Court of Appeal (WA)|2008-04-24|Before: Steytler P, Lure JA, Buss JA

SPOONER -v- THE STATE OF WESTERN AUSTRALIA [2008] WASCA 86 (24 April 2008)

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

CITATION : SPOONER -v- THE STATE OF WESTERN AUSTRALIA [2008] WASCA 86

Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA

Criminal law - Bush Fires Act 1954 (WA) - Relationship between s 32(a) of the Bush Fires Act and s 444 of the Criminal Code (WA) - Late plea, where early admissions made and other matters charged - Effect on sentence

Criminal Code (WA), s 1, s 444, s 445, s 446, s 447, s 448

1 STEYTLER P: On 7 December 2007, the appellant was convicted by a jury on one count of wilfully lighting a fire under such circumstances as to be likely to injure or damage a person or property: s 32(a) of the Bush Fires Act 1954 (WA) (Act). He was sentenced to a term of 12 months' imprisonment with eligibility for parole. He appeals against the sentence imposed upon him.

2 The appellant was a volunteer firefighter in Darlington. He had been so since the age of 15. This was a matter of considerable pride to him. In 2005, when he was 19 years old, there was a greater number of fires in Darlington than had been the case in previous seasons. Other firefighters began to suspect that the appellant was responsible for lighting fires. The appellant was desperate to dispel the rumours. He decided to light bushfires in locations outside the area in which the Darlington Brigade operates. He believed that, if fires started outside that area, this would dispel the theory that someone from the Darlington Brigade was lighting them. He chose the Glen Forrest area.

3 On 24 October 2005 he lit a fire near Jellicoe Road (where he lived). When doing so, he took into consideration the weather, the bush and the wind so as to minimise damage.

4 On 16 November 2005 he rode his bicycle along a popular walking track in Glen Forrest. He lit a fire with a cigarette lighter alongside the track. He said that he considered the weather conditions and topography before doing so. He chose an area near a quarry, with sparse bush on one side, a fire break on the other and a fire break behind it. He said that he considered that, with this topography, the potential danger to property or persons was low. The temperature was 23.6 degrees and the humidity was 48%. The Glen Forrest Fire Brigade was located within 1 km or 2 km of the area in which he lit the fire. After lighting the fire, the appellant went home.

5 The appellant said that, when lighting this second fire, he did not intend to cause any harm, damage or injury to any person. However, the Deputy Chief Bush Fire Control Officer for the Shire of Mundaring gave evidence that the fire had been dangerous. He said that it grew to around 20 m by 25 m. There were strong south, south westerly winds pushing the head of the fire. He said that the fire stopped at the fire break of a home, only 30 m from a colourbond shed. It had been highly likely to jump the fire break. When he attended the fire, two or three people were doing their best to fight it with a garden hose. It took the Fire Brigade two hours to extinguish the fire.

6 On 18 November 2005 the appellant rode his bicycle to John Forrest National Park. He lit a fire in the park. He was arrested not long afterwards.

7 The appellant participated in two video-recorded interviews with police on 18 November 2005. In the course of these he admitted to having lit seven fires. He was consequently charged, on indictment, with seven counts of lighting fires contrary to s 32(a) of the Act. These counts related to the fires lit on 24 October 2005, 16 November 2005 and 18 November 2005 (respectively counts 4, 6 and 7) and also to fires that had been lit on 26 September 2005, 17 October 2005, 19 October 2005 and 3 November 2005 (counts 1, 2, 3 and 5).

8 On 26 April 2007 the appellant, by a letter from his solicitors, offered to plead guilty to counts 4, 6 and 7 of the indictment in full satisfaction of the indictment. Earlier, on 20 April 2007, the appellant's solicitors had provided the Director of Public Prosecutions (DPP) with a report dated 19 April 2007 prepared in respect of the appellant by a psychologist, Mr Peter Gasper. In the report, Mr Gasper said that the appellant had told him that he had admitted to lighting more fires than he had in fact lit. The appellant said that, at the time of making the admissions, he had felt under 'immense fear and pressure' to admit to lighting all of the fires mentioned by police officers during the interview. He said that he had a strong desire to 'surrender to their offensive in order to reduce his building stress'. Mr Gasper suggested that the appellant was prompted to light the fires the subject of counts 4, 6 and 7 'when he perceived there to be a threat to his membership of the Darlington Volunteer Fire Brigade and hence his sense of self-identity and self-esteem'.

9 The DPP rejected the appellant's offer. The appellant consequently maintained pleas of not guilty and proceeded to trial on all seven counts in the indictment.

10 In his evidence at the trial, the appellant admitted to lighting the fires the subject of counts 4, 6 and 7. He denied lighting any of the other fires. He explained that he had admitted to doing so only because of the pressure that he had been under. Notwithstanding that he had admitted to lighting three fires, he was convicted in respect of only one of them. That was the fire mentioned in count 6. It seems, from the transcript, that the trial was conducted upon the assumption that the word 'property' referred to in s 32(a) of the Act does not encompass bushland. That is a debatable proposition, given that any bushland is either publicly or privately owned and the word 'property' (which is not defined in the Act) prima facie encompasses anything that is capable of ownership: see the Shorter Oxford English Dictionary definition and the definition in s 1 of the Criminal Code (WA) (Code). However, because the point was not addressed and nothing turns upon it for the purposes of the appeal, it is unnecessary to reach any final conclusion with respect to it.

11 A second report was obtained from Mr Gasper for sentencing purposes. This was dated 20 January 2008. By then, Mr Gasper had seen the appellant on 20 occasions. In his report, Mr Gasper said that the appellant harboured a significant psychological investment in being a member of the Darlington Brigade. This gave him a strong sense of achievement, meaning and worth, as well as a sense of 'authority and power' that made him feel 'special'. Mr Gasper said that he believed that the appellant's motivation in lighting the fires was that he perceived that there was a threat to his membership of the Darlington Brigade, and hence to his source of self-identity and self-esteem. He also said that the appellant presented with a 'mixed anxiety and depression symptom profile', but that he did not believe that the appellant was suffering from any major psychological illnesses. He said that, with his assistance, the appellant had made steady progress and was unlikely to re-offend in a similar manner. He said that the appellant had repeatedly expressed remorse over his actions. He believed that the remorse was genuine.

12 In her sentencing remarks, the trial judge mentioned the appellant's age and the circumstances of his offending behaviour. She said that, although he was not to be sentenced for the fires lit by him on 24 October 2005 and 18 November 2005, these were 'matters that [she needed] to take into account when considering the background upon which [she] must sentence'.

13 She accepted, so far as count 6 was concerned, that the appellant had not thought that the fire was likely to spread and that he had not known that there was a shed only 30 m away. However, she added that many witnesses had made it clear that there are no guarantees with fire and that this fire had been lit in a bush suburb, where 'houses, cars, pedestrians, pets are going about their business'. Moreover, the bush was generally dry and the winds changed rapidly. She said that residents in the area lived in constant fear of fire. She also said that, given his training as a firefighter, the appellant knew 'the potentiality of danger' from a fire but had nonetheless deliberately lit the fire the subject of count 6.

14 The sentencing judge accepted that the appellant was a person of good prior character, with no relevant criminal history. She had read the psychological report prepared by Mr Gasper. She acknowledged that the appellant had himself been motivated to see Mr Gasper. However, she found that the appellant had showed 'limited remorse for the potentiality of risk, fear and loss of others'. She said that Mr Gasper had described the appellant's remorse as amounting to regret for his actions as well as a feeling of stupidity for the way in which he went about trying to deal with the initial accusations that were made. She referred to Mr Gasper's assessment that the appellant was unlikely to re-offend.

15 She also accepted that the appellant had attempted to negotiate with the State prior to trial in relation to the three fires that he admitted lighting. However, she said that he had not in fact entered a plea of guilty to any of the offences that came before the court.

16 The sentencing judge then turned to relevant sentencing considerations. She mentioned that the considerations applicable to arson were also applicable to the offence of which the appellant was convicted. She went on to mention that, in both cases, the dominant sentencing consideration is general deterrence and that personal considerations could not be given as much weight as in other circumstances. She then said:

I can make it very clear to you that despite your youth, your antecedents and the circumstances that existed at the time, in my view, a sentence of imprisonment is the only appropriate option.

I also do not consider that I can suspend the sentence. I find that you knew the dangers of lighting a fire because of the training that you had had. The lighting was not an isolated act although, clearly, I am sentencing you only in relation to count 6. The jury found that the lighting of that fire and its result was likely to cause damage to property or likely to injure. This, in my view, is such a serious matter that general deterrence is paramount and it would be inappropriate to suspend the term.

Taking into account all of your personal antecedents, particularly your young age and your good prior record, the sentence under the old legislation would have been one of 18 months. I have reduced that by way of statute to 12 months' imprisonment and you will be eligible for parole ...

17 There are seven grounds of appeal. Omitting particulars, these read as follows:

The learned sentencing judge erred by failing to impose a sentence which reflected the accused's offer to plead guilty to the count on which he was convicted.
The learned sentencing judge erred in taking into account the other fires allegedly lit by the accused in respect of which he was acquitted.
The learned sentencing judge erred in finding that the fact that the accused was a firefighter was an aggravating factor for the purpose of sentence.
The learned sentencing judge erred in imposing a sentence which was in accordance with sentences for arson under the Criminal Code.
The learned sentencing judge erred in failing to adequately factor into the sentence the mitigating factors of the case.
The learned sentencing judge erred in the exercise of her discretion not to suspend the sentence of imprisonment.
In the event that the court is not satisfied that the errors identified in any of the individual grounds of appeal constitutes or has led to a substantial miscarriage of justice the combination of errors has led to such a miscarriage.

18 I have mentioned that, when interviewed by police, the appellant admitted to lighting, amongst others, the fires the subject of counts 4, 6 and 7 on the indictment. I have also mentioned that, on 26 April 2007, some time after he had been charged (but some eight months ahead of the trial), he offered to plead guilty to those three counts in full satisfaction of the indictment. The trial judge mentioned the offer in her sentencing remarks, but seemingly made no allowance in respect of it. This appears from the fact that, immediately after mentioning the offer, she went on to say that the appellant had not in fact entered any plea of guilty and that he had shown limited remorse and, more importantly, from the fact that, in the concluding paragraph of her remarks, she made no mention of the admissions or of the offer.

19 In my respectful opinion, these are matters that should have resulted in some reduction in the appellant's sentence. They reflect an acceptance of responsibility, a willingness to facilitate the course of justice and, it seems to me, some remorse (Cameron v The Queen [2002] HCA 6; (2002) 209 CLR 339 [11] - [15] (Gaudron, Gummow & Callinan JJ), [65], [74] - [75] (Kirby J)) in respect of the only count upon which the appellant was ultimately convicted. These factors operate in mitigation notwithstanding that no plea of guilty was ever entered: Hooper v The Queen [2003] WASCA 179; (2003) 27 WAR 264 [23]; Atholwood v The Queen [1999] WASCA 256; (1999) 109 A Crim R 465, 467 - 468 (Ipp J).

20 I would consequently uphold ground 1, but only to the extent that it seems to me that the sentencing judge erred in giving no weight to the admissions and the offer. I will return below to the issue of what is the appropriate sentence to be imposed taking these, and other, relevant considerations into account.

21 The particulars to ground 2 allege that it was not appropriate for the sentencing judge to use the evidence led in support of counts 1, 2, 3 and 5 as factors relevant to sentence. However, there is nothing in her sentencing remarks, as I read them, to suggest that she did regard this evidence as relevant to sentence. She took into account only the lighting of the three fires admitted by the appellant. She stressed that the appellant was not to be sentenced for the fires the subject of counts 4 and 7. She appears to have taken them into account only for the purpose of placing the subject offence in context. She was plainly entitled to do so, given that these two incidents revealed that the subject offence was not an isolated occurrence.

23 Counsel for the appellant contends that the sentencing judge erred in taking into account, as an aggravating factor, the appellant's training as a firefighter, particularly in circumstances in which the prosecutor had acknowledged that this was not an aggravating factor.

24 What had been said by the prosecutor in this respect was as follows (ts 446):

His position as a volunteer bush firefighter does not, in my submission, aggravate the offending, but it certainly puts a different perspective, in the sense that [the appellant] would have been well aware of the consequences that fires have in this state, and in his own evidence accepted and spoke at length about the amount of fires that he had attended as a volunteer bushfire fighter.

25 The sentencing judge was not bound by anything said by the prosecutor in this respect. In any event, her own comments merely mirrored those that the prosecutor had made. She said, in the only passage complained of by counsel for the appellant (ts 452):

Given your training as a firefighter, you knew the potentiality of danger from a fire yet you deliberately lit the fire on the occasion in relation to count 6.

This was no more than the prosecutor had said. Moreover, it was plainly correct and properly taken into account.

27 Counsel for the appellant contends that the sentencing judge was in error in saying that the same considerations apply to an offence under s 32(a) of the Act as are applicable to the offence of causing criminal damage by fire (arson) under s 444 of the Code. He submits that the offence of arson involves an element of intention to cause damage or reckless or indifference as to the consequences, whereas the offence under s 32(a) of the Act involves no element of intention or recklessness.

28 As I have earlier mentioned, the only considerations to which the sentencing judge referred were those which heightened the need for general deterrence. She referred to R v Catts (1996) 85 A Crim R 171, 176 (Anderson J, Ipp & Rowland JJ concurring) in support of the proposition that arson in any form is very easy to commit and can have extremely destructive, if not tragic, consequences, with the result that general deterrence is paramount. She also referred to that case in support of the proposition that personal considerations could not be given as much weight in a case of this kind as in other cases. In my respectful opinion, those propositions are undoubtedly applicable to an offence under s 32(a) of the Act.

29 It is important, also, to have regard for the seriousness with which the legislature regards an offence of the present kind. Since 1990, an offence under s 32(a) of the Act has carried substantially the same penalty as is provided for in the case of an offence under s 444 of the Code.

30 The arson provisions that were enacted in the Criminal Code Act 1913 (WA) (s 444), carried a penalty of life imprisonment with hard labour. Also, under s 447(c) and s 447(d) of the Code, any person who wilfully and unlawfully set fire to any standing trees, saplings or shrubs, whether indigenous or cultivated, or any heath, gorse, furze or fern, was liable to imprisonment with hard labour for 14 years.

31 Sections 444 to 448 of the Code were repealed in 1990 by the Criminal Law Amendment Act 1990 (WA). That Act enacted a new s 444 which provided that any person who wilfully and unlawfully destroyed or damaged any property was guilty of a crime and punishable by imprisonment for 10 years unless the property was destroyed or damaged by fire, in which case the offender was liable to imprisonment for 14 years.

32 Section 444 was again repealed and replaced in 2004, by the Criminal Code Amendment Act 2004 (WA) (s 37). The current s 444 provides that any person who wilfully and unlawfully destroys or damages any property is guilty of a crime and, if the property is destroyed or damaged by fire, liable to imprisonment for 14 years or, if the offence is committed in circumstances of racial aggravation, to imprisonment for 20 years. A summary conviction penalty of imprisonment for 3 years and a fine of $36,000 is provided for an offence where the amount of the injury done does not exceed $25,000.

33 When s 32 of the Act was first enacted, the offence of wilfully lighting or causing to be lit or attempting to light a fire under circumstances likely to injure or damage a person or property was punishable by a fine of 500 pounds or imprisonment for 5 years. However, in 1990, the Criminal Law Amendment Act 1990 (WA) amended that section so as to make the offence indictable and to increase the penalty to a fine of $250,000 or 14 years' imprisonment or both. As will be apparent, this was the same amending legislation as had provided for a similar penalty in the case of damage by fire under s 444 of the Code. In his second reading speech in respect of the Criminal Law Amendment Bill 1990, the then Minister for Justice, Mr David Smith, said that the amendments were intended to address concerns regarding the protection of both private and public property and that the penalty under the Code was consistent with amendments to the Act proposed in the Bill: Western Australia, Parliamentary Debates, Legislative Assembly, 16 October 1990, 6074 - 6075.

34 The legislative history consequently reveals that, although, until 1990, the offence under s 444 of the Code was regarded as more serious than that under s 32 of the Act, since that date the legislature has regarded the two offences as being equally serious. Of course, when dealing with either offence, the court will impose a penalty that fits the individual circumstances.

36 The factors that were said not to have been 'adequately factored into the sentence' by the sentencing judge are remorse; youth; the unlikelihood of re-offending; the fact that no damage to persons or (privately owned) property was intended to be caused; the fact that no damage to persons or (privately owned) property was caused; the offer to plead guilty; the age of the charges; and the appellant's behaviour on bail between the time at which he was charged and that at which he was sentenced.

37 Because I have already concluded that the sentencing judge failed to take into account the offer to plead guilty, it is unnecessary to consider the other matters raised for the purposes of this ground. They are, of course, material to the re-sentencing of the appellant, dealt with later in these reasons.

38 Ground 6 complains of an error in the exercise of the sentencing judge's 'discretion' not to suspend the sentence of imprisonment. It is necessary, again, to stress that the decision to suspend or not to suspend is not discretionary. Section 39(3) of the Sentencing Act 1995 (WA) provides that a court 'must not' use a sentencing option in subsection 39(2) unless satisfied that it is 'not appropriate' to use any of the options listed before that option. Consequently, if a sentence of suspended imprisonment is appropriate, it must be imposed (if none of the options listed before that option is appropriate).

39 The particulars to this ground assert that the sentencing judge gave too much weight to the seriousness of the offence; that she wrongly equated it with the offence of arson; that she failed to take into account all of the mitigating factors personal to the accused and pertaining to the commission of the offence; and that her 'discretion' was vitiated by the errors relied on in grounds 2, 3 and 4.

40 I have already said that there were no errors of the kind asserted in grounds 2, 3 and 4. I have also said that the sentencing judge made no error in regarding the considerations to which she referred as being applicable to the offence under s 32 of the Act.

41 In deciding that it was not appropriate to suspend the sentence of imprisonment in this case, the sentencing judge plainly regarded the seriousness of the offence and the need for general deterrence as outweighing the personal and other mitigatory factors operating in favour of the appellant. In my respectful opinion, she made no error in that respect.

42 It is unnecessary to deal with ground 7, which merely asserts that, if the court is not satisfied that the errors identified in any of the individual grounds of appeal constitutes or has led to a substantial miscarriage of justice, the combination of errors has done so. I have already concluded that the error raised in ground 1 was sufficient to vitiate the sentencing exercise.

43 That leaves the question of what should now be done.

44 Section 31(4)(a) of the Criminal Appeals Act 2004 (WA) provides that the Court of Appeal may allow the appeal, in the case of an appeal against the sentence imposed as a result of a conviction on indictment, if in its opinion a different sentence should have been imposed.

45 When deciding whether any different sentence should be imposed, the court may consider any matter relevant to the sentence that has occurred between when the sentence was imposed and when the appeal is heard: s 41(4) of the Criminal Appeals Act. We were provided with a report prepared by Mr Gasper on 4 April 2008 in respect of the appellant. Mr Gasper has seen the appellant on five occasions since he has been in custody, most recently on 10 March 2008. In his report, he says that the appellant's mental condition has deteriorated quite significantly and that he presented as increasingly guarded and paranoid. He gave a number of examples of this. He refers, also, to significant symptoms of psychological distress and emotional disturbance suffered by the appellant. The appellant has experienced suicidal thoughts.

46 Mr Gasper describes the appellant's deteriorating mental state as being consistent with an adjustment disorder with mixed anxiety and depressed mood. He says that, under current circumstances, the appellant is likely to continue to deteriorate and develop a major depressive disorder. He says that it is a matter of particular concern that the appellant's increasing paranoia and suspicion seems to be bordering on being psychotic, rather than merely anxiety-based. He considers that the appellant requires a full psychiatric assessment in order to determine whether pharmacological intervention is needed. He suggests that the appellant is unlikely to receive the treatment he requires while in prison because his paranoia is such as to make it unlikely that he will present an accurate picture of his current mental state to medical personnel. He also suggests that the position might be exacerbated by the appellant's fear of being prescribed medication and subsequently being targeted by other prisoners to supply them with drugs.

47 There is no doubt that Mr Gasper's report presents cause for concern. However, we were presented with no reason why the concerns expressed by Mr Gasper could not be made known to prison authorities, with a view to the appellant being transferred to Graylands Hospital for a comprehensive psychiatric review and treatment plan. Rather, on the face of it, there seem to be good reasons why this should be done. In circumstances in which this can be done, if necessary, I am not persuaded that there is anything in Mr Gasper's report that should militate against a sentence of immediate imprisonment.

48 That leaves the question whether, having regard to all of the other factors identified or discussed above, taken together with what was said by Mr Gasper, any different sentence should be imposed. In my opinion, even taking into account all of the matters personal to the appellant, giving full weight to his admissions and offer to plead guilty, his remorse, the unlikelihood that he will re-offend, his age, his behaviour while on bail and the fact that he did not intend that there would be any damage to persons or privately owned property, the seriousness of the offence is such that the only appropriate sentence is one of immediate imprisonment.

49 The cases provide little assistance in determining the range of sentences customarily imposed for offences of this kind. That is because most deal with fires causing damage to buildings. One exception is the case of Barreto v The Queen (Unreported, WASCA, Library No 940074, 7 February 1994) (Rowland, Franklyn & Owen JJ). In that case the appellant was convicted, after a trial, of seven counts of lighting a fire under such circumstances as to be likely to damage property, contrary to

s 32(a) of the Bush Fires Act. Each of the counts related to a separate fire lit close to a road at different places in bush in the Collie area. He was sentenced to concurrent sentences of 3 years' imprisonment on each count (equivalent to 2 years' imprisonment under the present sentencing regime), with eligibility for parole. In the course of dismissing an appeal against conviction (an application for leave to appeal against sentence was abandoned), the court said that the maximum penalty provided in s 32(a) 'makes it clear that the offence is a very serious one'.

50 In the present case, as the sentencing judge found, the appellant knew of the potentiality of danger from a bush fire. He must also have been aware of the concern that people living in bush suburbs had about the threat of fires. Notwithstanding this, he lit the fire in an area close to residential housing. The threat from a possible wind change was made apparent by the evidence establishing that a strong south, south westerly wind had pushed the head of the fire close to privately owned property, in circumstances in which the fire had been likely to jump the fire break.

51 Offences of this kind have potentially very serious consequences. That is why the legislature regards them as so serious as to justify a maximum penalty of 14 years' imprisonment. Moreover, they are extremely difficult to detect. This makes deterrence an issue of fundamental importance.

52 In all of these circumstances, even taking into account the matters in mitigation to which I have referred, including those mentioned in ground 5, I do not consider that any different sentence should be imposed. I would consequently dismiss the appeal.

Law Amendment Act 1990

Code Amendment Act 2004

SPOONER -v- THE STATE OF WESTERN AUSTRALIA [2008] WASCA 86 (24 April 2008)

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SPOONER -v- THE STATE OF WESTERN AUSTRALIA [2008] WASCA 86 (24 April 2008)

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