Jurisdiction : SUPREME COURT OF WESTERN AUSTRALIA

Criminal law - Burglary - Arson - Total effective sentence 4 years' imprisonment - Application for leave to appeal against sentence - Whether sentence imposed on the arson offence manifestly excessive

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

IEB v The State of Western Australia [2015] WASCA 207

JKL v The State of Western Australia [2012] WASCA 215

Krijestorac v The State of Western Australia [2010] WASCA 35

KWLD v The State of Western Australia [No 4] [2013] WASCA 185

McLaughlin v The State of Western Australia [2012] WASCA 204; (2012) 224 A Crim R 134

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

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

Sloane v The State of Western Australia [2013] WASCA 53

Stokke v The State of Western Australia [2015] WASCA 131

Turnbull v The State of Western Australia [2013] WASCA 5

Wheeler v The Queen [No 2] [2010] WASCA 105

Wroth v The State of Western Australia [2013] WASCA 155

2 MAZZA JA: On 2 January 2013, the appellant entered Ms Rosemary Hodder's house at 26A Bennett Street, Spalding, without Ms Hodder's consent. To vent her anger and animosity towards Ms Hodder, the appellant deliberately lit some flammable material in the front bedroom, which subsequently caught fire. The fire spread to other parts of the house, causing extensive damage.

3 The appellant was charged on indictment in the Supreme Court with two offences. Count 1 alleged an offence of burglary of a place ordinarily used for human habitation, contrary to s 401(1)(b) of the Criminal Code (WA). Count 2 alleged that the appellant wilfully and unlawfully damaged by fire the house, an offence commonly referred to as arson, contrary to s 444(1)(a) of the Criminal Code.

4 The appellant stood trial before Martin CJ and a jury. On 10 June 2015, she was convicted as charged. On 4 August 2015, his Honour sentenced the appellant to 2 years' imprisonment on count 1 and 4 years' imprisonment on count 2, to be served concurrently. He ordered that the appellant be made eligible for parole and that the sentences commence on 5 May 2015. Thus, the total effective sentence imposed upon the appellant was 4 years' imprisonment.

5 The appellant seeks leave to appeal against the sentence imposed upon count 2 (the arson offence) on the basis that it is manifestly excessive. For the reasons that follow, the proposed ground has no reasonable prospect of succeeding. Leave to appeal should be refused and the appeal is taken to have been dismissed.

6 The facts of the offending as found by his Honour may be summarised in this way. On the morning of 2 January 2013, the appellant travelled by bus to the suburb of Spalding in Geraldton. One of the purposes for her journey was to confront Ms Hodder. The appellant had formed the unfounded belief that Ms Hodder had mistreated one of her children many years ago.

7 The appellant visited the premises at 26B Bennett Street to retrieve a DVD player belonging to her son. While there, she attempted, unsuccessfully, to remove a samurai sword which she had found in that

house. She intended to use the sword to injure Ms Hodder. At some point, the appellant went to 26A Bennett Street and ascertained that Ms Hodder was not there. The appellant approached a Ms Prosser and asked whether she had a baseball bat or iron bar which she could use to assault Ms Hodder. Ms Prosser refused this request.

8 The appellant then returned to Ms Hodder's house and gained entry to it. It is not clear how she did this, but entry would not have been difficult as the locks on the front doors of the house were not working. Once inside, the appellant, as I have said, lit some flammable material in the front bedroom, perhaps some bedding or clothing. Exactly how this was done is not known, but the appellant was a smoker and always carried matches or a lighter with her. His Honour found that the appellant started the fire 'to give vent to the anger and animosity which [the appellant] harboured towards [Ms] Hodder and to cause her damage' (sentencing remarks ts 4).

9 The appellant left the house and went to another house where she confronted Ms Hodder, shouting at her and abusing her through the front door.

10 Emergency services were called to Ms Hodder's house, but were unable to prevent it from being extensively damaged by fire to the point that Ms Hodder was unable to live there again.

11 The appellant participated in a video record of interview with police. While readily admitting her animosity towards Ms Hodder, she emphatically denied that she had entered Ms Hodder's house or started the fire.

12 The appellant was 43 years of age when she was sentenced and identifies as a traditional Aboriginal Australian.

13 She was born in Geraldton into a large family and has six sisters and two brothers. Both of her parents are deceased. The appellant has seven children and five grandchildren. She appears never to have been in regular employment.

14 The appellant has been a regular user of cannabis since the age of 14 and, since about the age of 21, has used alcohol and other illicit substances, including amphetamine.

15 She was diagnosed with paranoid schizophrenia, which has been compounded by many years of illicit substance abuse. The appellant was admitted to a psychiatric ward in Darwin when she was 31 years of age. She has been admitted to Graylands Psychiatric Hospital five or six times and has been, over the years, under the care of a number of community mental health clinics. Her treatment has been complicated by a number of factors, including a tendency to abuse the oral medication she was prescribed. At different times, her medication has been administered in the form of depot injections.

16 The appellant has a very lengthy record of prior convictions. Those convictions are not only numerous, but also, regular. Although she has never been previously convicted of arson, the appellant has various convictions for burglary; assaulting a public officer; dishonesty offences; traffic offences; breach of bail; and offences involving public disorder. Her offending continued unabated even after she was charged with the present offences. It is clear that dispositions designed to promote her rehabilitation have been unsuccessful.

17 The learned sentencing judge was provided with a report by a consultant psychiatrist, Dr Murray Chapman, dated 30 July 2015, and a pre-sentence report, dated 30 July 2015.

18 Based on Dr Chapman's report, his Honour found that the appellant's belief that Ms Hodder was responsible for the mistreatment of her child was unreliable (sentencing remarks ts 6). That said, his Honour regarded the appellant's mental illness as a mitigating factor; however, he found that her mental condition did not deprive her of the capacity to differentiate between right and wrong. In particular, his Honour found that the appellant had the capacity to know that it was wrong to respond to her paranoid delusions by seeking to harm the person (in this case, Ms Hodder) she considered to be responsible.

19 His Honour was unable to identify any other mitigating factors. He found the appellant:

(b) was neither remorseful, nor a person of previous good character;

(c) has little insight into her mental health and illicit drug problems; and

(d) posed a high risk of further offending in general, and a moderate risk of setting fires (sentencing remarks ts 7, 11 - 12).

20 His Honour expressed 'no confidence that [the appellant] would be able to refrain from further offending or comply with the conditions which would have to be specified if sentences which left [her] in the community were imposed' (sentencing remarks ts 9).

21 His Honour considered that the only appropriate penalty on each count was a term of immediate imprisonment. In fixing the length of the terms of imprisonment, his Honour said that he took into account the circumstances of the offending; her personal circumstances; and the range of sentences customarily imposed in respect of offences of the kind committed by the appellant. Because the two offences occurred in the one transaction, his Honour ordered that they be served concurrently (sentencing remarks ts 12 - 13).

22 The appellant represented herself in the proceedings before this court. In her oral submissions, she emphasised a number of points, including that the decision to commit the offences occurred in the 'spur-of-the-moment' (appeal ts 3); her mental illness; and her desire to be with her family.

23 The relevant appellate sentencing principles are well-established. This court cannot intervene simply because, had it been sentencing the appellant at first instance, it would have imposed a different sentence. The appellant must persuade the court that the learned sentencing judge made a material express or implied error. An allegation that a sentence is manifestly excessive is an allegation of implied error. The appellant must demonstrate that the sentence was plainly unjust or unreasonable in light of the maximum penalty prescribed by law for the offence; the standards of sentencing customarily observed for that type of offence; the level of seriousness of the circumstances of the offending; and the personal circumstances of the offender.

24 When examining the standards of sentencing customarily observed, it is important to bear in mind that the importance of doing so is to ensure broad consistency of outcomes and consistent application of sentencing principles. The range of sentences customarily imposed does not mark the boundaries of a court's sentencing discretion in an individual case. In the end, each case must be decided on its own facts and circumstances.

25 The maximum penalty for arson is life imprisonment. The maximum penalty for this offence increased in 2009 from 14 years' imprisonment to life 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 [2011] HCA 39; (2011) 244 CLR 120 [31] (French CJ, Gummow, Hayne, Heydon, Crennan, Kiefel & Bell JJ).

26 I have reread a number of appellate sentencing cases decided in this court since the maximum penalty for arson was increased, namely McLaughlin v The State of Western Australia [2012] WASCA 204; (2012) 224 A Crim R 134; JKL v The State of Western Australia [2012] WASCA 215; Turnbull v The State of Western Australia [2013] WASCA 5; Morcom v The State of Western Australia [2013] WASCA 31; Sloane v The State of Western Australia [2013] WASCA 53; Wroth v The State of Western Australia [2013] WASCA 155; Edmonds v The State of Western Australia [2013] WASCA 255; Stokke v The State of Western Australia [2015] WASCA 131 and IEB v The State of Western Australia [2015] WASCA 207. There remains no established range of sentences for arson. However, I have taken into account the sentencing dispositions in each of those cases.

Disposition of the proposed ground of appeal

27 On any analysis, the appellant's offending was serious. Although the offending involved no real planning, it was deliberate and born out of anger and revenge. The appellant's mental state is a relevant mitigating factor, but it remains the fact that she knew that what she was doing was wrong. She entered the house when she had no right to do so. Her actions caused extensive damage and, although there was no one else inside the house, fires in built-up areas have the potential to spread. Her actions put the safety of fire and emergency service workers at risk.

28 The relevance of mental impairment in the exercise of the sentencing discretion has been explained in a number of cases in this court over recent years. Three such cases are Krijestorac v The State of Western Australia [2010] WASCA 35; Wheeler v The Queen [No 2] [2010] WASCA 105 and KWLD v The State of Western Australia [No 4] [2013] WASCA 185. It is unnecessary to repeat what was written in those cases, save to say that the mitigating effect of mental impairment can be offset or limited by other factors. The mitigation that could be given to the appellant's mental impairment was limited by the appellant's risk of reoffending; lack of insight into her mental illness; and her entrenched illicit drug use.

29 Having regard to all relevant sentencing principles; all of the relevant circumstances in this case, including those referred to by the appellant in her submissions; and the appellant's mental illness and other personal circumstances, it is not reasonably arguable that the sentence of 4 years' imprisonment imposed for the offence of arson was manifestly excessive. The sentence is neither plainly unjust nor unreasonable. Leave to appeal must be refused. The appeal must be taken to have been dismissed.

1. Leave to appeal is refused.
2. The appeal is dismissed.