Jurisdiction : SUPREME COURT OF WESTERN AUSTRALIA

Appeal against sentence - Arson - Multiple offences on a s 32 notice - Manifest excess - Totality - Turns on own facts

Sentencing Act 1995 (WA), s 32

Giglia v The State of Western Australia [2010] WASCA 9

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

Lesay v The State of Western Australia [2011] WASCA 154

McLaughlin v The State of Western Australia [2012] WASCA 214

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

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

The State of Western Australia v Bennett [2009] WASCA 93

Wright v The State of Western Australia [2010] WASCA 14

1 McLURE P: This is an appeal against sentence. The appellant pleaded guilty to one count of criminal damage by fire contrary to s 444(1)(a) of the Criminal Code (WA) (the Code). On 7 December 2012 Simmonds J sentenced the appellant to 4 years' imprisonment for that offence.

2 The appellant also pleaded guilty to eight offences on a notice pursuant to s 32 of the Sentencing Act 1995 (WA). The eight offences and penalties imposed are as follows:

10 months' imprisonment, 12 months driving disqualification

3 The sentencing judge ordered that the sentences of imprisonment of 10 months for stealing a motor vehicle, 3 months for breach of bail and 6 months for possessing methylamphetamine be served cumulatively with the sentence of 4 years for the offence of criminal damage by fire (arson), producing a total sentence of 5 years 7 months' imprisonment. Eligibility for parole was ordered.

4 The appellant relies on three grounds of appeal, first, that the sentence of 4 years' imprisonment for the arson offence is manifestly excessive; second, that the total sentence of 5 years 7 months' imprisonment breaches the first limb of the totality principle; and third, that the total sentence breaches the second limb of the totality principle.

5 The State conceded that the total sentence breached the first limb of the totality principle. For the reasons which follow, the concession is correctly made.

6 The facts of the offences are as follows. On the afternoon of 12 April 2012, the appellant drove a stolen Audi A4 sedan, registered number 1 CTJ-439 to East Perth. He did that with the intention of destroying the car as it had been involved in an earlier police pursuit which had resulted in a fatal traffic accident. The sentencing judge found that the appellant was a passenger in the car when it was involved in the accident. The appellant placed tissue paper inside the vehicle and set it alight. At one stage he attempted to spray perfume to use as an accelerant. The fire eventually took hold and the vehicle was completely destroyed. The appellant left East Perth and walked to Maylands, stopping along the way to change into spare clothing he had brought in case anyone witnessed him setting fire to the vehicle. Unusually, the State failed to adduce evidence as to the value of the vehicle. The sentencing judge characterised it as being of 'relatively recent vintage' and 'of not insignificant value'.

7 As to the stealing charge in the s 32 notice, at about 7.30 am on 26 March 2012 the appellant drove a Holden Berlina along Mitchell Freeway near Karrinyup Road. The car was later reported stolen from Como on the same day. The appellant went to an unknown address in Duncraig and acquired the car from an unknown associate for $300, knowing it was stolen. He intended to use the parts to upgrade his own car. While driving the stolen car, he lost control of it and crashed into a light pole. He fled from the scene and was found by police nearby.

8 At the time of driving the Holden Berlina on 26 March 2012, the appellant was the holder of a valid Western Australian learner's permit. He did not have L-plates displayed, was not in the company of, or being following by, an instructor and failed to carry his learner's permit in the car.

9 On 26 March 2012 police searched the appellant and found a mobile telephone, car keys, sunglasses and an iPod which items had been stolen from the same address in Como as the Holden Berlina.

10 On 12 April 2012 the appellant drove a motor vehicle on East Street in Maylands. At the time of driving he had a valid Western Australian learner's permit. He drove in contravention of that learner's permit by not having a qualified passenger with him, not displaying L-plates and breaching the conditions of the permit.

11 On 8 June 2012 the appellant appeared at the Perth Magistrates Court and was remanded on bail to appear at that court on 29 June 2012. The appellant failed to appear. A warrant was issued and he was arrested on 5 July 2012.

12 On 15 August 2012 the appellant went to the Perth Police Station. He was arrested in relation to other matters. He was searched and police found three small clear plastic clipseal bags containing less than 1 g of methylamphetamine.

13 On Monday 20 August 2012 the appellant went to the front counter of the Mirrabooka Police Station and was arrested for another matter. He was searched and a small clipseal bag containing amphetamine was found in the bag he was carrying.

14 On 18 September 2012 the appellant was at a supermarket in East Perth. The police saw him inside the supermarket and his behaviour aroused their suspicions. As a result of a conversation with the appellant, police searched his bag and found a small clipseal bag containing one tablet of MDMA.

15 The appellant was aged 21 - 22 at the time of the offending. He has a significant substance abuse problem. He began using cannabis at age 15 and methylamphetamine at age 17. He had a prior record of convictions including for an offence of aggravated burglary for which he was sentenced on 19 March 2010 to 9 months' imprisonment which was ordered to be served cumulatively on an earlier 12-month term, conditionally suspended for 18 months, which was activated by the aggravated burglary offence. Thus the appellant was sentenced to a total of 21 months' imprisonment. That sentence was completed in December 2011. The appellant was only able to remain drug free for about a fortnight after being released from prison in 2011.

16 The appellant pleaded guilty at the earliest reasonable opportunity and was found to have shown signs of remorse, empathy and insight into the offending. He had a troubled upbringing. He was employed as a ceiling fixer until he was involved in an accident which temporarily incapacitated him, leading to the use of drugs and to the sale of drugs by him to support that use.

17 This court can only intervene if the sentencing judge made an express or implied material error of fact or law. A claim of manifest excess relies on the implication of error from the sentence itself. The sentence must be shown to be unreasonable or unjust, it being outside the range of a sound sentencing discretion.

18 In determining whether a sentence is manifestly excessive, regard is had to the maximum sentence for the offence, the standards of sentencing customarily observed, the place which the criminal conduct occupies on a scale of seriousness and the personal circumstances of the offender.

19 Prior to the commencement of the Arson Legislation Amendment Act 2009 (WA) (Arson Amendment Act) on 19 December 2009, the maximum penalty for conduct the subject of s 444(1)(a) of the Code was 14 years' imprisonment or, if the offence was committed in circumstances of racial aggravation, 20 years' imprisonment. The Arson Amendment Act increased the maximum penalty for an offence against s 444(1)(a) to life imprisonment. The legislative history is detailed in McLaughlin v The State of Western Australia [2012] WASCA 204 [41] - [47].

20 The maximum penalty for a statutory offence serves as an indication of the relative seriousness of the offence. An increase in the maximum penalty is an indication that sentences for that offence should be increased: Muldrock v The Queen [2011] HCA 39; (2011) 244 CLR 120 [31]; McLaughlin [60] - [61].

21 Reference is made to sentences customarily imposed in order to assess whether the sentence under review is broadly consistent with established sentencing patterns, bearing in mind that there is no single correct sentence for an offence. In assessing broad consistency with comparable cases, regard must be had to all significant sentencing factors impacting on the length of the sentence.

22 Further, when considering sentences customarily imposed, it is necessary to remember that when sentencing for multiple offences, the severity of a sentence imposed on an individual count will usually fall to be assessed in light of the sentences imposed on other counts and its contribution to the total effective sentence: Giglia v The State of Western Australia [2010] WASCA 9 [40].

23 It is well established that 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: The State of Western Australia v Bennett [2009] WASCA 93 [48].

24 Sentences of imprisonment imposed on adult offenders who have pleaded guilty to arson range from 12 months (Lesay v The State of Western Australia [2011] WASCA 154) to 4 years (Bennett; Sloane v The State of Western Australia [2013] WASCA 53). In this case, the parties focussed their attention on Lesay, McLaughlin, JKL v The State of Western Australia [2012] WASCA 215 and Wright v The State of Western Australia [2010] WASCA 14.

25 In Lesay, the offender pleaded guilty to a number of offences including criminal damage, arson and fraud. The offender and a co-offender drove a stolen car to two shopping centres and attempted to break into ATMs using a crowbar and explosives. After the attempts proved unsuccessful, they drove the stolen car to bushland, poured petrol on it and set it alight to avoid detection in relation to the other offences. The car was valued at approximately $10,000. The offender had no relevant prior convictions. He was sentenced to 12 months' imprisonment for the arson offence, which reflected a reduction for totality reasons.

26 In McLaughlin, the offender pleaded guilty to numerous offences including one count of arson for which he was sentenced to 2 years 10 months' imprisonment. The offender set fire to a chair inside his estranged wife's home causing $30,000 damage. The offender had an extensive criminal record.

27 In JKL, the offender pleaded guilty to numerous burglary and stealing offences and a single arson offence which involved setting fire to a car stolen during a burglary while he was on bail for other burglary offences. The car was completely destroyed in order to destroy any forensic evidence linking the offender to the stealing offences. The offender was aged 21, had no relevant prior record and cooperated with police which assisted in a co-offender being charged. On appeal the sentence for the arson offence was reduced from 4 years to 3 years' imprisonment.

28 In Wright, the offender pleaded guilty to various offences including two counts of arson. The offender was sentenced to 3 years 3 months' imprisonment for setting fire to a building he had just burgled, causing in excess of $100,000 damage. He was also sentenced to 2 years' imprisonment for setting fire to a vehicle used in some of the offences. The offender was aged 18 when the first of the offences were committed, suffered from depression and made voluntary disclosures to police which significantly moderated the sentence.

29 The sentences in Wright and Lesay are at the bottom end of the sentencing range and lenient in all of the circumstances. Further, the maximum penalty increase under the Arson Amendment Act did not apply. Those cases are no longer suitable for comparison purposes.

30 The most closely comparable case is JKL. Unlike the offender in that case, the appellant had a relevant prior record and less significant mitigatory cooperation with police.

31 The sentence imposed on the appellant is at the higher end of the sentencing range but is not manifestly excessive. Ground 1 should be dismissed.

32 The total sentence must bear a proper relationship to the overall criminality involved in all of the offences, viewed in their entirety, and having regard to all the circumstances of the case, including those referrable to the offender personally.

33 Having regard to the comparatively high sentence imposed for the arson offence, the fact that the majority of the s 32 offences were at the low end of the scale of seriousness (the drug offences would ordinarily have attracted a non-custodial penalty in the Magistrates Court) and the mitigating factors, including the appellant's youth and early pleas of guilty, the proper course was to order that the sentences for all offences be served concurrently. I would uphold ground 2.

Totality principle - second limb (ground 3)

34 The application for leave to appeal on this ground was referred to the hearing of the appeal. There is no merit in the claim that the total sentence is crushing in the relevant sense. Leave to appeal should be refused.

35 I would allow the appeal, set aside the orders for cumulation and in lieu thereof order that all the sentences imposed by the sentencing judge be served concurrently resulting in a total sentence of 4 years' imprisonment. The appellant will be eligible for release on parole after serving 2 years' imprisonment.