Biruta v The State of Western Australia - [2019] WASCA 52

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT :   THE COURT OF APPEAL (WA)
CITATION:   BIRUTA -v- THE STATE OF WESTERN AUSTRALIA [2019] WASCA 52
CORAM:   BUSS P
BEECH JA

HEARD:   6 MARCH 2019
DELIVERED          :   2 APRIL 2019
FILE NO/S:   CACR 114 of 2018
BETWEEN:   ALISON ELIZABETH BIRUTA
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent

ON APPEAL FROM:
Jurisdiction              :   SUPREME COURT OF WESTERN AUSTRALIA
Coram:   MCGRATH J
Citation:   THE STATE OF WESTERN AUSTRALIA -v- BIRUTA [2018] WASCSR 105
File Number             :   INS 1 of 2018

Catchwords:

Criminal law and sentencing - whether sentence of two years' immediate imprisonment for criminal damage by fire manifestly excessive - whether total effective sentence of two years eight months' immediate imprisonment infringed the first limb of the totality principle - whether parity principle infringed

Legislation:

Criminal Code (WA), s 444

Result:

Leave to appeal on all grounds refused
Appeal dismissed

Category: D

Representation:

Counsel:

Appellant	:	In person
Respondent	:	No appearance

Solicitors:

Appellant	:	In person
Respondent	:	The Director of Public Prosecutions (WA)

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

Green v The Queen [2011] HCA 49; (2011) 244 CLR 462
House v The King [1936] HCA 40; (1936) 55 CLR 499
McLaughlin v The State of Western Australia [2012] WASCA 204
Morcom v The State of Western Australia [2013] WASCA 31
Muldrock v The Queen [2011] HCA 39; (2011) 244 CLR 120
Newton v The State of Western Australia [2006] WASCA 247
Rimington v The State of Western Australia [2015] WASCA 102
Stanley v The State of Western Australia [2018] WASCA 229
Stoysich v The State of Western Australia [2014] WASCA 2008
The State of Western Australia v Bennett [2009] WASCA 9; (2009) 194 A Crim R 137
The State of Western Australia v Biruta [2018] WASCSR 105
The State of Western Australia v Ferritto-Di Franco [2018] WASCSR 89

JUDGMENT OF THE COURT:

The appellant was convicted, on her pleas of guilty, of one count of wilfully and unlawfully damaging property by fire (count 1) and one count of fraud (count 2). She was sentenced to 2 years' immediate imprisonment on count 1, and 8 months' immediate imprisonment on count 2, the terms to be served cumulatively, with eligibility for parole.
The appellant seeks leave to appeal her sentence. Among other things, she contends that:
(1)her sentence on count 1 was manifestly excessive;
(2)her total effective sentence infringed the first limb of the totality principle; and
(3)her sentence infringed the parity principle because it was unjustifiably lengthier than the sentence imposed on her son, who was a co‑offender on both counts.
For the reasons that follow, none of the grounds of appeal has merit. Leave to appeal must be refused, and the appeal dismissed.

The facts

With one immaterial exception, the facts of the offending were not in dispute before the sentencing judge.[1]

Count 1 - criminal damage by fire

[1] ts 27 - 28; The State of Western Australia v Biruta [2018] WASCSR 105 (sentencing remarks) [36].

Sometime prior to 14 May 2017, the appellant formed a plan with two co-offenders, her son Samuel Ferritto‑Di Franco, and Janet Dulson, to destroy the appellant's car by fire and claim the insurance money.[2] The appellant's car, a Holden Astra, was insured for approximately $12,000.[3] The appellant had previously borrowed a credit card from Ms Dulson and had accrued a credit card debt which she was struggling to repay.[4]
[2] Sentencing remarks [5].
[3] Sentencing remarks [6].
[4] Sentencing remarks [7].
On 14 May 2017, the appellant drove to the Peel Health Campus. She parked her Astra in the hospital carpark and was admitted for treatment. Later that day, Mr Ferritto-Di Franco visited the appellant at the hospital.[5] The appellant gave him her car keys, knowing that he intended to take her Astra and destroy it by fire to enable the appellant to make an insurance claim.[6]
[5] Sentencing remarks [4].
[6] Sentencing remarks [9].
After obtaining the appellant's car keys, Mr Ferritto-Di Franco asked Ms Dulson, who was also at the hospital, if she could follow him in her car when he drove the Astra to an address in Keysbrook. Ms Dulson agreed to follow him, knowing that he planned to destroy the car by fire that night.[7]
[7] Sentencing remarks [10].
Mr Ferritto-Di Franco drove the Astra to the end of Hall Road in Keysbrook, while Ms Dulson waited close by in her car. He doused the car with petrol and set it on fire, during which process he suffered burns to one leg.[8]
[8] Sentencing remarks [11] - [13].
After setting fire to the Astra, Mr Ferritto-Di Franco went to Ms Dulson's car and Ms Dulson drove him back to his house in Baldivis.[9] Ms Dulson then drove back to the hospital to see the appellant and later drove the appellant back to her house in Madora Bay after she was discharged.[10]
[9] Sentencing remarks [15].
[10] Sentencing remarks [16].
The car fire was reported by members of the public and the fire brigade attended to put out the fire. Police attended the scene of the car fire at approximately 9.15 pm and discovered that the Astra had been completely destroyed.[11]

Count 2 - gains benefit by fraud

[11] Sentencing remarks [17].

On the evening of 14 May 2017, the police called the appellant and notified her that her Astra had been found burnt out.[12]
[12] Sentencing remarks [18].
On the morning of 15 May 2017, the appellant, knowing that Mr Ferritto-Di Franco had taken her car the night before and destroyed it by fire, reported her car as stolen to the police.[13] The appellant also made a phone call to GIO Insurance to inform it that the Astra had been stolen and destroyed and request that it commence the insurance claim process.[14]
[13] Sentencing remarks [19].
[14] Sentencing remarks [20].
Sometime after 15 May 2017, the appellant was interviewed over the phone by a representative of GIO Insurance. During this interview, the appellant indicated that she did not know who had taken the car and that she had no involvement in either the theft or the damage to the car.[15]
[15] Sentencing remarks [21].
The insurance claim was subsequently referred to a private investigation company called Verifact.[16] On 30 May 2017, as part of Verifact's investigation, the appellant was interviewed, in the course of which she said that she did not know who took her car. She also denied any involvement in taking her car or engaging a third party to take her car and dispose of it so she could obtain a benefit.[17]
[16] Sentencing remarks [22].
[17] Sentencing remarks [23].
On 26 June 2017, the appellant received an insurance payment from GIO Insurance of $11,782.98 for her car. Of this money, approximately $3,000 was paid to Ms Dulson.[18]
[18] Sentencing remarks [25].

Personal circumstances

The appellant was 51 years old at the time of sentence and 50 years old during the period of her offending.
The appellant advised the author of the pre-sentence report that she had a happy and pro-social upbringing in a very close family with no violence, drug use or dysfunction.[19] She left school when she was 14 years old to work full time.[20] She has three children, one of whom was 15 years old at the time of sentence, and she remains the guardian parent of that child.[21] She separated from her husband 11 years ago.[22]
[19] Sentencing remarks [39]; Pre-sentence report dated 21 May 2018 (pre-sentence report) (2).
[20] Sentencing remarks [39]; pre-sentence report (2).
[21] Sentencing remarks [39]; pre-sentence report (3).
[22] Sentencing remarks [39]; pre-sentence report (3).
The appellant was employed by Woolworths Caltex as a cashier for approximately two years on a part-time basis prior to her sentencing. However, following a workplace injury in January 2018, she came to be on worker's compensation.[23] The appellant is in generally good physical health, but suffers from, and takes medication for, depression and anxiety.[24]
[23] Sentencing remarks [40]; pre-sentence report (3).
[24] Sentencing remarks [40].
The appellant advised the author of the pre-sentence report that for many years she was estranged from her son and co-offender, Mr Ferritto-Di Franco, after he assaulted her when he was approximately 11 years old.[25] Approximately seven years after this incident, and several months prior to her offending, the appellant rekindled her relationship with her estranged son, at which she felt 'overjoyed'.[26] It appears that Mr Ferritto-Di Franco caused minor damage to the appellant's Astra prior to its destruction by fire.[27]
[25] Sentencing remarks [41]; pre-sentence report (1).
[26] Pre-sentence report (1, 2).
[27] Sentencing remarks [41]; pre-sentence report (2).
The appellant had significant financial troubles leading up to the offending.[28]
[28] Sentencing remarks [41] - [42]; pre-sentence report (2, 3).
The sentencing judge noted that the appellant had a very minor criminal record, which included two previous convictions for dishonesty offences committed in 1989. The sentencing judge considered that this meant the appellant did not come before the court as a person of previous good character.[29]
[29] Sentencing remarks [43] - [44].

Sentencing remarks

The sentencing judge identified the following aggravating factors:
(1)The appellant deliberately targeted her own vehicle to obtain financial benefit. The offending the subject of count 1 was premeditated and done in concert with her son, in circumstances where she, the 50-year‑old mother of her 19-year‑old co‑offender, acted as leader and instigator. In relation to count 2, the appellant alone made the claim for insurance as a calculated and premeditated act of dishonesty.[30]
(2)The appellant involved others in her offending, including her son, for the sole purpose of benefiting herself financially.[31]
(3)The appellant maintained her deception even when interviewed by GIO Insurance officers.[32]
(4)Although the motor vehicle was destroyed in a semi-rural area, the appellant's conduct put nearby properties and members of the Fire and Emergency Services at risk.[33]
[30] Sentencing remarks [48].
[31] Sentencing remarks [49].
[32] Sentencing remarks [50].
[33] Sentencing remarks [51].
His Honour referred to the following mitigating factors:
(1)The appellant was remorseful.[34]
(2)The appellant pleaded guilty following committal for trial, after provisional trial dates were fixed and after she had appeared before a judge of the Supreme Court. She entered the plea after the State received a second statement from Ms Dulson that implicated the appellant in the offending and after Ms Dulson had indicated a willingness to give evidence against the appellant at any trial. The State case against the appellant by this stage was very strong. In these circumstances, the sentencing judge applied a discount of 10% under s 9AA of the Sentencing Act (WA).[35]
[34] Sentencing remarks [52].
[35] Sentencing remarks [53] - [54].
The sentencing judge did not accept that family hardship in respect of the appellant's 15-year-old son was a mitigating factor, because such circumstances were not exceptional.[36]
[36] Sentencing remarks [55].
The sentencing judge noted the seriousness of arson offences, reflected in the maximum penalty of life imprisonment.[37] His Honour stated that offences of arson commonly attract sentences between 2 years 8 months and 4 years 8 months for very serious cases and sentences between 2 years and 3 years 8 months in less serious cases, but that these ranges do not fix the sentencing range for a particular offender.[38]
[37] Sentencing remarks [55].
[38] Sentencing remarks [56].
The sentencing judge had regard to the parity principle by considering the sentence imposed upon Mr Ferritto-Di Franco.[39] Ms Dulson had not yet been sentenced.[40] Mr Ferritto-Di Franco was sentenced by Corboy J to 12 months' imprisonment for the appellant's count 1 and 6 months' imprisonment for the appellant's count 2, which were made wholly concurrent.[41] The sentencing judge evidently had regard to Corboy J's published sentencing remarks.
[39] Sentencing remarks [57].
[40] Sentencing remarks [59].
[41] Sentencing remarks [58].
The sentencing judge considered the appellant to be significantly more culpable than her son.[42] The appellant, along with Ms Dulson, devised the plan to set fire to the motor vehicle and commit the fraud.[43] Mr Ferritto-Di Franco was not involved with the insurer.[44] In short, the appellant was the architect of the plan and the beneficiary of the fraud.[45]
[42] Sentencing remarks [60].
[43] Sentencing remarks [63].
[44] Sentencing remarks [63].
[45] Sentencing remarks [66].
The sentencing judge quoted, with apparent agreement, Corboy J's observation in sentencing Mr Ferritto‑Di Franco that '[t]he fact that your mother should have led you into committing these offences is a shocking thing'.[46] The sentencing judge in this case also expressed his agreement with Corboy J that the appellant had considerable blame for the offending, notwithstanding that her son did the actual act of arson.[47]
[46] Sentencing remarks [61].
[47] Sentencing remarks [62].
Further, the sentencing judge considered Mr Ferritto-Di Franco to have strong factors in mitigation that the appellant did not have.[48] Mr Ferritto-Di Franco was a 19-year-old youth, whereas the appellant was his 51‑year‑old mother.[49] He had a troubled adolescence and was in an estranged relationship with his parents.[50] He pleaded guilty at an earlier stage, resulting in a s 9AA discount of 20%.[51] However, his Honour acknowledged that Mr Ferritto-Di Franco was on a community-based order at the time of the arson. His Honour further acknowledged that Mr Ferritto-Di Franco had a criminal record, albeit for offending dealt with in the Magistrates Court by either spent convictions, fines or a community-based order.[52]
[48] Sentencing remarks [60].
[49] Sentencing remarks [64].
[50] Sentencing remarks [64].
[51] Sentencing remarks [65]; see also The State of Western Australia v Ferritto-Di Franco [2018] WASCSR 89 [48].
[52] Sentencing remarks [65].
The sentencing judge considered the imposition of a term of imprisonment to be the only appropriate disposition in the circumstances.[53] His Honour imposed the individual and total effective sentences set out at [1] above.[54] After referring to the totality principle, his Honour stated that he had closely considered what he believed to be the appropriate total effective sentence at law. His Honour stated that he could have imposed a greater term of imprisonment on count 1 and made count 2 wholly concurrent, but instead chose to modify the terms of imprisonment and make them wholly cumulative.[55]
[53] Sentencing remarks [67].
[54] Sentencing remarks [69] - [72].
[55] Sentencing remarks [73].

Grounds of appeal

The appellant's grounds of appeal are expressed as follows:
1. (a)The sentence imposed by the primary sentencing Judge on count 1 was manifestly excessive having regard to all the facts of the case. Whether, the Sentencing Judge failed to apply the appropriate standard of proof thus infringing upon the application of the Parity Principle.
(b)Whether the learned sentencing Judge made an implied error when he imposed a total effective sentence of two years' and eight months' immediate imprisonment, which violated the first limb of the totality principle.
2.Whether the Court failed to determine to full satisfaction that the accused understood the nature of the charge and the consequences of the guilty plea prior to the Sentencing Judge turning on the implied facts not the evidential proof.
3.Whether the Sentencing Judge was unduly influenced by Judge Corboy's sentencing remarks in his determination on sentencing the co‑accused, whether the sentencing Judge was capable of overcoming any of the prejudicial comments made by Judge Corboy against the appellant?
4.Whether the prejudicial comments breached the appellant's Constitutional right to the principles of Procedural Fairness?
Read with her affidavit and appellant's case, these grounds appear, in substance, to involve contentions to the following effect:
(1)The sentence imposed on count 1 was manifestly excessive.
(2)The total effective sentence infringed the first limb of the totality principle.
(3)The sentences imposed infringed the parity principle.
(4)The sentencing judge failed to determine that the appellant understood the nature of the charge and the consequences of the guilty plea.
(5)The sentencing judge was unduly influenced by Corboy J's assessment of the culpability of the appellant when his Honour sentenced the appellant's son.
(6)The sentencing judge failed to afford procedural fairness to the appellant.
Bearing in mind that the appellant is not legally represented, we will deal with the substance of each of these contentions, notwithstanding any deficiencies in the expression of the grounds of appeal.

Disposition

The following general principles concerning appeals against sentence are well established:
(1)Sentencing is a discretionary exercise. An appellate court can intervene only if the appellant demonstrates either an express or implied material 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)In order to determine whether a sentence for an individual offence is manifestly excessive, the offence should be viewed in light of the maximum sentence prescribed by law for the crime, the standards of sentencing customarily imposed with respect to it, the place that the criminal conduct occupies on the scale of seriousness of crimes of that type, and the offender's personal circumstances.
(3)The first limb of the totality principle requires that the total effective sentence imposed on an offender who has committed multiple offences bears a proper relationship to the overall criminality involved in all of the offences (including those, if any, in respect of which the offender is still serving or is yet to serve a term of imprisonment), viewed in their entirety, having regard to all relevant facts and circumstances including those referable to the offender personally (and including, for example, the desirability of accommodating any wish to rehabilitate), all relevant sentencing factors and the total effective sentences imposed in comparable cases.
(4)The range of sentences customarily imposed for a crime does not establish the range of a sound exercise of the sentencing discretion. 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.
(5)When this court dismisses an appeal against sentence and when it resentences on a successful appeal, its decision does not fix the upper or lower limit of the range.
(6)Where there is a challenge on totality grounds, the severity of a sentence imposed on an individual count generally falls to be assessed in light of the sentences imposed in respect of the other counts and its contribution to the total effective sentence. A heavy individual sentence (that is not manifestly excessive) may be softened by an order that it be served concurrently with sentences imposed in relation to the other counts. A relatively light sentence (that is not manifestly inadequate) may, as a practical matter, have increased severity if it is ordered to be served cumulatively. The real question is whether the total effective sentence is unreasonable or plainly unjust.

The seriousness of an offence of criminal damage by fire, or arson as it is commonly termed, is reflected in its maximum penalty of life imprisonment. General deterrence is the dominant sentencing factor; the personal circumstances of an offender carry less weight than they might do in other cases involving different offences.[56] Among the considerations relevant to the seriousness of an arson offence is the motive with which the offence was committed, the extent of the damage caused by the offence, the extent to which the offence endangered human life, and the nature of the property damaged.[57]
[56] The State of Western Australia v Bennett [2009] WASCA 93; (2009) 194 A Crim R 137 [48]; McLaughlin v The State of Western Australia [2012] WASCA 204 [49]; Rimington v The State of Western Australia [2015] WASCA 102 [42].
[57] Newton v The State of Western Australia [2006] WASCA 247 [13]; Rimington [67].
In 2009, Parliament increased the maximum penalty for arson from 14 years' imprisonment to life imprisonment.[58] Prior to this increase in the maximum penalty, in very serious cases the offence of arson commonly attracted sentences within a range of 2 years 8 months to 4 years 8 months and, in less serious cases, 2 years to 3 years 4 months.[59] This range provided general guidance to sentencing judges, but did not fix an upper or lower limit.[60]
[58] Arson Legislation Amendment Act 2009 (WA), s 11(1)(b).
[59] Bennett [48]; McLaughlin [49] ‑ [50].
[60] McLaughlin [56].
Since the increase in the maximum penalty, patterns of sentences for arson have not yet emerged.[61] However, it is well-established that an increase in the maximum penalty for an offence is an indication that sentences for that offence should be increased.[62]
[61] McLaughlin [65]; Morcom v The State of Western Australia [2013] WASCA 31 [50].
[62] Muldrock v The Queen [2011] HCA 39; (2011) 244 CLR 120 [31]; McLaughlin [61]; Morcom [49].
While the appellant's offence was by no means the most serious example of an offence of criminal damage by fire, it nevertheless exhibited serious elements. It was premeditated, done for commercial gain and done in concert with others.
Bearing all these matters in mind, while giving full weight to the mitigating factors in the appellant's favour, the appellant's sentence of 2 years' immediate imprisonment on count 1 cannot be seen as manifestly excessive. To the contrary, it lies at the bottom of the range of sentences commonly imposed for less serious cases of arson, at a time before the maximum sentence was increased to life imprisonment. We agree with the sentencing judge's observation that his Honour could properly have imposed a sentence of 2 years 8 months' immediate imprisonment on count 1.
For these reasons, the appellant's complaint of manifest excess on count 1 is without merit. Further, given that it was open to the sentencing judge to impose a term of 2 years 8 months on count 1 alone, the total effective sentence of 2 years 8 months cannot be seen, even arguably, to infringe the totality principle.
In our view, there is also no merit in the appellant's claim that her sentence involved an infringement of the parity principle. The legal principles concerning parity were outlined by Buss JA (with whom Martin CJ & Mazza JA agreed) in Stoysich v The State of Western Australia.[63] It is not necessary to repeat that outline. Relevantly for present purposes, an appellate court will not intervene, on the basis of the parity principle, where disparity is justified by differences between co‑offenders such as age, background, criminal history, general character and the part each co-offender has played in the relevant criminal conduct or enterprise.[64] A sentencing judge's application of the parity principle involves a discretionary judgment to which the principles in House v The King[65] apply.[66]
[63] Stoysich v The State of Western Australia [2014] WASCA 208 [39] ‑ [45].
[64] Green v The Queen [2011] HCA 49; (2011) 244 CLR 462 [31].
[65] House v The King [1936] HCA 40; (1936) 55 CLR 499.
[66] Green [32]; Stanley v The State of Western Australia [2018] WASCA 229 [40].
Both the appellant and her son were sentenced on the basis that the appellant had led her son into committing the offences. That finding, of itself, amply justified the imposition of a higher sentence on the appellant than was imposed on her son. Moreover, the appellant's son was 19 years old when he was sentenced, and thus had the significant mitigating benefit of youth. His difficult adolescent years, in the context of his youth, afforded him some further mitigation. The appellant's son also pleaded guilty at an earlier stage, resulting in a higher discount under s 9AA.
In our view, it was well open to the sentencing judge to conclude, as he did, that:
(1)the appellant had played a more serious role in the offences than her son;
(2)the appellant's son had a number of significant mitigating factors in his favour which did not apply to the appellant; and
(3)consequently, it was appropriate to impose a substantially longer sentence on the appellant than had been imposed on her son.
Corboy J's reference to Mr Ferritto-Di Franco's troubled adolescence should not be misunderstood. Contrary to the appellant's apparent perception,[67] there was (and is) no suggestion that the appellant generally had, or continues to have, a poor relationship with her son. The point being made went no further than that, at an earlier period, the appellant's son had had a troubled adolescence, an aspect of which had included being estranged from his parents. Corboy J sentenced him on this basis, as was appropriately recognised by the sentencing judge in this case.
[67] Appeal ts 28 - 29.
The matters referred to in [32](5) and (6) above can be dealt with together. There was no unfairness, and no error, in the sentencing judge adopting Corboy J's observation that '[t]he fact that your mother should have led you into committing these offences is a shocking thing'. The sentencing judge specifically drew Corboy J's observation to the attention of counsel for the appellant in the course of sentencing submissions.[68] Counsel accepted that there was little or nothing she could say in response to that,[69] and that this was how the offending would be viewed, given that the appellant was a woman of 50 and her son was 19 at the time.[70]
[68] ts 35.
[69] ts 35 - 36.
[70] ts 36.
The appellant's complaint that the sentencing judge failed to determine that she understood the nature of the charge and the consequences of the guilty plea is not relevant to an appeal against sentence. An assertion of this kind could only be relevant to an appeal against conviction. The same is true of the apparent suggestions in the appellant's particulars of grounds,[71] affidavit[72] and in her oral submissions[73] that, in effect, she did not aid her son to commit the offence of criminal damage by fire. An offender's guilt cannot be challenged on their appeal against sentence.
[71] Appellant's case, particulars (e) - (g).
[72] Appellant's affidavit sworn 18 December 2018 (1, 2).
[73] Appeal ts 29.

Conclusion

For the above reasons, none of the grounds has any reasonable prospect of succeeding. Consequently, we would make the following orders:
1.Leave to appeal on all grounds is refused.
2.The appeal is dismissed.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
SL
Research Associate/Orderly to the Honourable Justice Beech
2 APRIL 2019