Morcom v The State of Western Australia - [2013] WASCA 31

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT : THE COURT OF APPEAL (WA)

CITATION: MORCOM -v- THE STATE OF WESTERN AUSTRALIA [2013] WASCA 31

CORAM: MARTIN CJ
BUSS JA
MAZZA JA

HEARD: 17 OCTOBER 2012

DELIVERED : 8 FEBRUARY 2013

FILE NO/S: CACR 85 of 2012

BETWEEN: STEPHEN JAMES MORCOM
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent

ON APPEAL FROM:
Jurisdiction              :  SUPREME COURT OF WESTERN AUSTRALIA
Coram  :COMMISSIONER SLEIGHT
File No  :INS 156 of 2011

Catchwords:

Criminal law - Appeal and cross-appeal against sentence - Appellant convicted on guilty plea of arson of a motor vehicle - Manifest excess - Manifest inadequacy - Sentencing patterns and considerations for arson - Impact of increase in the maximum penalty for arson - Arson Legislation Amendment Act 2009 (WA)

Legislation:

Arson Legislation Amendment Act 2009 (WA)
Criminal Appeals Act 2004 (WA), s 27(1), s 27(2)
Criminal Code (WA), s 441(1)(a)

Result:

Leave to appeal granted
Appeal dismissed

Category: A

Representation:

Counsel:

Appellant: Mr I L K Marshall
Respondent: Ms L Petrusa

Solicitors:

Appellant: Altorfer & Stow
Respondent: Director of Public Prosecutions (WA)

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

Colwell v The State of Western Australia [No 2] [2012] WASCA 196
JKL v The State of Western Australia [2012] WASCA 215
McDougall v The State of Western Australia [2009] WASCA 232
McLaughlin v The State of Western Australia [2012] WASCA 204
R v Olbrich [1999] HCA 54; (1999) 199 CLR 270
The State of Western Australia v Bennett [2009] WASCA 93; (2009) 194 A Crim R 137
Trompler v The State of Western Australia [2008] WASCA 265
Vagh v The State of Western Australia [2007] WASCA 17
Wilson v The State of Western Australia [2010] WASCA 82

MARTIN CJ: The appeal and cross-appeal against sentence should each be dismissed for the reasons given by Mazza JA, with which I agree.
BUSS JA: I agree with Mazza JA.
MAZZA JA: On 16 March 2012, the appellant pleaded guilty to one count of wilfully and unlawfully destroying by fire, a motor vehicle contrary to s 444(1)(a) of the Criminal Code (WA). The maximum penalty for this offence is life imprisonment.
On the same day, the appellant was sentenced by Commissioner Sleight to 2 years' immediate imprisonment with eligibility for parole.
The appellant sought leave to appeal against this sentence on a number of grounds, including that it was manifestly excessive. The respondent sought leave to cross‑appeal, alleging that the sentence was manifestly inadequate. For the reasons which follow, I would dismiss both appeals.

Background

The offending

The appellant and the complainant, Mr James Main, lived in Geraldton and worked for Cooperative Bulk Handling (CBH). Each man had worked for that company for many years. They and their families were friends.
In or about September 2009 the two men fell out over a work‑related industrial matter. There was an altercation between them which led to the appellant being dismissed from his employment on 21 October 2009. The appellant felt victimised and believed that the complainant was, in large measure, responsible for what had occurred. As a result, the appellant harboured considerable antipathy towards the complainant.
Despite the falling out, and shortly before the commission of the offence, the appellant's wife and the complainant's wife rekindled their friendship. On 20 February 2011 the appellant became aware of this. In a state of anger and having consumed some alcohol, the appellant obtained a container of petrol and drove to the complainant's house. Unknown to the appellant, a video security system had been installed at the house and captured his movements. A recording of what occurred was tendered in the sentencing proceedings.

The appellant arrived at the house at approximately 7.45 pm. He then entered the premises through a secured front driveway gate and walked to the rear, where a Ford Falcon utility was parked close to the house. Using the petrol as an accelerant, the appellant set fire to the vehicle. The fire spread to a rear bedroom causing considerable damage to it. The utility was completely destroyed. The combined value of the vehicle and the damage to the bedroom was about $15,000. At the time the appellant set the fire the complainant, his wife and his son were home.
After the appellant set fire to the vehicle he quickly left the premises to avoid detection. As he departed, he wiped the gate, no doubt to remove any fingerprints. He made no effort to alert the occupiers of the premises to the fire nor did he attempt to fight or suppress it.
On 25 February 2011 the appellant was interviewed by police. He denied committing the offence and offered a false alibi.

The appellant's antecedents

The appellant's antecedents were favourable. At the time of sentence the appellant was 52 years of age. He had a short and irrelevant criminal history made up of offences that had been committed a long time ago. He has a close and supportive family. The learned commissioner was provided with a large number of references which spoke highly of his character and of his positive deeds in the community.
The learned commissioner also had before him a number of expert reports concerning the appellant's psychological state. In May 2009, prior to his dismissal from CBH, the appellant reported to his general practitioner symptoms of anxiety and depression brought on by an incident at work. He complained of suicidal thoughts and sleep disturbance. By 22 June 2009 his condition had improved and he reported to his doctor that 'things were going really well'. However, on 9 October 2009 he reported a relapse. He was referred to a counsellor and prescribed antidepressant medication: report of Dr P Slootmans 31 August 2011.
Apart from two sessions of counselling in October 2009, the appellant did not have any further psychological treatment until after the commission of the offence. Again, he complained of feelings of depression. He was referred to a psychologist, Ms Sue Herbert, for treatment.
A court appointed psychologist, Mr Steve Jobson, observed signs of major depression and a significant anxiety disorder. He also noted characteristics indicative of some level of post traumatic stress disorder. He conducted psychometric testing that revealed the likely presence of a dependent personality disorder. Mr Jobson considered the appellant's risk of reoffending to be 'minimal': report of Steve Jobson, 11 November 2011, 4 ‑ 5.
The appellant had an excellent employment history. He had worked for CBH for almost 25 years. After his dismissal, he obtained employment with the Department of Corrective Services as a vocational skills officer at Greenough Regional Prison.

The victim impact statement

The learned commissioner was provided with a victim impact statement written by Mr Main. That document shows that the offending caused the complainant and his family considerable stress, fear and financial loss. The stress felt by Mr Main had a particular impact. He is a kidney transplant recipient for whom stress can lead to a deterioration in his renal health.

The sentencing remarks

The learned commissioner described the appellant's offending as serious, not only because of the value of the property damaged but also because of the potential for the house to be more seriously damaged and for the people in it to be injured or killed as a result of the fire: AB 69.
Contrary to defence counsel's submission that the offence was not premeditated, the learned commissioner found that a certain amount of planning had gone into the commission of the offence. His Honour referred to the unchallenged fact that the appellant had obtained a container of petrol before driving to the complainant's premises to set the fire: AB 69. He described the offending behaviour as 'akin to a type of terrorism': AB 69.
The learned commissioner expressly took into account the following mitigating factors:
(a)the appellant's plea of guilty which he said was indicative of remorse;
(b)the appellant's prior good character;
(c)the offence was out of character and that the appellant was unlikely to reoffend; and
(d)the appellant's psychological condition. As to this, his Honour concluded that the psychological condition 'played a part in the commission of this offence': AB 70 ‑ 71.
The learned commissioner made express reference on two occasions in his sentencing remarks, to the maximum penalty for the offence of arson being life imprisonment: AB 68, 71. He stated that the dominant sentencing consideration in such cases was general deterrence and that the personal circumstances of an offender carry less weight. His Honour observed that the offence was easy to commit and often difficult to detect. He noted the risk fire causes to property and the safety of occupiers and emergency service personnel. He said that it was a matter of luck that the property damage was not more extensive and that no one had been injured: AB 71.
The learned commissioner found that the offence was motivated by a desire to retaliate against the victim and that this was an aggravating circumstance: AB 71.
As to the standards of sentencing imposed in arson cases, his Honour said:
There is no tariff for this type of offending because of the variety of circumstances in which offences are committed. However, the range of penalties commonly imposed is about 3 to 5 years' imprisonment for serious cases of arson and 2 to 3 1/2 years' imprisonment for less serious. It is a rare case that a penalty less than immediate imprisonment is imposed: AB 71.
His Honour rejected as being 'totally inappropriate' a submission that the case should be dealt with by way of a community based order or a fine. He considered that the only appropriate penalty was a term of imprisonment. The only question, as he expressed it, was whether that term should be suspended. In relation to this, he once again took into account all of the factors which led him to decide that imprisonment was the only appropriate disposition. In this context, he referred to what he described as the 'considerable mitigating factors in your favour'. However he concluded that the seriousness of the offence outweighed the factors in the appellant's favour and that the only appropriate sentence to be imposed was a term of 2 years' immediate imprisonment: AB 72.

The proposed grounds of appeal

As set out in the appellant's case, the appellant seeks leave to appeal in respect of seven grounds as follows.
1.The sentence imposed by the Learned Sentencing Commissioner was, having regard to the matters following, manifestly excessive.
2.The Learned Sentencing Commissioner failed to give adequate or proper consideration to the imposition of a non-custodial sentence or to suspending the sentence of two years imprisonment having regard to the matters following.
3.The Learned Sentencing Commissioner failed to give any or any sufficient weight to:
(a)matters personal to the appellant namely his age, antecedents, lack of relevant record, the contents of medical and psychological reports produced on his behalf, the contents of a psychological report which formed part of the pre-sentence report and the contents of a favourable pre-sentence report.
(b)the appellant's acceptance of responsibility for his conduct, his early plea of guilty and his obtaining after the offence of appropriate psychological treatment for a pre-existing medical condition which contributed to the commission of the offence.
4.The Learned Sentencing Commissioner erred in fact in finding that:
(a)the offence was premeditated
(b)the offending behaviour was akin to a type of terrorism
(c)The appellant suffered a psychological condition after his dismissal in 2009 when the Appellant's psychological condition was longstanding and predating his dismissal.
5.The Learned Sentencing Commissioner failed to give any or any sufficient weight to the appellant's pre-existing medical condition of depression, anxiety and suicidal thoughts which contributed to the commission of the offence.
6.The Learned Sentencing Commissioner gave undue weight to general deterrence when he found that the dominant sentencing consideration was one of deterring others and that personal circumstances carried less weight in cases of arson that [sic] otherwise would be the case.
7.The Learned Sentencing Commissioner erred in not sentencing the appellant on the circumstances of the offence most favourable to him: AB 8 ‑ 9.
At the hearing of the appeal, counsel for the appellant sought to add an eighth ground as follows:
8.The learned sentencing Commissioner erred in failing to take into account that the Appellant was going to endure hardship over and above the usual hardship experienced by a prisoner serving a sentence of imprisonment by reason of the fact that the Appellant had served as a prison officer (Vocational and Support Officer) at Greenough Prison:
1.The Appellant is serving his sentence in Casuarina Prison away from his home and family in Geraldton and visits by the family to the prison are only affordable once a fortnight;
2 The Appellant is serving his sentence as a protected prisoner and he is precluded in [sic] participating in certain courses and his release on parole at his earliest release date can be affected by him not having completed the courses. If not in protection he could have completed the courses.
3.Being a protected prisoner does not mean the Appellant is free from risk and he has already received a death threat, one assault and two attempted assaults and he has been spat upon and in addition he is suffering from anxiety, depression and hypervigilance due to fear of an attack.
The respondent opposed the appellant's application to add the proposed eighth ground of appeal. In support of this application, the appellant filed an affidavit sworn 20 October 2012 and written submissions dated 7 November 2012. The respondent filed an affidavit in response on 30 October 2012.
The respondent's ground of appeal on the cross‑appeal is:
The sentencing Judge erred in law by imposing a sentence that was so inadequate as to manifest error, having regard to:
Particulars
(a)The need to revise the standards of sentencing customarily observed for offences of this kind in light of the increase in the maximum applicable statutory penalty to life imprisonment;
(b)The serious nature of the offence and the circumstances in which it was committed, including:
i.the fact that the offence was premeditated, and
ii.the motive for the offending.
(c)The need for the sentence to adequately reflect general deterrence and punishment for offending of this nature; and
(d)The personal circumstances of the appellant: AB 29.

The legal principles applicable to the appeals

The legal principles applicable to both appeals are uncontroversial, well known and need not be repeated. They are accurately described by McLure P and Owen JA in Wilson v The State of Western Australia [2010] WASCA 82 [2].
The leave of this court is required for each proposed ground of appeal. Leave is not to be granted on a ground of appeal unless the court is satisfied that the ground has a reasonable prospect of succeeding: s 27(1) and s 27(2) of the Criminal Appeals Act 2004 (WA).

The appellant's appeal against sentence

The appellant's proposed grounds of appeal require some comment. Leaving to one side the proposed ground 8, the grounds of appeal are confused. The essential contention raised in ground 1 is that the sentence imposed by the learned commissioner was manifestly excessive. This is an allegation of implied error; that is, it is not possible to discover the exact nature of the error, but the sentence is so unreasonable or unjust that the court must conclude that a substantial wrong has occurred. However, the ground incorporates, by reference, the matters contained in grounds 2 to 7, which in so far as they are capable of amounting to valid grounds of appeal, allege express errors.
Ground 2 is no more than a repetition of ground 1, in that it really alleges that the sentence imposed by the learned commissioner was manifestly excessive because the wrong type of sentence was imposed.
Grounds 3 and 5 allege, in part, weighting errors. As this court has explained many times in the past, a failure to give adequate weight or pay sufficient regard to a relevant sentencing consideration only gives rise to an appellable error if it amounts to a failure to exercise the discretion actually entrusted to the court: Vagh v The State of Western Australia [2007] WASCA 17 [76]. In the absence of a failure to exercise the discretion, a weighting error is not an independent ground which itself justifies appellate intervention. Rather, it is a conclusion that is implicit in, and flows from, a finding that a sentence is manifestly excessive: Trompler v The State of Western Australia [2008] WASCA 265 [32].
In so far as grounds 3 and 5 allege that the learned commissioner failed to give any weight to the matters particularised in those grounds, those assertions are contradicted by the express findings made by his Honour in his sentencing remarks.
Grounds 6 and 7 allege express errors of law. Each is without any merit whatever. In respect of ground 6, it is well established that general deterrence is the dominant sentencing factor in cases of arson, and that an offender's personal circumstances carry less weight than they might otherwise have done: The State of Western Australia v Bennett [2009] WASCA 93; (2009) 194 A Crim R 137 [48].
With respect to ground 7, it is trite law that a judge is not bound to sentence an offender on the circumstances of the offence most favourable to him or her: R v Olbrich [1999] HCA 54; (1999) 199 CLR 270.
It is at this point convenient to turn to ground 4. Ground 4 alleges that the learned commissioner made three express errors of fact. I will deal with each alleged error in the same order as they have been particularised.
There is no substance to the allegation that the learned commissioner erred in finding that the offence was premeditated. It was not disputed that prior to the appellant leaving his house he had formed the intention of setting fire to the complainant's car. In preparation for the offence, the appellant obtained a container of petrol that he brought with him and used to set the fire. While the plan was not developed over a long period of time, nor was it particularly sophisticated, it plainly involved some premeditation and preparation.
Next, the learned commissioner's characterisation of the appellant's behaviour as 'akin to a type of terrorism' was apt. It is a notorious fact that petrol is a highly flammable and explosive substance. Any reasonable person in the position of the appellant would have realised that pouring petrol on a vehicle parked close to a house and then setting fire to it would have the effect of terrorising those within the house. The actions of the appellant, accompanied by the desire to retaliate against the victim, were indeed 'akin to a type of terrorism'.
Finally, in respect of the third alleged error of fact, his Honour, in his sentencing remarks, said:
The report of your GP indicates that since May 2009 you have suffered from symptoms of anxiety and depression which appear to have been precipitated by what occurred with the dismissal of your employment in 2009: AB 70.
This statement is erroneous, but the error is of no consequence. The report of the appellant's general practitioner, Dr Slootmans, states that when the appellant consulted her in May 2009, it concerned symptoms of anxiety and depression precipitated by an incident at work. That incident was not the appellant's dismissal from his employment, which did not occur until 21 October 2009. However, this error is immaterial. What is material is that his Honour accepted, and took into account as a mitigating factor, the deterioration in the appellant's psychological state at the time of the offence.

For these reasons there is no merit in ground 4.
I will now deal with ground 1. Mr Marshall, on behalf of the appellant, submitted that the sentence imposed by the learned commissioner was manifestly excessive in that the wrong type of sentence was imposed. He submitted that the appellant's actions did not warrant immediate imprisonment and that an intensive supervision order or suspended imprisonment order should have been imposed. Alternatively, if immediate imprisonment was the only appropriate sentence, the term of 2 years was too long.
In support of this proposition, Mr Marshall emphasised the mitigating circumstances in the case, particularly the appellant's psychological state at the time of the offence, the plea of guilty, the appellant's prior good character and his low risk of reoffending.
To determine whether a sentence is manifestly excessive, regard is had to the maximum sentence prescribed by law for the crime, the standards of sentencing customarily observed with respect to the crime, the place which the criminal conduct occupies on a scale of seriousness of crimes of that type, and the personal circumstances of the offender: McDougall v The State of Western Australia [2009] WASCA 232 [13].
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', 20 years' imprisonment. Since that date, the maximum penalty for arson is, as I noted earlier, life imprisonment.
In McLaughlin v The State of Western Australia [2012] WASCA 204, Buss JA, with whom I agreed, set out the legislative history and policy impetus surrounding the Arson Legislation Amendment Act 2009. His Honour also identified the sentencing patterns prior to the commencement of that Act and the impact on those sentencing patterns after the commencement of the Act. It is unnecessary for me to repeat what was written in that case.
There is no tariff for arson because of the almost limitless variation in the circumstances in which it can be committed. Prior to the commencement of the Act, the standards of sentencing customarily imposed in respect of the offence were those set out in Bennett. In post‑transitional terms, the ranges were between 2 years 8 months to 4 years 8 months' imprisonment in very serious cases, and 2 years to 3 years 4 months' imprisonment in less serious cases.
However, as pointed out in McLaughlin, these ranges did not establish a sentencing matrix, rather, they provided general guidance. Further, it was said:
An offender who commits an arson offence is not to be sentenced merely by classifying his or her offending as a 'very serious case' or a 'less serious case' and then selecting a term within that range [56].
The ranges referred to in Bennett remain relevant as a general guide, but must now be considered in light of the increase in the maximum penalty. It is to be expected that sentences for arson will increase, especially in respect of the types of arson which were the impetus for the change in the maximum penalty. The offence committed by the appellant was not of this type. That said, it does not follow that there will necessarily be an increase in the penalty to be imposed in every case.
Patterns of sentences for arson since the increase in the maximum penalty are yet to emerge. Recently, this court has considered the cases of two offenders who, like the appellant, pleaded guilty to arson and were subject to the new maximum. One of these cases is McLaughlin. In that case, the offender, who had an extensive criminal record, was convicted of several offences including the arson of the house occupied by his estranged wife, which caused approximately $30,000 damage. The offence was committed on bail. The offender was sentenced to 2 years 8 months' imprisonment in respect of the arson. The case is of limited utility because the sole issue raised in the appeal was totality.
In JKL v The State of Western Australia [2012] WASCA 215, the offender was convicted of 11 counts on an indictment, including the arson of a stolen motor vehicle, that the sentencing judge described as being of 'considerable value'. Although the vehicle was burnt in circumstances where there was no immediate danger to life, the offence was aggravated because it was committed on bail and for the purpose of destroying evidence. The offender was sentenced at first instance to 4 years' imprisonment for the arson. He appealed, and alleged that this sentence was manifestly excessive. The appeal was upheld on this ground. A majority (Murphy JA and I) reduced the sentence to 3 years' imprisonment; Buss JA would have reduced it to 2 years and 8 months' imprisonment. The reduced sentences included a discount for cooperation with the authorities. No discount had been given by the sentencing judge.
It must always be borne in mind when considering sentencing ranges that the fundamental sentencing principle is that a sentence must be commensurate with the seriousness of the offence. Each case must be decided having regard to all the relevant facts and circumstances, not just of the offence, but of the offender. Outcomes in other cases, while a guide to consistency, do not fix the upper or lower limits of a just and proper sentencing discretion in the particular case.
On any analysis, the appellant's offending was serious. As the learned commissioner acknowledged, an aggravating circumstance was that the appellant, having harboured considerable resentment towards the complainant over a period of approximately 18 months, set fire to the car as an act of retribution. Not only was the car completely destroyed, but the complainant's house was extensively damaged. The potential for further damage to the house and injury or loss of life to those inside was obvious. It was indeed fortunate that no one was hurt, and that more damage was not done to the complainant's property. There was an element of premeditation about the offence. Further, it has had serious effects upon the victim who was, to some extent, by reason of his health, vulnerable.
However, there were a number of mitigating factors. The appellant pleaded guilty at an early opportunity. The appellant's antecedents were very favourable, and his prospects for rehabilitation are good. He had never before been imprisoned. Although matters personal to the appellant carry less weight in cases of arson, they are not to be ignored. His Honour found that the appellant's psychological state played a part in the commission of the offence and was mitigatory. The appellant is unlikely to reoffend.
In the end, the learned commissioner was faced with the difficult situation of sentencing a person of otherwise good character who has committed a serious offence. It was for him to balance the various competing sentencing considerations and, in doing so, he was correct to give emphasis to the seriousness of the offence and the need to provide general deterrence. A sentence other than immediate imprisonment would have been, in this case, completely inappropriate. The appellant has not demonstrated that the sentence imposed by his Honour was unjust or unreasonable. To my mind, the sentence was lenient. The allegation of manifest excess made in ground 1 fails.
I will now deal with the appellant's application to amend the grounds of appeal by adding proposed ground 8.
The factual background to the application is as follows. Prior to his imprisonment, the appellant worked as a vocational skills officer at Greenough Regional Prison. Upon being sentenced by the learned commissioner, the appellant was imprisoned at Casuarina Prison, where he was housed in the special management unit for his protection. This is because of his previous employment at Greenough Regional Prison. The appellant, in his affidavit, speaks of a number of incidents in which prisoners have threatened him because he was regarded by them as 'a screw'. On one occasion, after being verbally abused, the appellant was grabbed by a prisoner, who forced him up against a cell wall and pushed a clenched fist into his face. Because the appellant requires protection, he is unable to have contact with the general prison population. Further, he is unable to attend recommended treatment programs, and is suffering psychological stress.
It is submitted on behalf of the appellant that due to the consequence of his previous employment at Greenough Regional Prison, he is enduring greater hardship than that normally experienced by a prisoner serving a sentence of imprisonment. It is further submitted that the present environment 'is not assisting' in the management of the appellant's underlying psychological problems. The appellant submitted that these factors justify the imposition of a lesser sentence.
At the time the appellant was sentenced it was, of course, known that the appellant had worked at Greenough Regional Prison as a vocational guidance officer. It was not suggested that because of this, any sentence of immediate imprisonment would be harder on the appellant and therefore mitigatory. Accordingly, it cannot be said that his Honour fell into error by failing to take into account any such hardship.
The matters the appellant describes in his affidavit are events which have occurred since his sentence was imposed. An appellate court is not entitled to intervene in such circumstances: Colwell v The State of Western Australia [No 2] [2012] WASCA 196 [29]. Matters relating to the security and health of prisoners are the responsibility of the Chief Executive Officer of the Department of Corrections: ss 7 and 95A of the Prisons Act 1981 (WA).
In any event, even if this court was entitled to reduce the sentence because of the matters set out in the appellant's affidavit, I would not have done so. As I have said, I consider that the sentence imposed by the learned commissioner was lenient. To have further reduced it on account of the matters in the affidavit would have rendered it inadequate. For these reasons, I do not regard the proposed ground of appeal as having any reasonable prospect of success. It would be futile to allow the proposed amendment. The application to amend the grounds of appeal to add ground 8 should be refused.

Conclusion as to the appellant's appeal against sentence

I would grant leave to appeal in respect of ground 1, but dismiss the ground. I would not give leave to appeal in respect of any of the other grounds. I would dismiss the application to add ground 8.

Orders

1.Leave to appeal is granted in respect of ground 1.
2.Leave to appeal is refused in respect of grounds 2 to 7.
3.The application to amend the grounds of appeal to add ground 8 is refused.
4.The appeal is dismissed.

The respondent's cross‑appeal alleging manifest inadequacy

The respondent's ground of appeal alleges an implied error. However, in the written submissions and Ms Petrusa's oral submissions, the respondent submitted that his Honour made an express error by sentencing the appellant in accordance with the range of sentences customarily imposed prior to the increase in the maximum penalty.
It is true that his Honour, in his sentencing reasons, referred to the range of sentences for arson identified in Bennett, to which I referred earlier in these reasons. At the time there were no sentencing decisions of this court in respect of offences which were subject to the new increased maximum. However, as I have already observed, the learned commissioner referred to the maximum penalty of life imprisonment twice in his sentencing remarks. His Honour did not fall into error by referring to the range of sentences customarily imposed prior to the increase in the maximum penalty. The range of penalties has not been made irrelevant by the increase. When his Honour's sentencing remarks are read as a whole, I am not persuaded that his Honour made the error alleged by counsel for the respondent.
I have said that the sentence imposed upon the appellant was lenient. However, because of the mitigating factors which I have already identified, it was properly open to his Honour to impose a lenient sentence, even in light of the increased maximum penalty for arson. I have not been persuaded that the sentence is so lenient as to demonstrate implied error in the exercise of the sentencing discretion.
Although I would grant leave to appeal, I would dismiss the appeal.

Orders

1.Leave to appeal is granted.
2.The appeal is dismissed.