Campbell v The State of Western Australia
[2020] WASCA 131
•20 AUGUST 2020
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: CAMPBELL -v- THE STATE OF WESTERN AUSTRALIA [2020] WASCA 131
CORAM: BUSS P
MAZZA JA
MITCHELL JA
HEARD: 13 AUGUST 2020
DELIVERED : 13 AUGUST 2020
PUBLISHED : 20 AUGUST 2020
FILE NO/S: CACR 79 of 2020
BETWEEN: ZAC DANIEL CAMPBELL
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram: SWEENEY DCJ
File Number : IND ALB 43 of 2019
Catchwords:
Criminal law - Sentencing - Arson offences - Fire lit on roadside vegetation by member of volunteer bushfire brigade - 19 year old offender with intellectual impairment and no previous criminal record - Whether sentence of 12 months' immediate imprisonment is manifestly excessive
Legislation:
Bush Fires Act 1954 (WA), s 32
Result:
Leave to appeal granted
Appeal allowed
Sentence of 12 months' immediate imprisonment set aside
Sentence of 9 months' imprisonment, conditionally suspended for 12 months with a programme requirement, substituted
Category: D
Representation:
Counsel:
| Appellant | : | S H King |
| Respondent | : | J A Scholz |
Solicitors:
| Appellant | : | Legal Aid (WA) |
| Respondent | : | Director of Public Prosecutions (WA) |
Case(s) referred to in decision(s):
Ashford v The State of Western Australia [No 2] [2016] WASCA 222
Gok v The Queen [2010] WASCA 185
Kabambi v The State of Western Australia [2019] WASCA 44
Smith v The State of Western Australia [2017] WASCA 73
Spooner v The State of Western Australia [2008] WASCA 86
Tapper v The State of Western Australia [2016] WASCA 140
REASONS OF THE COURT:
The appellant appeals against his sentence of 12 months' immediate imprisonment in respect of one offence against s 32 of the Bush Fires Act 1954 (WA). The appellant entered an early plea of guilty to the charge of wilfully lighting a fire under such circumstances as to be likely to injure a person or damage property.
At the conclusion of the hearing of the appeal, we allowed the appeal and made orders having the effect of substituting a sentence of 9 months' imprisonment, conditionally suspended for 12 months with a programme requirement. These are our reasons for making those orders.
Circumstances of the offending
The appellant had been a member of a volunteer bush fire brigade group in the Kojonup area since 2017. In that role, he would attend fires in the local area with his employer's vehicle, which was equipped with a water tank, pump and hose, to help put out fires.[1] In the 24 hours prior to the commission of the offence, the appellant had attended and helped to extinguish six separate fires that had started along a 14 km stretch of the rural Kojonup-Frankland Road.[2]
[1] Primary ts 31.
[2] Amended Statement of Material Facts.
At 12.05 pm on Friday 11 January 2019, the appellant spoke with a friend by a 'poor signalled audio call'. The friend heard the appellant say something about the 'Jingalup turn-off', which is the intersection of Jingalup Road with the Kojonup-Frankland Road.[3]
[3] Amended Statement of Material Facts.
At about 12.15 pm on 11 January 2019, a truck driver approached the intersection of Kojonup-Frankland Road and Jingalup Road and saw the appellant standing there alone. The appellant said, 'Some bugger has lit a fire'. The truck driver could not see nor smell any fire or see any burnt ground anywhere nearby. The truck driver drove away.[4]
[4] Amended Statement of Material Facts.
The appellant then lit a fire on the road verge near the intersection of Kojonup-Frankland Road and Jingalup Road. The location on which the appellant lit the fire was close to two double gates leading to a farmer's property. The appellant lit the fire on the verge next to pasture which, in January, was yellow and dry. The 'road was generally [a] gravelly sort of verge but also with gumtrees and scrub here and there'.[5]
[5] Primary ts 32.
The fire danger rating on 11 January 2019 was low to moderate. The maximum temperature was 260 C that afternoon, and the winds were under 10 km/h for most of the day.[6]
[6] Primary ts 31.
The appellant was in the vehicle, which he used for work as a farm hand, that could be used for extinguishing fires. The fire was a small fire, and the appellant commenced putting the fire out soon after lighting it.[7]
[7] Primary ts 31.
At 12.24 pm on 11 January 2019, the appellant spoke to his friend again and said that there was a fire at the Jingalup turn-off. Minutes later, firefighters arrived to attend the fire and the appellant assisted them to do so.[8]
[8] Amended Statement of Material Facts.
The fire was a small fire which burned a gum tree lined area of verge and also got into the adjacent paddock.[9]
[9] Primary ts 32.
When interviewed by police, the appellant lied about his starting the fire. In doing so, the appellant said:[10]
I hate fire fighting fires because it can be very dangerous cos it can just turn bad and everyone's dead. One change in the wind and you're goodbye.
This comment indicated that the appellant understood the risk involved in fires and that a change in the wind could take a small fire and make it a big fire.[11]
[10] Primary ts 33.
[11] Primary ts 32 - 33.
While the fire itself was small, and the risk was less than it would have been had the fire risk that day been high, the sentencing judge did not consider the risk of the fire getting away to have been slight.[12]
[12] Primary ts 38.
Personal circumstances
The appellant was 19 years old at the date of the offence and 20 years old at the date of sentence.[13]
[13] Primary ts 33.
The appellant has no prior criminal convictions.[14]
[14] Primary ts 33; appellant's criminal record (sentence appeal book p 61).
The appellant had what the sentencing judge described as a 'normal supportive childhood free of trauma or bad influences within the home'. He was diagnosed with attention deficit disorder at a young age, and has been medicated for that condition. He has also been assessed as having a 'mild cognitive impairment', which resulted in short term memory difficulties, and manifested itself in a learning disability leaving the appellant with difficulties with literacy and numeracy. The appellant also uses a hearing aid.[15] The sentencing judge found:[16]
Probably as a result of that impairment, you've suffered from being bullied at school, and as a result, you appear to have made few friends at school and you've been generally a loner. As a result, it appears that you've suffered moderate levels of depression and anxiety.
[15] Primary ts 33.
[16] Primary ts 34.
The appellant's parents took him out of the local high school at around the age of 14, and sent him to an agricultural college where he felt more accepted and settled. The appellant stayed at school until he was 17 years of age.[17] Although not specifically referred to by the sentencing judge, a reference from a special needs education assistant at the agricultural college revealed that he received special needs assistance at the college and faced a number of significant learning and social difficulties.[18]
[17] Primary ts 34.
[18] Sentence appeal book, p 62 - 63.
The appellant had given inconsistent and improbable accounts of his reasons for starting the fire, including by telling the court-appointed psychologist that it was a suicide attempt. The psychologist noted the appellant's mother indicated that he was likely to offer differing explanations of the same event if questioned at different times. The psychologist observed:[19]
This latter issue was evident at times during interview: this seeming inconsistency in his recollection may be, at least partially, a reflection of his mild cognitive impairment, that when he has difficulty understanding, or clearly and precisely remembering, he may provide any explanation to 'create meaning'. As such, it is unlikely to be a deliberate attempt to prevaricate or mislead. It does mean however, that information provided by [the appellant] without corroboration should be accepted with caution.
[19] Psychological report, par 2.
The sentencing judge said that, while the appellant was the only person who truly knew why he lit the fire, the psychologist's view that he was motivated by a desire for positive attention in his role as a volunteer firefighter was likely to be correct.[20] Later, the sentencing judge observed:[21]
Your learning disability and your ADD is obviously not your fault and it sets you up to be a bit of an outsider and a loner, which then leads to the depression. And I accept this is all part of a complex picture as to why you would light a fire, deliberately, because it seems to me you were living a fairly lonely sort of life and feeling down and this fire-fighting brought you into contact with people, as part of a group.
And sometimes, beers were drunk afterwards. You told the police that. And it made you a part of something. It gave you something to belong to. So I do consider that your mild impairment and your moderate depression are linked to why you lit the fire. (emphasis added)
[20] Primary ts 35.
[21] Primary ts 37.
The appellant had what the sentencing judge described as a 'reasonable work history' and 'good work ethic'. He had worked as a farm hand and more recently as a cleaner at a local abattoir. He was unemployed at the time of sentence. He tried working in a family owned business, but had difficulty working with his father as 'the boss'. He had family support.[22]
[22] Primary ts 34, 37.
Sentencing judge's approach
The sentencing judge made findings as to the circumstances of the offending and the appellant's personal circumstances noted above.
The sentencing judge found that the appellant pleaded guilty at an early opportunity, for which he received a discount of 22% under s 9AA of the Sentencing Act 1995 (WA).[23]
[23] Primary ts 36.
The sentencing judge also noted that the appellant came before the court as a first offender, and had just turned 19 when he committed the offence. After explaining why it is always a serious thing to send a young man of prior good character to prison,[24] the sentencing judge observed:[25]
However, it must be said that this court does send young men of good character to prison when the offence is serious enough. For example, if they're found dealing in small amounts of drugs or for serious violent offences, because of the seriousness of the offending and the risk to the community. So youth is a powerful mitigating factor and I take it into account. But it may be outweighed by other factors.
[24] Primary ts 36.
[25] Primary ts 37.
The sentencing judge made the following observations in relation to the risks associated with lighting the fire:[26]
And finally, I take into account that the day on which you lit the fire was a mild one for January. There was no strong wind. The fire was very small, before you began to put it out. And you did stay put to put it out. That distinguishes this from a fire lit on a day with a high fire risk conditions and one that is left to burn unattended.
However, as I commented earlier, you know very well the risks in lighting a fire. The wind can change. The environment you were in was rural, with paddocks. There were trees where you lit the fire. Gum trees, that is. It was January and the west is dry and a grass fire can move very, very quickly and meet more fuel and gain momentum.
So while I will take into account that the fire itself was small, and that the risk was less than it would have been had the fire conditions that day obviously been high, I do not consider the risk to have been slight, particularly not when you yourself said one of the fires that started only hours earlier was big and another was medium.
As against the matters in mitigation, when you deliberately light a fire in Australia in January when the land is dry and ready to burn, even though you are there to put it out, you deliberately take the risk that it will get away from you. There is little point deliberately lighting a fire if you don't [sic] put it out when it's only a few inches big. There was no guarantee you would be able to put it out.
It was only a few years ago in the south-west when you must have been about 14 years old that the town of Yarloop and thousands of hectares of land was decimated and people bunkered down on the beach taking shelter, and farmers lost many, many stock, not to mention all of the wildlife.
There were fires in Albany and the ranges, and the Kojonup region has been no stranger to serious fires. The news every night was absolutely heartbreaking, as it is every time a fire gets out of control in Australia.
Notwithstanding your mild cognitive impairment, no one is suggesting that you don't know right from wrong and you certainly know all about the risks of fire. To take the risk, any risk whatsoever, with something so lethal as fire, shows so little regard for your fellow man and the animals in the area, such total self-absorption, that you must be considered at risk to the community.
[26] Primary ts 37 - 38.
The sentencing judge also made the following observations as to the impact of offending of this kind on the reputations of volunteer firefighters:[27]
And you must know that people sometimes suspect volunteer firefighters as people who start fires. And people like you are the reason why. It is so very unfair on the vast majority of volunteer firefighters who are simply brave people who are willing to risk their lives to keep everyone else safe from fire that people like you give rise to these lurking suspicions in the community.
[27] Primary ts 38.
The sentencing judge referred to the high need for specific and general deterrence, noting that there was no material before her Honour indicating that she should not 'give full weight to the need for specific deterrence'.[28]
[28] Primary ts 38 - 39.
The sentencing judge noted that both the State and appellant accepted the need for a sentence of imprisonment. The sentencing judge noted that the appellant submitted that the term should be suspended and that the State did not press for a term of immediate imprisonment.[29] After referring to and distinguishing the decision of this court in Ashford v The State of Western Australia [No 2],[30] the sentencing judge said:
I must not impose an immediate term unless it would be inappropriate to suspend it. I have considered all of the matters in mitigation again, and I have considered the circumstances of the weather that day and the terrain and the smallness of the fire before it got put out. I have also considered the State submission to the effect that it is not pressing for a term of immediate imprisonment. However, notwithstanding all of those factors, I consider this offence to be too serious, and the need to deter you and others from lighting fires to be too high to appropriately suspend the term. It must be immediate.
[29] Primary ts 39.
[30] Ashford v The State of Western Australia [No 2] [2016] WASCA 222.
The sentencing judge them imposed a term of 12 months' immediate imprisonment, with eligibility for parole.
Manifest excess - general principles
The sole issue raised in the appeal is whether the sentence imposed on the appellant was manifestly excessive as to type. There is no challenge to the sentencing judge's conclusion that imprisonment was the only appropriate sentencing option or as to the length of the sentence of imprisonment imposed. Nor is there any issue taken as to the sentencing judge's statement of the general sentencing principles. Rather, the ground of appeal invites this court to infer error from a sentence which is unreasonable or plainly unjust. The only issue in this appeal is whether it was reasonably open to the sentencing judge to conclude that suspended or conditionally suspended imprisonment were inappropriate sentencing options.
The principles relevant to allegations of implied error are well established, and were summarised in Kabambi v The State of Western Australia.[31] It is unnecessary to repeat those principles here.
[31] Kabambi v The State of Western Australia [2019] WASCA 44 [21].
It is also well established that, under s 39 and related provisions of the Sentencing Act, 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. The discretion to suspend or conditionally suspend a term of imprisonment is not confined by considerations relating to rehabilitation. In a particular case, the objective features of an offence may outweigh the personal considerations of rehabilitation.[32]
[32] Tapper v The State of Western Australia [2016] WASCA 140 [68] - [70] and the cases there cited.
Disposition
In Smith v The State of Western Australia,[33] this court observed:
As has been noted on a number of occasions, the courts do not ordinarily impose a term of immediate imprisonment on youthful offenders of prior good character without considerable pause and reflection. There are circumstances where the seriousness of the nature and circumstances of offending may require a sentence of immediate imprisonment. While mitigating factors must be given appropriate weight, they must not be allowed to lead to the imposition of a penalty which is disproportionate to the gravity of the offence. However, youth combined with prior good character may lead a sentencing court to refrain from imposing what would otherwise be an appropriate custodial sentence. (citations omitted)
[33] Smith v The State of Western Australia [2017] WASCA 73 [50].
The appellant had just turned 19 years old at the time of the offence and was of prior good character.
The maximum penalty for the offence is 20 years' imprisonment. However, as reflected in the sentence of 12 months' imprisonment imposed by the sentencing judge, the criminality of the offending was very much towards the lower end of the scale of seriousness of offending of this kind.
The parties' submissions made particular reference to two decisions of this court, each of which has some similar features to the present case, which considered whether it was open to a sentencing judge to impose a sentence of immediate imprisonment.
In Ashford, the 20 year old offender, who was a member of a volunteer bushfire brigade, pleaded guilty to an offence against s 32 of the Act. The offender set fire to bushland immediately after reporting a fire at the location in a 000 call. No more than 10 m2 was burnt by the fire, which was lit on a day in August when more than 40 mm of rain had fallen, so that the risks were assessed to be 'of a substantially different magnitude to an ordinary case'. The offender had undertaken significant steps towards rehabilitation, and the risk of his reoffending was assessed to be negligible. The offender's use of alcohol and MDMA was found to have contributed towards the offending and, while he was suffering from a major depressive episode, there did not appear to be a direct relationship between the offender's mental illness and his offending. The sentence of 12 months' immediate imprisonment imposed for the s 32 offence, as part of a total effective sentence of 12 months' immediate imprisonment for that and other related offences, was set aside on appeal and a sentence of suspended imprisonment was substituted.
As noted by the sentencing judge in the present case, Ashford is distinguishable on the basis that there is a difference between lighting a fire on a wet August day and doing so on a dry January day. The offender in Ashford also had taken positive steps towards rehabilitation which are not evident in this case. However, it does not appear that the offender in Ashford had equipment with him that would have enabled him to put out the fire. The offender in Ashford, unlike the appellant, did not have a mental impairment causally related to the offending.
Spooner v The State of Western Australia[34] also concerned a 19 year old volunteer firefighter who was convicted of an offence against s 32 of the Act. He had been the subject of rumours that he was responsible for lighting fires in his district. The offender decided to light fires in another brigade's district, believing that if fires started outside the district of his fire brigade it would dispel the theory that someone from his brigade was lighting them. The offender was convicted after trial of lighting a fire on 16 November 2005, in a topography which the offender said was chosen to minimise the potential danger to persons and property. The fire was started within 1 - 2 km of the local fire station, and close to residential housing, on a day when the temperature was 23.60 C and the humidity was 48%. The offender rode away on a bicycle after starting the fire. He had offered to plead guilty to the offence, as well as to two other offences against s 32 in respect of fires he admitted lighting on two separate days. The offer was rejected and the appellant went to trial on those and a number of other counts. Despite admitting to having lit fires on three occasions, the offender was convicted of only the above offence. He was sentenced to 12 months' immediate imprisonment at a time when the maximum penalty for an offence against s 32 of the Act was 14 years' imprisonment. Despite finding express error in the sentencing judge's remarks, this court concluded that no different sentence should have been imposed.
[34] Spooner v The State of Western Australia [2008] WASCA 86.
The offending in Spooner may be regarded as more serious than the offending in the present case, in that the offender left after starting the fire close to residential housing, the offending was planned and was committed in a context where the offender admitted lighting fires on two other occasions. While the offender was of good character, he was not cognitively impaired. In affirming the sentence imposed, Steytler P, with whom McLure and Buss JJA agreed, observed:[35]
In my opinion, even taking into account all of the matters personal to the appellant, giving full weight to his admissions and offer to plead guilty, his remorse, the unlikelihood that he will re-offend, his age, his behaviour while on bail and the fact that he did not intend that there would be any damage to persons or privately owned property, the seriousness of the offence is such that the only appropriate sentence is one of immediate imprisonment.
…
In the present case, as the sentencing judge found, the appellant knew of the potentiality of danger from a bush fire. He must also have been aware of the concern that people living in bush suburbs had about the threat of fires. Notwithstanding this, he lit the fire in an area close to residential housing. The threat from a possible wind change was made apparent by the evidence establishing that a strong south, south westerly wind had pushed the head of the fire close to privately owned property, in circumstances in which the fire had been likely to jump the fire break.
Offences of this kind have potentially very serious consequences. That is why the legislature regards them as so serious as to justify a maximum penalty of 14 years' imprisonment. Moreover, they are extremely difficult to detect. This makes deterrence an issue of fundamental importance.
[35] Spooner [48], [50] - [51].
In the present case, the actual harm caused by the offence was negligible: a small amount of burnt grass on the roadside and in a paddock. Further, the seriousness of the offending, in terms of the risk of harm to persons and property, was reduced by the fact that:
(1)The road verge area in which the fire was started was not heavily or densely vegetated, and was readily accessible to firefighters.
(2)The appellant did not leave the area after starting the fire.
(3)The appellant had firefighting equipment with him, which he could and did use to help extinguish the fire.
(4) The fire was not started in proximity to buildings used for commercial or residential purposes.
The sentencing judge's finding that the risk of the fire escaping was not 'slight' is not challenged and may be accepted in light of the time of year at which the fire was started and the dryness of the vegetation which was in the area. However, having regard to the matters referred to in the previous paragraph, the risk of escape was relatively low.
What was described as the appellant's 'mild cognitive impairment' must also be taken into account. The use of the general descriptor 'mild' should be understood in light of the following unchallenged evidence. The appellant was unable to read.[36] The BCAT assessment tool used by the psychologist suggested that the appellant was likely to have 'considerable difficulty with memory such as making new memories and learning new things', and that he 'might have considerable difficulty with judgement, problem-solving and reasoning in everyday life'.[37] The impairment had resulted in significant impact on the appellant's schooling. It resulted in him being unable to give consistent accounts of events when repeatedly asked about them.[38] The cognitive impairment was found to be causally linked to the appellant's offending.[39]
[36] Psychologist's report, par 4.
[37] Psychologist's report, pars 11 - 12.
[38] A factor that was noted by the special needs education assistant (sentence appeal book, p 62 - 63) as well as by the psychologist (psychologist's report, par 2).
[39] As to the impact of mental impairment causatively linked to the commission of an offence on sentencing considerations, see Gok v The Queen [2010] WASCA 185 [53] - [61].
The appellant's cognitive impairment reduces the significance of general deterrence as a sentencing consideration in the present case, and somewhat reduces the appellant's moral culpability for the offending. The appellant is a very young man requiring ongoing therapeutic treatment for whom prison is likely to be a very difficult environment, having regard to his impairments and his experiences of bullying at school. Prison will be a more onerous experience for him than for a person without the appellant's cognitive and hearing impairments, and is likely to be counter-productive to his rehabilitation.
While the appellant's offending was undoubtedly serious, when account is taken of the nature and degree of risk of harm to persons or property, the offending was not so serious as to demand the immediate imprisonment of a very young man of prior good character who suffered from the cognitive impairment described above. In the circumstances, it was not reasonably open to her Honour to be positively satisfied that conditionally suspended imprisonment was an inappropriate sentencing option. The decision to impose a term of immediate imprisonment was unreasonable and plainly unjust.
In our view, the appropriate sentencing disposition is a term of imprisonment, conditionally suspended with a programme requirement to enable the appellant's treatment needs to be addressed. The term of imprisonment to be conditionally suspended should be reduced from 12 months to 9 months to take account of the approximately 3 months the appellant has spent in custody since being sentenced. A suspension period of 12 months is appropriate.
It was for the above reasons that we granted leave to appeal, allowed the appeal, set aside the sentence imposed by the sentencing judge and substituted a sentence of 9 months' imprisonment, conditionally suspended for 12 months with a programme requirement under s 84A of the Sentencing Act 1995 (WA).
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
ZMM
Associate to the Honourable Justice Mitchell20 AUGUST 2020
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