Bordley v The State of Western Australia
[2014] WASCA 18
•24 JANUARY 2014
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: BORDLEY -v- THE STATE OF WESTERN AUSTRALIA [2014] WASCA 18
CORAM: NEWNES JA
MAZZA JA
HEARD: 11 DECEMBER 2013
DELIVERED : 24 JANUARY 2014
FILE NO/S: CACR 185 of 2013
BETWEEN: JASON JOHN BORDLEY
Plaintiff
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram :McCANN DCJ
File No :IND 319 of 2013
Catchwords:
Criminal law - Sentencing - Application for leave to appeal against sentence - One count of wilfully lighting a fire - Bush Fires Act 1954 (WA), s 32(2)(a) - Fire in bushland near emergency services - Early plea of guilty - Substantial criminal record - High risk of reoffending - Sentence of 22 month's imprisonment
Legislation:
Bush Fires Act 1954 (WA), s 32(2)(a)
Criminal Code (WA), s 444
Result:
Application for leave to appeal dismissed
Appeal dismissed
Category: B
Representation:
Counsel:
Plaintiff: Mr B Hanbury
Respondent: No appearance
Solicitors:
Plaintiff: Beau Hanbury
Respondent: No appearance
Case(s) referred to in judgment(s):
Chan v The Queen (1989) 38 A Crim R 337
McLaughlin v The State of Western Australia [2012] WASCA 204
Muldrock v The Queen [2011] HCA 39; (2011) 244 CLR 120
Munda v The State of Western Australia [2013] HCA 38; (2013) 302 ALR 207
Spooner v The State of Western Australia [2008] WASCA 86
The State of Western Australia v Akizuki [2008] WASCA 267; (2008) 192 A Crim R 373
The State of Western Australia v Bennett [2009] WASCA 93; (2009) 194 A Crim R 137
JUDGMENT OF THE COURT: On 11 December 2013, we dismissed the appellant's application for leave to appeal on the ground that it had no reasonable prospect of success. The appeal was accordingly dismissed. We said we would provide reasons for our decision in due course. These are the reasons.
Background
On the afternoon of 1 February 2013, the appellant deliberately set fire to bushland in three places over a distance of 500 m in a reserve near the Canning River in Cannington. It was a hot summer day with a very high fire danger. The bushland was traversed by public paths and it was adjacent to residential and commercial areas. Public utilities including a police station and the local fire brigade were also close by.
A total of 2.3 ha of bushland was burnt before the fires were brought under control by five fire units assisted by five police units and municipal officials.
The appellant pleaded guilty to one count of wilfully lighting a fire likely to injure or damage a person or property, contrary to s 32(2)(a) of the Bush Fires Act 1954 (WA).
Sentencing remarks
The sentencing judge noted that the appellant was 38 years old when the offending occurred. The appellant had what his Honour described as a 'psychologically challenging' childhood and adolescence. That observation reflects the statement in a psychiatric report before his Honour that the appellant had had a 'psychologically impoverished' childhood in which his parents were distant and critical of him and he had major attachment difficulties. That, the report said, had led to the appellant having a lack of social skills and feelings of isolation and disconnection from society. The appellant was also described in the report as having developed only limited coping skills and as having difficulties with self-control. Similar comments were made in a psychological report before his Honour in which the appellant was described as 'socially phobic and inept'.
The appellant, his Honour noted, had had a reasonable employment history up to 2009 but since then had been unemployed. Immediately prior to offending, the offender had been living in a caravan park for two years and was completely socially isolated, as had been the case for most of his life. The sentencing judge found that the appellant had been abusing prescription and over the counter codeine‑based medicines and at the time of the offence was experiencing withdrawal symptoms. His Honour accepted the opinion expressed in the psychiatric report that at the time of the offending the appellant was experiencing an acute psychotic episode, accompanied by symptoms of paranoia, anxiety and opiate dependence.
His Honour found that the appellant was a chronic substance abuser and inept loner with sociophobic problems. The offending was a form of attention seeking behaviour and the appellant committed the offence with a view to being arrested and given assistance with his perceived psychological and psychiatric needs.
The appellant's prognosis was found by the sentencing judge to be poor. His Honour considered that he represented a high risk of re‑offending in a general antisocial way. Of particular concern were the appellant's poor coping mechanisms, criminal history, poor employment prospects, history of substance abuse and 'propensity to truth distortion'. His Honour noted that the appellant had prior convictions for property and dishonesty offences, including six burglaries, a drug conviction and, more recently, a significant history of traffic offending.
The sentencing judge observed that the offending was a very reckless act which posed a real risk of harm to property and persons. It was premeditated and the location was carefully chosen. His Honour considered that while the location was mitigatory to some extent because the fire was lit so close to emergency services, that also demonstrated that the appellant's cognitive skills were essentially intact.
In relation to mitigating factors, his Honour found that the appellant's acute psychotic episode at the time of offending provided only limited mitigation as it was mostly self‑induced by drug use and associated withdrawal symptoms, and only to a lesser extent caused by entrenched psychosocial maladjustment. The appellant's plea of guilty at the earliest reasonable opportunity was, however, a substantial mitigating factor and the sentencing judge gave a 25% discount for it.
The sentencing judge found that protection of the public and personal deterrence were of particular significance in this case. He sentenced the appellant to 22 months' immediate imprisonment, with eligibility for parole.
Grounds of appeal
By the grounds of appeal it is contended, in substance, that the sentence was manifestly excessive, a suspended sentence being the appropriate disposition.
Disposition of the appeal
When considering whether a sentence is manifestly excessive, it is necessary to view the sentence in light of the maximum sentence prescribed by law for the offence (in this case, 20 years' imprisonment), the standard of sentencing customarily observed with respect to the offence, the place which the criminal conduct occupies on the scale of seriousness of offences of that type, and the personal circumstances of the offender: Chan v The Queen (1989) 38 A Crim R 337, 342.
However, while for consistency it is necessary to have regard to sentences customarily imposed in cases involving similar offending, the range of sentences that have been imposed in the past does not fix the boundaries within which judges must, or even ought, to sentence in the future: see The State of Western Australia v Akizuki [2008] WASCA 267; (2008) 192 A Crim R 373 [3]; Munda v The State of Western Australia [2013] HCA 38; (2013) 302 ALR 207 [39] ‑ [40].
In relation to comparable sentences, counsel for the appellant referred to Spooner v The State of Western Australia [2008] WASCA 86, where the offender was convicted after trial on one count of wilfully lighting a fire, contrary to s 32(a) (the then equivalent to s 32(2)(a)) of the Bush Fires Act. In that case, the 19‑year‑old offender lit a fire with a cigarette lighter alongside a popular walking track in Glen Forrest. He said he considered the weather conditions (the temperature was 23.6 degrees) and topography before doing so. He chose an area near a quarry, with sparse bush on one side, a fire break on the other and a fire break behind it. According to the offender, he thought that, with this topography, the potential danger to property or persons was low. After lighting the fire, the offender went home. According to the offender, he did not intend to cause any harm, damage or injury to any person. However, the fire had been dangerous, growing to around 20 m by 25 m fanned by strong south‑westerly winds. It took the fire brigade two hours to extinguish the fire. An appeal against a sentence of 12 months' imprisonment was dismissed.
There are, however, three important features which distinguish that case from the present case. The first is that the offender in Spooner was young and previously a person of good character with no relevant criminal history. The second is the finding that he was unlikely to reoffend. The third is that at that time the maximum penalty for the offence was 14 years' imprisonment. In December 2009, the maximum penalty was increased to 20 years' imprisonment: Arson Legislation Amendment Act 2009 (WA). An increase in the maximum penalty for an offence is an indication that sentences for the offence should be increased: Muldrock v The Queen [2011] HCA 39; (2011) 244 CLR 120 [31].
In light of the paucity of cases in which sentences under s 32(2)(a) of the Bush Fires Act have been considered, reference was also made to cases of criminal damage by fire, commonly described as arson, under s 444 of the Criminal Code (WA) in the period in which the maximum penalty for that offence was 14 years' imprisonment (in December 2009 it was increased to life imprisonment by the Arson Legislation Amendment Act 2009). In The State of Western Australia v Bennett [2009] WASCA 93; (2009) 194 A Crim R 137 [48], Miller JA (with whom Owen and Buss JA agreed), having reviewed a number of cases, concluded that (in post‑transitional terms) the offence commonly attracted sentences within a range of 2 years 8 months to 4 years 8 months in 'very serious cases', and 2 years to 3 years 4 months in 'less serious cases'. See also McLaughlin v The State of Western Australia [2012] WASCA 204 [54] ‑ [56]. I should note that none of the cases considered in Bennett or McLaughlin were comparable to the present case. We were not referred to, and our own research has not unearthed, any cases under s 444 in the relevant period which are comparable.
The seriousness with which offences under s 32(2)(a) of the Bush Fires Act are regarded is apparent from the maximum penalty of 20 years' imprisonment. In this case, the fires lit by the appellant, although intended to be readily detected and extinguished, posed a serious risk to the nearby buildings and their occupants, particularly in the circumstances of a hot summer day with a very high fire danger. The fires were not of an insignificant nature. The appellant lit them in three different places over a distance of approximately half a kilometre and 2.3 ha of bushland were burnt out before they were brought under control. The comment of the sentencing judge that the location of the fires was mitigatory to some extent is not, with respect, something with which we would agree. Indeed, the location of the fires put at risk the emergency services themselves.
The appellant's early plea of guilty was a significant mitigating feature, for which, as we have mentioned, the sentencing judge reduced the sentence that he would otherwise have imposed by 25%. As the sentencing judge observed, the appellant's acute psychotic episode, largely self‑induced, provided only limited mitigation. There was otherwise little that was favourable to the appellant. He was 38 years old at the time of the offending and has a significant criminal record. He has been assessed as being at a high risk of committing further criminal offences, which emphasises the need for personal deterrence and the protection of the public.
In our view, the sentence of 22 months' imprisonment was clearly within a proper exercise of the sentencing discretion. The appeal has no reasonable prospect of success.
Conclusion
It was for these reasons that we dismissed the application for leave to appeal, with the result that the appeal was dismissed.
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