MLT v The State of Western Australia - [2013] WASCA 140

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT : THE COURT OF APPEAL (WA)

CITATION: MLT -v- THE STATE OF WESTERN AUSTRALIA [2013] WASCA 140

CORAM: BUSS JA
MAZZA JA
JENKINS J

HEARD: 17 MAY 2013

DELIVERED : 5 JUNE 2013

FILE NO/S: CACR 93 of 2013

BETWEEN: MLT
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent

ON APPEAL FROM:
Jurisdiction              :  CHILDREN'S COURT OF WESTERN AUSTRALIA
Coram  :REYNOLDS DCJ
File No  :CC 708 of 2013

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

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: D

Representation:

Counsel:

Appellant: Ms K J Farley
Respondent: Mr J McGrath SC

Solicitors:

Appellant: Legal Aid (WA)
Respondent: Director of Public Prosecutions (WA)

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

CJH v The State of Western Australia [2013] WASCA 139
JTP v The State of Western Australia [2010] WASCA 191
Koppen and Horrocks v The Queen (Unreported, WASCA, Library No 8148, 19 March 1990)
Newton v The State of Western Australia [2006] WASCA 247
R v Catts (1996) 85 A Crim R 171
Scott v The Queen (Unreported, WASCA, Library No 7607, 14 April 1989)
Spooner v The State of Western Australia [2008] WASCA 86

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, CJH, 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 CJH. 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 CJH.

Overview of the offending

Between 9.20 pm and 11.40 pm on Saturday, 7 July 2012, the appellant, CJH 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 CJH 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, CJH 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

CJH said in a video‑recorded interview with the police that three plastic chairs were ignited. He ignited two and the appellant ignited one. He ignited the chair under the timber walkway and the appellant ignited a chair in another part of the quadrangle (VROI 28 ‑ 33). The appellant said in a separate video‑recorded interview with the police that two chairs were ignited. He ignited one and CJH 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 CJH under the timber walkway. This caused the damage to the school building. The other source was a plastic chair, apparently ignited by the appellant, under a basketball hoop. This caused only localised damage.
The sentencing judge said the decision by the appellant and CJH 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 CJH 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 CJH 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 CJH] to stomp the fire out (ts 5).
Although the sentencing judge found that each of the appellant and CJH was jointly responsible for the conflagration and its consequences, his Honour dealt separately, in his sentencing remarks, with each of the appellant and CJH and decided separately upon the sentence appropriate for each of them (ts 6 ‑ 13).
When the appellant departed from the school grounds with CJH and the female juvenile, he did not know whether the flames had been extinguished (VROI 30 ‑ 31).
The sentencing judge said the conduct of the appellant and CJH 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 CJH 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 15 years 9 months at the time of the offending and was 16 years 6 months when sentenced. CJH was aged 16 years 6 months when the offending occurred and was 17 years 3 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.
It appears that the triggers for the appellant's 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), these needs were limited (ts 10).
The appellant did not have a prior criminal record.
His parents separated when he was aged about 11. Their separation had a profound emotional impact on him.
The sentencing judge noted that the appellant had ceased his secondary education during year 11, and was in full‑time employment. His employer spoke well of him. There is a real prospect of the appellant commencing an apprenticeship as a boilermaker.
The appellant had participated in counselling before and after the commission of the offence. The counselling before the offence related to emotional issues associated with his parents' separation. The appellant spends some time living with each of his parents. Both are very supportive of him.
The sentencing judge assessed that the appellant and CJH 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, as clarified in the appellant's supplementary written submissions dated 13 May 2013, is that the sentence imposed by the sentencing judge was manifestly excessive.

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 maintained that there were 'reasonable alternative sentences available' and 'the situation of last resort had not been reached'.

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

As I have mentioned, this appeal was heard together with an appeal against sentence by CJH. See CJH v The State of Western Australia [2013] WASCA 139.
In my reasons in CJH I discussed:
(a)this court's jurisdiction in respect of an appeal against sentence imposed by a judge of the Children's Court;
(b)the Arson Legislation Amendment Act 2009 (WA) including the introduction of s 444A and s 445A;
(c)the legislative framework in relation to the sentencing of young offenders;
(d)the relevant legal principles governing the sentencing of young offenders;
(e)the nature of manifest excess and several well‑established propositions concerning appeals against sentence, including the principle that 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;
(f)the fact that, 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; and
(g)some decisions of the Court of Criminal Appeal and this court on appeals against sentence by juveniles or young adults convicted of arson or an offence under s 32 of the Bush Fires Act 1954 (WA) ; in particular, 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 v The State of Western Australia [2010] WASCA 191.
It is unnecessary to repeat that discussion.

The merits of the ground of appeal

The maximum penalty for the offence committed by the appellant 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 v The State of Western Australia [2006] WASCA 247 [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 a plastic chair with the intention of damaging or destroying it.
(b)One of the chairs ignited by CJH 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 did not know whether the flames had 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 CJH 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 did not know whether the flames had been extinguished. 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 CJH of a fire which they were responsible for unlawfully igniting. The appellant was aged 15 years 9 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.

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.