NI -v- THE STATE OF WESTERN AUSTRALIA [2020] WASCA 78 (22 May 2020)

1. The appellant was jointly charged with his co-offender, Hossean Pourzand. The offending involved the appellant, at the request of Mr Pourzand, starting a fire that caused extensive damage to a two storey office complex in Welshpool (the Welshpool building). The Welshpool building was owned by Mr Pourzand's company Golden West Properties Pty Ltd (Golden West), and insured by Chubb Insurance Australia Ltd (Chubb). The fire was started for the purposes of enabling Mr Pourzand to make an insurance claim in respect of the damage.
2. The appellant was interviewed by police after his arrest on 11 July 2017, and made no admissions as to the offences. He was charged with the arson offence on that day, and, after being released on bail, was due to appear in the Magistrates Court on 19 July 2017. Shortly before that appearance, the appellant's lawyer contacted police and indicated that the appellant was prepared to offer assistance. On 24 July 2017, after being arrested on suspicion of attempted fraud, the appellant participated in a second recorded interview, in which he admitted his offending. As a result, on 24 July 2017, the appellant was then charged with attempted fraud. The appellant appeared in the Magistrates Court on charges for both offences on 26 July 2017. The matter was adjourned to 16 August 2017. On 28 July 2017, the appellant signed a statement in which he admitted his role in the offending and implicated Mr Pourzand. He pleaded guilty to both the arson offence and the attempted fraud offence at his next appearance in the Magistrates Court on 16 August 2017.
3. The arson charge in the Magistrates Court, and as originally indicted in the Supreme Court, was that the appellant wilfully destroyed the Welshpool building. The appellant was convicted on his pleas of guilty of the arson charge, and the attempted fraud charge, on 18 December 2017.[1] The appellant was subsequently given leave to withdraw his plea of guilty to the arson charge when he appeared to be sentenced on 4 May 2018.[2] This was on the basis that he only intended to damage, not destroy, the property. On 4 May 2018, the appellant pleaded guilty to, and was convicted of, a new count of wilfully and unlawfully damaging the Welshpool building.[3]
4. The sentencing judge accepted that the appellant pleaded guilty to the offences at the first reasonable opportunity. That conclusion enlivened the sentencing judge's discretion to reduce the head sentence his Honour would otherwise have imposed by 25%, under s 9AA of the Sentencing Act 1995 (WA). In exercising that discretion, the sentencing judge allowed a 20% reduction. His Honour did so on the basis that the appellant's admissions in his second interview with police, combined with other evidence, made the prosecution case overwhelming.[4]
5. Material before the sentencing judge included a report of an insurance loss adjuster estimating the cost of reinstating the Welshpool building at between $14.4 and $19.9 million. The sentencing judge accepted a submission that these figures were 'rubbery', but was satisfied that the lower figure was a realistic assessment. The sentencing judge found that, '[u]ltimately the damage was in the millions of dollars, and the building may be unusable'.[5]
6. Subsequently, the parties became aware of another report, which had been prepared prior to the appellant's sentencing but was not available to the parties at the time of sentencing, which estimated the cost of reinstating the Welshpool building as being between $8,850,000 and $9,878,000.
7. The appellant appealed against his sentence on two grounds, at a point in time when he was represented by solicitors and counsel. Ground 1 contends that the sentencing judge erred in law by failing to afford the appellant the maximum 25% discount for pleading guilty pursuant to s 9AA of the Sentencing Act. Ground 2 contends that the sentencing judge erred by proceeding on an incorrect factual basis as to the monetary range of the damage sustained during the arson. Leave to appeal has been granted on ground 1, and the application for leave to appeal on ground 2 was referred to the hearing of the appeal.
8. The appellant subsequently terminated the services of his legal representatives, and sought to advance a number of additional arguments. Additional written submissions were advanced in a document entitled 'Grounds of appeal against the sentence' dated 30 March 2020 and a letter to the Supreme Court dated 20 February 2020 annexing pages making 19 'points'. It will be convenient to refer to these documents as the appellant's supplementary submissions.
9. For the following reasons, neither the grounds of appeal nor the appellant's supplementary submissions establish any error by the sentencing judge or any miscarriage of justice. The appeal should therefore be dismissed.

1. The sentencing judge made the following findings of fact as to the circumstances of the appellant's offending.

1. At the time of the offences, the appellant operated his own electrical business. He rented a building in Osborne Park from Mr Pourzand, both as a place from which to run his business and as a place to live. The appellant had known Mr Pourzand for about four years. The appellant regarded him as a mentor.[6]
2. The appellant's business was not doing well, and the appellant had substantial debts.[7]
3. On 6 March 2017, the appellant went to the Welshpool building with Mr Pourzand. As we have mentioned, the building was owned by Mr Pourzand's company, Golden West. The building was vacant, although there was furniture and other fittings still inside. It was insured by Chubb for $20 million, and the insured were Mr Pourzand, his wife and Golden West as trustee for family trusts.[8]
4. Mr Pourzand indicated that he could help the appellant out with his financial problems if the appellant helped Mr Pourzand with a problem that he had. Mr Pourzand wanted the appellant to set fire to the Welshpool building so that it would suffer sufficient damage for Mr Pourzand to recover $600,000 - $700,000 from Chubb, to use for a new fit out of the building. The appellant refused to assist.[9]
5. Mr Pourzand continued to approach the appellant. On 9 March 2017, the appellant met Mr Pourzand at the appellant's premises in Osborne Park. The appellant covertly recorded the meeting. Mr Pourzand again counselled the appellant to commit the arson upon the Welshpool building, and gave the appellant instructions as to how to go about committing the offence.[10]
6. On 13 March 2017, the appellant purchased a number of items with cash from a Bunnings store in Innaloo, for the purpose of committing the arson. He wore clothing that was intended to disguise his appearance to some extent. He purchased citronella to be used as fuel, a sash cord and candles.[11]
7. Another meeting occurred on 14 March 2017. The appellant again covertly recorded the meeting. Mr Pourzand again counselled the appellant to commit the arson, telling him '[t]onight is the night'. The appellant told Mr Pourzand that he would do it, and Mr Pourzand gave him instructions. The appellant was mainly motivated by his desire to fix the appellant's financial problems and to impress Mr Pourzand and retain his trust.[12]
8. After the meeting, the appellant made further purchases from Bunnings stores in Balcatta and Belmont, using cash given to him by Mr Pourzand. The appellant dropped the items off at the Welshpool building.[13]

1. Between 6 pm and 10 pm on 14 March 2017, the appellant returned to the Welshpool building. Furniture and electrical goods had been piled together at various locations on both storeys as ignition points for the fire. The appellant laid out sash cord on both storeys between those points, soaked the sash cord in citronella and lit it using a lighter and candles. He lit the fire upstairs first, before lighting the fire downstairs and leaving by the backdoor. The appellant had turned off the electricity before lighting the fire, intending to minimise its extent. He also removed the CCTV recording devices from the building prior to leaving.[14]
2. The appellant's actions in lighting the sash cord soaked in fuel on both floors caused a fire to develop throughout the building.[15]
3. The sentencing judge observed:[16]

The fire resulted in extensive damage to the building, rendering it unstable, unusable and likely to be demolished. The damage to the premises has been estimated by an insurance loss adjuster to be between $14.4 million and $19.9 million. Those figures were described by your counsel as being rubbery because they depend on a number of assumptions being made which may not eventuate. That may be so, but, having read the loss adjuster's report, I am satisfied the lower figure is a realistic assessment. Ultimately the damage was in the millions of dollars, and the building may be unusable. If you believed that $600,000 to $700,000 damage would only cover a refitting of the building, it could not have come as a surprise to you that the much greater damage actually caused would cost in the millions of dollars. (emphasis added)

1. The cost to the Department of Fire and Emergency Services to attend was approximately $38,000.[17]
2. On the morning after the fire, Mr Pourzand made an insurance claim for the damage to the building. If the insurance claim had been met, payment was expected to be between $14.4 million and $19.9 million. Chubb did not pay on the claim, and Mr Pourzand later withdrew it. Ultimately there was no financial detriment to the insurer.[18]
3. On 11 July 2017, the appellant was arrested and took part in a lengthy video recorded interview in which he made no admissions in relation to the offences.[19] The sentencing judge observed:[20]

You were charged with the arson offence at that stage and appeared in the Magistrates Court on a later date. Shortly before your appearance which was to be on 19 July 2017 your lawyers spoke with the investigating officer to say you were prepared to offer assistance.

1. On 24 July 2017, the appellant took part in a further video recorded interview and admitted his part in the offences and provided details.[21] He implicated himself in the attempted fraud, which resulted in him being charged with that offence. He also implicated Mr Pourzand.[22]

1. The sentencing judge made the following unchallenged findings of fact as to the appellant's personal circumstances.
2. The appellant was 31 years old at the time of the offending. He was single with no dependants.[23]
3. The appellant was born in Iran and had a difficult childhood, marked by significant discrimination and trauma.[24]
4. At the age of 16, the appellant relocated to Turkey, where he witnessed extensive violence between his parents and was subjected to severe discipline by his mother.[25]
5. At the age of 18, the appellant and his family immigrated to Australia, which he identified as a positive experience. The appellant said that he excelled in study and employment opportunities.[26]
6. The appellant met Mr Pourzand at a time when he was seeking independence from his family, and came to regard him as a mentor. The appellant had also described Mr Pourzand as a friend and father figure. The appellant was welcomed into Mr Pourzand's family.[27]
7. Mr Pourzand allowed the appellant to reside in two unoccupied commercial buildings for little rent and assisted the appellant with business ventures and introduced him to associates. The appellant was manipulated by Mr Pourzand, but the appellant was an intelligent man and it was very unlikely that he lacked the ability to understand that Mr Pourzand was being manipulative.[28]
8. The appellant was assessed as having narcissistic personality traits which had made him more vulnerable to manipulation by 'paternal surrogates'.[29]
9. The appellant had not had any issues with substance abuse. He did not have a relevant criminal record. Several family members and friends provided positive character references.[30]
10. The sentencing judge accepted that the appellant was remorseful and realised the seriousness of his offences.[31]

Sentencing judge's approach Seriousness of offending

1. After referring to the circumstances of the offending and the appellant's personal circumstances, the sentencing judge made the following observations in relation to the seriousness of the appellant's offending.
2. The sentencing judge recognised that the dominant sentencing consideration for arson is the need to protect the community by deterring others from committing the offence, and the offender's personal circumstances will carry less weight than they might in cases involving other types of offences.[32]
3. The sentencing judge also recognised that attempted fraud, although not at the same level of seriousness as the arson offence, is also a serious offence. General deterrence is usually the most important consideration in sentencing for that offence.[33]
4. In the sentencing judge's view, the offending, both in respect of the arson offence and the attempted fraud, was at the upper end of the scale of seriousness for those offences. The appellant was a principal offender in relation to the arson, and an aider in relation to the attempted fraud on the basis that he caused the damage by fire which was to be the basis of the fraudulent insurance claim.[34] In relation to the attempted fraud offence, the sentencing judge observed:[35]

However, it was never intended that you would lodge the claim or pursue it for Mr Pourzand. Your criminal responsibility is less than his, but your contribution was crucial. Further, while I accept that at the time you committed the arson your belief was that the claim would be for $600,000 to $700,000, you became aware that the actual damage to the building was in the millions of dollars and that Mr Pourzand was going to pursue a claim for all the damage. The attempted fraud was a continuing offence and the only reasonable inference from the materials on the brief is that you expected the claim would be made and pursued by Mr Pourzand. He had made that clear to you when he told you he hoped they would pull the building down and said you had done a good job.

Your criminal responsibility for that offence did not stop the moment you left the building, which was on fire. You continued to be a party to the attempted fraud. You did nothing to prevent it or to bring the truth to light until you were charged.

1. The sentencing judge identified the following aggravating factors in relation to the arson offence:

(1) The offence was premeditated and involved a great deal of planning.[36]

(2) The offence was committed as part of a plan to commit fraud upon the insurance company for a very substantial sum.[37]

(3) The appellant was motivated by the promise of a significant financial benefit.[38]

(4) The extent of the damage that the appellant intended to cause was very substantial.[39]

(5) The damage actually caused amounted to the destruction of a very valuable property.[40]

(6) The nature of the fire was such that Fire and Emergency Services officers were unnecessarily put at risk.[41]

1. The sentencing judge identified the following aggravating factors in relation to the attempted fraud offence:

(1) The size of the claim that the appellant believed would be made.[42]

(2) The planning and degree of deception.[43]

1. The sentencing judge identified the following mitigating factors:

(1) Actions such as turning the electricity off before the fire indicated that the appellant had regard for the potential consequences of his actions and did things with the intention of moderating the fire and its risk.[44]

(2) The appellant's prior good character and the positive contribution which he had made to the community in the past.[45]

(3) The appellant was vulnerable to being manipulated into committing the offences.[46]

(4) The appellant had protective factors, such as family support, that reduced the appellant's risk of reoffending in the future.[47]

(6) The appellant pleaded guilty and cooperated with the authorities.[49]

Section 9AA of the Sentencing Act

1. Because ground 1 challenges the sentencing judge's decision under s 9AA of the Sentencing Act, we set out his Honour's sentencing remarks in relation to that issue in full:[50]

Your plea of guilty in respect of each offence is a significant mitigating factor. Under s 9AA of the Sentencing Act 1995 (WA) I am able to reduce your sentence for each offence by up to 25 per cent for your plea of guilty to reflect the benefits to the State and to the victim and witnesses. The maximum may be allowed only where a plea has been entered at the first reasonable opportunity. The reduction is from the sentence that would otherwise be appropriate having regard to the seriousness of your offending before taking into account mitigating factors.

As I said at the start, your guilty pleas were entered at the first reasonable opportunity. The State accepts that. However, it does not follow that you should receive the maximum reduction.

In deciding on the appropriate reduction, I am entitled to take into account the strength of the case against you at the time you entered your guilty pleas. Where the prospects of the State securing a conviction against an accused are strong because of the strength of the evidence, the benefit to the State of a guilty plea is not as great as where the prospects of conviction are smaller. In your case, once you had made the admissions in your second interview, supported by the recordings you made and other circumstantial evidence, the case against you was overwhelming.

Your co-operation with the police that resulted in that overwhelming case will be taken into account separately.

Given the strength of the case against you, I have decided that I should allow a reduction of 20% under s 9AA for your pleas of guilty.

(emphasis added)

1. The sentencing judge concluded that the appellant's cooperation with authorities was of significant value. The sentencing judge observed:[51]

The recordings you had made with your conversations with Mr Pourzand were significant items of evidence, but your participation in the second interview, in which you gave details of the criminal enterprise, provided the police with a much clearer picture of what had happened with other avenues of inquiry to strengthen the case against both you and Mr Pourzand. The fact that you were prepared to provide a statement at that stage meant that you were also prepared to be a potential witness in any prosecution of Mr Pourzand.

I accept that your co-operation came from remorse. The combination of that with the value of your assistance means that you should receive a significant reduction for your past co-operation.

1. The trial judge noted that the appellant provided police with the password to his iPad which contained the covert recordings. The sentencing judge also recognised the appellant's undertaking to give evidence against Mr Pourzand, at a point in time before Mr Pourzand had pleaded guilty, as a mitigating factor. The sentencing judge said that, as Mr Pourzand had subsequently pleaded guilty, the reduction for the undertaking would be less than if there was a full trial for Mr Pourzand. The sentencing judge did take account of the appellant's belief that he would be at risk of retaliation from other prisoners as a result of his undertaking.[52]
2. The sentencing judge also took account of the appellant's cooperation with Chubb, which enabled the insurer to determine what had happened.[53]

1. The sentencing judge then imposed the sentences referred to at [1] above. In doing so, his Honour indicated that he had 'moderated the individual sentences' to take account of the totality[54]rinciple.54
2. The sentencing judge said that the appropriate sentence for the arson offence, taking account of all mitigating factors other than the undertaking to give evidence against Mr Pourzand, was 5 years 4 months' imprisonment. His Honour reduced that term by 12 months as a result of the appellant's undertaking to give evidence in a trial of issues concerning Mr Pourzand. He imposed a sentence of 4 years 4 months' imprisonment for that offence.[55]
3. The sentencing judge said that the appropriate sentence for the attempted fraud offence, taking account of all mitigating factors other than the undertaking to give evidence against Mr Pourzand, was 10 months' imprisonment. His Honour reduced that term by 2 months as a result of the appellant's undertaking to give evidence in a trial of issues concerning Mr Pourzand. He imposed a sentence of 8 months' imprisonment for that offence.[56]
4. The sentencing judge concluded that the seriousness of the appellant's offending was such that a term of immediate imprisonment was the only appropriate sentencing option. He made the sentences cumulative upon each other, resulting in a total effective sentence of 5 years' imprisonment. The appellant was made eligible for parole, and the sentence backdated by one day to 9 May 2018 to take account of time spent in custody.[57]

Ground 1: Reduction under s 9AA of the Sentencing Act

The learned sentencing Judge erred in law by failing to afford the appellant the maximum 25% discount for pleading guilty pursuant to s 9AA Sentencing Act 1995.

1. The appellant was charged with the arson offence on 11 July 2017. He appeared in the Stirling Gardens Magistrates Court on 12 July 2017 and 19 July 2017 in relation to that charge. On 17 or 18 July 2017, the appellant's solicitor spoke to the investigating officer and offered assistance from the appellant.[58]
2. On 24 July 2017, following the appellant's video recorded interview in which he made a full confession, the appellant was charged with the attempted fraud offence.[59]
3. The appellant appeared on both charges in the Stirling Gardens Magistrates Court on 26 July 2017. On 28 July 2017, the appellant signed a statement in which he admitted his role in the offending and implicated Mr Pourzand. He pleaded guilty to both counts in his next appearance in the Magistrates Court on 16 August 2017.[60]
4. It was common ground,[61] and the sentencing judge accepted,[62] that the plea was entered at the earliest reasonable opportunity.

1. The appellant accepts that the strength of the prosecution case is a relevant factor in considering the extent of any discount to be given under s 9AA of the Sentencing Act. However, the appellant submits that it is the strength of the prosecution case at the time the plea is indicated or actually made that is relevant. The appellant says that the offer to assist the prosecution by participating in the second interview and signing a witness statement should be treated as an indication of pleas of guilty. The appellant contends that the sentencing judge erred in failing to consider the question of whether the appellant indicated pleas of guilty before the pleas were formally entered. The appellant contends that he was entitled to the maximum discount permissible under s 9AA of the Sentencing Act.

1. The State submits that the distinction between an indicated and entered plea is beside the point in this case, where everyone accepted that the appellant's pleas of guilty were entered at the first reasonable opportunity. That meant that the court's power to grant the maximum discount of 25% was enlivened. However, the appellant had no entitlement to a 25% discount. Rather the sentencing court was required to exercise a discretion informed by the criteria set out in s 9AA(2) of the Sentencing Act.
2. The State says that the question under s 9AA(2) is whether the relevant benefits can be characterised as 'resulting from the plea'. The State says that the appellant's submission, that it is the strength of the prosecution case at the time the plea is indicated or actually made that is relevant, is unsupported by authority and contrary to the relevant statutory text. The State says that the benefit to the State in the present case was necessarily reduced because of the strength of the case against the appellant.

Section 9AA: general principles

1. Section 9AA of the Sentencing Act provides:

fixed term has the meaning given in section 85(1);

head sentence, for an offence, means the sentence that a court would have imposed for the offence if -

(a) the offender had been found guilty after a plea of not guilty; and

(b) there were no mitigating factors;

victim has the meaning given in section 13.

(2) If a person pleads guilty to a charge for an offence, the court may reduce the head sentence for the offence in order to recognise the benefits to the State, and to any victim of or witness to the offence, resulting from the plea.

(3) The earlier in the proceedings the plea is made, the greater the reduction in the sentence may be.

(4) If the head sentence for an offence is or includes a fixed term, the court must not reduce the fixed term under subsection (2) ‑

(a) by more than 25%; or

(b) by 25%, unless the offender pleaded guilty, or indicated that he or she would plead guilty, at the first reasonable opportunity.

(5) If a court reduces the head sentence for an offence under subsection (2), the court must state that fact and the extent of the reduction in open court.

(6) This section does not prevent the court from reducing the head sentence for an offence because of any mitigating factor other than a plea of guilty.

1. The general principles relating to the application of s 9AA are set out in Mussarri v The State of Western Australia,[63] recently adopted in Hume v The State of Western Australia,[64] and need not be repeated here.
2. Under s 9AA(2), if a person pleads guilty to a charge for an offence, the court may reduce the 'head sentence' for the offence. The head sentence for this purpose is the sentence that a court would have imposed if the offender had been found guilty after a plea of not guilty and there were no mitigating factors.[65] The court may reduce the head sentence:[66]

[I]n order to recognise the benefits to the State, and to any victim of or witness to the offence, resulting from the plea.

These utilitarian considerations exhaustively state the matters to be taken into account in determining the extent of any discount under s 9AA for a plea of guilty.[67]

1. The benefits to the State which may result from a plea would ordinarily include the matters in the following non-exhaustive list:[68]

(a) securing the conviction of a person who has committed a criminal offence;

(b) the Office of the Director of Public Prosecutions (WA) not having to use resources in the preparation and conduct of a criminal trial;

(c) if the accused has been or would otherwise have been granted legal aid, the Legal Aid Commission (WA) not having to use resources in the preparation and conduct of a defence;

(d) avoiding the time and expense involved in summoning and empanelling jurors for a criminal trial; and

(e) the more expeditious and efficient resolution of proceedings in the criminal justice system than would otherwise be the case.

1. Section 9AA(3) provides that, the earlier in the proceedings the plea is made, the greater the reduction in sentence may be. Under s 9AA(4)(a), where (as is the case here) the head sentence is a fixed term, as defined by s 9AA(1), the court must not reduce the fixed term by more than 25%. Further, the court must not reduce the fixed term by 25% unless the offender pleaded guilty, or indicated that he or she would plead guilty, at the first reasonable opportunity.[69]
2. A sentencing judge is not bound to allow a discount of 25% whenever the offender pleads guilty at the first reasonable opportunity. Rather, a sentencing judge has a discretion in deciding upon the discount to be given in each case. This recognises that the nature, character and extent of the benefits referred to in s 9AA may vary across particular cases where the offender has pleaded guilty at the first reasonable opportunity.[70]
3. The strength of the prosecution case can be taken into account in assessing the amount of the discount under s 9AA. This is because the strength of the prosecution case is directly relevant to the prospects of securing a conviction, and therefore the value of the benefit to the State of the kind identified at [63](a) above. The strength of the prosecution case may also affect the length of a trial and the legal resources it requires, although this will not always b[71]the case.71
4. However, as Buss P and Mazza JA noted in Winmar v The State of Western Australia,[72] in evaluating the appropriate discount to be given under s 9AA it is important to bear in mind the underlying purpose or object of the provision. As Mazza JA and Hall J observed in Gobetti v The State of Western Australia:[73]

It is important to always bear in mind the underlying purpose of allowing and quantifying a discount for a plea of guilty. The purpose is to encourage those who are guilty to enter their pleas at the earliest possible stage, and thereby maximise the benefits of those pleas to the State and any victims or witnesses. Discounts act not merely as a reward to the individual, but as an encouragement to others. Too parsimonious an approach to the awarding of a discount may discourage others from entering a plea of guilty. Even when the prosecution case is overwhelming a discount should be given to ensure that accused persons do not view the entering of a plea of guilty as being pointless.

1. In order to impugn the exercise of the sentencing judge's discretion under s 9AA, the appellant must show either that the sentencing judge made an express material error of principle, or that error is to be inferred from a result of the exercise of the discretion which is unreasonable or plainly unjust.[74]

1. We do not accept the submission that the relevant benefits must be assessed at the time the plea of guilty is first indicated or entered. The relationship between the plea and the benefit provided for in s 9AA(2) is causative rather than temporal. The question is what benefits result from the plea, and not when those benefits arise. The nature and extent of the benefits resulting from the plea are to be assessed at the time sentence is imposed, and may be affected by events transpiring between entry of the plea and the date of sentence. For example, the benefits may be reduced if additional evidence is discovered independently of the plea or if there is a trial of issues which requires witnesses to give evidence despite the plea. The benefits might be increased if, after the plea is entered, a witness becomes unavailable or unwilling to give evidence which is critical to the State's case.
2. We accept that where a plea of guilty is indicated before it is entered, the benefits to the State resulting from the plea are to be assessed without reference to any strengthening of the prosecution case by an admission against interest which is inherent in the indication. But, in assessing those benefits, the court is not required to ignore admissions which an accused may have made to police apart from an indication of an intention to plead guilty to a charge. Further, while it may be expected that an offender who makes a full confession will ordinarily plead guilty when charged with the admitted offence, there is a distinction between a confession in a police interview and an indication of an intention to plead guilty to a particular charge.
3. Of course, the mitigating effect of the admissions or the full confession must be taken into account. But that is not required to be done by a sentencing judge when exercising the discretion under s 9AA of the Sentencing Act. Usually, the admissions or the full confession will be taken into account as reflecting cooperation with police which will lead to a reduction in the sentence that would otherwise have been imposed. Making admissions or a full confession may also reflect remorse and an acceptance of responsibility by the offender, which are also mitigating factors.
4. In the present case, in exercising his discretion under s 9AA, the sentencing judge had regard to the admissions made by the appellant in his interview with police on 24 July 2017 and the other evidence known to the police at that time, including the recordings of the conspiratorial conversations between the appellant and Mr Pourzand on the appellant's iPad. That material was regarded as strengthening the prosecution case, and was taken into account in assessing the strength of the prosecution case.
5. It was open to the sentencing judge to have regard to the admissions in exercising his Honour's discretion under s 9AA. While the appellant expressed a willingness to cooperate with police prior to the interview of 24 July 2017, and did cooperate by making admissions in that interview, he did not indicate that he would be pleading guilty either in or before the interview. In submissions before the sentencing judge, the appellant's counsel said:[75]

He made full admissions in that second interview, and provided a statement four days later, a witness statement. In those circumstances it would be inconceivable that he would plead not guilty... [i]f he was providing or offering to provide assistance in the prosecution of Mr Pourzand.

1. The communications between the appellant's lawyers and police prior to the interview of 24 July 2017, provided by the State to the court, are consistent with that account. The appellant agreed with the chronology indicated by the State's documents.[76] While the State accepted that an indication of a plea of guilty may be conveyed indirectly or by implication,[77] we are not satisfied that the appellant gave such an indication at or prior to his second interview with police on 24 July 2017.
2. It may be noted that the sentencing judge did not have regard to the witness statement which the appellant provided for use against Mr Pourzand when determining the discount to be applied under s 9AA of the Sentencing Act.
3. In our view, this is not a case where the sentencing judge had regard to the strengthening of the prosecution case by an indication of a guilty plea in assessing the benefits to the State resulting from the plea.
4. The sentencing judge did give the appellant credit for his cooperation and remorse, both in the interview of 24 July 2017 and his willingness to give evidence against Mr Pourzand. The appellant's admissions in the interview were taken into account as a mitigating factor in determining his ultimate sentence. In these circumstances, the sentencing judge did not err in having regard to the strengthening effect on the prosecution case of the appellant's admissions in his second interview with police, when assessing the benefits to the State resulting from the plea of guilty. It was open to his Honour to take that approach under s 9AA, which did not result in any practical failure to recognise the mitigating effect of the admissions in determining the sentence to be ultimately imposed.
5. It should not be thought that, in reaching the above conclusion, we are of the view that the sentencing judge was required to reduce the head sentence by less than 25% by reason of the appellant's admissions. It would have been open to the sentencing judge to have reduced the head sentence by 25%, and doing so might be thought to have been more attuned with the underlying object of s 9AA described in the passage quoted at [67] above. However, s 9AA confers a discretion on the sentencing judge and it is not for this court to substitute its view merely because it may have exercised that discretion in a different manner. The sentencing judge has not erred in principle in the exercise of that discretion, and the outcome of the exercise of the discretion is not unreasonable or plainly unjust so as to give rise to an inference that the sentencing judge made such an error. In these circumstances, there is no warrant for this court to interfere in the exercise of the discretion invested in the sentencing judge by s 9AA of the Sentencing Act.
6. We note that it is also doubtful whether the discount of 20%, rather than 25%, under s 9AA made any difference to the individual sentences ultimately imposed for the offences. The sentencing judge indicated that he had 'moderated the individual sentences' to take account of the totality principle. Contrary to the usual approach,[78] the sentencing judge did not first fix an appropriate sentence for each individual offence and then consider issues of totality. His Honour did not identify the extent to which he had reduced the individual sentences in the application of the totality principle. However, it seems likely that any difference between a reduction of 20% and 25% under s 9AA would have been subsumed in a further reduction for totality. If that were the case, then any error in the application of s 9AA may have been immaterial. However, the sentencing judge's failure to specify the extent of the reduction in the individual sentences for totality means that no concluded view can be reached on this issue (which illustrates why not specifying the individual sentence prior to any reduction for totality is at least undesirable).
7. In our view, ground 1, while arguable, has not been established.

The learned sentencing Judge erred by proceeding on an incorrect factual basis that the range of damage sustained during the arson was between $14.4 million and $19.9 million.

PARTICULARS

1. At the appellant's sentencing, the damage to the premises was estimated to be between $14.4 million and $19.9 million.
2. At the sentencing of [Mr Pourzand], subsequent reports suggested the estimate of damage to the premises could be as low as $8.85 million.

1. The estimate provided at the sentencing for [Mr Pourzand] was not available to the appellant or the learned sentencing judge.

1. At the sentencing hearing, the sentencing judge was provided[79] with a copy of a document titled 'Potential Claim Valuation Report to Interested Underwriters', authored by Charles Taylor Adjusting (the Taylor report).[80]
2. The report provided some 'high level estimates' for the cost of reinstating the Welshpool Building. The estimates, based on a cost per square metre for demolition and construction, ranged between $14.4 million and $19.9 million.[81] In its summary section, the report stated:[82]

Thus it can be seen that the potential repair / reinstatement range in round terms may fall somewhere within the range $14,000,000 to $16,000,000, depending on which logic is utilised.

We must stress that the figures quoted, based on costs supplied per square metre of building, are very precautionary and only a rough guide. Accurate costs will only be established on completion of a scope of works and an accurate costing thereof. Furthermore if works were to be undertaken then the above estimates do not take into account any mitigation / salvage effort which may include re-design works to mitigate costs. Obviously detailed scoping by engineers and architects may result in savings. Any such savings are unknown and not provided for in the above.

We do however trust that this preliminary overview is of some assistance as some logic / science has been applied to the question.

1. At the sentencing hearing, senior counsel for the appellant stated that 'those figures are rubbery at best'.[83] The following exchange then occurred:[84]

FIANNACA J: So how rubbery?

VANDONGEN, MR: Well, you can see from the report high level estimates that can change dramatically according to whether or not the assumptions upon which the report is based are correct or not.

FIANNACA J: $10 million?

VANDONGEN, MR: I don't know.

FIANNACA J: $5 million?

VANDONGEN, MR: I don't know.

FIANNACA J: We're talking, Mr Vandongen, about a very significant - - -

VANDONGEN, MR: Yes.

FIANNACA J: - - - degree of damage, if not destruction, of a commercial building and it doesn't seem to me to be particularly surprising that the cost would be somewhere in the millions given that your client seemed to think that smoke damage could amount to six to $700,000.

VANDONGEN, MR: What your Honour says is perfectly correct and I wouldn't argue with that, but it at least places the estimate in the statement of material facts in its proper context. I can't do any more than point to those shortcomings in the estimates that have been arrived at.

1. In her submissions to the sentencing judge, the prosecutor remarked:[85]

My learned friend also said at the very outset that the facts are accepted, and the facts include that the ultimate cost was between 14.4 and 19.9. At the time that that was handed up I indicated that the 14.4 million was the lowest end of the repair option and the 19.9 was the highest end of the demolish and rebuild option. So, yes, they are rubber figures, but in the State's submission they have some hard outlines at those ends which allow your Honour to understand the scope. And I appreciate that there were difficulties in the way that that estimation was done, but they're quite detailed estimations and those difficulties are because of the nature of the fire.

1. The figures in the Taylor report feature in the following extracts of his Honour's sentencing remarks:[86]

The fire resulted in extensive damage to the building, rendering it unstable, unusable and likely to be demolished. The damage to the premises has been estimated by an insurance loss adjuster to be between $14.4 million and $19.9 million. Those figures were described by your counsel as being rubbery because they depend on a number of assumptions being made which may not eventuate. That may be so, but, having read the loss adjuster's report, I am satisfied the lower figure is a realistic assessment. Ultimately the damage was in the millions of dollars, and the building may be unusable. If you believed that $600,000 to $700,000 damage would only cover a refitting of the building, it could not have come as a surprise to you that the much greater damage actually caused would cost in the millions of dollars.

...

Between 12.16 am and 8.00 am on 15 March 2017, Mr Pourzand made a claim upon the insurance company through his insurance broker for the damage to the building. If the insurance claim had been met, the payment was expected to be between $14.4 million and $19.9 million. The insurance company did not pay on the claim, and on 8 September 2017 Mr Pourzand withdrew the claim. At the time that the prosecution was commenced in this court, the insurance company had paid out over $207,000 on security assessments and similar activities. However, the State said that Mr Pourzand subsequently paid that sum to the insurance company, so that ultimately there was no financial detriment to the insurer.

...

Factors that were more serious in the present case include the extent of the damage actually caused, which has been valued at between $14.4 million and $19.9 million, compared to between $1.25 million and $2.3 million in the Premier Hotel case. The hotel in that case was not destroyed. The intent to defraud was also significantly less in that case. Further, the benefit you stood to gain was much greater than the payment received by the four offenders who were recruited in that case. Also, you alone did all the things necessary to commit the arson in this case.

1. At Mr Pourzand's sentencing, the court was provided with a report dated January 2018 entitled 'Fire Damage - Pilbara Street', authored by Ralph & Beattie Bowsworth Pty Ltd (the RBB report).[87]
2. That report contains an '[o]ption A' ($9,878,000 excluding GST) and an '[o]ption B' ($8,850,000 excluding GST).[88]
3. In his Honour's sentencing remarks in relation to Mr Pourzand, Hall J remarked:[89]

In response to the fire, numerous firefighters attended and conducted fire-suppression activities for in excess of six hours. Significant damage was caused to the building, rendering it unstable, unusable, and likely to be demolished. The cost to the Department of Fire and Emergency Services to attend was approximately $38,000, which sum has since been reimbursed by you. The value of the damage to the premises is estimated to be between $8.85 and $19.9 million.

Between 12.16 am and 8 am on 15 March 2017, you made a claim under the insurance policy through your insurance broker. If the claim was paid, it was expected at that time to be between $14.4 million and $19.9 million, though subsequent reports indicate that the figure at the lower end could be as low as $8.85 million. No claim was ever paid. However, the insurance company did pay out over $500,000 on security, assessments and other related costs, which sum has been reimbursed by you. (emphasis added)

1. The State seeks to adduce the RBB report as additional evidence in the appeal.

1. The appellant submits that the sentencing judge did not have the benefit of the RBB report 'and thus inadvertently proceeded on an incorrect factual basis'. He submits that there is a significant difference between causing $14.4 million of damage and causing $8.85 million of damage. He submits that he ought to be resentenced on the basis that he caused $8.85 million of damage.

1. The State submits that there was no error in the sentencing judge proceeding on the basis of the undisputed material before him. The State contends that the jurisdiction of this court to resentence depends on the appellant establishing a miscarriage of justice as a result of the RBB report not being before the sentencing judge.
2. In any event, the State submits that, even if the RBB report is admitted, no different sentence should be imposed.

1. The State is correct to submit that it cannot be said that the sentencing judge erred by proceeding on the basis of uncontested evidence before him. As the court recently noted in Wellstead v The State of Western Australia:[90]

A sentencing judge cannot ordinarily be said to have erred by proceeding in a manner contrary to, or without having regard to, evidence which was not before the sentencing court. A miscarriage of justice may arise from the absence of material evidence before the primary court. However, it is clear that such a miscarriage will not arise in all cases, and that the identification of miscarriage must be undertaken consistently with the nature of an appeal, in a manner that does not 'have the practical effect of obliterating the distinction between original and appellate jurisdiction'.

1. The success of ground 2 depends on the appellant establishing that the absence of the RBB report in the material before the sentencing judge gave rise to a miscarriage of justice.
2. The State applies to adduce the RBB report as additional evidence in the appeal. It is not clear whether the RBB report was known to or reasonably discoverable by the appellant at the time of his sentence. We will assume that it was not. The RBB report only came into the State's possession on 7 April 2019,[91] well after the appellant's sentencing. We will deal with this ground on the basis that the RBB report is fresh rather than new evidence.
3. The sentencing judge approached the case on the basis that the damage to the Welshpool building was 'in the millions of dollars, and the building may be unusable'.[92] That is an accurate assessment of the scale of the damage caused by the fire, whether the range of reinstatement estimates in the RBB report or the Taylor report are adopted. It is clear from the terms of both the Taylor report and the RBB report that the authors have made a broad preliminary estimate of the range of likely costs of reinstating the Welshpool building. There is nothing in the material before the court to lead to the conclusion that either estimate is unreasonable, based on the qualifications and assumptions contained in the respective reports. The figures may be described, as the appellant's sentencing counsel submitted and the sentencing judge accepted, as 'rubbery'. That characterisation is not a criticism of the reports, but rather recognises the nature of the exercise as being of broad estimation rather than precise calculation.
4. The context in which the estimates are to be considered is also important. It was accepted that there was no actual loss to Chubb, that the intention was not to destroy the building and that the owner of the building was a company controlled by the co-offender Mr Pourzand. The appellant's criminality lies in setting fire to a building, with the intention of damaging it to facilitate an insurance claim, which resulted in the building being rendered unusable. Beyond the sentencing judge's conclusion that the cost is in the millions of dollars, the quantification of the actual cost, or range of costs, of reinstating the Welshpool building has very little significance for the assessment of the criminality involved in the appellant's offending.
5. In all these circumstances, we are not satisfied that the absence of the RBB report in the sentencing proceedings gave rise to any miscarriage of justice.
6. As the appellant has not demonstrated either error by the sentencing judge or a miscarriage of justice, ground 2 (while arguable) has not been established.

Issues raised by the appellant's supplementary submissions

1. We turn to consider the appellant's supplementary submissions, so far as they raise matters not covered by grounds 1 and 2 in the appellant's case.
2. The third sub-heading of the first document in the appellant's supplementary submissions, headed 'Grounds of appeal against the sentence', seeks to raise matters said to go to the propriety of the appellant's conviction of the charged offences. It is not open to the appellant to seek to impugn his convictions in an appeal against sentence. In the circumstances, it is unnecessary to deal with these submissions.
3. The appellant's supplementary submissions attached a document making 19 'points' in relation to the factual basis on which the appellant was sentenced. We will deal with those 'points' so far as they raise matters not covered by grounds 1 and 2 in the appellant's case.

1. The appellant contends that the judge erred in calling the structure a 'building' and 'office' when, under the Australian Building Code, it was a 'non-habitant structure', and in saying that the structure was destroyed when it was only damaged. There is no merit in these submissions. The sentencing judge was not making findings by reference to the Australian Building Code, and clearly understood the extent of the damage to the Welshpool building. In colloquial terms, it was not inapt to refer to the building as being destroyed.

1. There appear to be two matters raised in point 3, which relates to the sentencing judge's observation that:[93]

You have said that Mr Pourzand's original plan was to use gas cylinders, which you refused to use because you believed there was a danger of explosion and people getting hurt, although there was no suggestion there would be anyone else at the premises.

1. First, the appellant says that he took steps to try and prevent a gas explosion for the safety of others not himself. He says that the trial judge's observation was in error as it was Mr Pourzand, not the appellant, who proposed the use of gas bottles.
2. The sentencing judge's observation reflects what the appellant told police in his interview of 24 July 2017,[94] and the contents of par 37 - 39 of his statement to police of 28 July 2017. There is no error of fact in the finding, which recognises that the plan to use the gas bottle was Mr Pourzand's, which the appellant said he did not implement out of concern for the safety of others.
3. Secondly, the appellant says that there is an inconsistency in the observation, in the passage quoted above, that 'there was no suggestion there would be anyone else at the premises', and his Honour's later observation that:

Finally, in terms of aggravating factors, the nature of the fire, even on your belief, was such that Fire and Emergency Services would need to attend to put it out and the lives of officers could be put at risk.

1. There is no merit in that contention. There is no inconsistency between finding that there was no-one at the premises when the fire was started and recognising that the lives of firefighters who may be called to deal with the fire could be put at risk.

1. The appellant's fourth point contends that the sentencing judge erred in the following passage of his Honour's sentencing remarks:[95]

You claim to have left the backdoor open to avoid an explosion of fire through the door if firefighters had to open it. You claim that you wanted to avoid injury to the firefighters and that you thought they could fight the fire through the open door. I accept that you had those thoughts, but at the same time they indicate that you believed a fire was likely to develop of such a size as to put the lives of firefighters at risk if they had to break through the door. While you did not believe the building would be destroyed, you knew you were creating a very significant and dangerous fire. (emphasis added)

1. The appellant's supplementary submissions assert that he never meant for the fire to reach the windows and only intended it to be of a scale that could be extinguished by a single hand-held fire extinguisher. The appellant says that this is illustrated by the fact that he left his torch on the ground floor hallway so the light would help the firefighters.
2. The factual matters advanced by the appellant on appeal are mere assertion not advanced before the sentencing judge. The findings of the sentencing judge quoted above were well open on the material before him. No error has been established.

1. The appellant's fifth, sixth and ninth points relate to ground 2, and the estimated cost of reinstating the Welshpool building. The appellant seeks to raise some additional matters, such as whether the true 'victim' of the fire is Mr Pourzand, Golden West or Chubb, and whether the Welshpool building can properly be described as 'destroyed'. The appellant also complains of the lack of valuation evidence as to the market value of the improved land, which the sentencing judge described as a 'very valuable property'. However, none of the additional matters provide a basis for allowing the appeal on ground 2, or finding that the sentencing judge erred in sentencing the appellant on the basis that the damage to the building was in the millions of dollars.

1. The appellant's seventh and eighth points concern the sentencing judge's identification of the following aggravating factor:[96]

First, the offence was premeditated and involved a great deal of planning, both in terms of how to commit the arson and how to avoid detection. You made important contributions to that planning and took the initiative with some of the purchases you made and the way in which you proceeded to light the fire.

1. The appellant says he had no involvement in Mr Pourzand's planning, and there is evidence that supports that conclusion. The appellant says, in effect, that purchasing personal protective equipment for his own safety had no effect on the safety of others or the extent of the damage.
2. There is no merit in these submissions. On the admitted facts, the appellant attended Bunnings to purchase the fuel, sash cord and candles used to start the fire, as well as his own protective equipment. He had discussed with Mr Pourzand how and when the offence would be committed, and for what purpose. The offending was far from an impulsive act on the appellant's part. There was no error in the sentencing judge referring to the appellant's involvement in the planning of the offence as an aggravating factor.

1. The appellant's tenth to twelfth points assert error in the italicised parts of the following passage of the sentencing remarks, dealing with another aggravating factor of the appellant's offending:[97]

Fifthly, the damage actually caused amounted to destruction of the building, which was a very valuable property. While you are to be sentenced on the basis that you only intended to cause damage and believed that was what would occur, not that the building would be destroyed, the objective reality of what happened increases the seriousness of your offending because it demonstrates how dangerous your actions were and the obvious fact, as I said earlier, that fires are difficult to control. At the very least, this fact neutralises the facts that were put on your behalf in mitigation, which were said to demonstrate an intention to moderate the fire. I will come to those shortly.

Finally, in terms of aggravating factors, the nature of the fire, even on your belief, was such that Fire and Emergency Services would need to attend to put it out and the lives of officers could be put at risk. The fact is they were unnecessarily put at risk because of your offending. (emphasis added)

1. The appellant's submissions in support of these points focus on the classification of the Welshpool building under the Building Code of Australia, and the absence of risk of the fire spreading to other buildings.
2. In our view, there was no error in the sentencing judge's observations. The fact that fires are difficult to control is notorious and was illustrated by the fact that the fire in this case caused much more significant damage to the Welshpool building than the appellant intended. The risk described by the sentencing judge was to fire officers who would need to, and did, attend to extinguish the fire rather than any particular risk to adjacent buildings. There is no merit to the appellant's criticisms of the above observations.

1. The appellant's thirteenth point concerns the aggravating factors identified by the sentencing judge in relation to the attempted fraud offence. In relation to that matter, the sentencing judge said:[98]

As for the attempted fraud, the size of the claim that you believed would be made is an aggravating factor. This was an attempted fraud on a large scale, which became significantly larger after the fire.

The planning and degree of deception, including the removal of CCTV devices, the creation of an alibi and the making of arrangements for the collection of goods to create the impression that Mr Pourzand was genuinely moving his business chattels out of the building, are further aggravating factors. (emphasis added)

1. The appellant complains that it was Mr Pourzand, not the appellant, who arranged for materials to be moved. However, the sentencing judge was not saying that the appellant did so in the above passage of his Honour's sentencing remarks. The sentencing judge was not identifying the acts which the appellant personally performed, but the aggravating features of the attempted fraud offence committed by the appellant and Mr Pourzand. The sentencing judge had previously identified the appellant's personal role in the offending as an aider to the principal offence, on the following basis:[99]

You enabled the attempt to be committed by causing the damage by fire which was to be the basis of the claim. However, it was never intended that you would lodge the claim or pursue it for Mr Pourzand. Your criminal responsibility is less than his, but your contribution was crucial.

The sentencing judge went on to make clear that it was Mr Pourzand who was going to pursue the insurance claim.[100]

1. In that context, the italicised comments in the passage quoted at [120] above were not referring to the appellant's personal acts. Rather, the sentencing judge was referring to the aggravating features of the fraud to which the appellant was a party.

1. The appellant's fifteenth to seventeenth points concern references in the sentencing judge's remarks to sentences imposed by two single judges in an arson case involving the Premier Hotel.[101] His Honour noted that counsel had pointed to similarities and differences between that case and the appellant's case, and identified the most salient points. The appellant's submissions on appeal point to various differences between the cases. The appellant submits that the Premier Hotel case was not comparable to his.
2. In our view, nothing turns on this point. When this court considers whether inferred error is established in an appeal against sentence, it will refer to the customary sentencing standards identified by the decisions of intermediate appellate courts (rather than first instance sentences). However, express references to comparable cases, even of intermediate appellate courts, is neither required nor to be encouraged in first instance sentencing remarks. In any event, the sentencing judge did not regard the Premier Hotel case as on all fours with the present case, identifying differences between the two. While the reference was unnecessary, no error of principle is revealed by the sentencing judge's reference to sentences imposed in the Premier Hotel case.

1. The appellant's eighteenth point alleges that the sentencing judge erred in holding that:[102]

I have given consideration to whether it would be appropriate to suspend the sentence conditionally or otherwise. Taking into account all relevant factors that I have referred to in these remarks, I am positively satisfied that suspension is not appropriate in this case because of the seriousness of the offending and because I do not consider your personal circumstances to be exceptional. ... Your case calls for an immediate term of imprisonment.

1. There is no arguable error in the sentencing judge's conclusion that it was inappropriate to suspend the appellant's sentences. The sentencing judge correctly recognised that the seriousness of the appellant's offending was such as to make suspended or conditionally suspended sentences inappropriate sentencing options. Having regard to all the circumstances of the case, including those personal to the appellant, it was not open to the sentencing judge to suspend or conditionally suspend the appellant's sentences.
2. The appellant's submissions refer to a number of personal matters, including the deaths of his father and grandmother between the date of the offences and the date of sentence. It is unnecessary in these reasons to detail those matters. They could not, singly or in combination, justify the imposition of suspended or conditionally suspended sentences in the circumstances.

1. The appellant's final point criticises the following passage of the sentencing judge's remarks:[103]

You have said you would like to compensate the Department for the expenses of attending the fire and putting it out, or at least make a contribution, but that is unrealistic at this stage, given your financial circumstances.

1. The appellant complains that there was no evidence establishing his inability to pay compensation to the Department beyond reasonable doubt. That submission misunderstands the onus of proving that matter. If the appellant had, or was going to, compensate the fire authorities for the cost of attending the fire, that would be a mitigating factor. The appellant bore the onus of establishing disputed mitigating factors on the balance of probabilities. If the appellant wanted to have the prospective compensation of the fire authorities taken into account as a mitigating factor then, unless the State agreed that compensation would occur, it was for the appellant to place material before the sentencing judge demonstrating his capacity to make, and intention of making, the payment.
2. Further, the submissions advanced by senior counsel who appeared for the appellant at sentencing indicated that the appellant would lack the capacity to make any significant payment unless his sentence was suspended (which, for the reasons noted above, was not an appropriate sentencing disposition). Counsel told the sentencing judge:[104]

[The appellant] has raised with me in the last day or two the prospect of - there's in the statement of material facts a reference to a cost of $38,000 incurred by the Fire Department in terms of the fighting of the fire, and has said that he would be prepared to pay for that, at least his share of it, given that Mr Pourzand was the person who counselled him to commit the offence.

But I think the reality of that is that that would only be feasible if your Honour was to impose a suspended term of imprisonment because the reality is that he would not be in a position to pay that. And if your Honour was to release him on a suspended term of imprisonment, then it would be on a monthly payment plan I think rather than being able to pay it in a lump sum. So there is I suppose the capacity to do that but not a capacity if he was incarcerated.

1. The sentencing judge was entitled to proceed on the basis of these submissions advanced on the appellant's behalf.

Conclusion as to matters raised by supplementary submissions

1. For the above reasons, none of the matters raised by the appellant's supplementary submissions disclose any error by the sentencing judge or any miscarriage of justice in relation to his sentencing.

1. At the conclusion of the appeal hearing, the appellant made an oral application for an adjournment of the appeal. The stated purpose of the adjournment was to provide him with an opportunity to seek to obtain expert evidence as to the costs of reinstating the Welshpool building, which he evidently hoped would be lower than the range estimated by either the Taylor report or the RBB report. The court refused the adjournment application and indicated that it would provide its reasons for doing so later. What follows are our reasons for refusing the adjournment application.
2. The adjournment application was made in a context where the appellant was sentenced on 10 May 2018 and commenced his appeal against sentence on 18 June 2018. An appellant's case was not filed in the time required by the Supreme Court (Court of Appeal) Rules 2005 (WA). Eventually, on 20 December 2018, a springing order was made providing for the dismissal of the appeal if an appellant's case was not filed by 20 February 2019.
3. An appellant's case was filed on 20 February 2019. The appellant was granted leave to file an amended appellant's case, which was done on 7 May 2019.
4. After some further interlocutory steps, the appeal was listed for hearing on 14 November 2019. At the hearing, the appellant was represented by senior counsel. Counsel indicated that the appellant wished to advance a number of additional grounds of appeal, which his legal representatives did not consider had merit. One of the additional matters was said to be:[105]

One matter that he has articulated to us specifically is that he wishes to challenge the basis of the damage report. He is of the view that he can prove by other evidence that the damage was in fact nothing like $8 million, it was something like $800,000. He says he can do that through other evidence. We're not privy to it but ... it just places us in a difficult position, your Honour, to continue.

1. After taking instructions, senior counsel applied for and was granted an adjournment of the appeal hearing to a date to be fixed. The purpose for which the adjournment was sought was to enable the appellant to apply for leave to further amend his appellant's case, to apply to adduce additional evidence in the appeal and to explore his options in relation to his legal representation.[106]
2. The appellant did not apply for leave to amend his appellant's case or apply for leave to adduce additional evidence as to the cost of reinstating the Welshpool building. After interlocutory matters associated with his legal representation and an application to issue a subpoena were dealt with, the appeal was heard on 6 April 2020. At the conclusion of the hearing the appellant (at this stage acting for himself) applied for an adjournment to enable him to obtain evidence that the value of damage to the Welshpool building was less than $1 million.[107]
3. The above summary indicates that the appellant has had ample opportunity to obtain and seek leave to adduce additional evidence as to the reinstatement costs of the Welshpool building. The prospect that evidence of that nature might be sought was raised by counsel as one of the reasons for adjourning the hearing listed on 14 November 2019. No application to adduce additional evidence was made, and there is nothing before the court to indicate anything other than the appellant's aspiration that such evidence might exist. In the circumstances, it was not in the interests of justice to grant a further adjournment of the hearing, with the attendant additional burden on public resources involved in the State preparing for, and the court dealing with, a further hearing.

1. At the conclusion of the appeal hearing, the court made an order that the State file and serve copies of all correspondence and other written communications and copies of all notes of oral communications between the police or the Director of Public Prosecutions on the one hand, and the appellant or his lawyers on the other, prior to the appellant's interview with the police on 24 July 2017 and his subsequent statement on 28 July 2017. The respondent was also required to file and serve written submissions on the relevance of those documents. The appellant was at liberty to file and serve any written submissions in response by 4 pm on 30 April 2020.
2. On 1 May 2020, the appellant sent a letter to the court by email annexing documents including applications for witness summonses to the police (for production of a 'full file' of evidence related to the appellant and Mr Pourzand), to the 'Real Estate Institution of WA', to a named individual and to the Supreme Court (for transcript of the trial of Mr Pourzand). The letter responded to submissions filed by the State, in essence agreeing with the chronology of events indicated by documents filed by the State pursuant to the orders referred to in the previous paragraph. The letter also raised various matters which were not responsive to the State's submissions.
3. On 4 May 2020, the court ordered that the appellant's written submissions attached to his email of 1 May 2020 were accepted for filing and would be taken into account by the court to the extent that the written submissions were in accordance with the order providing for responsive submissions. We have not had regard to the submissions so far as they raise matters which were not responsive to the State's submissions in relation to the communications referred to at [140] above. As there did not appear to us to be any legitimate forensic basis for the issue of subpoenas, particularly after the hearing of the appeal was complete, the applications for witness summonses were refused.

1. It is well established that the essential role of this court on an appeal against sentence is to discern whether there was a material error or a miscarriage of justice below in the sentencing. Only if there was a material error or a miscarriage of justice does this court proceed to the second stage of re-exercising the sentencing discretion and deciding whether a different sentence should have been imposed.[108] For the above reasons, none of the matters raised in the appellant's grounds of appeal or supplementary submissions demonstrate any material error by the sentencing judge or any miscarriage of justice. The appeal must therefore be dismissed.
2. Further, the sentences imposed by the sentencing judge were well within the bounds of his Honour's sentencing discretion. Even if we were required to sentence the appellant afresh, we would not arrive at any different sentences from those reached by the sentencing judge. That is so even though, exercising the discretion afresh, we would discount the individual head sentences by 25% under s 9AA of the Sentencing Act and take into account the different estimates of reinstatement found in the RBB report. However, if we were required to sentence the appellant afresh, we would not regard his remorse as a mitigating factor in light of the appellant's supplementary submissions which make it clear that he is not remorseful and does not accept responsibility for his offending.[109]
3. Therefore, even if grounds 1 or 2 had been established, we would still have dismissed the appeal on the basis that a different sentence should not have been imposed.[110]

1. For the above reasons, the following orders should be made in the appeal:

(1) Leave to appeal is granted on ground 2 set out in the Amended Appellant's Case filed on 7 May 2019.

(2) The respondent's application in an appeal filed on 30 May 2019, for leave to adduce additional evidence in the appeal, is granted.

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

[2] As there is no challenge to this decision, it is unnecessary for this court to consider the basis on which a plea may be withdrawn following conviction of the charged offence.

[4] The State of Western Australia v [NI] [2018] WASCSR 82 [102] - [104].

[10] Sentencing remarks [14] - [15].

[12] Sentencing remarks [17] - [20].

[14] Sentencing remarks [24] - [25], [28].

[16] Sentencing remarks [30]. See also [131].

[19] Sentencing remarks [34] - [35].

[21] Those details were also provided on 28 July 2017 in a signed statement to the police (see Sentencing remarks [37]).

[24] Sentencing remarks [40] - [41].

[27] Sentencing remarks [44] - [46].

[28] Sentencing remarks [47], [56] - [57].

[30] Sentencing remarks [61] - [63].

[34] Sentencing remarks [80] - [82].

[35] Sentencing remarks [82] - [83].

[50] Sentencing remarks [100] - [104].

[51] Sentencing remarks [115] - [116].

[52] Sentencing remarks [34], [118] - [122].

[54] Sentencing remarks [140] - [144].

[57] Sentencing remarks [147] - [154].

[58] Sentencing remarks [35], State's Outline of Submissions in relation to sentence, par 5 (AB 218), Offender's Supplementary Submissions on sentence, par 8 (AB 238 - 239), primary ts 40, 43 - 45, Committal Report.

[60] State's Outline of Submissions in relation to sentence, par 5 (AB 218), Offender's Supplementary Submissions on sentence, par 8 (AB 238 - 239), primary ts 40.

[61] State's Outline of Submissions in relation to sentence, par 6 (AB 218), Offender's Submissions on sentence, par 20 (AB 229), State's Further Submissions as to sentence, par 8 (AB 234), primary ts 40, 68.

[62] Sentencing remarks [3], [101].

[63] Mussarri v The State of Western Australia [2018] WASCA 46 [42] - [52] (Buss P).

[64] Hume v The State of Western Australia [2019] WASCA 53 [46].

[65] Section 9AA(1) of the Sentencing Act (definition of 'head sentence').

[66] Section 9AA(2).

[67] Kirby v The State of Western Australia [2016] WASCA 199 [24] and cases there cited.

[68] Abraham v The State of Western Australia [2014] WASCA 151; (2014) 244 A Crim R 1 [56] (Buss JA, McLure P agreeing).

[69] Sentencing Act s 9AA(4)(b).

[71] Beins v The State of Western Australia [No 2] [2014] WASCA 54 [58]; Abraham [58] - [61]; Kirby [26].

[72] Winmar v The State of Western Australia [2018] WASCA 155 [31].

[73] Gobetti v The State of Western Australia [2017] WASCA 130 [79], adopted in Winmar [31] and Ugle v The State of Western Australia [2018] WASCA 97 [23].

[74] House v The King (1936) 55 CLR 499, 505.

[76] Responsive submissions provided by the appellant by email dated 1 May 2020, par 2.

[78] See Francis v The State of Western Australia [2019] WASCA 43 [83].

[81] See the figure at AB 261, being the minimum cost of rebuilding, and the figure at AB 262, being the maximum cost of a full demolition and rebuild.

[86] Sentencing remarks [30], [32], [131].

[87] Affidavit of Leslie Navin Gabriel sworn 30 May 2019, annexure B (AB 14 - 43).

[89] The State of Western Australia v Pourzand [2019] WASCSR 50 [10] - [11].

[90] Wellstead v The State of Western Australia [2019] WASCA 130 [91], referred to with evident approval in Vander Waide v The State of Western Australia [2019] WASCA 148 [43].

[97] Sentencing remarks [89] - [90].

[98] Sentencing remarks [91] - [92].

[100] Sentencing remarks [82] - [83].

[101] Sentencing remarks [125] - [138].

[109] This matter was raised with the appellant at appeal ts 47.

[110] Criminal Appeals Act 2004 (WA), s 31(4)(a).