[21] The factors which the learned Magistrate plainly took into account are the limited planning involved, that the actions of the appellant were spontaneous, the fact that the appellant locked the door to the kitchen to make it more difficult for people to access the kitchen to put out the fire, the fact that the house was occupied at the time by a relative who was asleep, the damage caused to the building, the lack of any ability by the appellant to make any restitution (although restitution was offered), the inconvenience to others whilst the premises were repaired and made safe, the weight to be given to the plea of guilty as well as the other matters to which I have referred already concerning the appellant's youth, prospects of rehabilitation, lack of prior convictions and the lack of need for specific deterrence. His Honour does not specifically refer to it, but the facts were that the appellant was not intoxicated or under the influence of any drugs at the time and there was evidence of the appellant's positive good character.
[22] Reference was made by counsel for the appellant to the judgment of the Court of Appeal of the Supreme Court of Victoria in R v Mills,[5] in which the Court accepted that the youth of an offender, particularly a first offender, should be a primary consideration for a sentencing court where that matter properly arises. In such a case, rehabilitation is usually far more important than general deterrence. This is because punishment may in fact lead to further offending. A youthful offender is not to be sent to an adult prison if such a disposition can be avoided especially if he is beginning to appreciate the effect of his past criminality. The benchmark for what is serious enough to justify adult imprisonment may be quite high in the case of a youthful first offender. Where the offender has not previously been incarcerated, a shorter period of imprisonment may be justified. For the purpose of determining whether the person is to be treated as "youthful", a person of 21 years of age is to be so treated but as the age in question increases the force of these propositions diminish. Thus, the weight to be attributed to youthfulness is greater when an offender is 18 than what it would be at 21.
[23] I note that the learned Magistrate considered the possibility of a home detention order but unfortunately, that option was not available in the circumstances of this case. Plainly if that option had been available, his Honour may well have imposed such an order for a period, one might expect, longer than the three months of actual imprisonment which his Honour ultimately decided the appellant should serve.
[24] Both counsel made reference to the decision of the Court of Criminal Appeal in Ajax v The Queen,[6] where the Court noted that the current level of sentencing for the offence of arson was far too lenient and needed to be increased significantly. Some of the relevant factors to be considered by a sentencing court were referred to at para [34]. It is not in dispute that the factors referred to therein are relevant to the current offence, but it was put that in the circumstances of this case the learned Magistrate gave excessive weight to general deterrence. I accept the submission of counsel for the appellant that the offence of arson and the offence for which the appellant has been found guilty is a different offence in the sense that it carries a much lesser maximum penalty, it is capable of being dealt with summarily in some circumstances and the mental element is quite different. Obviously, the differences in these factors are also very relevant to sentencing. Nevertheless, as the Chief Justice has said in his sentencing remarks in R v Boko (Sentencing Remarks, NTSC, Martin CJ, 30 August 2006), this Court has given notice that the current level of sentences for this particular offence are too lenient and need to be significantly increased.
[25] Counsel for the respondent, Mr Jones, submitted that this is a prevalent offence in Aboriginal Communities and a deterrent sentence will generally be warranted. He further submitted that unless there are exceptional circumstances a sentence of actual imprisonment will be inevitable. The authority which he cites for that, R v Davies,[7] was a case where the charge was arson and therefore is to be distinguished from the current type of offence. The other authority referred to, R v Kunia,[8] does not support that proposition either. Moreover, the learned Magistrate did not, in my opinion, approach the case in that way.
[26] It is well accepted that on an appeal against sentence this Court will not interfere with the sentencing court's discretion unless error is shown. I agree with the submission of Mr Jones that offences involving the lighting of fires in Aboriginal Communities in circumstances similar to this are quite prevalent and general deterrence is a most important consideration. It is not sufficient that I myself may have imposed a lesser sentence. What must be shown is that the learned Magistrate erred. I am not satisfied that that has been demonstrated. This ground of appeal has not been established.
[27] As neither ground of appeal has been made out, the appeal is dismissed.