Newton v The State of Western Australia
[2006] WASCA 247
•21 NOVEMBER 2006
NEWTON -v- THE STATE OF WESTERN AUSTRALIA [2006] WASCA 247
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2006] WASCA 247 | |
| THE COURT OF APPEAL (WA) | |||
| Case No: | CACR:103/2006 | 14 NOVEMBER 2006 | |
| Coram: | STEYTLER P WHEELER JA McLURE JA | 21/11/06 | |
| 9 | Judgment Part: | 1 of 1 | |
| Result: | Leave to appeal granted Appeal dismissed | ||
| D | |||
| PDF Version |
| Parties: | GUY GILBERT NEWTON THE STATE OF WESTERN AUSTRALIA |
Catchwords: | Criminal law Appeal against sentence Arson Whether sentencing Judge erred in failing to suspend sentence Youthful offender with excellent antecedents Early plea of guilty No apparent motive other than thrill-seeking Offences involved deliberate and persistent course of conduct No error in light of seriousness of offending and need for general deterrence |
Legislation: | Criminal Code (WA), s 444(a), s 552(2)(b) |
Case References: | Catts (1996) 85 A Crim R 171 Dinsdale v The Queen (2000) 202 CLR 321 Duong v The State of Western Australia [2006] WASCA 110 Histon v The Queen, unreported; CCA SCt of WA; Library No 970197 Hrubos v The Queen, unreported; CCA SCt of WA; Library No 8614.1; 3 December 1990 Koppen v The Queen, unreported; CCA SCt of WA; Library No 8148; 19 March 1990 Long v Mayger (2004) 142 A Crim R 289 Quinn v The Queen, unreported; CCA SCt of WA; Library No 8361; 11 July 1990 at 7 R v James (1981) 27 SASR 348 R v Schneider-Markham, unreported; CCA SCt of WA; Library No 930561; 6 October 1993 S (a child) (1992) 60 A Crim R 121 Scott v The Queen, unreported; CCA SCt of WA; Library No 7607; 14 April 1989 The State of Western Australia v Warburton [2004] WASCA 228 Abbott v The Queen, unreported; CCA SCt of WA; Library No 9169; 2 December 1991 Bellamy v The Queen, unreported; CCA SCt of WA; Library No 970148; 11 March 1997 Hapke v The State of Western Australia [2006] WASCA 188 Hull v The State of Western Australia [2005] WASCA 194 Lowndes v The Queen (1999) 195 CLR 665 Paparone v The Queen (2000) 112 A Crim R 190 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : NEWTON -v- THE STATE OF WESTERN AUSTRALIA [2006] WASCA 247 CORAM : STEYTLER P
- WHEELER JA
McLURE JA
- Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram : KENNEDY CJDC
File No : IND 1760 of 2005
Catchwords:
Criminal law - Appeal against sentence - Arson - Whether sentencing Judge erred in failing to suspend sentence - Youthful offender with excellent antecedents - Early plea of guilty - No apparent motive other than thrill-seeking
(Page 2)
- Offences involved deliberate and persistent course of conduct - No error in light of seriousness of offending and need for general deterrence
Legislation:
Criminal Code (WA), s 444(a), s 552(2)(b)
Result:
Leave to appeal granted
Appeal dismissed
Category: D
Representation:
Counsel:
Appellant : Mr J McGrath
Respondent : Ms S M de Maio
Solicitors:
Appellant : Legal Aid WA
Respondent : State Director of Public Prosecutions
Case(s) referred to in judgment(s):
Catts (1996) 85 A Crim R 171
Dinsdale v The Queen (2000) 202 CLR 321
Duong v The State of Western Australia [2006] WASCA 110
Histon v The Queen, unreported; CCA SCt of WA; Library No 970197
Hrubos v The Queen, unreported; CCA SCt of WA; Library No 8614.1; 3 December 1990
Koppen v The Queen, unreported; CCA SCt of WA; Library No 8148; 19 March 1990
Long v Mayger (2004) 142 A Crim R 289
Quinn v The Queen, unreported; CCA SCt of WA; Library No 8361; 11 July 1990 at 7
R v James (1981) 27 SASR 348
(Page 3)
R v Schneider-Markham, unreported; CCA SCt of WA; Library No 930561; 6 October 1993
S (a child) (1992) 60 A Crim R 121
Scott v The Queen, unreported; CCA SCt of WA; Library No 7607; 14 April 1989
The State of Western Australia v Warburton [2004] WASCA 228
Case(s) also cited:
Abbott v The Queen, unreported; CCA SCt of WA; Library No 9169; 2 December 1991
Bellamy v The Queen, unreported; CCA SCt of WA; Library No 970148; 11 March 1997
Hapke v The State of Western Australia [2006] WASCA 188
Hull v The State of Western Australia [2005] WASCA 194
Lowndes v The Queen (1999) 195 CLR 665
Paparone v The Queen (2000) 112 A Crim R 190
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1 STEYTLER P: This is an application for leave to appeal against sentence.
2 The appellant pleaded guilty in the District Court to two counts of wilful and unlawful damage or destruction by fire, one count of stealing, one count of wilfully attempting to destroy or damage property by fire and one count of burglary with intent. He was sentenced, in respect of these offences, to a total term of 12 months' imprisonment, with eligibility for parole.
3 The circumstances of the offending were these. The appellant, a 19-year-old man, and a co-offender were driving in the Mandurah area in the appellant's father's car. The two of them purchased an aerosol can of de-greaser and petrol in a jerry can. They came across a recycling bin. The appellant set it alight, causing some damage to the bin. This was the offence the subject of count 1 on the indictment. The two offenders then travelled to a land sales office on a land site at a place known as Seascapes Boulevard. They removed three flags near the land sales office. This gave rise to the offence the subject of count 2 on the indictment. The two men sprayed the flags with de-greaser, set them alight and placed them under the sales office, which was a demountable building. They did so with the intention of setting the sales office alight. However, they were unsuccessful. Their attempt to do so gave rise to count 3 on the indictment.
4 The appellant then returned to the car, took out the jerry can containing fuel and returned to the sales office. He smashed a window in the office and entered it. This gave rise to count 4 on the indictment. An alarm sounded and the appellant left the sales office.
5 The appellant and his co-offender then travelled to Meadow Springs to a sales office on a street known as Pebble Beach Boulevard. The appellant poured petrol into an external airconditioning unit and set the sales office alight. This resulted in damage to a total value of $69,502. This gave rise to count 5 on the indictment.
6 The appellant was arrested shortly afterwards. He made full admissions during a record of interview conducted by the police and pleaded guilty at the first opportunity.
7 The appellant had excellent antecedents and the sentencing Judge accepted that he was a "fine young man" who is well liked and a hard worker and who had a great deal to offer the community.
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8 There is only one ground of appeal. It is that the sentencing Judge erred in failing to impose a suspended sentence. The appellant contends that this was a consequence of errors on the part of the sentencing Judge by characterising the offending as high on the scale of seriousness of this type of offending, by not giving sufficient weight to the excellent antecedents and youth of the appellant and by giving excessive weight to general deterrence. He suggested that this was not a case in which the objective of general deterrence should be given paramountcy. In the course of his written submissions, counsel for the appellant also contended that the sentencing Judge did not give any consideration to the question whether a suspended sentence was appropriate and consequently gave no reasons for failing to impose a term of that kind.
9 I am not persuaded that any of these contentions has been made good.
10 As to the last of them, it is apparent from the transcript of the sentencing proceedings that, immediately prior to sentencing the appellant, the sentencing Judge engaged in some debate with the appellant's counsel as regards the question whether a conditional suspended sentence should be imposed. It is plain from what was said in the course of that debate that she considered that the offending was too serious to justify an outcome of that kind. While she did not say this in the course of her abbreviated sentencing remarks, it is plain that she adhered to that opinion. She said that the offending was "extremely serious", that the most important thing was general deterrence and that, notwithstanding that the sentencing exercise had been "very difficult", she did not believe that she had any other choice than to impose a sentence of immediate imprisonment. In the circumstances, and accepting that the scheme set up by the Sentencing Act 1995 (WA) requires that a court be positively satisfied that the option of suspending imprisonment is not appropriate before it can impose a term of immediate imprisonment (see Duong v The State of Western Australia [2006] WASCA 110 at [12], [42]; Dinsdale v The Queen (2000) 202 CLR 321 at [13], [15]), and accepting also that it is ordinarily desirable to give express consideration to this question, there was, in the circumstances of this case, no requirement for the sentencing Judge to say more than she did.
11 Next, by way of general comment, as with most offences, what will be an appropriate penalty in a case of arson depends upon the individual circumstances of the offence and of the offender. However, the cases do provide some guidance.
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12 So, for example, it has been recognised that general deterrence is an important consideration in cases of this kind: see The State of Western Australia v Warburton [2004] WASCA 228 at [17] per Wheeler J. In Catts (1996) 85 A Crim R 171 at 176, Anderson J said:
"It is absolutely necessary that the courts should enforce the policy of government revealed through the maximum penalty of 14 years imprisonment which is prescribed for this offence. People who commit it must know they are very likely to receive stiff punishment. Arson in any form is very easy to commit. It is simple and easy to do and the consequences can be and often are extremely destructive, if not tragic. This is one of the reasons why the need for general deterrence is so important."
- He went on to observe that:
"In cases whether the dominant sentencing consideration is the need to deter others from engaging in similar conduct, the personal considerations - the matters personal to the offender - that might otherwise weigh quite heavily in favour of a lesser sentence cannot be given so much weight."
See also R vJames (1981) 27 SASR 348 at 351; S (a child) (1992) 60 A Crim R 121 at 135.
13 Amongst the considerations that must be taken into account in determining the seriousness of an offence of arson are the motive with which the offence was committed (see Histon v The Queen, unreported; CCA SCt of WA; Library No 970197 and the cases there cited; S (a child) at 132; James), the extent of the damage caused by the offence (see Histon at 14; Hrubos v The Queen, unreported; CCA SCt of WA; Library No 8614.1; 3 December 1990 at 5) and the extent to which the offence endangered human life (see Histon at 12). It will often be relevant to consider what was the nature of the property damaged. So, for example, the targeting of a residential dwelling may elevate the seriousness of the offending (see R v Schneider-Markham, unreported; CCA SCt of WA; Library No 930561; 6 October 1993).
14 As was observed by Anderson J in Catts, the maximum penalty for wilful and unlawful destruction and damage of property by fire is imprisonment for a period of 14 years: s 444(a) of the Criminal Code (WA). The maximum penalty for attempted wilful and unlawful destruction or damage of property by fire is 7 years' imprisonment: s 444(a) and s 552(2)(b) of the Code. It is consequently not surprising
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- that a review of the cases reveals that ordinarily the offence of arson will attract a significant term of imprisonment: see, for example, James at 351; S (a child) at 135; Quinn v The Queen, unreported; CCA SCt of WA; Library No 8361; 11 July 1990 at 7; Hrubos at 4. In S (a child), Malcolm CJ said (at 135) that in very serious cases of arson the offence commonly attracts sentences within a range of 4 to 7 years' imprisonment, although lesser sentences are frequently imposed in less serious cases. That case was decided prior to the enactment of the Sentencing Legislation Amendment and Repeal Act 2003 (WA), and the range there discussed, which must be considered against the maximum penalty provided for by the legislature, should consequently be reduced by one-third. It has also been said that, although there is no established tariff, the range of sentences commonly imposed for a single offence of arson appears to be in the vicinity of 3 to 5 years' imprisonment under the former regime: Histon at 14; Warburton at [22]. Once again, that range must be considered against the maximum sentence provided for by the legislature.
15 Suspended sentences are relatively rare in cases of arson leading to injury or substantial damage, although each case will, as I have said, turn upon its own circumstances and there have been cases in which the court has considered it inappropriate to impose a sentence of immediate imprisonment: see for example Scott v The Queen, unreported; CCA SCt of WA; Library No 7607; 14 April 1989 (a case involving a juvenile); Koppen v The Queen, unreported; CCA SCt of WA; Library No 8148; 19 March 1990 (a case involving two 20-year-old men). Importantly, in both of these cases the offenders had not intended to do any substantial damage. Moreover, in each case, the offenders were charged under the now repealed provisions of s 445(2) of the Code which dealt, inter alia, with wilfully and unlawfully setting fire to anything so situated that a building or structure would be likely to catch fire from it. Section 445(2) carried, at the time, a lower maximum sentence than the offence of directly setting fire to a building or structure.
16 The principles to be taken into account in considering whether to suspend a sentence of imprisonment are well known. All of the circumstances of this case, including the seriousness of the offending, must be reconsidered at this stage of the sentencing process: Dinsdale v The Queen (2000) 202 CLR 321. While general deterrence is, of course, a factor (in arson cases, a significant factor), regard must also be had, amongst other things, to the proper rehabilitation of the offender and, in the case of a first offender, to the question whether that person is likely to benefit from an exercise of clemency, to the ultimate benefit of the
(Page 8)
- general public: Long v Mayger (2004) 142 A Crim R 289 at [28] and the cases there cited.
17 That brings me back to the particulars of ground 1.
18 As to the first of them, I do not accept that the sentencing Judge characterised the offending as high on the scale of seriousness of this type of offending. Rather, she said only that the offending was extremely serious. In saying that she was, as I read the transcript, saying no more than that the offence of arson was extremely serious, as indeed it is.
19 Nor am I persuaded that the sentencing Judge erred by not giving sufficient weight to the excellent antecedents and youth of the appellant or by giving excessive weight to the principle of general deterrence. She specifically referred to the appellant's age, to the fact that he had not previously been in trouble and, as I have earlier mentioned, she described the appellant as a fine young man who was well liked and a hard worker and who had a great deal to offer the community. However, as she was required to do, she weighed these considerations against the seriousness of the appellant's offending and the need for general deterrence.
20 While it might be correct to characterise the offences, as counsel for the appellant did, by saying that they were acts, essentially, of foolishness by a youthful first offender who was not motivated by vengeance, politics or profit, the fact remains that the offences were deliberate and involved a persistent course of conduct embarked upon by a person who was determined to cause significant damage, as indeed he did. The deliberate burning down of property to a value of around $70,000 is serious, even having regard for the youth and excellent antecedents of the appellant and taking into account the absence of any motive other than what was said to be a wish to get a "buzz" out of the offending (if, indeed, that is a mitigating factor at all).
21 In all of the circumstances, and taking full account of the appellant's youth, favourable antecedents and early plea of guilty, it seems to me that the offending was so serious, and the need for general deterrence so great, that it was open to the sentencing judge to conclude that it was inappropriate to suspend the sentence of imprisonment imposed by her.
22 Ground 1 has consequently not been made out.
23 There remains one other issue. As I have said, the sentencing Judge imposed a global sentence of 12 months' imprisonment in respect of the appellant's offending. She did not impose separate sentences in respect of
(Page 9)
- each offence. In doing so, she was plainly in error, although the certificate of final outcome of charge dated 28 July 2006, signed by the sentencing Judge, records that terms of 12 months' imprisonment were imposed on each count, to be served concurrently, with eligibility for parole. It will be obvious from what I have said of the individual offences that not all of these would justify a term of imprisonment. Sentences of imprisonment were inappropriate in respect of the theft of the three flags and the damage to the recycling bin. However, as will also be apparent from what I have already said, sentences of 12 months' imprisonment, to be served concurrently, were appropriate in respect of each of the other offences. In those circumstances, and given that there is no ground of appeal challenging the sentences imposed, other than as regards the failure to suspend them, I am disinclined to interfere with the sentences as certified by the sentencing Judge.
24 While I would grant the application for leave to appeal, I would dismiss the appeal.
25 WHEELER JA: I have had the advantage of reading in draft the reasons for decision of Steytler P. I agree with those reasons and have nothing to add.
26 McLURE JA: I agree with Steytler P.
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