred, that there were no obvious signs of forced entry to the house, that [she] did not like living in the house and that payment of [her] share of the mortgage placed [her] under financial pressure.

1. His Honour made it clear that the fact that the appellant lit the fire discovered on 6 November 2015 did not add to the punishment to be imposed for count 1. However, the finding that the appellant lit the earlier fire meant his Honour sentenced the appellant on the basis that the lighting of the fire the subject of count 1 was not the only occasion on which the appellant had set fire to the house.[17]

1. The appellant submits that, at trial, the State 'never sought to assert that the first fire was caused by the [a]ppellant', and that the learned sentencing judge erred in finding beyond reasonable doubt that the appellant had lit the first fire.[18]
2. The submissions in support of ground 1 do not, in truth, rise above mere assertions, and are not supported by a detailed analysis of the relevant evidence. After the hearing of the application for leave to appeal, the appellant filed a document entitled 'P.D. 7.4 Schedule of Evidence'. That document was wholly inadequate. It did not comply with the requirements of Practice Direction 7.4 and referred only to the sentencing remarks and the prosecutor's opening address. The task of analysing the evidence was, in effect, passed to this court without assistance.

1. If the State proved that the appellant had lit the fire discovered on 6 November 2015, then that fact was an aggravating factor in the sentencing of the appellant. As the sentencing judge well understood, he could not take this fact into account as an aggravating factor unless the State established it beyond reasonable doubt.[19]

1. Much of the evidence outlined as follows was uncontroversial at trial. At about 9.32 am on 6 November 2015, officers from the Department of Fire and Emergency Services stationed at the Fremantle Fire Station were called to a fire at 6B Weld Road, Palmyra.[20] Station Officer Neil Mackintosh observed 'some significant fire activity within the house'.[21] He also observed soot and smoke damage on the floors, walls and ceilings. Station Officer Mackintosh found no evidence of forced entry.[22] He testified to the effect that there was significant fire damage in the region of the TV/sitting area.[23]
2. Station Officer Mackintosh contacted the Fire Investigation and Analysis Unit of the Department of Fire and Emergency Services to investigate the cause of the fire.[24]
3. Mr Ryan Murtagh from the Fire Investigation and Analysis Unit attended at the house sometime between 10.00 am and 11.00 am on 6 November 2015. Mr Murtagh has been a fire investigation officer since mid-2014.[25]
4. At the scene, Mr Murtagh met the appellant, Anastasia and their mother, June Hope. Mr Murtagh observed that all three women were visibly upset. He noted that the appellant was 'particularly upset'.[26]
5. Like Station Officer Mackintosh, Mr Murtagh saw no signs of forced entry. Inside the house, he noticed nothing which suggested 'malicious activity'.[27]
6. In Mr Murtagh's opinion, the point of origin of the fire was a rocker recliner chair in the family area adjacent to the kitchen.[28] In the vicinity of the rocker recliner chair was an electrical extension cord and a power board.[29] Mr Murtagh concluded that the power board was not the point of origin of the fire.[30]
7. Mr Murtagh ascertained that one of the three women (the appellant) he had spoken to was a smoker.[31] Mr Murtagh found no cigarettes or cigarette lighters, or any other smoking paraphernalia inside the house.[32]
8. As Mr Murtagh could not determine the cause of the fire, the police arson squad were called to investigate the cause of the fire.[33]
9. Under cross-examination, Mr Murtagh said that as a result of his discussions with the appellant, Anastasia and their mother, he ascertained that the appellant and Anastasia had been at their mother's address since 3 November 2015. The appellant admitted that she was a smoker, but stated that she never smoked inside the house.[34] None of the three women could think of any way that the fire could have started accidentally.[35]
10. In due course, a report into the fire at the house discovered on 6 November 2015 was prepared by officers from the Department of Fire and Emergency Services. Officers from the Department of Fire and Emergency Services also took photographs on 6 November 2015 of the exterior and interior of the house.[36]
11. Detective Senior Constable Adrian Pearsall, who was, in November 2015, attached to the arson squad, was the primary investigator of the fire on 15 November 2015. He was provided with the photographs that had been taken on 6 November 2015.[37] Based on those photographs, he wrote a 'desktop report' in respect of the first fire at the house He was of the opinion that:
    1. the fire did not start outside the building;[38]
    2. the source of the fire was on the ground floor;[39]
    3. the fire was a smouldering fire and not a free-burning fire;[40]
    4. the origin of the fire appeared to be 'a sofa chair' in the room opposite the kitchen;[41]
    5. there was no evidence of damage caused by electrical arcing;[42]
    6. there was a second ignition point on a dog bed near the sofa chair described at point 4 above;[43] and
    7. there was a third ignition point on the handle of the oven door situated in the kitchen, which could have been a tea towel or an object of that nature.[44]
12. In Detective Pearsall's opinion, there were three separate fires, each of which was deliberately lit by 'somebody introducing a heat source to ... combustible items', with the most common kind of heat source for such a fire being a cigarette lighter or a match.[45]
13. Anastasia testified as follows:
    1. At all relevant times she was a petty officer with the Royal Australian Navy (the RAN).[46]
    2. In December 2014, she and the appellant were living together in a house that they owned at 514 Canning Highway, Attadale.[47]
    3. In December 2014, she entered into an offer and acceptance to purchase the house at 6B Weld Road, Palmyra, for the sum of $670,000, with settlement to take place in March 2015.[48]
    4. In order to effect the purchase, Anastasia was required to borrow $548,000.[49]
    5. By reason of her employment with the RAN, she was entitled to a subsidised home loan.[50]
    6. In order to receive the full subsidy, Anastasia had to be the sole proprietor of the house. If the appellant had been an equal co-owner, Anastasia would only have been entitled to a 50% subsidy.[51]
    7. Anastasia was the sole registered proprietor of the house, and the sole mortgagee.[52]
    8. In May 2015, Anastasia and the appellant sold their house on Canning Highway, Attadale, and that sale was settled in June 2015.[53]
    9. The mortgage instalment on the house at 6B Weld Road, Palmyra was $1,450 a fortnight. The appellant contributed $725 per fortnight. The appellant was not working, but had received a workers' compensation payout, and she had been able to withdraw some money from her superannuation. Later, she received a Centrelink benefit.[54]
    10. There were, to Anastasia's knowledge, only two sets of keys to the house at 6B Weld Road, Palmyra. She and the appellant each had a set of keys.[55]
    11. Between 1 and 6 November 2015, she and the appellant were living at their mother's house at 10 Wrexham Street, Bicton.[56]
    12. Between 1 and 5 November 2015, Anastasia did not go to the house in Palmyra. However, based on what she had been told by the appellant and her mother, both of them had gone to the house on Tuesday, 3 November 2015 and Thursday, 5 November 2015.[57]
    13. Sometime between 8.45 am and 9.30 am on 6 November 2015, Anastasia, the appellant and their mother went to the house at 6B Weld Road, Palmyra. Upon entering the house and as she walked into the living room, it became clear that there had been a fire in the house. Anastasia telephoned the fire department.[58]
    14. Anastasia made a claim on the insurance policy she had with Allianz Insurance for the damage to the house caused by the fire she discovered on 6 November 2015.[59]
    15. In cross-examination, Anastasia said that she and the appellant moved from the house at 514 Canning Highway, Attadale to the house at 6B Weld Road, Palmyra because of the appellant's ill health, including as a result of allergies and the appellant's deficient immune system.
14. Detective First Class Constable Gavin MacDonald testified that on 22 January 2016, the appellant participated in a video recorded interview.[62] That interview, which lasted approximately three hours, was played to the jury and tendered as an exhibit in an edited form.[63]
15. The appellant made no admission that she lit the fire discovered on 6 November 2015. However, the appellant told the interviewing officers that she was under some financial pressure to make the mortgage payments.[64]
16. In cross-examination, Detective MacDonald accepted that the appellant had never previously been charged with, let alone convicted of, any criminal offence.[65]
17. Mr Jared Tickle, a loss adjuster, attended at 6B Weld Road, Palmyra in the afternoon of 9 November 2015, where he met the appellant and Anastasia. He described them as being 'very, very emotional'.[66]
18. Ms Linda Waterhouse testified that she and the appellant had been friends for 'a good 18 years'.[67] According to Ms Waterhouse, in 2015, the appellant 'was getting very depressed' and 'changed a lot'. Her friendship with the appellant became 'very, very strained'.[68]
19. Ms Waterhouse testified that the appellant told her:[69]

How unhappy she was with the house [6B Weld Road, Palmyra]. She had said that it was on the wrong side of the highway. She was just very disorientated with that area and she really just felt trapped in that house and she did not like it and did not want to live there.

1. The appellant also told Ms Waterhouse that she (the appellant) felt unsafe in the house because Anastasia had not paid to have the electrical wiring checked. Later, the appellant indicated to Ms Waterhouse that the wiring had been attended to. Nevertheless, the appellant said to Ms Waterhouse 'the house can still burn down'.[70]
2. Ms Waterhouse described how, in the months leading up to November 2015, the appellant's emotional state progressively deteriorated.[71]
3. In cross-examination, Ms Waterhouse agreed that the appellant had never told her that she (the appellant) was going to burn the house down. Nor did she say that she would be happy if that occurred.[72]
4. At the conclusion of the State's case, counsel for the appellant made an application and submitted that the appellant had no case to answer on the counts in the indictment.[73] His Honour dismissed the application.[74]
5. The appellant elected not to give evidence, but her mother was called as the only defence witness.[75]
6. The mother, Ms June Hope, testified that:
   1. The appellant was 'a little bit unsure of herself' when she first moved to 6B Weld Road, Palmyra, but 'she settled in very quickly especially once they [the appellant and Anastasia] started getting renovations done and ... making [the house] very comfortable'.[76]
   2. As at November 2015, the appellant had settled in 'very well indeed'.[77]
   3. By reference to the diary she kept, she was able to say that on Tuesday, 3 November 2015, she and the appellant called in at 6B Weld Road, Palmyra. She and the appellant entered the house. It is clear from her evidence that, at that point, there had been no fire at the house.[78]
   4. On Thursday, 5 November 2015, she and the appellant called into 6B Weld Road, Palmyra to collect the mail, but they did not go into the house.[79]
   5. Between 3 and 6 November 2015, there was no opportunity for the appellant to have gone out anywhere on her own.[80]
   6. On Friday, 6 November 2015, she, Anastasia and the appellant went to the house at 6B Weld Road, Palmyra. When she went in, she heard Anastasia say '[t]here's been a fire', to which she replied that they should get out of the house. While she, Anastasia and the appellant waited for the fire department to arrive, she observed them to be 'very upset'.[81]
   7. It was 'highly improbable' that between 3 and 6 November 2015, Anastasia went somewhere on her own other than to her place of work at HMAS Stirling. She also said the appellant did not go anywhere on her own during that period.[82]
   8. Amongst the appellant's personal items kept at 6B Weld Road, Palmyra, were letters her father had sent her while she was at boarding school.[83]
7. In cross-examination, Ms Hope said that the appellant was the owner of a motor vehicle and that despite her illnesses, the appellant was able to get out and about in her motor vehicle if she wanted to.[84] Ms Hope accepted that she would not make an entry in her diary of when the appellant went out in her car by herself, and that the only time she recalled the appellant going out in her car on her own was to attend medical appointments.[85]
8. Ms Hope said that most afternoons she had a nap.[86] She thought that she and the appellant stayed home all day on Wednesday, 4 November 2015.[87]

1. It is beyond dispute that sometime in the period between 1 and 6 November 2015, a fire was lit inside the house at 6B Weld Road, Palmyra, causing soot and smoke damage to the interior. There are three hypotheses as to the cause of this fire. First, it started spontaneously or by an electrical fault. Secondly, it was caused by the deliberate actions of a person whose identity is unknown, but who is not the appellant. Thirdly, it was caused by the deliberate actions of the appellant.
2. Before we refer to these hypotheses, it is important to note that it was never suggested in the course of the trial that Anastasia could have caused the fire. Based on her evidence, she did not have the opportunity prior to 6 November 2015 to set the fire, nor did she have a motive to burn down the house. At trial, defence counsel never suggested to Anastasia that she had caused the fire.
3. There is no evidence to support the first hypothesis. There is nothing in the evidence led at trial which gives rise to the reasonable possibility that the fire was caused spontaneously or by an electrical fault or some other such cause. Based on the evidence of Detective Senior Constable Pearsall, which was substantially unchallenged, there were three separate ignition points inside the house, the main one being a sofa chair in the room adjacent to the kitchen. The other two points were a dog bed and in the vicinity of the oven handle in the kitchen. The existence of these ignition points contradicts any notion that the fire was caused by something other than deliberate human intervention.
4. The second hypothesis is also fanciful. The evidence of the Fire and Emergency Services officers was that there was no sign of any forced entry into the house. The evidence of Anastasia was that there were only two sets of keys to the house; one of which was in her possession, whilst the other set was in the possession of the appellant. In light of the absence of any evidence supporting a forced entry, the only reasonable inference is that the only persons who had access to the house were the appellant and Anastasia. To further exclude, as a reasonable alternative, the inference that a stranger entered the house and caused the fire, it is relevant to note that there was no evidence that any property in the house was removed or stolen.
5. That takes us to the third hypothesis. The appellant had the motive and the opportunity to cause the fire. This is in contrast to Anastasia. Based on statements made in her video record of interview, the appellant found the contribution that she was making to the mortgage an onerous financial burden. It also appears from the evidence of Ms Waterhouse that as the year 2015 wore on, the appellant became increasingly unhappy living at the house. It may be inferred that the appellant believed that if the house burned down, her unhappiness would be alleviated, as she would no longer have to live there and no longer have the financial burden of the mortgage repayments.
6. As to opportunity, despite the appellant's illness, she was able to get around by herself in her motor vehicle. Given that the fire had already extinguished itself by the morning of 6 November 2015, it appears unlikely it was lit that day. While her mother testified to the effect that it was not possible for the appellant to have gone somewhere by herself between 3 and 6 November 2015, the appellant had the opportunity to drive the short distance to 6B Weld Road, Palmyra from her mother's house whilst her mother took her usual afternoon nap.
7. In our view, it was well open to the learned sentencing judge, having regard to the advantage he had in seeing and hearing the witnesses testify, to be satisfied beyond reasonable doubt that the appellant was the person who caused the fire that was discovered on 6 November 2015. There is no other reasonable inference open on the evidence adduced at trial.
8. Ground 1 has no reasonable prospect of succeeding. Leave to appeal should be refused.

1. As mentioned earlier, the appellant takes no issue with his Honour's decision that the only appropriate disposition was a term of imprisonment, or with the length of the total effective sentence that was imposed upon her.[88] However, the appellant contends that his Honour erred in imposing immediate imprisonment. The appellant submits that the total effective sentence should have been suspended, primarily having regard to her poor physical health and mental health issues.[89] As to these, it is asserted that they cannot be treated 'as effectively or comprehensively in prison as [they] could otherwise', and further that the nature of her ailments would result in imprisonment being more onerous on her than would ordinarily be the case.[90]

1. The general principles applicable to this appeal are well-known and uncontroversial.
2. The totality principle comprises two limbs. The first limb requires that the total effective sentence imposed on an offender who has committed multiple offences must bear a proper relationship to the overall criminality involved in all of the offences, viewed in their entirety and having regard to all relevant circumstances, including those referable to the offender personally (and including, for example, the desirability of accommodating any prospects of rehabilitation), and the total effective sentences imposed in comparable cases. The second limb is that the court should not impose a sentence which is 'crushing', in the sense that it destroys any reasonable expectation of a useful life after release. An aggregate sentence may be inappropriately long under the first limb, even if it cannot be described as 'crushing'.
3. A court must not impose a term of immediate imprisonment unless satisfied, having regard to the sentencing principles in pt 2 div 1 of the Sentencing Act 1995 (WA), that it is not appropriate to impose suspended imprisonment. In other words, a court is not permitted to impose a term of immediate imprisonment unless that is the only appropriate sentencing option.
4. In determining whether or not to exercise the power to suspend a term of imprisonment, the court must look at all matters relevant to the circumstances of the offence, and the personal circumstances of the offender.
5. The discretion to suspend a term of imprisonment is not confined by considerations relating to rehabilitation or mercy. The objective features of an offence may, in a particular case, outweigh the personal considerations of rehabilitation or mercy. Even if a term of imprisonment is generally the appropriate penalty, the sentencing judge must determine the appropriate penalty for the particular case, having regard to all relevant sentencing factors.
6. A court must not order immediate imprisonment unless positively satisfied that suspension of the term of imprisonment is not appropriate.[91]

Grounds 2 and 3 - the appellant's personal antecedents and health

1. The appellant was 51 years of age at the time of the offences. She had no prior criminal history. She has been single all her life. Despite the health issues which we will outline shortly, she has a history of paid employment.[92] However, at the time of the offences, she was not employed and had received a workers' compensation payout. The appellant has close relationships with her sister and mother. She has no other close relationships.[93]
2. His Honour found that the appellant suffered from 'significant chronic health problems of severe dermatitis and allergies'.[94] These conditions are exacerbated by stress. The appellant also has irritable bowel syndrome and shoulder problems. In July 2015, she attempted suicide. At the time, she felt overwhelmed by the stresses in her life. It is likely that, at the time, she was experiencing an adjustment disorder, which resolved without psychiatric intervention.[95] As a child, she was the victim of serious crimes, which continue to have an adverse effect upon her.[96]
3. These findings are consistent with the detailed medical evidence before the learned sentencing judge, which included reports and letters from the appellant's general practitioners at the Karalee Medical and Community Centre; her principal dermatologist, Clinical Associate Professor Kurt Gebauer; an immunologist, Dr Paul Zilko; a consultant forensic psychiatrist, Dr Steve Patchett; and a registered psychologist, Ms Nicole Loseby.
4. Of the various conditions which afflict the appellant, the most significant are her severe dermatitis and allergies; both of which are very long-standing, over 30 years, and have, as his Honour found, severely affected her life.[97]
5. The appellant suffers from constitutional endogenous dermatitis, which is generalised but is particularly focused on her hands and feet. In addition to various creams and ointments, the treatment for her dermatitis requires that she have minimal contact with water, and that she uses special low-irritant and perfume-free soaps and washes.[98] Her clothes are required to be cotton and free from fire retardants, synthetics and formaldehyde resins. Her clothes need to be washed in a particular kind of laundry liquid, and when they dry, care needs to be taken to minimise pollens and grasses.[99]
6. Her dermatitis is aggravated by stress. In addition, weather patterns, including humidity and dryness, impact upon her skin.[100]
7. In Clinical Associate Professor Gebauer's opinion, there are 'certainly difficulties' with the management of the appellant's dermatitis in a prison environment. In his opinion, the stress of being in prison will exacerbate the appellant's dermatitis.[101]
8. Dr Zilko's report includes a long list of the appellant's food and other allergies. The appellant is allergic to a large number of everyday foods, including tomatoes, eggs, nuts (except cashews), ice cream, soft drinks, food colourings and preservatives, most herbs and spices, lamb, beef and fish. Her other allergies include nylon and wool, perfumes and perfumed skin products, bedding (including blankets), dust, grass and weeds, some makeup products, various types of spray, and sunscreen.[102]
9. As a result of her food allergies, the appellant is required to carry an EpiPen at all times in case of anaphylaxis.[103]
10. In Dr Patchett's opinion, the appellant does not have, as he put it, 'formal mental illness', but notes the effect that her dermatitis and multiple allergies have had on her life. Dr Patchett noted the appellant's 'impulsive action' in July 2015, which he thought 'would best be conceptualised as an adjustment disorder that resolved without specialist psychiatric intervention'.[104] Dr Patchett's primary recommendation, in the event of the appellant's immediate imprisonment, was that the Department of Corrective Services 'carefully plan her placement and refer her early to Prison Counselling Services' in order to deal with 'a recurrence of adjustment disorder and possibly suicidal ideation or impulse'.[105]
11. Psychometric testing carried out by Ms Loseby 'indicated that her experiences of depression, anxiety and stress' are within the 'extremely severe' range.[106] Ms Loseby recommended in the event that the appellant was sentenced to a term of immediate imprisonment, that the appellant be provided with support groups and psychological services, as well as a 'somewhat controlled environment', with regard to her allergies and the risk of anaphylaxis.[107]
12. It is clear from the sentencing remarks that his Honour was aware of the fears and difficulties that the appellant would have to face in the event that she was sentenced to an immediate term of imprisonment. His Honour said:[108]

You are fearful of a prison sentence and of the difficulties that you are likely to experience in a prison environment where you would be unable to control your environment and your food. If you are sentenced to a term of imprisonment, it is highly likely that you would experience a flare-up of your dermatitis and it is likely that you will have a recurrence of your adjustment disorder, which could lead to suicidal ideas or impulses. The prison authorities would need to ensure that your clothing and medication is appropriate, and that you receive appropriate treatment for your illnesses. They would be under a duty to ensure that medical care and treatment is provided to you.

1. It is also clear that his Honour, in arriving at the appropriate sentence, had regard to the appellant's physical and mental health. His Honour found that her time in prison would be more onerous and that there was a risk that her health would suffer as a result of being imprisoned. He stated that the length of the term of imprisonment would be reduced 'because your ill health will make serving a prison sentence more onerous for you'.[109]
2. There was no evidence before the learned sentencing judge to the effect that the appellant's severe dermatitis and allergies could not be adequately dealt with in a prison environment. Nor was there any evidence that the appellant's offending was caused by any mental condition.

1. Given that grounds 2 and 3 allege implied error and that we have already referred in some detail to the sentencing remarks, it is sufficient, at this point, to observe that his Honour's approach to the question of whether the terms of imprisonment imposed should be suspended, was in accordance with the provisions of the Sentencing Act and the legal principles we have already referred to. As required by the decision of the High Court in Dinsdale v The Queen,[110] his Honour had regard to all of the circumstances of the offending and the matters personal to the appellant in considering whether a suspended term of imprisonment was appropriate. His Honour said that by reason of the seriousness of the offending and the need for general deterrence, a suspended term of imprisonment was not appropriate.[111]

1. Since 2009, the maximum penalty for arson is life imprisonment. Previously, the maximum penalty was 14 years' imprisonment. An increase in the maximum penalty for an offence is an indication that sentences for the offence in question should be increased: Muldrock v The Queen.[112] The maximum penalty for attempted fraud is 3 years 6 months' imprisonment.
2. This court has decided a number of sentencing cases with respect to arson offences since the maximum penalty was increased. Those cases were listed by Mazza JA in Harris v The State of Western Australia.[113] For present purposes, we observe that:
   1. There is no tariff for arson because of the almost limitless variation in the circumstances in which it can be committed.[114]
   2. General deterrence is the dominant sentencing consideration in cases of arson, and that an offender's personal circumstances carry less weight than they might otherwise do.[115]
   3. In Edmonds v The State of Western Australia, McLure P observed that sentences of (immediate) imprisonment imposed on adult offenders who have pleaded guilty to arson ranged from 12 months to 4 years. Not all of the cases cited by her Honour concerned offences which were subject to the increased maximum penalty of life imprisonment.[116]
3. The learned sentencing judge correctly characterised the arson offence as 'a very serious crime'.[117] As his Honour explained, the appellant deliberately caused the house to be damaged by fire. The property was in a built-up area and there was a risk of the fire spreading to other properties. In addition, the appellant's actions resulted in the need for fire and emergency services personnel to attend the house and place themselves at risk in fighting a fire that was still burning.
4. While the appellant is not to be sentenced for causing the fire discovered on 6 November 2015, the earlier fire shows that the offence on 15 November 2015 was not isolated and shows that the appellant was determined to carry out her wish to damage the house by fire. The offence could not be characterised as spontaneous. It was deliberately committed and was motivated by her regret at having purchased the house and, in doing so, taking on a financial burden which she found difficult to discharge. A serious and additional aspect of the appellant's offending was that the appellant attempted to obtain from Allianz Insurance half of the proceeds of the insurance claim. The appellant did so well knowing that she had lit the fire and was therefore not entitled to a payment pursuant to the policy. As his Honour pointed out,[118] fraudulent claims have the potential to result in increasing the cost to the community of obtaining insurance cover. Even though Allianz Insurance rejected the appellant's claim and made no payment to her, general deterrence was an important sentencing consideration.
5. There were mitigating factors. The appellant was a person of prior good character and posed a low risk of reoffending. Most significantly, she suffered from chronic physical illnesses which severely impacted upon her life, being her dermatitis and allergies. It must be accepted that the appellant's poor health will make any term of immediate imprisonment more onerous for her, and there is a risk that her health will deteriorate by reason of her imprisonment. Of course, those who are responsible for the appellant's care whilst in prison are under a duty to ensure that she is given a proper standard of medical care and treatment, and that she is provided with clothing and medication appropriate to her illnesses. There is no evidence to indicate that she cannot be properly cared for in prison, but it is clear that her care will pose challenges to those responsible for her welfare.
6. Without question, the appellant's health was a matter which justified leniency. His Honour reduced the sentences he would have otherwise imposed by reason of this (and other) factors. However, this factor was one of a number of matters which his Honour was required to balance in order to come to an appropriate sentence in this case.
7. Having considered all of the relevant sentencing considerations, we are not persuaded that his Honour erred in deciding that a suspended term of imprisonment was inappropriate, having regard to the overall seriousness of the appellant's offending and the need for general deterrence. In our opinion, his Honour was right to conclude, as his Honour effectively did, that it was not open to him, in the circumstances, to impose a suspended term of imprisonment, and that the only appropriate sentence was immediate imprisonment.
8. In our opinion, grounds 2 and 3 do not have a reasonable prospect of succeeding. Leave to appeal must be refused.

1. None of the grounds of appeal have a reasonable prospect of succeeding. Leave to appeal must be refused on each ground, with the consequence that the appeal must be dismissed.
2. The orders that we would make are:
   1. Leave to appeal is refused on grounds 1, 2 and 3.
   2. The appeal is dismissed.

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

[3] The State of Western Australia v Hope [2018] WASCSR 40 [17] - [19].

[18] Amended appellant's case, par 7.3, 7.8.

[19] R v Olbrich [1990] HCA 54; (1990) 199 CLR 270 [27].

[89] Amended appellant's case, pars 8.16 - 8.28.

[90] Appellant's amended case, par 8.24.

[91] See DKN v The State of Western Australia [2018] WASCA 87.

[98] Report of Clinical Associate Professor Gebauer, 19 January 2018; Hope [9].

[99] Report of Clinical Associate Professor Gebauer, 19 January 2018; Hope [9].

[100] Report of Clinical Associate Professor Gebauer, 19 January 2018; Hope [9].

[101] Report of Clinical Associate Professor Gebauer, 19 January 2018; Hope [12].

[102] Report of Dr Zilko, 25 November 2014.

[104] Report of Dr Patchett, 7 March 2018, page 5.

[105] Report of Dr Patchett, 7 March 2018, page 6.

[106] Report of Ms Loseby, 6 March 2018, page 12.

[107] Report of Ms Loseby, 6 March 2018, page 14.

[110] Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321.

[112] Muldrock v The Queen [2011] HCA 39; (2011) 244 CLR 120 [31].

[113] Harris v The State of Western Australia [2016] WASCA 34 [26].

[114] Morcom v The State of Western Australia [2013] WASCA 31 [48].

[115] Edmonds v The State of Western Australia [2013] WASCA 255 [23].