Abraham v The State of Western Australia - [2020] WASCA 192

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT :   THE COURT OF APPEAL (WA)
CITATION:   ABRAHAM -v- THE STATE OF WESTERN AUSTRALIA [2020] WASCA 192
CORAM:   BUSS P
MAZZA JA

HEARD:   21 AUGUST 2020
DELIVERED          :   16 NOVEMBER 2020
FILE NO/S:   CACR 99 of 2020
BETWEEN:   MATHEW ROSS ABRAHAM
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent

ON APPEAL FROM:
Jurisdiction              :   DISTRICT COURT OF WESTERN AUSTRALIA
Coram:   TROY DCJ
File Number            :   IND 250 of 2020

Catchwords:

Criminal law - Appeal against sentence - Appellant convicted on his pleas of guilty of one count of stealing a motor vehicle and one count of wilfully and unlawfully destroying the motor vehicle by fire - 12 months' immediate imprisonment on the stealing count and 15 months' immediate imprisonment on the arson count to be served concurrently - Whether individual sentences manifestly excessive as to type

Legislation:

Criminal Code (WA), s 371A, s 378, s 444(1)(a)
Sentencing Act 1995 (WA), s 4(4), s 6(4), s 9AA, s 39, s 76, s 81

Result:

Leave to appeal refused
Appeal dismissed

Category: B

Representation:

Counsel:

Appellant	:	Mr J Gullaci
Respondent	:	No Appearance

Solicitors:

Appellant	:	Aboriginal Legal Service - Perth
Respondent	:	Director of Public Prosecutions (WA)

Case(s) referred to in decision(s):

Colbung v The State of Western Australia [2013] WASCA 257
Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321
Edmonds v The State of Western Australia [2013] WASCA 255
Fogg v The State of Western Australia [2011] WASCA 11
JKL v The State of Western Australia [2012] WASCA 215
King v The State of Western Australia [2013] WASCA 131
Lesay v The State of Western Australia [2011] WASCA 154
McKenzie v The State of Western Australia [2015] WASCA 163
Nannup v The State of Western Australia [2011] WASCA 257
Skipworth v The State of Western Australia [2008] WASCA 64
The State of Western Australia v Bennett [2009] WASCA 93; (2009) 194 A Crim R 137
Thompson v The State of Western Australia [2013] WASCA 1
Wright v The State of Western Australia [2010] WASCA 14

JUDGMENT OF THE COURT:

The appellant has applied for leave to appeal against sentence.
The appellant was convicted, on his pleas of guilty, of two counts in an indictment.
Count 1 alleged that on 1 June 2019, at Boddington, the appellant stole a motor vehicle, the property of Kaitlyn Cant, contrary to s 371A read with s 378 of the Criminal Code (WA) (the Code).
Count 2 alleged that on 1 June 2019, at Pumphrey's Bridge, the appellant wilfully and unlawfully destroyed Ms Cant's motor vehicle, and that the motor vehicle was destroyed by fire, contrary to s 444(1)(a) of the Code.
On 25 June 2020, Troy DCJ sentenced the appellant to 12 months' immediate imprisonment on count 1 and to 15 months' immediate imprisonment on count 2. His Honour ordered that the terms of the imprisonment be served concurrently. The total effective sentence was therefore 15 months' immediate imprisonment. A parole eligibility order was made.
The sole ground of appeal, as explained by counsel for the appellant at the hearing of the application, is that the sentences imposed by his Honour were manifestly excessive as to type. No complaint is made about the length of the individual sentences. The appellant's contention is that his Honour should not have been satisfied that conditionally suspended imprisonment was inappropriate.
We are satisfied, for the following reasons, that the sole ground of appeal does not have a reasonable prospect of success. Leave to appeal should be refused. The appeal must be dismissed.

The facts and circumstances of the offending

The facts and circumstances of the offending were, in summary, as follows.
On 31 May 2019, the appellant attended a party at a house in Crossman Road, Boddington.
The appellant remained at the house for several hours.
In the early morning of 1 June 2019, the appellant located the keys to a Daewoo Kalos motor vehicle which was parked at the front of the house.
The appellant entered the vehicle, without the knowledge or consent of the owner, and drove the vehicle towards Albany Highway.
The appellant drove the vehicle north on Albany Highway before turning onto Wandering-North Bannister Road towards Narrogin. He continued along that road until he stopped and parked the vehicle at Pumphrey's Bridge.
The appellant alighted from the vehicle. He ripped a strip of fabric from the t-shirt he was wearing and placed the strip in the fuel intake on the side of the vehicle. Next, the appellant lit the strip of fabric. The strip was partly protruding from the fuel intake. The appellant then left the scene in another vehicle.
At about 6.00 am on 1 June 2019, the vehicle was found by local fire brigade officers. The vehicle was burnt completely and was scrapped.
On 26 December 2019, the appellant was arrested and taken to Narrogin police station. He declined to participate in a video recorded interview with police.

The sentencing judge's sentencing remarks and the appellant's personal circumstances

The sentencing judge recounted the facts and circumstances of the offending in his sentencing remarks.
The appellant was born on 21 August 1998. He was aged 20 at the time of the offending and was 21 when sentenced.
The sentencing judge accepted that the appellant had entered his pleas of guilty at the first reasonable opportunity. His Honour allowed a discount of 25%, pursuant to s 9AA of the Sentencing Act 1995 (WA), on the head sentence he would otherwise have imposed for each offence.
The information before his Honour included a presentence report dated 12 May 2020. The report stated that the appellant appeared to have limited insight into his offending behaviour. The author of the report said that the appellant had substance abuse issues; mental health issues (possible depression and unresolved grief); and poor cognitive skills (notably, in relation to decision making, problem solving and consequential thinking). The appellant is impulsive and immature. He associates with negative peers and does not have a structured lifestyle or participate in meaningful activities. The appellant attributed his criminal behaviour on the night in question to alcohol abuse. His risk of reoffending will remain elevated until his risk and treatment needs are addressed. The appellant appears to be at a pre-contemplative stage of change.
The appellant told the author of the presentence report that he had a good childhood with a close‑knit family. However, he was raised by his grandparents from about 2 years of age. His parents were not involved in his childhood. They had substance abuse issues and had been involved with the criminal justice system. The appellant had witnessed domestic violence between his parents. According to the appellant, his grandmother died in 2014 and he 'went downhill from there'.
The appellant completed year 12 at school. He commenced a course at TAFE, but withdrew from the course after a couple of weeks. He has had intermittent employment, but each job has had a duration of only one to two months. When he was interviewed by the author of the presentence report, the appellant was unemployed.
The appellant commenced using cannabis at the age of 18. His use of the drug escalated. However, he claimed to have ceased using cannabis at the beginning of 2020. He had used methylamphetamine and ecstasy. The appellant began consuming alcohol at the age of 18. When he drinks alcohol his object is to become intoxicated. However, after committing the current offences he reduced his alcohol intake. The appellant told the author of the presentence report that he had commenced substance abuse counselling with Wungening Aboriginal Corporation.
At the time of sentencing, the appellant had been in a relationship with a woman for five months. He and his partner have used illicit drugs and abused alcohol. The appellant does not have any children.
The appellant has some previous convictions for gaining a benefit by fraud, stealing, breach of a bail undertaking and traffic offences. His previous offending was punished by the imposition of fines. His Honour described the appellant's criminal record as 'very limited', but noted that the appellant did not have the mitigation of 'entirely good character' (ts 15).
The sentencing judge said that the appellant's youth was a 'very relevant [sentencing] factor' (ts 15).
His Honour was satisfied that the only appropriate sentence for each of the offences was a term of imprisonment. His Honour concluded that, notwithstanding the appellant's youth, his personal circumstances and antecedents and the absence of a serious criminal history, 'the seriousness of the offence of arson [was] such that … a suspended or a conditionally suspended imprisonment, partial or otherwise, … order would simply not be an appropriate sentencing option' (ts 17).

Counsel for the appellant's submissions

Counsel for the appellant submitted that, having regard to:
(a)the facts and circumstances of the offending;
(b)the place where the appellant's offending fell on the scale of objective seriousness of offending of the kind in question;
(c)the appellant's youth;
(d)the appellant's limited criminal history;
(e)the appellant's genuine attempts to rehabilitate in the community; and
(f)the other matters of mitigation,
the sentencing judge should not have been satisfied that conditionally suspended imprisonment was inappropriate.

The merits of the ground of appeal

A ground of appeal which alleges that a sentence is manifestly excessive asserts the existence of an implied error. It is necessary, in determining whether a sentence is manifestly excessive, to examine it from the perspective of the maximum penalty for the offence, the standards of sentencing customarily observed with respect to the offence, the place which the criminal conduct occupies on the scale of seriousness of offences of the kind in question, and the personal circumstances of the offender.
When considering the sentencing standards that are usually observed in relation to offences of the kind committed by the appellant, it is necessary to have regard to a range of comparable cases. A range of sentences customarily imposed is of significance for the purpose of ensuring broad consistency in the sentencing of offenders in broadly comparable cases. Nevertheless, each case turns on its own particular facts and circumstances. Sentencing ranges can provide only general guidance. The limits of the guidance afforded by comparable cases are flexible rather than rigid. A sentencing range is merely one of the factors to be taken into account in deciding whether a sentence is manifestly excessive. The mere fact that a sentence is within the range of other sentences imposed for similar offending does not necessarily establish that there was an appropriate exercise of the sentencing discretion in the particular case. Similarly, the mere fact that a sentence is outside the range does not necessarily establish that the exercise of the sentencing discretion in the particular case miscarried.
When this court dismisses an appeal against sentence, and when it allows an appeal against sentence and resentences the offender, this court's decision on the sentencing outcome does not, of itself, fix the upper or lower limit of the range.
The discretion conferred on sentencing judges is, of course, of fundamental importance. This court may not substitute its opinion as to sentencing for that of the sentencing judge merely because it would have exercised the discretion in a different manner.
By s 6(4) of the Sentencing Act:
A court must not impose a sentence of imprisonment on an offender unless it decides that -
(a)the seriousness of the offence is such that only imprisonment can be justified; or
(b)the protection of the community requires it.
Section 76 of the Sentencing Act provides, relevantly:
(1)A court that sentences an offender to a term of imprisonment, or to an aggregate of terms of imprisonment, of 60 months or less may order that the term or terms be suspended for a period set by the court; but not more than 24 months.
(2)Suspended imprisonment is not to be imposed unless imprisonment for a term or terms equal to that suspended would, if it were not possible to suspend imprisonment, be appropriate in all the circumstances.
Similarly, s 81(1) of the Sentencing Act provides that a prescribed court that sentences an offender to a term of imprisonment, or to an aggregate of terms of imprisonment, of 60 months or less may order that the whole of the term or terms be suspended for a period set by the court, but not more than 24 months, subject to certain conditions. Section 81(2) provides that conditional suspended imprisonment is not to be imposed unless imprisonment for a term or terms equal to that suspended would, if it were not possible to suspend imprisonment, be appropriate in all the circumstances.
Section 4(4) of the Sentencing Act provides that, in the Act, a reference to the suspension of a term or terms of imprisonment is a reference to a suspension of the whole of the term or terms or part of the term or terms.
The limit of 5 years specified in s 76(1) and s 81(1) reflects Parliament's view that if an offender is sentenced to a term of imprisonment, or to an aggregate of terms of imprisonment, in excess of the specified limit, the offending will be of an order of seriousness which precludes suspension or conditional suspension.
The limit of 5 years also reflects Parliament's view that a term of imprisonment, or an aggregate of terms of imprisonment, may appropriately be suspended even though the offender has committed an offence or offences that are of sufficient seriousness as to warrant a sentence or total sentence of 5 years' imprisonment.
A court must not impose a term of immediate imprisonment unless satisfied, having regard to the sentencing principles set out in div 1 of pt 2 of the Sentencing Act, that it is not appropriate to impose suspended or conditional suspended imprisonment. See s 39(2) and s 39(3).
A sentencing judge must be positively satisfied that it is not appropriate to suspend or conditionally suspend a term of imprisonment before the term can be ordered to be served immediately. In a borderline case, it may be reasonably open to impose different types of sentences. See Skipworth v The State of Western Australia;[1] Fogg v The State of Western Australia.[2] The discretion to suspend or conditionally suspend a term of imprisonment is not confined by considerations relating to rehabilitation and mercy. See Dinsdale v The Queen.[3]The objective features of an offence may, in a particular case, outweigh the personal considerations of rehabilitation and mercy. See Dinsdale [86].
[1] Skipworth v The State of Western Australia [2008] WASCA 64 [11], [13] - [14] (McLure JA).
[2] Fogg v The State of Western Australia [2011] WASCA 11 [9] (McLure P; Mazza J agreeing).
[3] Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321[18] (Gleeson CJ & Hayne J), [26] (Gaudron & Gummow JJ), [84] (Kirby J).
At all material times:
(a)the maximum penalty for count 1 (being the offence of stealing a motor vehicle, contrary to s 371A read with s 378 of the Code) has been 7 years' imprisonment; and
(b)the maximum penalty for count 2 (being wilfully and unlawfully destroying property by fire, contrary to s 444(1)(a) of the Code) has been life imprisonment.
As to count 1, we have had regard to the sentencing dispositions in a range of cases including Nannup v The State of Western Australia;[4] JKL v The State of Western Australia;[5] Thompson v The State of Western Australia;[6] King v The State of Western Australia;[7] Colbung v The State of Western Australia;[8] McKenzie v The State of Western Australia.[9]
[4] Nannup v The State of Western Australia [2011] WASCA 257.
[5] JKL v The State of Western Australia [2012] WASCA 215.
[6] Thompson v The State of Western Australia [2013] WASCA 1.
[7] King v The State of Western Australia [2013] WASCA 131.
[8] Colbung v The State of Western Australia [2013] WASCA 257.
[9] McKenzie v The State of Western Australia [2015] WASCA 163.
As to count 2, we have had regard to the sentencing dispositions in a range of cases including The State of Western Australia v Bennett;[10] Wright v The State of Western Australia;[11] Lesay v The State of Western Australia;[12] JKL; Edmonds v The State of Western Australia.[13]
[10] The State of Western Australia v Bennett [2009] WASCA 93; (2009) 194 A Crim R 137.
[11] Wright v The State of Western Australia [2010] WASCA 14.
[12] Lesay v The State of Western Australia [2011] WASCA 154.
[13] Edmonds v The State of Western Australia [2013] WASCA 255.
It is unnecessary to repeat the relevant facts and circumstances of the previous sentencing cases we have considered or the sentences imposed. There are some comparable features between some of those cases and the present case, but there are also distinguishing features.
It is well established that:
(a)general deterrence is the dominant sentencing factor in cases of arson;
(b)an offender's personal circumstances carry less weight in those cases than they might otherwise do; and
(c)there is no tariff for the offence of arson.
See Bennett [48].
We note that, on 19 December 2009, the maximum penalty for the offence of wilfully and unlawfully destroying or damaging property by fire was increased from 14 years' imprisonment to life imprisonment. See the Arson Legislation Amendment Act 2009 (WA).
In the present case, the appellant's offending, especially in relation to count 2, was serious.
We accept that there were a number of mitigating factors to be found in the appellant's pleas of guilty and also in his personal circumstances and antecedents.
However, after evaluating the sentence for count 2, in the context of the maximum penalty; the objective facts and circumstances of the offending; the standards of sentencing customarily observed; the place which the appellant's offending occupies on the relevant scale of seriousness; the appellant's personal circumstances and antecedents; and all other mitigating factors, we are of the opinion that it was reasonably open to the sentencing judge to fail to be satisfied that it was inappropriate to impose conditionally suspended imprisonment. His Honour was entitled to be positively satisfied that it was not appropriate to conditionally suspend the term of imprisonment he imposed for count 2. The sentence for count 2 was not unreasonable or plainly unjust.
In those circumstances, it was not open to his Honour to conditionally suspend the term of imprisonment he imposed for count 1. See s 81(3)(b) of the Sentencing Act.

Conclusion

The sole ground of appeal does not have a reasonable prospect of success. Leave to appeal should be refused. The appeal must be dismissed.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
JM
Research Associate to the Honourable Justice Buss
16 NOVEMBER 2020