Jurisdiction : SUPREME COURT OF WESTERN AUSTRALIA

Criminal law and procedure - Sentencing - Arson - Harm to victim, relevance - Turns on own facts

Amituanai v R [1995] QCA 80; (1995) 78 A Crim R 588

R v Economedes (1990) 58 A Crim R 466

R v Histon, unreported; CCA SCt of WA; Library No 970197; 1 May 1997

1 TEMPLEMAN J: I have had the advantage of reading in draft the reasons to be published by Wheeler J. It was for the reasons given by her Honour that I joined in the decision of 22 September 2004 to dismiss the application for leave to appeal against sentence. There is nothing further I wish to add.

2 WHEELER J: These are my reasons for joining in the orders of the Court on 22 September 2004 by which the application for leave to appeal against sentence was dismissed. The applicant was charged on an indictment containing three counts. The first alleged an attempt unlawfully to kill a woman. The second alleged that he unlawfully set fire to a house by which act bodily harm was caused to a child. The third was that he wilfully and unlawfully destroyed a house by fire. He was acquitted of the first two and convicted of the third.

3 All counts arose out of the same incident, and the applicant had been charged with two other men. The others were dealt with separately. One Ristic pleaded guilty in the fast-track system in the District Court to one count of criminal damage by fire. The other co-offender, Vojinovic, entered pleas of guilty in this Court to counts of attempted murder, grievous bodily harm and criminal damage by fire.

4 The circumstances broadly were that Vojinovic and Watterston and a woman had gone on 23 November 2001 to a house in Armadale to collect a car which had been purchased the previous day by one of them. Vojinovic and the applicant alighted from the car and there was a dispute with the occupants of that house. There was apparently some scuffle, with the applicant being struck in the face. They left without the car. Shortly thereafter the applicant received a telephone call from one of the occupants of the house saying there had been a misunderstanding of some kind in relation to the car and that they could return and collect it. An argument developed and they did not return to collect the car at that time.

5 In the early hours of 24 November, Vojinovic, Ristic and the applicant then collected a quantity of dry pine, loaded it into a crate, and placed it into a car. The applicant had previously syphoned a quantity of fuel from the car and placed it into two three litre milk bottles. The three men drove to the house where the altercation had taken place, got out of the car, collected the petrol and wood and made their way to the house. Precisely the role which this applicant played is difficult to ascertain. He denied knowing that the house was to be burnt, but the jury by its verdict must have rejected that account. There is some difficulty in understanding his role, in the light of the different verdicts which the jury

returned in relation to the other two counts in the indictment. However, his Honour formed a view, which was not challenged in this application, that the applicant was "centrally involved" in what followed, which was the spreading of the pine and pouring fuel over it. The pine was lit and the applicant and his co-offenders watched the property burn.

6 There were two adults and two children, one and two years of age, in the house, asleep. The adults and the one year old were able to escape from the house and the two year old was eventually rescued but had by then received serious burns to his back, arms, head and feet. His Honour accepted that this applicant did not believe that there were people in the house. However, he noted that the applicant took no steps to confirm that that was the case. It should be noted that the offence was committed in the early hours of the morning, at a time when most people are at home in bed, and that it would seem to follow from that fact and from his Honour's findings that the question of whether the house was occupied or not was not one of importance to the applicant.

7 The applicant received a sentence of 5 years' imprisonment with eligibility for parole pursuant to the new sentencing regime. The maximum penalty for criminal damage by fire is 14 years' imprisonment. The co-offender, Ristic, was sentenced to 21/2 years' imprisonment with parole eligibility under the previous sentencing regime. Vojinovic was sentenced to 5 years for the offence of grievous bodily harm, 4 years for the criminal damage by fire and 8 years for the attempted murder, each to be served concurrently with the others, being an effective sentence of 8 years' imprisonment under the previous sentencing regime. In his case, the learned sentencing Judge noted that had it not been for Vojinovic's commitment to give evidence against this applicant, the sentences imposed would have been in the order of 12 years' imprisonment. That is, the reduction for the promise of future cooperation, leaving aside other mitigating factors, was one-third.

8 The applicant complains both that his sentence is manifestly excessive, and that it lacks parity with the sentences imposed on the other offenders so as to give rise to a justifiable sense of grievance. In my view, neither submission can be sustained.

9 So far as the allegation of manifest excess is concerned, the learned sentencing Judge correctly found that the offence was a serious one of its kind. The applicant supplied the car and the petrol. He played an active role in setting fire to the house. The house was completely destroyed. Importantly, he took no steps to ascertain whether or not people were inside the house, notwithstanding that it was a residential property and notwithstanding the time at which the offence was committed. One matter of which the applicant specifically complains is that his Honour's sentence reflected, in part, the harm caused to the occupants of the house, which the applicant did not specifically intend to cause. There are two answers to this contention. The first, which would suffice to dispose of it, is that his Honour said that his views as to the appropriate sentence were not influenced by the harm which in fact resulted. The second, however, is that his Honour would not have been in error if he had taken that harm into account. While not decisive, the harm which in fact results from an offence may be taken into account as an aggravating factor: see, eg R v Economedes (1990) 58 A Crim R 466; Amituanai v R [1995] QCA 80; (1995) 78 A Crim R 588.

10 The applicant had a significant and lengthy record of offending. His response to supervision in the past had been patchy. He had on occasions completed orders and on others had been breached due to either non-compliance or re-offending. It was said in the pre-sentence report that he had displayed "limited insight" into his offending. He was 35 years of age.

11 However, there were certain mitigating factors. He had relatively recently completed several programmes in custody, which might be thought to indicate a more serious attitude towards effecting his own rehabilitation. He had suffered for some time from back pain as a result of a motor vehicle accident in 1997, which was said to cause a distortion of his thought processes. He had a variety of emotional and psychological problems, particularly arising out of the death of his mother. I think a reasonable summary of the matters personal to the applicant as they emerged from various reports, and as his Honour summarised them, would be to say that there were matters which suggested that unless the applicant made a more determined effort to effect his own rehabilitation than he had done in the past, he would pose a significant risk to the community by reason of a tendency towards more serious offending. However, there were certain emotional, psychological and other problems which appeared to be susceptible of treatment, and which it appeared the applicant was prepared to make some effort to have treated.

12 Having regard to the seriousness of the offence and the relatively limited material in mitigation, it is my view that a sentence of 5 years' imprisonment pursuant to the new sentencing regime, which would be equivalent to one of 71/2 years' imprisonment previously, was well within an appropriate range.

13 So far as questions of parity were concerned, the learned sentencing Judge had regard to those and in my view correctly identified relevant similarities and differences. His Honour took the view that Ristic's case was "very different" having regard to his fast-track plea, his youth (he was 23) and what appeared to be his relatively minimal involvement in the commission of the offence as compared to the applicant and Vojinovic. Ristic had given evidence at the applicant's trial, and his Honour accepted that evidence, which, although his Honour did not set it out in detail, must have suggested that he played a quite limited role in the commission of the offence.

14 His Honour regarded Vojinovic's case as "much more serious" than that of the applicant. However, Vojinovic had entered pleas of guilty and the Judge who sentenced him accepted that they were accompanied by sincere remorse. Much emphasis was placed by the applicant's counsel in this case upon the fact that Vojinovic, who knew that there were people in the house and by his plea accepted that he intended to kill one of them, received a sentence which was less than that imposed upon the applicant for the offence of arson. Further, emphasis was placed upon the fact that Vojinovic's overall sentence of 8 years' imprisonment was only a little longer than that which the sentence imposed upon the applicant would be if one "added back" the one-third required to be deducted by the amendments to the Sentencing Act. These comparisons are not helpful and, in my view, miss the point of the way in which the sentence imposed on Vojinovic was structured.

15 The considerations referred to in Pearce v R (1998) 194 CLR 610 required the Judge sentencing Vojinovic to ensure that he did not sentence more than once in respect of the same aspect of the complex criminal transaction in which Vojinovic had engaged. That meant that when consideration was given to the question of his knowledge and intention in relation to the people in the house, the offences of attempted murder and grievous bodily harm already reflected the fact that he knew that there were people in the house and intended to harm them. His Honour could not then "double count" for that factor by allowing it to aggravate the offence of arson.

16 The proper comparison, in my view, is to be made between the total criminality of each offender, and the total sentence imposed on each. In summary, the applicant received what under the previous sentencing regime would have been a sentence of 71/2 years' imprisonment for the offence of being centrally involved in the destruction of a residential dwelling by fire, believing that there was no

one in the house but having no apparently rational basis for that belief and having taken no steps to ascertain that it was correct. Vojinovic would have received a sentence of 12 years' imprisonment, after allowing for the mitigating factor of a plea of guilty, for the offence of being centrally involved in setting fire to the same house knowing that there were people inside and intending to kill one of them. There is a significant difference in the two sentences. The difference plainly would have been more significant, in the view of the Judge who sentenced Vojinovic, had Vojinovic not entered a plea of guilty. In those circumstances, I am unable to see any substance in the complaint of a lack of parity between the sentence imposed on the applicant and that imposed on Vojinovic.

17 MILLER J: I have had the opportunity of reading in draft the reasons for judgment of Wheeler J. I agree with those reasons as being the basis upon which the application for leave to appeal was dismissed on 22 September 2004. I have nothing to add.