Ashford v The State of Western Australia [No 2]
[2016] WASCA 222
•19 DECEMBER 2016
ASHFORD -v- THE STATE OF WESTERN AUSTRALIA [No 2] [2016] WASCA 222
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2016] WASCA 222 | |
| THE COURT OF APPEAL (WA) | 19/12/2016 | ||
| Case No: | CACR:48/2016 | 8 DECEMBER 2016 | |
| Coram: | NEWNES JA MAZZA JA BEECH J | 8/12/16 | |
| 12 | Judgment Part: | 1 of 1 | |
| Result: | Appeal upheld Appellant resentenced to 9 months' imprisonment, suspended for 9 months | ||
| D | |||
| PDF Version |
| Parties: | JOURDAN DEAN ASHFORD THE STATE OF WESTERN AUSTRALIA |
Catchwords: | Criminal law and sentencing Arson offences Fire lit in bush on wet winter day by member of firefighting service Whether 12 months' immediate imprisonment manifestly excessive Turns on own facts |
Legislation: | Bush Fires Act 1954 (WA), s 32 Criminal Code (WA), s 171(2) Sentencing Act 1995 (WA), pt 2 div 1 |
Case References: | Bordley v The State of Western Australia [2014] WASCA 18 Cartwright v The State of Western Australia [2010] WASCA 4 Fogg v The State of Western Australia [2011] WASCA 11 GJT v The State of Western Australia [2011] WASCA 263; (2011) 214 A Crim R 272 Gok v The Queen [2010] WASCA 185 Rimmington v The State of Western Australia [2015] WASCA 102 Skipworth v The State of Western Australia [2008] WASCA 64 Spooner v The State of Western Australia [2008] WASCA 86 The State of Western Australia v Johnson [2009] WASCA 224; (2009) 213 A Crim R 1 Wheeler v The Queen [No 2] [2010] WASCA 105 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : ASHFORD -v- THE STATE OF WESTERN AUSTRALIA [No 2] [2016] WASCA 222 CORAM : NEWNES JA
- MAZZA JA
BEECH J
- 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 and sentencing - Arson offences - Fire lit in bush on wet winter day by member of firefighting service - Whether 12 months' immediate imprisonment manifestly excessive - Turns on own facts
Legislation:
Bush Fires Act 1954 (WA), s 32
Criminal Code (WA), s 171(2)
Sentencing Act 1995 (WA), pt 2 div 1
Result:
Appeal upheld
Appellant resentenced to 9 months' imprisonment, suspended for 9 months
Category: D
Representation:
Counsel:
Appellant : Mr A E Monisse
Respondent : Mr B M Murray
Solicitors:
Appellant : Stephen McGrath Barrister & Solicitor
Respondent : Director of Public Prosecutions (WA)
Case(s) referred to in judgment(s):
Bordley v The State of Western Australia [2014] WASCA 18
Cartwright v The State of Western Australia [2010] WASCA 4
Fogg v The State of Western Australia [2011] WASCA 11
GJT v The State of Western Australia [2011] WASCA 263; (2011) 214 A Crim R 272
Gok v The Queen [2010] WASCA 185
Rimmington v The State of Western Australia [2015] WASCA 102
Skipworth v The State of Western Australia [2008] WASCA 64
Spooner v The State of Western Australia [2008] WASCA 86
The State of Western Australia v Johnson [2009] WASCA 224; (2009) 213 A Crim R 1
Wheeler v The Queen [No 2] [2010] WASCA 105
- REASONS OF THE COURT:
Introduction
1 The appellant appealed against a total effective sentence of 12 months' immediate imprisonment imposed for his pleas of guilty to one count of wilfully lighting a fire contrary to the Bush Fires Act1954 (WA) and two counts of intentionally creating a false belief contrary to s 171(2) of the Criminal Code (WA).
2 The appellant contends that the sentence was manifestly excessive in that the wrong type of penalty was imposed. At the hearing of the appeal we upheld the appeal, set aside the sentence imposed and ordered that the appellant be sentenced to 9 months' imprisonment, suspended for 9 months. We said we would give our reasons later. These are the reasons.
The facts
3 Count 1 was an offence of intentionally creating a false belief. The facts were that a little after midnight on 29 August 2014, the appellant called 000 and reported a fire at Canning Dam Road, Bedfordale, knowing that a fire did not exist. At that time, the appellant was a volunteer bushfire fighter at the Bedfordale Bushfire Brigade.
4 Count 2 occurred between 1.00 am and 1.32 am on the same morning. The appellant set fire to bushland. He called 000 and reported a fire at the location where he had lit the fire. The call to emergency services was made immediately before the fire was lit. The appellant and other members of the Bedfordale Bushfire Brigade attended the fire and extinguished it. The fire was approximately 10 sqm, and took less than 10 minutes to extinguish.
5 Count 3 was a further offence of intentionally creating a false belief. At 10.23 pm on 18 September 2014, whilst still a volunteer bushfire fighter at the Bedfordale Bushfire Brigade, the appellant called 000 and reported a fire 2 km east of a truck bay on Albany Highway in Bedfordale. He and other members of the brigade attended the reported fire and, after a search, no sign of any fire was found.
The sentencing hearings
6 The matter first came before the primary judge on 27 November 2015. At that stage, there was a psychiatric report dated 15 September 2015. The author of the psychiatric report, Dr Ong, expressed the view that the appellant was most likely suffering from a major depressive episode, moderate to severe, at the time of the charges on 29 August 2014. However, Dr Ong concluded that based on the information available there did not appear to be a direct relationship between the appellant's mental illness and his offending. Rather, Dr Ong was of the view that the appellant's consumption of MDMA prior to lighting the fire may have affected his judgment.
7 After an exchange between the State, counsel for the appellant and the court, the appellant's sentencing was adjourned to obtain a psychological report and a further report from the psychiatrist, which would answer specific questions relating to the appellant's mental illness to be formulated between the State and the appellant's counsel.
8 The appellant was sentenced on 3 March 2016. A psychological report and a further psychiatric report had, by then, been obtained.
Sentencing remarks
9 The sentencing judge outlined the facts of the appellant's offending.
10 After referring to the pre-sentence, psychological and psychiatric reports, the sentencing judge made the following observations:
(1) it was difficult to identify precisely the reasons for the appellant's offending;
(2) the appellant may well have been suffering a major depressive disorder at the time of the first set of offending;
(3) however, the appellant had also taken two MDMA tablets;
(4) the first psychiatric report concluded that there was no direct relationship between the appellant's mental illness and his offending;1
(5) medical notes before the sentencing judge showed the appellant had two consultations regarding depression, one on 19 August 2014 and the other on 17 October 2014.2
11 His Honour referred to the fact that on 29 August 2014, Perth had recorded more than 40 mm of rain and that, given the time of the year, the risk of the fire spreading was significantly less than usual.3
12 The sentencing judge referred to the appellant's personal circumstances including the following:
(1) he is 21 years old and had grown up without the guidance of an appropriate male role model;
(2) after having struggled at school, the appellant worked as a chef's apprentice and has a very good reference from his employer;
(3) apart from this occasion, there does not appear to have been any other drug use.4
13 The sentencing judge referred to the appellant's mother having expressed the view that his offending may have been a cry for help, observing that that point of view was drawn on by the psychologist in her report.5 The primary judge referred to the subsequent report from the psychiatrist (mistakenly referred to as Dr Febbo) that he was not satisfied there was any indirect relationship between the psychological or psychiatric problems and the appellant's offending. Rather, the psychiatrist expressed the view that the appellant's use of alcohol and MDMA were more likely to have contributed to his offending.6 Being self-induced, that provided no mitigation.7
14 The sentencing judge observed that the psychiatrist's view appeared to be consistent with what the appellant told the police when interviewed. The appellant said in his interview that he was 'amped up' on MDMA and is 'an adrenalin junkie', and probably lit the fire to get an adrenalin rush.8
15 The sentencing judge observed that lighting a fire is serious offending and that any fire has the capacity to get out of control and wreak havoc. Fires are a risk to property but also to life, including of those who fight them.9 False alarms also cause risks, including the diversion of emergency services from a real emergency.10
16 Given that the appellant was a volunteer firefighter, he was well aware of the nature of the risks involved in his conduct.11
17 The sentencing judge took into account that the physical damage caused was negligible and that, given the weather conditions, the risk for a serious conflagration was much reduced. Consequently, the sentencing judge accepted that the offence was at the lower end of the scale of seriousness of offences of this type. 12 However, the sentencing judge observed that the reduced risk of conflagration was 'just one factor to take into account'. His Honour continued that the seriousness of the offending must also include the appellant's personal circumstances and relationship with the fire brigade.13
18 His Honour observed that there had to be a strong deterrent element in the sentence to be passed as that was generally the dominant sentencing consideration for offences of this kind. He accepted that there was little need for specific deterrence.14 He found that the appellant's problems at the time did not reduce his culpability to any great extent such as to make the case not a suitable vehicle for deterrence.
19 His Honour observed that the case was aggravated by the fact that the appellant was a volunteer firefighter who knew what he was doing and the risks involved.15
20 The sentencing judge recognised that there was mitigation in the appellant's young age, the fact that he was a first offender, had recognised his stupidity and was remorseful for his actions.16 He also gave credit for the plea of guilty and allowed the maximum discount of 25%.17 Further, he gave credit for the appellant's strong family support and his strong support at work.18
21 In rejecting counsel's submission that the matter did not call for imprisonment, his Honour referred to the need for general deterrence and the 'aggravating features including that the appellant was a member of the volunteer fire brigade'. His Honour concluded that the offence was 'just far too serious' to warrant a suspended sentence being given in the circumstances.19
22 His Honour observed that had the weather conditions been different the sentence would have been much higher.
23 His Honour concluded that there should be a sentence of 12 months' imprisonment on count 2, and 6 months on each of counts 1 and 2 and by reason of totality considerations, ordered that all sentences be served concurrently.
Ground of appeal
24 The sole ground of appeal is that the sentence imposed is manifestly excessive and a non-custodial penalty should have been imposed. The particulars to the ground point to the negligible damage, the reduced risk of further damage given the rainfall on that day and the mitigating factors including the appellant's remorse, plea of guilty, youth, prior good character and rehabilitation. The particulars further assert that the sentencing judge placed too much weight on general deterrence and the aggravating factor that the appellant was a volunteer firefighter resulting in a sentence that was not commensurate with the seriousness of the offending behaviour.
Manifest excess: general principles
25 The following principles are well established:
1. Sentencing is a discretionary exercise. An appellate court can intervene only if the appellant demonstrates either an express or implied error. Express error involves acting on a wrong principle, for example by mistaking the law or facts or taking into account an irrelevant matter. Implied error arises where the end result is so unreasonable or unjust that the court must conclude that a substantial wrong has occurred. Thus, an appellate court cannot substitute its own opinion for that of the sentencing court merely because the appellate court would have exercised a sentencing discretion differently.
2. A ground of appeal alleging that a sentence is manifestly excessive asserts an implied error. In determining whether a sentence is manifestly excessive it is necessary to examine it having regard to the maximum sentence prescribed by law for the relevant offence, the standards of sentencing customarily observed with respect to that offence, the place which the criminal conduct occupies on the scale of seriousness of offences of the kind, and the personal circumstances of the offender.
3. The range of sentences customarily imposed for a crime does not establish the range of a sound exercise of the sentencing discretion. The guidance afforded by comparable cases is flexible rather than rigid. Sentences customarily imposed in comparable cases provide a yardstick or reference point for ensuring broad consistency in sentencing, bearing in mind the scope for significant variations in relevant sentencing factors, and that there is no single correct sentence. What is important is the unifying principles which sentences imposed in comparable cases reveal and reflect.
4. 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.
Suspended sentences: legal principles
26 A court must not impose a term of immediate imprisonment unless satisfied, having regard to the sentencing principles in div 1 of pt 2 of the Sentencing Act 1995 (WA), that it is not appropriate to impose suspended imprisonment.20 In other words, a court is not permitted to impose a term of immediate imprisonment unless that is the only appropriate sentencing option.21
27 In determining whether or not to exercise the power to suspend a term of imprisonment, the court must look again at all matters relevant to the circumstances of the offence and the personal circumstances of the offender.22
28 Even if a term of imprisonment is generally the appropriate penalty, the sentencing judge must determine the appropriate penalty for the particular case, having regard to all relevant sentencing factors.23
29 The approach to an appeal against the refusal to suspend a term of imprisonment on the ground of implied error was explained by McLure P in Fogg v The State of Western Australia.24 A court must not order immediate imprisonment unless positively satisfied that suspension of the term of imprisonment is not appropriate. Whether the suspension is appropriate involves a discretionary value judgment which, by its nature, gives some latitude to the decision-maker. In borderline cases, different types of sentence may be reasonably open. In such a case, the decision to decline to suspend the term of imprisonment would not be unreasonable or unjust, and would reveal no implied error.
30 Thus, it is for the appellant to satisfy the court that a judgment by the primary sentencing court that suspension was not appropriate was a conclusion that was not reasonably open.
Bush Fires Act arson offences: general principles
31 Section 32(2) of the Bush Fires Act provides that a person who wilfully lights or causes to be lit or attempts to light a fire under such circumstances as to be likely to injure or damage a person or property is guilty of a crime, the maximum penalty for which is 20 years.
32 An offence against this section is a form of arson. Arson in any form is easy to commit and can have extremely destructive if not tragic consequences, with the result that general deterrence is the paramount sentencing consideration.25 Consequently, personal considerations are not given as much weight as in some other cases.
33 In 1990 amendments were made to both the Criminal Code and the Bush Fires Act to increase the maximum offence for wilfully and unlawfully destroying property by fire, and the offence under s 32 of the Bush Fires Act to a maximum penalty of 14 years.
34 The maximum penalty for an offence under s 32 of the Bush Fires Act was increased from 14 years to 20 years in 2009. That is an indication from the legislature that sentences for offences of this type should increase.26
35 There have been insufficient cases at appellate level dealing with an offence against s 32 of the Bush Fires Act to establish a pattern of sentences customarily imposed. It is open to have some regard to cases of criminal damage by fire under s 444 of the Criminal Code while the maximum for that offence was 20 years' imprisonment.27 Moreover, the two appellate cases (Bordley and Spooner) referred to by the appellant that deal with s 32 of the Bush Fires Act involved very different offending and, in the case of Spooner, conviction after trial. They provide no real assistance on the question raised in this appeal.
Mental impairment: general principles
36 If an offender contends that their moral culpability is lessened by mental impairment, the offender must prove, on the balance of probabilities, a causal connection between the impairment and the commission of the offence.28 Mental impairment that is not causative of the offence may still be relevant to issues such as the offender's rehabilitation, treatment, deterrence and the question of whether any sentence of immediate imprisonment would weigh more heavily on the offender than a person without impairment.29
The disposition of the appeal
37 We agree, with respect, with the sentencing judge's conclusion that the appellant's offending, in all its circumstances and in his personal circumstances, called for a sentence of imprisonment. However, in our respectful view, the unusual features of the appellant's offence placed it very much at the lower end of the range of seriousness of offending of this kind. That, combined with the appellant's personal circumstances, meant that a sentence of immediate imprisonment was not open. We proceed to explain that conclusion.
38 The fire lit by the appellant caused very little damage. The area burnt by the fire was not more than 10 sqm. Of course, offences in the nature of arson are concerned not only with the damage caused, but with the risks to property and to people that arise from fires. The appellant lit this fire on a day in August on which more than 40 mm of rain had fallen. He called the fire brigade before or substantially at the same time as he lit the fire. As the sentencing judge recognised, those circumstances greatly reduced the risk of serious conflagration. In our view, the risks arising from the fire lit by the appellant were of a substantially different magnitude to an ordinary case. These aspects and circumstances of the offence meant that it was at or very close to the bottom of the range of seriousness of offences of this kind.
39 The appellant was a young man aged 20 years when he committed the offence, and 21 years when he was sentenced. He had taken substantial positive steps towards rehabilitation by the time he came to be sentenced. He had undergone regular psychological counselling. Having moved to New South Wales to live with his mother, he was involved with a much better prosocial peer network. He was employed in a satisfying job with an employer who spoke highly of him. He was remorseful for what he had done, reflected in his early plea of guilty and his cooperation with the police. As the sentencing judge recognised, the risk of reoffending was negligible, and the need for personal deterrence did not carry any weight.
40 The nature of an arson offence and the risks involved in fire mean that general deterrence is always important in sentencing for an offence of this kind. In our view, the weight to be given to general deterrence in this case was significantly moderated by the unusual features of the offence to which we have already referred.
41 For these reasons, in our respectful opinion the primary judge erred in concluding that immediate imprisonment was the only appropriate disposition. In our view, a suspended term of imprisonment was appropriate, and the contrary view was not open.
Resentencing
42 Taking into account the time the appellant had spent in custody before getting bail for this offence, we imposed a term of 9 months' imprisonment, suspended for 9 months. In circumstances where the appellant intended to return to New South Wales to live with his mother, and to resume psychological counselling with the psychologist with whom he has an established relationship, we did not think that the circumstances called for any conditions on the suspended term of imprisonment.
Conclusion
43 For the reasons we have given, on 8 December 2016 we ordered that:
(1) the appeal be upheld;
(2) the sentence imposed by the sentencing judge be set aside;
(3) in lieu of the sentence imposed by the sentencing judge, the appellant be sentenced to a term of 9 months' imprisonment, suspended for 9 months, commencing on 8 December 2016.
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20 Section 39(2) and s 39(3).
21The State of Western Australia v Johnson [2009] WASCA 224; (2009) 213 A Crim R 1 [68]; Skipworth v The State of Western Australia [2008] WASCA 64 [8], [11]; GJT v The State of Western Australia [2011] WASCA 263; (2011) 214 A Crim R 272 [4].
22Cartwright v The State of Western Australia [2010] WASCA 4 [8]; Skipworth v The State of Western Australia [8].
23Cartwright [10].
24Fogg v The State of Western Australia [2011] WASCA 11.
25Spooner v The State of Western Australia [2008] WASCA 86 [28].
26Bordley v The State of Western Australia [2014] WASCA 18 [16].
27Bordley [17], as to the range of sentences for arson see, for example, Rimmington v The State of Western Australia [2015] WASCA 102 [74].
28Wheeler v The Queen [No 2] [2010] WASCA 105 [59] - [60].
29Wheeler v The Queen [No 2] [6] - [7]; Gok v The Queen [2010] WASCA 185 [57].
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