CJH v The State of Western Australia - [2013] WASCA 139

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT : THE COURT OF APPEAL (WA)

CITATION: CJH -v- THE STATE OF WESTERN AUSTRALIA [2013] WASCA 139

CORAM: BUSS JA
MAZZA JA
JENKINS J

HEARD: 17 MAY 2013

DELIVERED : 5 JUNE 2013

FILE NO/S: CACR 95 of 2013

BETWEEN: CJH
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent

ON APPEAL FROM:
Jurisdiction              :  CHILDREN'S COURT OF WESTERN AUSTRALIA
Coram  :REYNOLDS DCJ
File No  :CC 709 of 2012

Catchwords:

Criminal law - Appeal against sentence - Juvenile offender - Appellant convicted of failing to use reasonable care and to take reasonable precautions to contain a fire under his control so that it did not destroy property - Section 445A read with s 444A(2) of the Criminal Code (WA) - Fire effectively destroyed a primary school - Cost of repairing and reinstating the building between $16 million and $20 million - Sentence of 8 months' immediate detention - Whether sentence manifestly excessive

Criminal law - Principles governing the sentencing of juvenile offenders - Young Offenders Act 1994 (WA)

Legislation:

Arson Legislation Amendment Act 2009 (WA)
Children's Court of Western Australia Act 1988 (WA), s 42A
Criminal Code (WA), s 444A, s 445A
Young Offenders Act 1994 (WA), s 7, s 46, s 101, s 118, s 120

Result:

Leave to appeal granted
Appeal dismissed

Category: A

Representation:

Counsel:

Appellant: Mr N J Lemmon
Respondent: Mr J McGrath SC

Solicitors:

Appellant: Nick Lemmon Barrister & Solicitor
Respondent: Director of Public Prosecutions (WA)

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

Ainsworth v D (a child) (1992) 7 WAR 102
F (a child) v The State of Western Australia [2004] WASCA 193
JA (a child) v The State of Western Australia [2008] WASCA 70
JSA v The State of Western Australia [2012] WASCA 25; (2012) 42 WAR 473
JTP v The State of Western Australia [2010] WASCA 191
Koppen and Horrocks v The Queen (Unreported, WASCA, Library No 8148, 19 March 1990)
Lowndes v The Queen [1999] HCA 29; (1999) 195 CLR 665
MC (a child) v The Queen [2003] WASCA 205
Newton v The State of Western Australia [2006] WASCA 247
R v Catts (1996) 85 A Crim R 171
R v DP (a child) [2003] WASCA 92
Scott v The Queen (Unreported, WASCA, Library No 7607, 14 April 1989)
Spooner v The State of Western Australia [2008] WASCA 86
The State of Western Australia v A Child [2007] WASCA 115; (2007) 172 A Crim R 51
The State of Western Australia v Bennett [2009] WASCA 93; (2009) 194 A Crim R 137
TL (a child) v The State of Western Australia [2005] WASCA 173

BUSS JA: This is an appeal against sentence.
The appellant was convicted on his plea of guilty in the Children's Court before its President, Reynolds DCJ, of one charge in a prosecution notice.
The charge alleged that on 7 July 2012 the appellant, being a person who was in control of a fire, unlawfully omitted to do an act which it was his duty to do, namely to use reasonable care and to take reasonable precautions to contain the fire so that it did not destroy property, namely the Mount Lawley Primary School, which he was not entitled to destroy, contrary to s 445A, read with s 444A(2), of the Criminal Code (WA) (the Code).
The appellant's co‑accused, MLT, was charged with the same offence. He also pleaded guilty.
The sentencing judge imposed a sentence of 8 months' immediate detention on each of the appellant and MLT. Each of them is eligible for release under a supervised release order upon serving 50% of the term.
This appeal was heard together with an appeal against sentence by MLT.

Overview of the offending

Between 9.20 pm and 11.40 pm on Saturday, 7 July 2012, the appellant, MLT and a female juvenile were on the grounds of the Mount Lawley Primary School. They walked into an undercover quadrangle located in the centre of the school building. Each of the appellant and MLT had a cigarette lighter. They used the lighters to ignite two or three plastic chairs. One of the chairs was under a timber walkway on the southern side of the quadrangle. The appellant, MLT and the female juvenile left the school premises while melted plastic from this chair was still burning. After they departed, the walkway and adjacent classrooms caught alight. The fire spread rapidly through most of the school building. Numerous fire fighting crews attended. After a number of hours the fire was brought under control. The affected parts of the school building had to be demolished. The cost of repairing and reinstating the school building is between $16 million and $20 million.

The sentencing judge's sentencing remarks and the appellant's culpability and personal circumstances

The appellant said in a video‑recorded interview with the police that three plastic chairs were ignited. He ignited two and MLT ignited one. He ignited the chair under the timber walkway and MLT ignited a chair in another part of the quadrangle (VROI 28 ‑ 33). MLT said in a separate video‑recorded interview with the police that two chairs were ignited. He ignited one and the appellant ignited the other (VROI 27 ‑ 31).
Reports prepared by officers of the Arson Squad identified two sources of fire. One source was the plastic chair ignited by the appellant under the timber walkway. This caused the damage to the school building. The other source was a plastic chair, apparently ignited by MLT, under a basketball hoop. This caused only localised damage.
The sentencing judge said the decision by the appellant and MLT to set fire to the plastic chairs with cigarette lighters and to watch them burn was probably caused, or at least contributed to, by their having consumed alcohol and cannabis (ts 5).
Each of the appellant and MLT was jointly involved in the arson of the plastic chairs and the contravention of s 445A read with s 444A(2). They were therefore jointly responsible for the conflagration and its consequences. The appellant and MLT left the scene when melted plastic from the chair under the timber walkway was in a puddle on the ground with flames emanating from the puddle (ts 5). His Honour elaborated:
Even though the height of the flames had reduced to several centimetres at the time that you left the area, the fact of the matter is there was still ignition of the melted plastic on the ground, and near wood, and very proximate to the school, and that woodwork [formed] part of the external structure of the school. There was clearly some appreciation of the danger because there was some attempt [by the appellant and MLT] to stomp the fire out (ts 5).
Although the sentencing judge found that each of the appellant and MLT was jointly responsible for the conflagration and its consequences, his Honour dealt separately, in his sentencing remarks, with each of the appellant and MLT and decided separately upon the sentence appropriate for each of them (ts 6 ‑ 13).
The appellant knew, when he departed from the school grounds with MLT and the female juvenile, that the flames had not been extinguished. He merely assumed that the fire would 'burn out' (VROI 31).
The sentencing judge said the conduct of the appellant and MLT in leaving the scene constituted a very serious failure by each of them to take reasonable care and reasonable precautions to contain the fire so that it did not damage or destroy the school building (ts 5).
It was accepted that the appellant and MLT did not set fire to the plastic chairs with the intention of damaging or destroying the school building. Nevertheless, they committed a serious offence of its kind. On his Honour's assessment, their overall criminal responsibility was high (ts 6).
The sentencing judge noted that the school was in a residential area and that the potential risk to life and other property if the fire had spread was obvious (ts 6).
The appellant was aged 16 years 6 months at the time of the offending and was 17 years 3 months when sentenced. MLT was aged 15 years 9 months when the offending occurred and was 16 years 6 months at the time of sentencing.
The appellant pleaded guilty at the earliest opportunity. After initially denying any role in the offending, the appellant acknowledged his criminal behaviour to the police. He cooperated and made a number of significant admissions. The appellant participated in a victim mediation process. This was a very emotional experience for everyone, including the appellant. He made an apology to the victims. His genuine remorse and contrition was accepted by the representatives of the school and the students who attended the mediation.
The appellant did not have a prior criminal record. He left secondary school early in year 11 and commenced an apprenticeship as a diesel mechanic. His attendance and conduct at school deteriorated in year 10. The appellant blamed this behaviour on his experimentation with cannabis and his association with anti‑social friends and acquaintances. After committing the offence he suffered stress as a result of the media attention generated by the fire. He was absent from work for two days because he felt ill. However, he did not inform his employers about the reason for this absence and, as a result, his apprenticeship was terminated in mid‑November 2012. At the time of sentencing the appellant was working with his father on a casual basis and was endeavouring to secure another apprenticeship. The appellant has strong family support and stable residential accommodation.
It appears that the triggers for his offending were substance abuse (alcohol and cannabis), a lack of consequential thinking and an association with a negative peer group.
His Honour said that personal deterrence was not a sentencing factor to which any weight needed to be given. However, general deterrence was a significant sentencing factor (ts 7 ‑ 8). His Honour said that although the appellant had some 'rehabilitation needs' (in particular, counselling in relation to substance abuse and anger management), these needs were not extensive (ts 8).
The sentencing judge assessed that the appellant and MLT were at about the same level of maturity and saw no reason to distinguish between them in the sentencing outcome (ts 13).
In the result, his Honour decided that the nature and circumstances of the offending, the high level of seriousness of the offence, the need for punishment and general deterrence and the high level of responsibility for the offending outweighed, in combination, the numerous mitigating factors. His Honour concluded that on a proper application of the objectives and principles embodied in the Young Offenders Act 1994 (WA) (the YO Act), immediate detention was the only proper sentencing option (ts 13).

The ground of appeal

The sole ground of appeal alleges that the sentence imposed by the sentencing judge was manifestly excessive.
The appellant does not contest any of the sentencing judge's findings.

The appellant's submissions

Counsel for the appellant argued that his Honour imposed the wrong type of sentence. It was submitted that a custodial sentence is a sentence of last resort and there was another appropriate way for his Honour to dispose of the matter. According to counsel, his Honour should have made a conditional release order under s 101 of the YO Act.
Counsel for the appellant emphasised the following points:
(a)The appellant was a juvenile with limited knowledge and experience about the potential, in certain circumstances, for small fires to get out of control.
(b)His Honour failed properly to recognise the relatively low level of criminality inherent in the omission constituting the offence and, as a result, placed excessive weight on the consequences of the offending.
(c)By failing properly to assess the overall criminality, in the context of the strong mitigating factors, his Honour incorrectly accorded priority to punishment and general deterrence ahead of other sentencing considerations.
(d)An appropriate sentence could have been achieved by imposing a sentence of detention, but ordering the appellant to serve the whole of the sentence in the community, subject to certain conditions.

This court's appellate jurisdiction

This court's jurisdiction in respect of the appeal is conferred by s 42A of the Children's Court of Western Australia Act 1988 (WA). Section 42A reads:
Subject to section 43, an appeal against a decision or judgment of the Court when constituted so as to consist of or include a judge may be made under and subject to Part 3 of the Criminal Appeals Act 2004 which, with any necessary changes, applies as if the decision or judgment were a decision or judgment made by a judge of a superior court (as defined in section 4 of that Act) in a trial by a judge alone under the Criminal Procedure Act 2004.
By s 27(1) of the Criminal Appeals Act 2004 (WA), leave of this court is required for each ground of appeal. By s 27(3), unless this court gives leave to appeal on at least one ground of appeal in an appeal, the appeal is to be taken to have been dismissed.

Criminal damage by fire: the Arson Legislation Amendment Act 2009 (WA)

Section 444(1)(a) of the Code provides that any person who wilfully and unlawfully destroys or damages any property is guilty of a crime and is liable, if the property is destroyed or damaged by fire, to life imprisonment.
Prior to the commencement of the Arson Legislation Amendment Act 2009 (WA) on 19 December 2009, the maximum penalty for arson was 14 years' imprisonment or, if the offence was committed in 'circumstances of racial aggravation' (as defined in s 80I of the Code), 20 years' imprisonment.
The Arson Legislation Amendment Act made amendments to the Bush Fires Act 1954 (WA) and the Code.
The maximum penalty for an offence under s 32 of the Bush Fires Act was increased from a $250,000 fine or 14 years' imprisonment, or both, to 20 years' imprisonment.
The amendments to the Code included:
(a)Section 23A was amended so that it is subject to the duty imposed by the new s 444A inserted by the Amendment Act.
(b)Section 23B was amended so that it is subject to the duty imposed by the new s 444A.
(c)Section 266 was amended as a result of concern expressed at the April 2009 meeting of the Standing Committee of Attorneys General, following the fatal Victorian bushfires of February 2009, that homicides caused by deliberately lit bushfires would not fall within the recognised homicide offences. Accordingly, s 266 was amended to make it clear that a source of ignition or fire is a dangerous thing. See the Arson Legislation Amendment Bill 2009 (WA) Clause Notes in relation to cl 8.
(d)Section 444 was amended to increase the maximum penalty for arson to life imprisonment.
(e)The introduction of a new s 444A, which reads:
(1)It is the duty of a person who has charge of or is in control of a source of ignition to use reasonable care and take reasonable precautions to avoid lighting a fire that destroys or may destroy or cause damage to property that the person is not entitled to damage or destroy; and the person is held to have caused any destruction or damage to that property by reason of any omission to perform that duty.
(2)It is the duty of a person who has charge of or is in control of a fire to use reasonable care and take reasonable precautions to contain that fire so that it does not destroy or damage property that the person is not entitled to damage or destroy; and the person is held to have caused any destruction or damage to that property by reason of any omission to perform that duty.
(3)A person does not breach a duty imposed by this section if the fire does not spread beyond the capacity of the person to extinguish it.
(4)Property that is capable of being destroyed or damaged by fire includes vegetation.
(f)A new s 445A was inserted to make it an offence to breach the duty imposed on persons under the new s 444A. The new s 445A provides that a person who unlawfully omits or refuses to do any act which it is the person's duty to do under s 444A is guilty of a crime, and is liable to imprisonment for 15 years.

Sentencing young offenders: the legislative framework

Section 7 of the YO Act provides, relevantly:
The general principles that are to be observed in performing functions under this Act are that ‑
…
(b)a young person who commits an offence is to be dealt with, either formally or informally, in a way that encourages the young person to accept responsibility for his or her conduct;
…
(d)the community must be protected from illegal behaviour;
…
(h)detaining a young person in custody for an offence, whether before or after the person is found to have committed the offence, should only be used as a last resort and, if required, is only to be for as short a time as is necessary;
…
(j)punishment of a young person for an offence should be designed so as to give the offender an opportunity to develop a sense of social responsibility and otherwise to develop in beneficial and socially acceptable ways;
…
By s 46, relevantly:
(1)When dealing with a young person who has been found guilty of an offence, the court, in disposing of the matter, is to apply ‑
(a)the principles applying generally for disposing of charges of offences, except as those principles are modified by this Act; and
(b)the general principles of juvenile justice.
(2)The court is to consider any information about the offender or the offence that may assist the court to decide how to dispose of the matter, and in particular -
(a)the nature and seriousness of the offence;
(b)any history of offences previously committed by the offender;
(c)the cultural background of the offender;
(d)any order previously made by a court when disposing of a charge of an offence that still applies to the offender, and any further order that is liable to be imposed if the offender does not comply with the terms of any such order; and
(e)the extent, if any, to which any person was affected as a victim of the offence.
(3)The court is to dispose of the matter in a way that is in proportion to the seriousness of the offence and is consistent with the treatment of other young persons who commit offences.
(4)In deciding how to dispose of the matter, which includes deciding the appropriate degree of severity to be used, the court is to consider how young the offender is as a mitigating factor.
…
Section 101 provides for the making of conditional release orders.
Section 118 provides, relevantly:
(1)If the statutory penalty for an offence is or includes imprisonment and the court dealing with the offender decides to impose a custodial sentence, the court may ‑
(a)impose a term of imprisonment under Part 13 of the Sentencing Act 1995 but may not impose suspended imprisonment under Part 11 of that Act or conditional suspended imprisonment under Part 12 of that Act; or
(b)sentence the offender to a term of detention that is not longer than the term of imprisonment to which the offender would have been liable if the offender were not a young person.
(2)Despite section 86 of the Sentencing Act 1995 the court sentencing a young person to a term of imprisonment or a term of detention may impose a term of 6 months or less.
…
By s 120(1), the court cannot impose a custodial sentence unless it is satisfied that there is no other appropriate way for it to dispose of the matter. By s 120(2), a court that imposes on a young person a custodial sentence is to record in writing the reasons why it considers that there is no other appropriate way for it to dispose of the matter.

Sentencing young offenders: relevant legal principles

In The State of Western Australia v A Child [2007] WASCA 115; (2007) 172 A Crim R 51, Steytler P, McLure JA and Miller AJA summarised the principles applicable to the sentencing of young offenders, as follows:
The principles and considerations to be applied to the sentencing of young offenders are contained in s 7, s 47 and s 120 of the Act. It is unnecessary to detail them here save to note that detaining a young person in custody for an offence must only be used as a last resort and, if required, is only to be for as short a time as is necessary (s 7(h)). The Act places significant emphasis on the sentencing objective of rehabilitation: WO (a child) v Western Australia (2005) 153 A Crim R 352 at 362. As stated in that case, underlying the emphasis on rehabilitation is the long established understanding that the community is best protected by determined efforts to effect the rehabilitation of young offenders. Although retribution, punishment and general deterrence are also relevant sentencing objectives under the Act, they are ordinarily given significantly reduced weight particularly when the offender is still a child [16].

Several decisions of the Court of Criminal Appeal and this court have emphasised that although, in general, personal and general deterrence, and punishment and retribution, have a tempered role in the sentencing of young offenders, those sentencing factors may become a significant consideration where, in a particular case, the rehabilitation of the offender appears unlikely, the offending or course of offending is serious, or the character and personal circumstances of the offender justify it. See Ainsworth v D (a child) (1992) 7 WAR 102, 117 (Malcolm CJ, Franklyn & White JJ agreeing); R v DP (a child) [2003] WASCA 92 [57] (Malcolm CJ, Murray & Parker JJ agreeing); MC (a child) v The Queen [2003] WASCA 205 [20] (McLure J, Steytler & Pullin JJ agreeing); JA (a child) v The State of Western Australia [2008] WASCA 70 [29] ‑ [30] (Wheeler JA, Martin CJ & Miller JA agreeing).
The seriousness of an offence and the circumstances of its commission may, in a particular case, require that a young offender be sentenced to a period of detention. See F (a child) v The State of Western Australia [2004] WASCA 193 [14] (Wheeler J, Templeman & Miller JJ agreeing); TL (a child) v The State of Western Australia [2005] WASCA 173 [19] (Wheeler JA, Steytler P & McLure JA agreeing); JTP v The State of Western Australia [2010] WASCA 191 [13] ‑ [14] (McLure P, Buss JA & Mazza J agreeing); JSA v The State of Western Australia [2012] WASCA 25; (2012) 42 WAR 473 [36] (Buss JA, Hall J agreeing).

The merits of the ground of appeal

A ground of appeal which alleges that a sentence is manifestly excessive asserts the existence of implied error. It is necessary, in determining whether a sentence is manifestly excessive, to examine it from the perspective of 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 in question, and the personal circumstances of the offender.
When considering the sentencing standards that are usually observed in relation to offences of the kind committed by an offender, it is necessary to have regard to a range of comparable cases. Nevertheless, each case turns on its own particular facts and circumstances. Sentencing ranges can provide only general guidance. The limits of the guidance afforded by comparable cases are flexible rather than rigid. A sentencing range is merely one of the factors to be taken into account in deciding whether a sentence is manifestly excessive. The mere fact that a sentence is within the range of other sentences imposed for similar offences does not necessarily establish that there was an appropriate exercise of the sentencing discretion in the particular case. Similarly, the mere fact that a sentence is outside that range does not necessarily establish that the exercise of the sentencing discretion in the particular case miscarried.
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 limit of the range.
All of the propositions I have stated are well‑established by case law in the Court of Criminal Appeal and this court.
An appellate court hearing an appeal against sentence by an offender may not substitute its own opinion for that of the sentencing judge merely because the appellate court would have exercised its discretion in a manner different from the manner in which the sentencing judge exercised his or her discretion. An appellate court may intervene only if the offender demonstrates that the sentencing judge made an express or implied material error or that a miscarriage of justice occurred at the sentencing hearing. See Lowndes v The Queen [1999] HCA 29; (1999) 195 CLR 665 [15] (Gleeson CJ, Gaudron, McHugh, Gummow, Kirby, Hayne & Callinan JJ).
Since the creation of the offence against s 445A, read with s 444A, of the Code, sentencing patterns have not emerged for either adults or juveniles. No doubt, sentencing patterns will be established gradually as a result of the experience of the courts in sentencing offenders who have offended with varying degrees of seriousness and culpability.
It has been observed on numerous occasions, in relation to the offence of arson under s 444(1)(a) of the Code, that there is no sentencing tariff for arson because of the great variation that is possible in the circumstances of the offending and the offenders. Each case must be decided on its own facts and circumstances. See Newton v The State of Western Australia [2006] WASCA 247 [11] (Steytler P, Wheeler & McLure JJA agreeing); The State of Western Australia v Bennett [2009] WASCA 93; (2009) 194 A Crim R 137 [48] (Miller JA, Owen & Buss JJA agreeing). In my opinion, that observation is equally applicable to the offence against s 445A read with s 444A.
It is useful to review some decisions of the Court of Criminal Appeal and this court concerning juveniles or young adults convicted of arson or an offence against s 32 of the Bush Fires Act. It must be noted, however, that the legislative framework applicable to the sentencing of juveniles does not apply to the sentencing of young adults. Also, it must be remembered that arson is a more serious offence than the offence in question in this appeal. Notably, it is an element of the offence of arson that the offender has wilfully and unlawfully destroyed or damaged property. Wilfulness is not an element of the offence created by s 445A read with s 444A. The essence of that offence is criminal negligence by the accused.
The cases I will review are Scott v The Queen (Unreported, WASCA, Library No 7607, 14 April 1989), Koppen and Horrocks v The Queen (Unreported, WASCA, Library No 8148, 19 March 1990), Spooner v The State of Western Australia [2008] WASCA 86 and JTP.
In Scott, the offender was convicted, on his plea of guilty, of a count which alleged that he wilfully and unlawfully set fire to cardboard, paper and plastic crates so situated that a building was likely to catch fire therefrom, contrary to s 445(2) of the Code, as then enacted. The maximum penalty was 14 years' imprisonment. The offender lit one fire and his co‑offenders lit another. The building and its interior were damaged. The cost of repairing the exterior was about $21,200 and the cost of repairing the interior was about $94,126. The offender was aged 16 years 7 months when he committed the offence. The primary judge sentenced him to 15 months' immediate imprisonment. He was made eligible for parole. The Court of Criminal Appeal allowed the offender's appeal and resentenced him. Malcolm CJ and Nicholson J held that the primary judge had made an express error in finding that the offender's actions represented 'a deliberate, wilful act of destruction on a very significant scale'. Although each fire was lit deliberately, it was not the Crown case that either fire was lit with the intention of burning down the building or causing significant damage. The primary judge went beyond the facts stated by the Crown and those contained in the depositions. Wallace J held that the sentence imposed on the offender by the primary judge infringed the parity principle. When the Court of Criminal Appeal resentenced the offender he had been detained in custody for about 70 days. He was resentenced to probation for 2 years.
In Koppen and Horrocks, the offenders were convicted of, relevantly, breaking and entering the John Curtin High School and stealing a model heart and a quantity of scalpel blades, and wilfully setting fire to a school bench which was so situated that a building was likely to catch fire therefrom. The latter count was laid under s 445(2) of the Code, as then enacted. The maximum penalty for each count was 14 years' imprisonment. Both offenders pleaded guilty. The offending occurred on 21 June 1989 and they were sentenced on 8 December 1989. At the time of sentencing they were aged 20. On the count of breaking, entering and stealing they were sentenced to 18 months' immediate imprisonment and on the count of committing the offence against s 445(2) they were sentenced to 2 years' immediate imprisonment. The sentences were ordered to be served cumulatively and they were made eligible for parole. After the offenders broke into the school, Koppen poured some preserving fluid onto a wooden bench in a classroom and ignited it. After those flames had died out, he poured a larger quantity of preserving fluid onto the bench and, as he was about to light it, Horrocks lit it with a cigarette lighter. The offenders left the scene while the bench was burning. As a result of the fire, the bench was destroyed and the classroom sustained severe smoke damage. The cost of repairing or reinstating the damaged property was about $25,000. When they were apprehended by the police, the offenders readily admitted the offences. The primary judge accepted that neither of the offenders intended to burn the building down. Their actions were affected by the consumption of alcohol. Horrocks had a problem with alcohol. This triggered many of his previous offences. Koppen had a lesser record of offences. The Court of Criminal Appeal allowed an appeal against sentence by each offender. As to Koppen, the court was of the view that, taking into account the circumstances of the commission of the offences and the circumstances personal to him, there were other forms of punishment or disposition available to the court which were appropriate. Koppen was a young man with no previous serious offences; he had shown remorse for the offences in question; he was in employment and he had a supportive family. Koppen had already served about 2 1/2 months in custody. He was resentenced to probation for 12 months. As to Horrocks, the court held that in view of his age and his personal circumstances, and bearing in mind that the offenders did not intend to set the building alight, and that the proper disposition for Koppen was not imprisonment, the issue of parity became relevant. Horrocks had also served about 2 1/2 months in custody. He was resentenced to probation for 2 years.
In Spooner, the offender was convicted after trial of one count of wilfully lighting a fire under such circumstances as to be likely to injure or damage a person or property, contrary to s 32(a) of the Bush Fires Act. He was acquitted on six other counts. The maximum penalty was 14 years' imprisonment. He was sentenced to 12 months' immediate imprisonment with eligibility for parole. In 2005, when the offender was aged 19, he rode his bicycle along a popular walking track in Glen Forrest. He lit a fire with a cigarette lighter alongside the track. He said he considered the weather conditions 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 Deputy Chief Bush Fire Control Officer for the Shire of Mundaring gave evidence that the fire had been dangerous. It grew to around 20 m by 25 m. There were strong south, south-westerly winds pushing the head of the fire. It stopped at a fire break of a home, only 30 m from a Colorbond shed. It had been highly likely to jump the fire break. When the Deputy Chief Bush Fire Control Officer attended the fire, two or three people were doing their best to fight it with a garden hose. It took the fire brigade two hours to extinguish the fire. On appeal by the offender, this court held that the primary judge had made an error in giving no weight to various submissions made by the offender or to an offer by him to plead guilty to some of the seven counts alleged in the indictment. This offer had been rejected by the Director of Public Prosecutions. Nevertheless, the appeal was dismissed because this court was of the opinion that a different sentence should not be imposed.
In JTP, the offender went to a primary school in Collie in the early hours of a Sunday morning with three other juveniles. The offender and his companions entered a classroom by removing glass window panes and climbing through the window. Once inside, the offender searched the classroom and other rooms for property to steal. He also used a permanent marker to apply graffiti to desks and walls. The offender and his companions then used the same method to gain entry to another classroom. They left that classroom after failing to locate anything of value. Two of the offender's companions returned to the first classroom and attempted to set fire to a pinup board with their cigarette lighters. They then entered another classroom and were followed by the offender. The offender and these two juveniles then proceeded to ignite several items in the classroom with their cigarette lighters. The offender lit papers and string that were strung across the classroom. The offender and his companions became concerned and fearful when the fire took hold. They left the premises. The fire destroyed the school. The cost of repairing and reinstating the school and its contents was in excess of $2.2 million. The offender was aged 14 years 1 month when he committed the offences. He entered fast‑track pleas of guilty. The primary judge took into account all relevant mitigating factors, including the offender's very young age, lack of any prior convictions, fast‑track pleas of guilty, remorse and family support. When he came to be sentenced the offender had ceased associating with negative peers. The primary judge decided that personal deterrence did not need to be given any weight. His Honour concluded that the offender's conduct in lighting papers in the classroom was deliberate and caused the fire which spread and resulted in extensive damage. His Honour also concluded that the offender was old enough to know that if a person lights a fire it can get out of control. The offender did not contact anyone, even after it became obvious to him that the fire was taking hold. The fire caused significant trauma and disruption to students, teachers, administrative staff and the general community in Collie. The primary judge imposed a sentence of 10 months' immediate detention for the aggravated burglary and a sentence of 10 months' immediate detention for the criminal damage by fire. He ordered the sentences to be served concurrently. The total effective sentence was therefore 10 months' immediate detention. The offender's appeal to this court was dismissed. McLure P (Buss JA & Mazza J agreeing) held that the primary judge did not make any appealable error of fact or law in deciding that detention was the only appropriate sentence [17].
As I have mentioned, the maximum penalty for the offence committed by the appellant in the present case is 15 years' imprisonment.
The maximum penalty fixed by the Parliament for an offence demonstrates the Parliament's view of its gravity. A sentencing judge must take this into account in arriving at the appropriate sentence.
In my opinion, factors that must be considered in determining the seriousness of an offence against s 445A, read with s 444A, of the Code include:
(a)The nature and extent of the offender's criminal negligence; that is, the gravity of the breach of the duty imposed under s 444A.
(b)The nature of the property destroyed or damaged by the offending.
(c)The extent of the destruction or damage caused by the offence.
Compare, in the context of the offence of arson, the observations of Steytler P (Wheeler & McLure JJA agreeing) in Newton [13].
General deterrence is an important matter to be taken into account in sentencing for an offence against s 445A, read with s 444A, in that the consequences of criminal negligence by a person who has charge of, or is in control of, a source of ignition or a fire can be, and often are, calamitous. Fires are unpredictable. Compare, in the context of the offence of arson, the observations of Anderson J (Rowland & Ipp JJ agreeing) in R v Catts (1996) 85 A Crim R 171, 176.
In the present case, the appellant's offending was very serious. This is apparent from the following:
(a)The appellant deliberately ignited the plastic chairs with the intention of damaging or destroying them.
(b)One of the chairs was in close proximity to other flammable material and the school building.
(c)The appellant attempted to extinguish the fire by stomping on it, thus demonstrating some awareness of the risk which it posed to the school building, but he left the scene even though he knew the flames had not been extinguished.
(d)The fire was extremely destructive. The cost of repairing and reinstating the school building is between $16 million and $20 million.
(e)The school was in an established residential area. There was an obvious risk to life and property in the neighbourhood if the fire were to escape beyond the perimeter of the school.
(f)As the sentencing judge noted, a school and its buildings are invariably an important hub and resource for the local community (ts 4). A school is not merely land, bricks and mortar. In the present case, the teachers, young students and parents, and the local community generally, experienced a powerful sense of loss at the destruction of their school (including its historical records and other contents).
The appellant's culpability is to be assessed by reference to the whole of his conduct (that is, his acts and omissions) while he was on the school grounds. His criminal negligence was not fleeting or momentary. The appellant and MLT set fire deliberately to three chairs, they made an inadequate attempt to extinguish the flames and they left the school grounds, without contacting any of the authorities, even though the appellant knew some of the flames were still burning. The degree of the appellant's criminality cannot properly be characterised as being at a relatively low level.
The very serious nature of the appellant's offending, as revealed by the matters I have identified, supported the sentencing judge's observation that the appellant had to bear a 'high level of responsibility' (ts 13) for what occurred.
The destruction of the school did not arise from the poor management of a fire lawfully ignited by inexperienced juveniles. It was caused by the criminally negligent management by the appellant and MLT of a fire which they were responsible for unlawfully igniting. The appellant was aged 16 years 6 months and in the workforce when the offending occurred. He was not 13 or barely 14. The consumption of alcohol and cannabis explained, at least in part, his behaviour. However, this was not an excuse or a matter of mitigation.
The appellant's offending was mitigated by a number of factors; in particular, the plea of guilty at the earliest opportunity; his acknowledgement of his criminal behaviour to the police; his cooperation with and the significant admissions he made to the police; his willing participation in the victim mediation process; his genuine remorse and contrition; his youth; the absence of a prior criminal record; his apparent willingness to address his rehabilitation needs; his employment history; and his strong family support.
The critical issue in the appeal is whether this court can properly conclude that his Honour made an error in deciding that:
(a)the nature and circumstances of the offending, the high level of seriousness of the offence, the need for punishment and general deterrence and the appellant's high level of responsibility for the offending outweighed, in combination, the numerous mitigating factors (ts 13); and
(b)immediate detention was the only proper sentencing option (ts 13).

I am not persuaded that the sentencing judge made any material error. He received extensive information and submissions about the offending and the appellant. His sentencing remarks were thoughtful and comprehensive.
As I have mentioned, sentencing patterns have not yet emerged, for either adults or juveniles, in relation to the offence against s 445A, read with s 444A. The cases I have reviewed concerning juveniles or young adults convicted of arson or an offence under s 32 of the Bush Fires Act do not indicate, by analogy, that the sentence imposed in the present case was beyond the limits of a sound exercise of the sentencing discretion.
In Scott, the Court of Criminal Appeal held that the sentence of 15 months' immediate imprisonment should be set aside because of an express material error by the primary judge. In resentencing the offender, the court took into account the fact that the offender had been in custody for about 70 days. The cost of the damage caused by the offender was 'only' about $115,000. In Koppen and Horrocks, the Court of Criminal Appeal set aside the sentence of 2 years' immediate imprisonment on the ground that, in the circumstances, there were other forms of punishment or disposition available to the court which were appropriate. The cost of the damage caused by the offenders was 'only' about $25,000. In Spooner, this court decided that the sentence of 12 months' immediate imprisonment imposed by the primary judge should not be set aside, despite the existence of a material error, because a different sentence should not be imposed. In JTP, this court upheld the sentence of 10 months' immediate detention for the criminal damage by fire. No error by the primary judge was discernible. The offender was aged 'only' 14 years 1 month when he committed the offences and the cost of the damage was 'only' in the order of $2.2 million.
As I have mentioned, 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 limit of the range.
In the present case, the imposition of appropriate punishment and general deterrence were important sentencing considerations. The seriousness of the offending and the circumstances of its commission required the imposition of a term of immediate detention. The sentencing judge rightly gave significant weight to the profound consequences of the offending. His Honour gave cogent reasons for deciding that it was not open to dispose of the matter by making a conditional release order under s 101 of the YO Act.
In my opinion, the sentence of 8 months' immediate detention was commensurate with the seriousness of the appellant's offending. After taking into account the maximum penalty (15 years' imprisonment), the circumstances of the commission of the offence, the aggravating factors, the mitigating factors and the objectives and principles embodied in the YO Act, I am satisfied that immediate detention was the only appropriate sentencing disposition. The mitigating factors were adequately recognised in the length of the period of detention. The sentence imposed was not unreasonable or plainly unjust. The existence of error should not be inferred from the sentencing outcome.
The ground of appeal fails.

Conclusion

I would grant leave to appeal, but the appeal must be dismissed.

The appellant's application for bail

Finally, I should mention that, at the conclusion of the hearing of the appeal, this court dismissed an application by the appellant for bail. We said that reasons for this decision would be published later. It is sufficient to note that I dismissed the application because I was satisfied that the ground of appeal did not have sufficient prospects of success to justify a grant of bail.
MAZZA JA: I agree with Buss JA.
JENKINS J: I agree with Buss JA.