Jurisdiction : SUPREME COURT OF WESTERN AUSTRALIA

Citation : THE STATE OF WESTERN AUSTRALIA -v- McLAUGHLIN [2012] WASCSR 74

Criminal law - Appeal against sentence - Appellant convicted on his pleas of guilty of unlawful assault occasioning bodily harm, a threat to unlawfully kill (two counts) and wilfully and unlawfully damaging a house by fire - Sentencing patterns for criminal damage by fire - Impact of an increase in the maximum penalty for an offence - Arson Legislation Amendment Act 2009 (WA) - Total effective sentence of 4 years 8 months' immediate imprisonment - Whether total effective sentence infringed the first limb of the totality principle

Criminal Code (WA), s 221, s 317(1), s 338(a), s 338B(a), s 441(1)(a)

Sentencing Act 1995 (WA), s 6, s 7, s 8(1), s 32

Weapons Act 1999 (WA), s 7(2)(b)

Bensegger v The Queen [1979] WAR 65

Bruce v The State of Western Australia [2006] WASCA 236

Dunks v The State of Western Australia [2009] WASCA 82; (2009) 195 A Crim R 130

Evans v The State of Western Australia [2012] WASCA 13

Fisher v The Queen [1999] WASCA 122

Heferen v The Queen [1999] WASCA 81; (1999) 106 A Crim R 89

Herbert v The Queen [2003] WASCA 61; (2003) 27 WAR 330

JTP v The State of Western Australia [2010] WASCA 191

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

Mitchell v The Queen [2003] WASCA 25

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

Newton v The State of Western Australia [2006] WASCA 247

Nguyen v The State of Western Australia [2007] WASCA 114

Pustkuchen v The State of Western Australia [2010] WASCA 11

R v Catts (1996) 85 A Crim R 171

Riley v Smirk [2011] WASCA 200

Roffey v The State of Western Australia [2007] WASCA 246

The State of Western Australia v Bennett [2009] WASCA 93; (2009) 194 A Crim R 137

The State of Western Australia v BLM [2009] WASCA 88; (2009) 40 WAR 414

The State of Western Australia v Cheeseman [2011] WASCA 15

The State of Western Australia v Viskari [2008] WASCA 143

The State of Western Australia v Warburton [2004] WASCA 228

Watterston v The State of Western Australia [2004] WASCA 249

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

1 BUSS JA: The appellant has made application for leave to appeal against sentence.

2 He was convicted in the Supreme Court, on his pleas of guilty, on four counts in an indictment and one charge in a notice under s 32 of the Sentencing Act 1995 (WA).

3 Count 1 in the indictment alleged that on 11 April 2011, at Balga, the appellant unlawfully assaulted Catherine Terese Dunn and thereby did her bodily harm, contrary to s 317(1) of the Criminal Code (WA) (the Code). At the material time, the appellant and Ms Dunn were in a family and domestic relationship.

4 Count 2 alleged that on the same date and at the same place as in count 1, the appellant made a threat to unlawfully kill Ms Dunn, contrary to s 338B(a) of the Code.

5 Count 3 alleged that on 12 October 2011, at Butler, the appellant made a threat to unlawfully kill Michelle Leanne McLaughlin, contrary to s 338B(a) of the Code.

6 Count 4 alleged that on the same date and at the same place as in count 3, the appellant wilfully and unlawfully damaged a house the property of the Department of Housing, contrary to s 444(1)(a) of the Code, and that the house was damaged by fire.

7 The charge in the s 32 notice alleged that on the same date and at the same place as in count 1, the appellant possessed a controlled weapon in a manner that could reasonably be expected to cause a person to fear that someone will be injured or disabled, contrary to s 7(2)(b) of the Weapons Act 1999 (WA).

8 The sentencing judge, Simmonds J, imposed individual terms of immediate imprisonment as follows:

9 His Honour ordered that the sentences for counts 1 and 2 and the sentence for the charge in the s 32 notice be served concurrently with each other, and that the sentences for counts 3 and 4 be served concurrently with each other but cumulatively on the sentences for the other offences.

10 The total effective sentence was therefore 4 years 8 months' immediate imprisonment. His Honour ordered that the total effective sentence be backdated to 14 October 2011, being the date on which the appellant was taken into custody for the offences. A parole eligibility order was made.

The facts and circumstances of the offending

11 The facts and circumstances of the offending were as follows.

12 Counts 1 and 2 and the charge in the s 32 notice were committed on 11 April 2011.

13 On 11 April 2011, the appellant was in a house at Balga which he shared with his partner, Ms Dunn, and her 13-year-old son. The appellant commenced drinking alcohol in the early afternoon. He began arguing with Ms Dunn about an earlier incident involving her son. The appellant demanded that she retrieve cigarette butts from a bin so that he could make a cigarette. When she refused, the appellant threw an ashtray which hit her in the back. The appellant locked an external door with a deadbolt and placed the key in his pocket. He then used a large knife to cut the power cord to a vacuum cleaner being used by Ms Dunn.

14 Later on 11 April 2011, while in Ms Dunn's bedroom, the appellant spat on Ms Dunn and grabbed and shook her. He directed her to leave the bedroom. When she went into the lounge room, the appellant used the large knife to smash the glass top of a coffee table and to stab the walls. He then held the knife to Ms Dunn's throat and said, 'Before I go I'll kill you, Jake, your dog, your mother, your sister, your nephew and that fucking cunt Mandy'. He stabbed the walls again. The stabbing continued until the blade of the knife broke. Ms Dunn feared for her life. The appellant prevented her from leaving the lounge room. He shouted at her, pushed and shoved her and punched her in the nose.

15 Eventually, the appellant fell asleep. Ms Dunn was fearful of him and remained awake. The following morning, she fled from the house with her son.

16 Ms Dunn sustained bruising to her arms and face and general soreness to her upper body. The offending has impacted on her emotionally and financially.

17 The appellant was arrested on 18 April 2011. He participated in a video-recorded interview with the police. He was charged with counts 1 and 2 and the offence in the s 32 notice, and released on bail.

18 Counts 3 and 4 occurred on 12 October 2011 in a house at Butler occupied by the appellant's estranged wife, Ms McLaughlin, and their four children. At the time the appellant was on bail in relation to counts 1 and 2 and the charge in the s 32 notice.

19 On 12 October 2011, the appellant had a disagreement with Ms McLaughlin at the house in Butler. He left the premises. During the next few hours the appellant sent Ms McLaughlin increasingly aggressive text and voicemail messages on her mobile telephone.

20 At about 4.30 pm on 12 October 2011, the appellant returned to the house at Butler. No-one was at home. The appellant banged on the front door with his feet and fists. He shouted, swore and demanded to be let into the house.

21 The appellant then drove his vehicle to the rear of the premises. He entered a double garage using a remote electronic key. The appellant kicked open a deadlocked door leading to a rear courtyard. After attempting unsuccessfully to force open a lounge room window, he smashed the window and climbed through it. The appellant was inside the house for only a short time. However, during this period he ignited a lounge chair. He then departed from the premises in his vehicle. The fire in the lounge chair developed and spread to other items of furniture. About $30,000 damage was caused to the house and its contents.

22 After the appellant started the fire and departed from the premises, he left voice messages on Ms McLaughlin's mobile telephone. These messages, left at 4.53 pm, 4.58 pm and 5.12 pm on 12 October 2011, included the following statements:

I will find you, whore.

When I find you, I'm going to slit your throat.

I'm threatening to kill Michelle McLaughlin.

You're fucking dead.

I'm going to get hold of you and slit your throat

23 At some time on 12 October 2011, the appellant sent these text messages to Ms McLaughlin's mobile telephone:

Slut, I will kill u, I am on my way.

Fkn dead u slut.

Burn, burn I am guna fuc u up hore, I will get u an your man, He is gun burn, I will kill you, fkn abandon me, u r dead.

Darren is dead.

Last chance or u die.

24 During the evening on 12 October 2011, the appellant was arrested. Later, he participated in a video-recorded interview with the police, and was charged with counts 3 and 4.

25 The sole proposed ground of appeal alleges, in substance, that the sentencing judge erred in law by imposing a total effective sentence which infringed the first limb of the totality principle.

26 The first limb of the totality principle 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 (including those, if any, in respect of which the offender is still serving a term of imprisonment), viewed in their entirety, having regard to all relevant circumstances including those referable to the offender personally (and including, for example, the desirability of accommodating any wish to rehabilitate).

The maximum penalties for the relevant offences

27 The maximum penalty for count 1, being the aggravated unlawful assault occasioning bodily harm, contrary to s 317(1) read with s 221 of the Code, is 7 years' imprisonment.

28 The maximum penalty for each of counts 2 and 3, being the threats to unlawfully kill, contrary to s 338B(a) read with s 338(a) of the Code, is 7 years' imprisonment.

29 The maximum penalty for count 4, being the offence of criminal damage by fire, contrary to s 444(1)(a) of the Code, is life imprisonment.

30 The maximum penalty for the charge in the s 32 notice, being the offence of possessing a controlled weapon in a manner that could reasonably be expected to cause a person to fear that someone will be injured or disabled, contrary to s 7(2)(b) of the Weapons Act, is 2 years' imprisonment and a fine of $24,000.

31 The appellant was born on 6 June 1974. He was aged 37 at the time of the offending.

32 The information before the sentencing judge included a pre-sentence report and a psychological report.

33 The appellant has a history of violent offending, and his offending against Ms Dunn and Ms McLaughlin illustrates a propensity within his intimate relationships. When an intimate relationship encounters difficulty he often uses alcohol to excess. His propensity is to lose emotional control and react with violence when faced with significant stress and anxiety in the relationship. The appellant has deep seated rejection fears. These appear to be attributable to his traumatic childhood.

34 Nevertheless, the pre-sentence report and the psychological report express some cautious optimism for the appellant's future. The psychologist, Ms Cinzia Zuin, said in her report:

[The appellant] is a 37 year old man who comes before the court to be sentenced for his most violent offences to date when considering the potential for destruction associated with the fire. Being in a heightened state of intoxication following the yet again breakdown of his volatile marriage it appears [the appellant's] deep seated sense of rejection and abandonment was intensified. With his thinking distorted by the effects of alcohol and potentially medication he offended in a bid to exact revenge against his wife. The threats to kill appear to have also been made due to feelings of intense hurt and anger manifesting as threats to exact retribution.

[The appellant] appears to have made significant progress towards addressing his drug and alcohol issues since his remand in custody and of developing goals for the future. However, the issue of violence has yet to be addressed.

35 Ms Zuin referred to the appellant's 'issue of violence' elsewhere in her report:

While [the appellant] does not appear to have any convictions for violence against his wife, he candidly admitted that there had been significant violence in the marriage. He also admitted that a woman he had started seeing during a break in his marriage took out a Violence Restraining Order against him after he hit her. As such it is evident that [the appellant's] propensity for violence is well established and that he struggles to resolve conflict through effective communication. Drug and alcohol issues also seem to be significant contributing factors.

36 The pre-sentence report stated that the appellant had demonstrated significant insight into his offending behaviour. He identified his alcohol abuse, negative relationships and poor social support and instability as significant contributing factors in his offending. He displayed victim empathy.

37 The appellant has an extensive prior criminal record. It includes convictions for stealing, receiving, burglary, minor drug offences, minor traffic offences, driving a motor vehicle while his driver's licence was suspended, fraud, assault occasioning bodily harm, unlawful damage, possessing an article with intent to cause fear that someone will be injured or disabled, and breach of a violence restraining order.

38 The principal mitigating feature in relation to the offending the subject of this appeal was the appellant's pleas of guilty. The sentencing judge found that the pleas were entered 'at an early opportunity' [34].

Aggravated unlawful assault occasioning bodily harm: sentencing patterns

39 I have had regard to the sentencing patterns for aggravated unlawful assault occasioning bodily harm (being count 1 in the indictment). See The State of Western Australia v Cheeseman [2011] WASCA 15 [70] - [79] (Buss JA, Mazza J agreeing).

Threats to unlawfully kill: sentencing patterns

40 Also, I have had regard to the sentencing patterns for threats to unlawfully kill (being counts 2 and 3). See Cheeseman [99] and the cases there cited.

Criminal damage by fire: the Arson Legislation Amendment Act 2009 (WA)

41 Section 444(1)(a) of the Code provides (and, at the material time, provided) that any person who wilfully and unlawfully destroys or damages any property is guilty of a crime and is liable, if the property is destroyed or damaged by fire, to life imprisonment.

42 Prior to the commencement of the Arson Legislation Amendment Act 2009 (WA) on 19 December 2009, the maximum penalty for this offence was 14 years' imprisonment or, if the offence was committed in 'circumstances of racial aggravation' (as defined in s 80I of the Code), 20 years' imprisonment.

43 The Arson Legislation Amendment Act made amendments to the Bush Fires Act 1954 (WA) and the Code. The maximum penalty for an offence under s 32 of the Bush Fires Act was increased from a $250,000 fine or 14 years' imprisonment, or both, to 20 years' imprisonment. The amendments to the Code included:

(a) Section 23A was amended so that it is subject to the duty imposed by a new s 444A inserted by the Amendment Act.

(b) Section 23B was amended so that it is subject to the duty imposed by the new s 444A.

(c) Section 266 was amended as a result of concern expressed at the April 2009 meeting of the Standing Committee of Attorneys General, following the fatal Victorian bushfires of February 2009, that homicides caused by deliberately lit bushfires would not fall within the recognised homicide offences. Accordingly, s 266 was amended to make it clear that a source of ignition or fire is a dangerous thing. See the Arson Legislation Amendment Bill 2009 (WA) Clause Notes in relation to cl 8.

(1) It is the duty of a person who has charge of or is in control of a source of ignition to use reasonable care and take reasonable precautions to avoid lighting a fire that destroys or may destroy or cause damage to property that the person is not entitled to damage or destroy; and the person is held to have caused any destruction or damage to that property by reason of any omission to perform that duty.

(2) It is the duty of a person who has charge of or is in control of a fire to use reasonable care and take reasonable precautions to contain that fire so that it does not destroy or damage property that the person is not entitled to damage or destroy; and the person is held to have caused any destruction or damage to that property by reason of any omission to perform that duty.

(3) A person does not breach a duty imposed by this section if the fire does not spread beyond the capacity of the person to extinguish it.

(4) Property that is capable of being destroyed or damaged by fire includes vegetation.

(e) As I have mentioned, s 444 was amended to increase the maximum penalty for an offence against s 444(a), renumbered s 444(1)(a), to life imprisonment. This is now consistent with the maximum penalties in Queensland, South Australia and the Northern Territory for similar offences. Section 444 was also amended to make it certain that property capable of being destroyed or damaged by fire includes vegetation.

(f) A new s 445A was inserted to make it an offence to breach the duty imposed on persons under the new s 444A. The maximum penalty for this offence is 15 years' imprisonment.

44 The policy impetus for the Arson Legislation Amendment Act was explained by the Attorney General in his second reading speech:

The Arson Legislation Amendment Bill 2009 will strengthen protection to persons and property provided by arson-related offences in the Criminal Code and Bush Fires Act 1954. It will introduce a new bushfires offence into the Criminal Code, clarify the applicability of existing offences against the person to harm caused by fire, and increase the maximum penalties available under existing offences.

Following the tragic events in Victoria in February 2009, the government undertook a review of arson offences in Western Australia. The review focused on whether or not, given comparative offences and penalties in other Australian jurisdictions, the criminal law in Western Australia was adequate. The findings of this review, relevant parts of the Model Criminal Code and the views of the Standing Committee of Attorneys General form the basis for the Arson Legislation Amendment Bill 2009.

See Western Australia, Parliamentary Debates, Legislative Assembly, 14 October 2009, 8026b (Mr CC Porter, Attorney General).

45 The amendment to increase the maximum penalty for an offence against s 444(a), renumbered s 444(1)(a), to life imprisonment was debated extensively in the Legislative Assembly and the Legislative Council. A representative of the opposition moved an amendment in each chamber of the Parliament to reduce the proposed increased maximum penalty from life imprisonment to 25 years' imprisonment. The amendment was, on each occasion, defeated.

46 The Attorney General, who spoke against the proposed reduction in the Legislative Assembly, said:

The whole point about this legislation is that we are giving the court the ability to impose the most serious penalty that can be given in circumstances whereby somebody unlawfully, wilfully and intentionally lights a fire. Whether that fire damages one hectare or thousands of hectares is a question of good or bad luck in the circumstances. We must have the ability to recognise that the intentional, unlawful and willing lighting of a fire is one of the single most dangerous things that a person in our society can do. That is our rationale, and members opposite might disagree with it.

See Western Australia, Parliamentary Debates, Legislative Assembly, 10 November 2009, 8631d - 8660a [29] (Mr CC Porter, Attorney General).

47 In the Legislative Council, the government's reasons for rejecting the proposed reduction were explained by Mr Michael Mischin:

The government does not support this amendment. I understand the theory behind the opposition's position; however, the government's view is that it is not simply a property offence. We are not talking about the negligent starting of a fire but about someone who wilfully and unlawfully damages or destroys property by fire. Fire is unpredictable. It is one of the most dangerous things over which people can have control. Apart from the potential for destruction that can flow from the lighting of a fire, the sort of property that can be damaged or destroyed is limitless. We are not talking just about physical and inanimate objects, but animals - wildlife, fauna, people's pets, farm animals and the like. We are talking about the potential for loss of life as well as destruction of property. People can lose their livelihoods, everything they own, their histories and everything they possess in a fire. We only have to look at the tragedy of the 2008 [sic] Victorian bushfires. Even if no-one had been injured during the Boorabbin fires, the potential for harm would have been such to warrant the greatest sanction the law allows. The life imprisonment penalty is a maximum; it is not a mandatory sentence as it used to be for murder and the like. It is not unknown for other offences that do not involve physical harm or loss of life to carry a penalty of life imprisonment. We only need to look at the armed robbery provisions in the Criminal Code. It is the terror and the risk involved that needs to carry this sort of sanction. The government's view is that the prevalence of this sort of offence, the potential consequences to people and to communities, warrants Parliament sending the signal that we regard this as amongst the top tier of criminal offences under our code. Imprisonment for 25 years is certainly a severe penalty, but currently the penalty is 20 years for fire creating damage that is motivated by racial aggravation. We believe that a penalty of life imprisonment as a maximum properly reflects the community's condemnation of the wilful and unlawful destruction or damage to property by way of fire.

It is also hoped that it will form a deterrent. This is an offence that is notoriously difficult to investigate and for which to apprehend people. Again, by showing society's condemnation of those who resort to this conduct a very high penalty is warranted.

See Western Australia, Parliamentary Debates, Legislative Council, 26 November 2009, 9853b - 9858a [3] (Mr Michael Mischin).

Criminal damage by fire: sentencing patterns prior to the commencement of the Arson Legislation Amendment Act

48 I will now review the sentencing patterns prior to the commencement of the Arson Legislation Amendment Act for the offence of wilfully and unlawfully destroying or damaging property by fire, contrary to s 444(a) of the Code, as then enacted.

49 As Miller JA (Owen and Buss JJA agreeing) noted in The State of Western Australia v Bennett [2009] WASCA 93; (2009) 194 A Crim R 137, it is well-established that:

(a) general deterrence is the dominant sentencing factor in cases of arson;

(b) an offender's personal circumstances carry less weight in these cases than they might otherwise do; and

(c) there is no tariff for the offence of arson but, prior to the introduction of the transitional provisions in the Sentencing Legislation Amendment and Repeal Act 2003 (WA), the offence commonly attracted sentences within a range of 4 - 7 years in 'very serious cases', and 3 - 5 years in 'less serious cases' [48].

50 This sentencing range, expressed in transitional terms, is 2 years 8 months to 4 years 8 months in 'very serious cases' and 2 years to 3 years 4 months in 'less serious cases'.

51 General deterrence is the dominant sentencing consideration because arson, in any form, is very easy to commit and the consequences can be, and often are, extremely destructive. See R v Catts (1996) 85 A Crim R 171, 176 (Anderson J, Rowland & Ipp JJ agreeing).

52 Although an offender's personal circumstances carry less weight in cases of arson than they might otherwise do, the personal circumstances are not irrelevant.

53 There is no tariff because, as Steytler P (Wheeler & McLure JJA agreeing) said in Newton v The State of Western Australia [2006] WASCA 24, what will be an appropriate sentence in a case of arson must depend upon the facts and circumstances of the particular offence and offender [11]. However, his Honour went on to provide this guidance:

Amongst the considerations that must be taken into account in determining the seriousness of an offence of arson are the motive with which the offence was committed (see Histon v R, unreported; CCA SCt of WA; Library No 970197 and the cases there cited; S (a child) at 132; James), the extent of the damage caused by the offence (see Histon at 4; Hrubos v R, unreported; CCA SCt of WA; Library No 8614.1; 3 December 1990 at 5) and the extent to which the offence endangered human life (see Histon at 12). It will often be relevant to consider what was the nature of the property damaged. So, for example, the targeting of a residential dwelling may elevate the seriousness of the offending (see R v Schneider-Markham; unreported; CCA SCt of WA; Library No 930561; 6 October 1993).

As was observed by Anderson J in Catts, the maximum penalty for wilful and unlawful destruction and damage of property by fire is imprisonment for a period of 14 years: s 444(a) of the Criminal Code (WA). The maximum penalty for attempted wilful and unlawful destruction or damage of property by fire is 7 years' imprisonment: s 444(a) and s 552(2)(b) of the Code. It is consequently not surprising that a review of the cases reveals that ordinarily the offence of arson will attract a significant term of imprisonment: see, for example, James at 351; S (a child) at 135; Quinn v R; unreported; CCA SCt of WA; Library No 8361; 11 July 1990 at 7; Hrubos at 4. In S (a child), Malcolm CJ said (at 135) that in very serious cases of arson the offence commonly attracts sentences within a range of 4 to 7 years' imprisonment, although lesser sentences are frequently imposed in less serious cases. That case was decided prior to the enactment of the Sentencing Legislation Amendment and Repeal Act 2003 (WA), and the range there discussed, which must be considered against the maximum penalty provided for by the legislature, should consequently be reduced by one-third. It has also been said that, although there is no established tariff, the range of sentences commonly imposed for a single offence of arson appears to be in the vicinity of 3 to 5 years' imprisonment under the former regime: Histon at 14; Warburton at [22]. Once again, that range must be considered against the maximum sentence provided for by the legislature [13] - [14]. (emphasis added)

54 I have read and considered numerous cases, apart from Bennett, Catts and Newton, which have dealt with sentencing for arson offences. They include Mitchell v The Queen [2003] WASCA 25; The State of Western Australia v Warburton [2004] WASCA 228; Watterston v The State of Western Australia [2004] WASCA 249; Bruce v The State of Western Australia [2006] WASCA 236; Roffey v The State of Western Australia [2007] WASCA 246; The State of Western Australia v Viskari [2008] WASCA 143; Dunks v The State of Western Australia [2009] WASCA 82; (2009) 195 A Crim R 130; Pustkuchen v The State of Western Australia [2010] WASCA 11; Wright v The State of Western Australia [2010] WASCA 14; JTP v The State of Western Australia [2010] WASCA 191; Lesay v The State of Western Australia [2011] WASCA 154; and Evans v The State of Western Australia [2012] WASCA 13.

55 Each of these cases involved arson offences committed prior to the commencement of the Arson Legislation Amendment Act, that is, prior to 19 December 2009, when the maximum penalty was increased from 14 years' imprisonment to life imprisonment. It is unnecessary to set out the relevant facts and circumstances of the cases or the sentencing outcomes. It is sufficient to note that, in general, the sentencing dispositions reflect the range referred to by Miller JA in Bennett [48].

56 However, it should be emphasised that the range, expressed in transitional terms, of 2 years 8 months to 4 years 8 months in 'very serious cases' and 2 years to 3 years 4 months in 'less serious cases' does not establish a sentencing matrix. It provides general guidance but does not fix an upper or lower limit. An offender who commits an arson offence is not to be sentenced merely by classifying his or her offending as a 'very serious case' or a 'less serious case', and then selecting a term within that range.

57 In Western Australia, the statutory sentencing principles are set out in pt 2 of the Sentencing Act 1995 (WA). By s 6(1), a sentence imposed on an offender must be commensurate with the seriousness of the offence. This is a fundamental sentencing principle. Section 6(2) provides that the seriousness of an offence must be determined by taking into account the statutory penalty for the offence (par (a)); the circumstances of the commission of the offence, including the vulnerability of any victim of the offence (par (b)); any aggravating factors (par (c)); and any mitigating factors (par (d)). By s 7(1), aggravating factors are those factors which, in the court's opinion, increase the culpability of the offender. Section 7(2) provides that an offence is not aggravated by the fact that the offender pleaded not guilty to it (par (a)); the offender has a criminal record (par (b)); or a previous sentence has not achieved the purpose for which it was imposed (par (c)). By s 8(1), mitigating factors are those factors which, in the court's opinion, decrease the culpability of the offender or decrease the extent to which the offender should be punished.

58 All relevant sentencing factors must be evaluated and synthesised, in the context of the particular facts and circumstances of the offence and the offender, to arrive at an appropriate sentence. Sentencing patterns discernible from prior comparable cases are, of course, a highly relevant matter to be taken into account.

Criminal damage by fire: the impact on sentencing patterns of the increase in the maximum penalty after the commencement of the Arson Legislation Amendment Act

59 The maximum penalty fixed by the Parliament for an offence demonstrates the Parliament's view of the gravity of the offence. It must be taken into account in determining, in a particular case, the appropriate sentence.

60 If the Parliament, by a legislative amendment, increases the maximum penalty for an offence, the Parliament's new view of the gravity of the offence must be taken into account in deciding upon sentencing outcomes. See R v Lawrence (1980) 32 ALR 72, 110 (Moffitt P); Heferen v The Queen [1999] WASCA 81; (1999) 106 A Crim R 89 [35] (Anderson J, Pidgeon & Steytler JJ agreeing); Fisher v The Queen [1999] WASCA 122 [14] (Malcolm CJ, Ipp & Owen JJ agreeing); Herbert v The Queen [2003] WASCA 61; (2003) 27 WAR 330 [7] (Malcolm CJ); Nguyen v The State of Western Australia [2007] WASCA 114 [13] (Steytler P, McLure JA & Miller AJA agreeing).

61 An increase in the maximum penalty is an indication that sentences for the offence in question should be increased. See Muldrock v The Queen [2011] HCA 39; (2011) 244 CLR 120 [31] (French CJ, Gummow, Hayne, Heydon, Crennan, Kiefel & Bell JJ).

62 The maximum penalty is reserved for the worst example of an offence. The true rule in relation to the use of the maximum penalty was explained by Burt CJ in Bensegger v The Queen [1979] WAR 65:

A maximum sentence prescribed by statute is not reserved for the worst offence of the kind dealt with by it that can be imagined. If such were the case it could never be imposed as the addition of further non-existing but aggravating circumstances would never be beyond the reach of imagination. The true rule as I understand it is that the maximum sentence should be reserved for the worst type of case falling within the prohibition or, as it is expressed by Dwyer CJ in Reynolds v Wilkinson (1948) 51 WALR 17, at 18, 'for the worst cases of the sort'. That expression should be understood to be marking out a range and an offence may be within it notwithstanding the fact that it could have been worse than it was (68).

63 In The English Sentencing System, Sir Rupert Cross referred to this passage in Ch III of the Dove Wilson Report on Persistent Offenders (1932):

In order that there may be a proper grading of sentences to fit the many degrees of gravity presented by the various cases which fall within the same legal category, it is necessary that the maximum sentence authorised by law should be reserved for the rare offences which are exceptionally heinous, that sentences approaching the legal maximum should be reserved for offences falling within the next degree of gravity, - and so on, with the result that, for ordinary offences (such as form the great majority of cases coming before the Courts) the heaviest sentence which the Court feels justified in imposing is usually far below the maximum sentence authorised by law for the category of offence in question. It is the duty of the Court to take into consideration all the circumstances and consequences of the offence (36).

64 Sentencing patterns for a particular offence emerge over time as a result of the experience of the courts in sentencing offenders who have committed the offence in question with varying degrees of culpability.

65 Since the maximum penalty for the offence against s 444(a), renumbered s 444(1)(a), of the Code was increased from 14 years' imprisonment to life imprisonment, new sentencing patterns have not been established.

66 The observations of Wheeler and Pullin JJA (Owen JA agreeing) in The State of Western Australia v BLM [2009] WASCA 88; (2009) 40 WAR 414 [42] - [43] are not in point. Those observations were concerned with the proper construction and application of s 3 of the Sentencing Legislation (Transitional Provisions) Amendment Act 2008 (WA), and not with an increase in the maximum penalty for a particular offence.

The offence charged in the s 32 notice: sentencing patterns

67 I have had regard to the sentencing patterns for offences comparable to the offence charged in the s 32 notice. See Riley v Smirk [2011] WASCA 200.

The merits of the proposed ground of appeal

68 On any view, the appellant's overall offending was serious. For example, the threats to kill on 11 April 2011 occurred in the context of a persistent course of conduct designed to denigrate and humiliate Ms Dunn and cause her intense fear and anxiety. The threats to kill on 12 October

2011 were made by voice and text messages and occurred over a prolonged period. The arson offence caused significant damage and had the potential completely to destroy the house. The appellant committed counts 3 and 4 while he was on bail for counts 1 and 2 and the charge in the s 32 notice. His continued offending emphasises the importance of personal deterrence.

69 I am satisfied, upon considering all of the relevant facts and circumstances from the perspective of the maximum penalties, the objective seriousness of the offending, the sentencing dispositions in comparable cases, the mitigating factors and the appellant's personal circumstances, that it is not reasonably arguable that the total effective sentence of 4 years 8 months' immediate imprisonment was disproportionate to his overall criminality or infringed the first limb of the totality principle.

70 The proposed ground of appeal has no reasonable prospect of success.

71 Leave to appeal should be refused and the appeal dismissed.