Ashford v The State of Western Australia - [2016] WASCA 81

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT : THE COURT OF APPEAL (WA)

CITATION: ASHFORD -v- THE STATE OF WESTERN AUSTRALIA [2016] WASCA 81

CORAM: MAZZA JA

HEARD: 22 APRIL 2016

DELIVERED : 22 APRIL 2016

PUBLISHED : 17 MAY 2016

FILE NO/S: CACR 48 of 2016

BETWEEN: JOURDAN DEAN ASHFORD
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent

ON APPEAL FROM:
Jurisdiction              :  DISTRICT COURT OF WESTERN AUSTRALIA
Coram  :KEEN DCJ
File No  :IND 1147 of 2015

Catchwords:

Criminal law - Offences of intentionally creating a false belief and wilfully lighting a fire in circumstances likely to injure a person or damage property - Total effective sentence 12 months' immediate imprisonment - Appeal against sentence - Application for bail pending appeal - Turns on own facts

Legislation:

Bail Act 1982 (WA), cl 4A pt C sch 1
Bush Fires Act 1954 (WA), s 32(2)(a)
Criminal Code (WA), s 171(2)
Sentencing Act 1995 (WA), s 9AA

Result:

Application granted

Category: B

Representation:

Counsel:

Appellant: Mr A E Monisse
Respondent: Mr B M Murray

Solicitors:

Appellant: Stephen McGrath
Respondent: Director of Public Prosecutions (WA)

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

Nil
MAZZA JA:
(This judgment was delivered extemporaneously on 22 April 2016 and has been edited from the transcript.)

Before me is the appellant's application for bail pending his appeal against sentence filed on 12 April 2016. The appellant pleaded guilty in the District Court before Keen DCJ to three offences contained in an indictment, being two counts of intentionally creating a false belief, contrary to s 171(2) of the Criminal Code (WA) (counts 1 and 3), and one count of wilfully lighting a fire in circumstances likely to injure a person or damage property, contrary to s 32(2)(a) of the Bush Fires Act1954 (WA) (count 2).
On 3 March 2016, he was sentenced to 6 months' immediate imprisonment with respect to each of counts 1 and 3, and 12 months' immediate imprisonment with respect to count 2. All of these sentences were ordered to be served concurrently; thus, the total effective sentence was 12 months' immediate imprisonment. The appellant was made eligible for parole and the sentences were ordered to commence on 2 March 2016. His earliest date for release on parole is, by my calculation, on or about 1 September 2016. The appellant filed his notice of appeal against sentence on 24 March 2016. On current estimates, assuming that leave to appeal is granted, the appeal will probably be heard in September or October this year; that is, at about or after the time the appellant is eligible for release on parole.
The relevant factual background to the offences is as follows. At the time of the offending the appellant was 20 years of age and a member of the Bedfordale Volunteer Bushfire Brigade. At approximately 12.32 am on 29 August 2014, the appellant called triple zero and reported a fire at Canning Dam Road in the Bedfordale area. In fact, there was no such fire. Whether any firefighters attended the scene is not known.
Then, between 1.00 am and 1.32 am on the same day, the appellant set fire to a small area of bushland, also in the Bedfordale area. He called triple zero and reported the fire. The appellant and other members of the Bedfordale Volunteer Bushfire Brigade attended the fire and extinguished it. The fire burnt approximately 10 sqm of bush and took less than 10 minutes to extinguish.
At approximately 10.23 pm on 18 September 2014, the appellant called triple zero to report a fire 2 km east of a truck bay on Albany Highway, again in the Bedfordale area. There was, in fact, no such fire. The appellant and other members of the brigade attended and searched the area.
The appellant was 21 years old when he was sentenced. He has no prior criminal history. Character references tendered to his Honour spoke favourably of him. At the time the offences were committed, the appellant was suffering from a moderate to severe major depressive disorder, although the psychiatric evidence before the court below was to the effect that there was no causative link between this disorder and the offending. When interviewed by the police concerning the offences committed on 29 August 2014, the appellant admitted that he was 'amped up' on two tablets of MDMA that he had taken, and that he 'probably lit the fire and called and turned out to the fire to get this adrenaline rush' (ts 68). His use of MDMA on the night in question was atypical.
After the appellant was charged with the offences, he returned to his home state of New South Wales. There, he resumed living with his mother, obtained employment and engaged in counselling.
The learned sentencing judge rightly regarded count 2 as being the most serious of the offences. It carries a maximum term of 20 years' imprisonment, while counts 1 and 3 carry a maximum term of 2 years' imprisonment.
His Honour took into account the fact that the physical damage caused by the fire was negligible. He noted that it occurred in winter and he accepted the submissions put on behalf of the appellant that, on the night in question, it had been raining. His Honour described count 2 as being at the lower end of the scale of seriousness of offences of this type. He took into account, as mitigating factors, the appellant's:
(a) pleas of guilty, giving a discount under s 9AA of the Sentencing Act 1995 (WA) of 25%;
(b)age;
(c) prior good record; and
(d)remorse,
as well as the fact that, at the time of sentencing, he appeared to be going well.
His Honour said that there was little need for specific deterrence; however, he gave considerable weight to general deterrence, and the fact that the offending was aggravated by the appellant's position as a volunteer firefighter. In his view, count 2 was so serious that no other penalty apart from immediate imprisonment was appropriate. In coming to this decision, his Honour expressly rejected a suspended sentence as an appropriate punishment.
Pursuant to cl 4A of pt C of sch 1 to the Bail Act 1982 (WA), bail pending appeal can only be granted if this court is satisfied that exceptional reasons exist as to why the appellant should not be kept in custody, and it is otherwise appropriate to grant bail. A very significant factor in deciding whether exceptional reasons exist is the appeal's prospect of succeeding. Other factors may also be relevant. One such factor is whether the appeal will be rendered partially or entirely nugatory because, by the time it is heard and judgment delivered, the appellant will have served much (if not all) of his or her non‑parole period.
So far as the appeal's prospects of succeeding are concerned, the appellant must demonstrate that those prospects are strong. Of course, any view as to the merits of the appeal is, at this stage, tentative, particularly as I do not have the benefit of the appellant's case or the respondent's answer (although the parties have provided fairly detailed written submissions with respect to the application before me).
The appellant intends to rely on four grounds of appeal. The ground which is most relevant for present purposes is ground 1 which, in effect, alleges that his Honour infringed the first limb of the totality principle by imposing the wrong type of sentence (appeal ts 3). It is said that the appropriate sentence was a suspended imprisonment order.
I have given careful consideration to the parties' oral and written submissions. I have read the sentencing proceedings before the learned sentencing judge, and I have had an opportunity to read the pre‑sentence report, the expert reports and the character references. I have been persuaded that the appeal's prospects of succeeding are such as to justify a grant of bail pending appeal. I am also conscious of the relatively short length of the sentence, and the fact that there is a distinct possibility that, if the appeal succeeds, there is a prospect the sentence will be rendered totally or substantially nugatory.
In these circumstances I am satisfied that exceptional reasons exist for a grant of bail. There is no other reason why the appellant should not be kept in custody. The application for bail pending appeal is granted. I will hear the parties as to the appropriate terms and conditions of bail.