Rimington v The State of Western Australia
[2015] WASCA 102
•29/05/15
RIMINGTON -v- THE STATE OF WESTERN AUSTRALIA [2015] WASCA 102
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2015] WASCA 102 | |
| THE COURT OF APPEAL (WA) | |||
| Case No: | CACR:121/2014 | 7 MAY 2015 | |
| Coram: | BUSS JA MAZZA JA BEECH J | 29/05/15 | |
| 23 | Judgment Part: | 1 of 1 | |
| Result: | Appeal dismissed | ||
| D | |||
| PDF Version |
| Parties: | JOHN RIMINGTON THE STATE OF WESTERN AUSTRALIA |
Catchwords: | Criminal law and sentencing Arson Four offences involving three fires Total effective sentence of 6 years Whether infringed totality principle Whether sentencing judge erred in receiving the prosecution brief to supplement the agreed statement of facts |
Legislation: | Nil |
Case References: | Altham v The Queen (1992) 62 A Crim R 126 Apkarian v The State of Western Australia [2015] WASCA 67 Bellissimo v The Queen (1996) 84 A Crim R 465 Chan v The Queen (1989) 38 A Crim R 337 Chow v Director of Public Prosecutions (NSW) (1992) 28 NSWLR 593 Dinsdale v The Queen (2000) 202 CLR 321 Duong v The Queen (1997) 99 A Crim R 218 Edmonds v The State of Western Australia [2013] WASCA 255 Fernandes v The State of Western Australia [2009] WASCA 227 Gok v The Queen [2010] WASCA 185 'HAS' v The State of Western Australia [2005] WASCA 29 Hili v The Queen [2010] HCA 45; (2010) 242 CLR 520 Keating v The State of Western Australia [2007] WASCA 98 Krijestorac v The State of Western Australia [2010] WASCA 35 Law v The State of Western Australia [2009] WASCA 193 Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357 McLaughlin v The State of Western Australia [2012] WASCA 204 Morcom v The State of Western Australia [2013] WASCA 31 Muldrock v The Queen [2011] HCA 39; (2011) 244 CLR 120 Munda v The State of Western Australia [2013] HCA 38; (2013) 249 CLR 600 Newton v The State of Western Australia [2006] WASCA 247 Pelemis v The State of Western Australia [2009] WASCA 151 Postiglione v The Queen [1997] HCA 26; (1997) 189 CLR 295 Pustkuchen v The State of Western Australia [2010] WASCA 11 R v Baldock [2010] WASCA 170 R v Tsiaras [1996] 1 VR 398 Roffey v The State of Western Australia [2007] WASCA 246 Sloane v The State of Western Australia [2013] WASCA 53 Tanner v The State of Western Australia [2013] WASCA 142 Teakle v The State of Western Australia [2007] WASCA 15; (2007) 35 WAR 188 The State of Western Australia v Andela [2006] WASCA 77 The State of Western Australia v Bennett [2009] WASCA 9; (2009) 194 A Crim R 137 The State of Western Australia v JWRL [2010] WASCA 179 The State of Western Australia v Munda [2012] WASCA 164 The State of Western Australia v Rimington [2014] WASCSR 92 Trompler v The State of Western Australia [2008] WASCA 265 Vagh v The State of Western Australia [2007] WASCA 17 Veen v The Queen (No 2) [1988] HCA 14; (1988) 164 CLR 465 Wheeler v The Queen (No 2) [2010] WASCA 105 Wilson v The State of Western Australia [2010] WASCA 82 Wong v The Queen [2001] HCA 64; (2001) 207 CLR 584 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : RIMINGTON -v- THE STATE OF WESTERN AUSTRALIA [2015] WASCA 102 CORAM : BUSS JA
- MAZZA JA
BEECH J
- Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
ON APPEAL FROM:
Jurisdiction : SUPREME COURT OF WESTERN AUSTRALIA
Coram : HALL J
File No : INS 65 of 2014
Catchwords:
Criminal law and sentencing - Arson - Four offences involving three fires - Total effective sentence of 6 years - Whether infringed totality principle - Whether sentencing judge erred in receiving the prosecution brief to supplement the agreed statement of facts
Legislation:
Nil
Result:
Appeal dismissed
Category: D
Representation:
Counsel:
Appellant : Mr S Corish
Respondent : Mr J McGrath SC
Solicitors:
Appellant : Purcell Lawyers
Respondent : Director of Public Prosecutions (WA)
Case(s) referred to in judgment(s):
Altham v The Queen (1992) 62 A Crim R 126
Apkarian v The State of Western Australia [2015] WASCA 67
Bellissimo v The Queen (1996) 84 A Crim R 465
Chan v The Queen (1989) 38 A Crim R 337
Chow v Director of Public Prosecutions (NSW) (1992) 28 NSWLR 593
Dinsdale v The Queen (2000) 202 CLR 321
Duong v The Queen (1997) 99 A Crim R 218
Edmonds v The State of Western Australia [2013] WASCA 255
Fernandes v The State of Western Australia [2009] WASCA 227
Gok v The Queen [2010] WASCA 185
'HAS' v The State of Western Australia [2005] WASCA 29
Hili v The Queen [2010] HCA 45; (2010) 242 CLR 520
Keating v The State of Western Australia [2007] WASCA 98
Krijestorac v The State of Western Australia [2010] WASCA 35
Law v The State of Western Australia [2009] WASCA 193
Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357
McLaughlin v The State of Western Australia [2012] WASCA 204
Morcom v The State of Western Australia [2013] WASCA 31
Muldrock v The Queen [2011] HCA 39; (2011) 244 CLR 120
Munda v The State of Western Australia [2013] HCA 38; (2013) 249 CLR 600
Newton v The State of Western Australia [2006] WASCA 247
Pelemis v The State of Western Australia [2009] WASCA 151
Postiglione v The Queen [1997] HCA 26; (1997) 189 CLR 295
Pustkuchen v The State of Western Australia [2010] WASCA 11
R v Baldock [2010] WASCA 170
R v Tsiaras [1996] 1 VR 398
Roffey v The State of Western Australia [2007] WASCA 246
Sloane v The State of Western Australia [2013] WASCA 53
Tanner v The State of Western Australia [2013] WASCA 142
Teakle v The State of Western Australia [2007] WASCA 15; (2007) 35 WAR 188
The State of Western Australia v Andela [2006] WASCA 77
The State of Western Australia v Bennett [2009] WASCA 9; (2009) 194 A Crim R 137
The State of Western Australia v JWRL [2010] WASCA 179
The State of Western Australia v Munda [2012] WASCA 164
The State of Western Australia v Rimington [2014] WASCSR 92
Trompler v The State of Western Australia [2008] WASCA 265
Vagh v The State of Western Australia [2007] WASCA 17
Veen v The Queen (No 2) [1988] HCA 14; (1988) 164 CLR 465
Wheeler v The Queen (No 2) [2010] WASCA 105
Wilson v The State of Western Australia [2010] WASCA 82
Wong v The Queen [2001] HCA 64; (2001) 207 CLR 584
1 BUSS JA: I agree with Beech J.
2 MAZZA JA: I agree with Beech J.
3 BEECH J:
Introduction
4 The appellant appeals against his sentence for four counts of criminal damage by fire. The four counts relate to three fires lit by the appellant. Count 1 relates to the destruction by fire of the contents of business premises effectively owned and controlled by the appellant and his former wife. The second count relates to damage caused by the same fire to a neighbouring unit and common property. Count 3 relates to a separate fire causing extensive damage to an investment property owned by the appellant's former wife. Count 4 relates to a third fire causing extensive damage to the former family home and a car.
5 The total damage caused by the three fires was approximately $1.5 million.
6 Following his pleas of guilty, the appellant was sentenced to 3 years' imprisonment on count 1; 3 years' imprisonment on count 2, concurrent with count 1; 3 years 9 months' imprisonment on count 3, commencing after service of 12 months of the sentence on count 1; and 4 years' imprisonment on count 4, commencing after service of 12 months of the sentence on count 3.
7 The total effective sentence was 6 years' imprisonment.
8 For the reasons that follow, I would dismiss the appeal.
The facts
9 An agreed statement of material facts was tendered for the sentencing. The agreed facts were as follows:
1. [Count 1]
The [appellant] in this matter is 46 years of age and, at the time of this incident, resided at 32 Piggot Way, Broome. The [appellant] had separated from his wife in October 2012 and discussions had commenced involving disbursement of assets. There had been a fair amount of animosity between the [appellant] and his ex wife leading up to this incident.
At 7.50 pm on Thursday 23 May 2013 the [appellant] attended at the BP Service Station on the corner of Guy and Hunter Streets in Broome where he filled up a number of jerry cans with petrol. He paid for the petrol and 2 lighters and then departed the BP Service Station just after 8 pm in a white utility vehicle.
At about 8.20 pm the [appellant] then went to the business premises of Just Roofing Sheet Metal Supplies situated at unit 3 number 8 Decastilla Street, Broome. The business is owned by Just Roofing Sheet Metal Supplies Proprietary Limited as Trustees for Rimington Family Trust. The [appellant] and his estranged wife are both Directors of this company. The building is owned by Rimington Superannuation Fund managed by Powertop Proprietary Limited. The [appellant] and his estranged wife are directors of this company. The building is mortgaged to Westpac Bank.
The [appellant] entered the premises, dispersed petrol within, and ran a rope doused in fuel from the premises into the car park. The [appellant] ignited the rope which caused the fire to spread into the premises. This caused the strata unit to be engulfed by fire. The [appellant] departed the scene of the fire by vehicle prior to the attendance of the Department of Fire and Emergency Services who extinguished the fire. The contents were destroyed.
2. [Count 2]
As a result of the above fire in unit 3 the structure of Unit 3 sustained damage. There was also damage caused to a common fire wall adjoining unit 2/8 Decastilla Street, Broome. The damage to the wall included cracking along the top of the wall and warping to the lower sections of the wall as the wall is designed to do in the event of a fire. The structure of Unit 3 required extensive repairs and the fire wall between the units has to be replaced. There will also be some consequential work required to some of the fixtures and fittings in unit 2 as a result of the damage to the firewall. Some fixtures will need to be removed and reinstated during the replacement of the firewall.
3. [Count 3]
At about 8.40 pm on Thursday 23 May 2013 the [appellant] went to 18 Honeyeater Loop, Djugun. This location is a residential construction site of a future dwelling that is at lock up stage and near completion. The property is owned by Rimington Investment Trust which has sole control and ownership by Chantelle Judith Rimington, the [appellant's] estranged wife. The property is mortgaged to Westpac Bank.
The [appellant] entered the house, dispersed petrol and fuel cans and ran a trail of fuel from the house into the front yard. The [appellant] ignited the fuel which caused petrol vapours within the house to explode and parts of the house to catch fire. Fire and Emergency Services attended and extinguished the fire. The building sustained heat, explosion and smoke damage to [the] extent that repairs are required.
4. [Count 4]
At about 9.30 pm on Thursday 23 May 2013 the [appellant] returned to his home situated at 32 Piggot Way, Broome. The property is owned by J and C Rimington Partnership, the partners being the [appellant] and Chantelle Judith Rimington. There is no mortgage on the property. The [appellant] removed belongings of a housemate from the dwelling and placed them in the housemate's boat. The [appellant] doused the house and contents in petrol then hitched the housemate's boat trailer to his vehicle and removed the boat and contents from the property parking it on a neighbour's verge. The [appellant] returned to the house parking his vehicle in the garage and minutes later ignited a fuel trail running from within the house to the front yard. At the time of doing so the [appellant] was approached by a neighbour who observed the ignited fuel trail. The neighbour questioned the [appellant] who replied, 'Come sit down and watch the most expensive barbeque in Broome'. 'This is what you get after 25 years of hard work'.
The Department of Fire and Emergency Services attended and extinguished the fire. [H]owever the vehicle, dwelling and entire contents were completely destroyed by the fire. The [appellant] sat outside the house consuming a stubby of beer until Police arrived. The [appellant] was arrested as a suspect and later charged … The [appellant] did not participate in any formal electronic record of interview. [H]owever he did make some comments to police at the police station which were recorded on CCTV camera.
The sentencing remarks and the sentence
10 The sentencing judge stated the agreed facts which I have just set out.1 His Honour found, in accordance with the parties' agreement,2 that the replacement value of the contents of unit 3 was $715,000; the cost of repairs to unit 2 was $260,000; the cost of repairs to the home under construction the subject of count 3 was $57,160; and the cost of the damage to the home the subject of count 4 was $460,000.
Seriousness of offences
11 The learned sentencing judge made the following observations about the seriousness of the appellant's offences.
These offences all occurred within a relatively short period of time, on 23 May 2013. It seems that on that day you were feeling particularly upset about your marital breakup and the impact it was having on you and your children.
A friend told you that your ex-wife had required changes to the house that was being built for her at Honeyeater Loop. This seems to have triggered a decision by you to destroy a number of properties in which you both had an interest. You had also been drinking at that time, but how much it is difficult to say.
The decision that you made may not have been thought over for a long time and you may not have considered all of the consequences, but nor could it have been said to be a merely impulsive decision. It involved some preparation. You took a rope from your boat at Piggott Way and jerry cans. You took those to a petrol station. You bought fuel there and lighters. All of this was quite clearly for the purpose of setting fires. At the factory unit you used the rope as a fuse. At the Piggott Way property you removed your friend's property and boat. The three properties were in different parts of Broome and you travelled from one to another, leaving a trail of destruction behind you. All of this shows a person who was acting that night with grim determination.
In acting as you did, I conclude that you were angry towards your ex-wife; you wanted to destroy the properties to defeat any legitimate claim she may have to them. But that anger was likely mixed with other emotions such as frustration and sorrow at the impact of the separation on your children and yourself, a fear of losing all that you had built up over many years and also perhaps some self-pity.
In setting each of these fires you did more than destroy property. You endangered the lives and safety of other people. In each case, having set a fire at night using accelerant, you did nothing to alert authorities or prevent the fires from spreading. Fire and Emergency Service Authority officers were called. At one stage, they were required to fight three fires almost simultaneously in Broome. This, no doubt, placed strain on this valuable public resource and also put the safety of those officers at potential risk.
The first fire was in an industrial area. The fire spread and caused extensive damage, not only to the unit from which your business operated, but also a neighbouring unit and property owned by the strata company. I have indicated the total cost of the damage, both to the unit that your business owned and to the strata company and neighbouring unit. Although it was an industrial area there were people who lived on the site as caretakers. I am told they lived about a hundred metres away. They did not initially know of the fire until another man alerted them by driving up and sounding his horn. By then the fire was well advanced. They called the fire services and did what they could to mitigate the effects by pushing away one of your business vehicles and turning off the power, no doubt at some personal risk to themselves.
The second fire was in a residential area, as indeed was the third. This is a significant aggravating feature. The risk that such fires will spread and cause damage to neighbouring homes and potentially threaten the lives and safety of others, is a real one.
At Honeyeater Loop several neighbours describe hearing an explosion. The fear that this caused them is readily apparent from their statements. Just prior to this, you had deflected the concern of one neighbour by telling him that he was not to worry and that you were just unloading tiles. That is clearly not what you were doing. After the explosion, several neighbours ran to the scene. Some were concerned that a person may be trapped or injured inside, and went into the burning house, at risk to themselves. One neighbour is a fire fighter at the airport. That man, Ben Dewhurst, entered the house with a fire extinguisher, putting out fires that had been set in different rooms. One room was too hot for him to enter and he had to smash a window in an attempt to put out the fire from the outside. He continued to do what he could until FESA arrived. His bravery and efforts doubtless helped to limit the damage to that property. Other neighbours also tried to assist with garden hoses. Your actions caused fear and peril to those neighbours.
The [fire at the] Piggott Way property was started in the same way. Again you deflected the concerns of a neighbour who saw you carrying things out of the house. Rather than alert your neighbour as to what you were doing, you gave the impression that there was nothing to worry about. Your removal of the property belonging to a friend showed some concern for him, but very little for your wife and daughters who had property within that house. That fire also caused fear and distress. A neighbour ran from house to house organising hoses and calling police. There was, again, an explosion. There were children in a nearby house who were moved out to the back of their property. Whilst this was occurring you sat on an esky, beer in hand, watching the fire engulf the house. Your words to a neighbour of, 'come sit down and watch the most expensive barbecue in Broome', and that, 'This is what you get after 25 years of hard work', reveal your fatalistic determination to do as much damage as you could. The total amount of damage for all four offences is approximately $1.5 million.3
12 No ground of appeal challenges the correctness of any of these findings by the sentencing judge.
13 His Honour found that the appellant's offences:
(a) involved a degree of preparation and could not be described as impulsive, having taken place over the course of approximately 1 hour in three different locations; and
(b) endangered the lives and safety of a number of people, including fire and emergency service authority officers, caretakers living near to the industrial units the subject of counts 1 and 2, and neighbours living near the homes the subject of counts 3 and 4, both of which were in residential areas.
Personal circumstances
14 The sentencing judge made the following remarks about the appellant's personal circumstances.
In this case I have also taken into account your personal circumstances. You have today given evidence before me as to those circumstances.
You are now 47 years old. You are a man of previous good character. It is clear to me that you love your children and did not intend for them to suffer any harm as a result of these events. You accept, however, that your actions have indeed caused them to suffer, because they lost property and now have a strained relationship with you, one that you hope to recover over time.
You have by all accounts led a very blameless and hardworking life. Over many years you built up a successful business and a good portfolio of assets, which is now, largely due to your actions, decimated. I have heard good character evidence from a number of your friends. You are lucky indeed to have such good friends, who will no doubt provide you with support on your ultimate release from prison and incorporation back into the community. Very many offenders who appear before me do not have the good fortune to have the friends that you have. That is a precious resource that you should value.
I have received a psychiatric report in respect to you, which I have taken into account. It would seem from that that you have for some years suffered depression, although the extent to which that was well treated appears to be doubtful. You were taking antidepressants at the time of the offences, although it is likely that the dosage of that antidepressant had not been regulated to a degree that was truly effective. That seems to have now changed. You have now engaged with counselling and are on a higher dose of antidepressant and all of that seems to have been beneficial to you. The psychiatrist indicates that it is likely that at the time of these offences you were depressed and feeling frustrated and mentally drained. There is also the possibility that alcohol had some part to play, but that is no excuse. Clearly you were in control of the alcohol that you took. You described your mood at the time of the offending to the psychiatrist as depressed and anxious, and you said to him that your current situation was horrendous, that you had lost everything and that you were unsure about your future.
It would seem that since you were released on bail after a period spent in custody you have used the time before today to good use, in that you have worked hard, have endeavoured to deal with what you have done, taken responsibility for it, engaged positively with friends and the community and tried to think positively of the future. They are all things which are in your favour and indicate to me that you have good prospects of rehabilitation.4
15 Ground 1 of the appeal complains that the sentencing judge did not 'sufficiently take into account the [appellant's] depression as a mitigating factor'. In support of that ground, the appellant points to the sentencing judge's erroneous statement that the appellant was taking antidepressants at the time of the offences.5 The respondent concedes that this observation involved a factual error on the part of his Honour.6
Relevant principles
16 The sentencing judge commenced his statement of relevant principles by observing that general deterrence is the dominant sentencing factor in cases of arson.7 That observation is the subject of ground 2.
17 The sentencing judge then referred to the fact that there was no established range of sentences for arson, but that sentences of between 2 years 8 months and 4 years 8 months in very serious cases and 2 years to 3 years 4 months in less serious cases have been referred to in decisions of the Court of Appeal. His Honour rightly pointed out that those sentences do not represent the bounds of discretion, are merely of general guidance, and were derived from cases where the maximum penalty for arson was 14 years. The maximum penalty has now been increased to life imprisonment, which his Honour said was an indication that sentences for arson offences should be increased.8
18 The sentencing judge observed that relevant considerations in determining the seriousness of an offence of that type included the motive, the extent of the damage caused, the extent to which life was endangered, the nature of the property, and whether residential dwellings were targeted.9 His Honour found that the appellant's motive was to harm his ex-wife by denying her financial benefits to which she may have been entitled.10 The effect of the appellant's offending was to significantly reduce the marital pool of assets.11 The damage caused was extensive and costly. It had an impact on both the appellant and, as intended, his former wife, but also on his children, which his Honour found the appellant did not intend.
Impact of the offences
19 The sentencing judge referred to the victim impact statement that he had received from the appellant's ex-wife, and to the traumatic and enduring effect of the appellant's offences on her and their children. His Honour also referred to the fear and concern caused to the neighbours of the two residential properties.12
Other mitigating factors
20 His Honour accepted that the appellant was remorseful and that he had expressed shame and sorrow for what he had done and the impact of his conduct.13
21 His Honour found that the appellant's pleas of guilty were entered at the first reasonable opportunity, and allowed a 25% discount on the sentences that he would otherwise have imposed by reason of those pleas.14
22 His Honour also took into account the previous good character of the appellant, his good prospects of rehabilitation and the low risk of his reoffending.15
Sentence
23 The sentencing judge determined that the appellant's sentences should not be wholly concurrent. Although they occurred close in time, they involved three fires at separate locations. Counts 3 and 4 were also more serious because they involved homes in residential areas.16
24 The sentences imposed were:
(1) count 1 - 3 years' imprisonment;
(2) count 2 - 3 years' imprisonment wholly concurrent with count 1;
(3) count 3 - 3 years 9 months' imprisonment, commencing after service of 12 months of the sentence on count 1; and
(4) count 4 - 4 years' imprisonment, commencing after service of 12 months of the sentence on count 3.17
25 Thus, the total effective sentence was 6 years' imprisonment. His Honour ordered that the appellant be eligible for parole.18
Grounds of appeal
26 The grounds of appeal are in the following terms:
(1) The sentencing judge erred in failing to sufficiently take into account the appellant's depression as a mitigating factor.
(2) The sentencing judge erred in placing excessive weight on general deterrence.
(3) The sentencing judge erred in permitting the prosecution to adduce into evidence the whole State brief rather than sentencing the appellant on the agreed statement of material facts.
(4) The sentence is manifestly excessive.
27 Leave to appeal has been granted on grounds 3 and 4. The question of leave on grounds 1 and 2 was referred to the hearing of the appeal.
Appeals against sentence - general principles
28 As is well known, the discretionary nature of the sentencing task means that an appeal court cannot intervene simply because, had it been exercising the sentencing discretion, it would have imposed a different sentence. The court can intervene only where an appellant demonstrates that a material express or implied error has been made, the latter requiring that the sentence is unreasonable or plainly unjust.19
Ground 1: the appellant's depression as a mitigating factor
29 This ground complains that the judge failed 'to sufficiently take into account the [appellant's] depression'. That complaint is of something in the nature of a weighting error, and is not a proper ground of appeal. A failure to give adequate weight to a relevant sentencing consideration only gives rise to an express appellable error if it amounts to a failure to exercise the discretion actually entrusted to the court.20 That is a very high threshold.21 A complaint of failure to give adequate weight that does not satisfy it is no more than a particular of a claim that an individual sentence is manifestly excessive or that a total sentence is disproportionately long.22
30 The psychiatrist provided a report based on the appellant's medical records and a 60 minute interview conducted via Skype. His report stated that the appellant 'probably acted on impulse at the time in question, apparently feeling overwhelmed emotionally, hopeless and not carefully considering the consequences of his actions'.23 By consent, the report was amended to delete the reference to the appellant having acted on impulse. Enquiries with the consultant psychiatrist had revealed that in making the statement I have quoted he had overlooked the fact that there were three offences in separate locations. Consequently, the psychiatrist did not adhere to that statement.24 The psychiatrist expressed his conclusions as follows:
In my opinion, [the appellant's] acute depression and adjustment problems to his marital separation probably mitigate against the seriousness of his actions, probably making him disinhibited and affecting his capacity for sound judgment and self-control. The presence of a degree of alcohol intoxication at the time probably also contributed to his excessive reaction at the time of the alleged offence.25
31 The tentative terms in which this view is expressed and the reference to the probable contribution of alcohol should be noticed.
32 Mental impairment may be relevant to sentencing in a number of ways, as explained in R v Tsiaras:26
First, it may reduce the moral culpability of the offence, as distinct from the prisoner's legal responsibility. Where that is so, it affects the punishment that is just in all the circumstances and denunciation of the type of conduct in which the offender engaged is less likely to be a relevant sentencing objective. Second, the prisoner's illness may have a bearing on the kind of sentence that is imposed and the conditions in which it should be served. Third, a prisoner suffering from serious psychiatric illness is not an appropriate vehicle for general deterrence, whether or not the illness played a part in the commission of the offence. The illness may have supervened since that time. Fourth, specific deterrence may be more difficult to achieve and is often not worth pursing as such. Finally, psychiatric illness may mean that a given sentence will weigh more heavily on the prisoner than it would on a person in normal health.
33 Those principles apply to any offender who has, either at the time of offending or at sentence, a mental disorder, abnormality or impairment of mental function.27
34 If an offender contends that their moral culpability is lessened by mental impairment, the offender must prove, on the balance of probabilities, a causal connection between the impairment and the commission of the offence.28
35 Mental impairment that is not causative of the offence may still be relevant to issues such as the offender's rehabilitation, treatment, deterrence and the question of whether any sentence of immediate imprisonment would weigh more heavily on the offender than a person in normal health.29
36 Mental impairment may operate to reduce (but usually not eliminate) the weight to be given to general deterrence. The extent that this will be so depends upon the circumstances of the case.30
37 It is common ground that in this case the learned sentencing judge erred in finding that the appellant was being treated for his depression at the time of the offences. This treatment did not commence until after the commission of the offences. However, an error will only sustain an appeal if it is material; in other words, if it affects or is capable of affecting the sentence actually imposed by the sentencing judge.31 I am not persuaded that the error of fact in this case made any difference, or was capable of making any difference, to the sentence that his Honour imposed.
38 Contrary to the appellant's assertion,32 it by no means follows from his Honour's erroneous statement that he failed to give weight or adequate weight to the appellant's depression. The sentencing judge expressly said that he took into account the contents of the psychiatric report. His Honour referred to the fact that the psychiatrist indicated that it was likely that at the time of these offences the appellant was depressed and feeling frustrated.33
39 The appellant submits that the sentencing judge's error was material in that it affected, or was capable of affecting, his Honour's view of the appellant's prospects of rehabilitation.34 There is no merit in that submission. The sentencing judge found that the appellant had good prospects of rehabilitation and was unlikely to reoffend.35
40 For these reasons, I would not grant leave to appeal on ground 1.
Ground 2: the weight given to general deterrence
41 The appellant fixes on the sentencing judge's observation that 'general deterrence is the dominant sentencing factor in cases of arson'.36 The appellant submits that this observation constitutes an error of principle because no one purpose of sentencing can be said to have the dominant role.37 The appellant argues that to state that general deterrence is the dominant sentencing factor for a particular class of offence is inconsistent with statements of the High Court that require a more sensitive approach, involving the weighing and balancing of the purposes of punishment in each case.38
42 There is a long and consistent line of appellate authority in this State to the effect that, in cases of arson, general deterrence is the dominant sentencing factor and the personal circumstances of the offender carry less weight than they might do in other cases involving different offences. In The State of Western Australia v Bennett39 Miller JA sets out these principles, drawing from earlier cases. Since then, they have frequently been cited with approval by this court.40
43 Moreover, similar statements have been made in respect of other categories of offence. For example, for offences of trafficking in dangerous drugs of addiction, it is often said that the major sentencing considerations are general and personal deterrence.41
44 The appellant submits42 that these statements are inconsistent with the approach to sentencing explained in Veen v The Queen (No 2)43 and in Markarian v The Queen.44 I do not accept that submission.
45 In those cases (and in many others) the High Court explains that the process of sentencing involves taking account of many considerations, some of which may be conflicting, to arrive at a sentence that is proportionate to the gravity of the offence committed by the offender in all of the circumstances. In my view, nothing said in those cases is inconsistent with an appellate court identifying that, in a particular class of offence, general deterrence is the consideration to which the most weight must be given.
46 Further, the statements to that effect in appellate decisions in this State are supported by what Gaudron, Gummow and Hayne JJ said in Wong v The Queen.45 In that case their Honours said that:
it may be appropriate [for an appellate court] to conclude that sentencers should give chief weight to general deterrence in sentencing for a particular kind of offence.
47 That is exactly what has occurred in this court in relation to offences of arson. The sentencing judge's observation that in cases of arson general deterrence is the dominant sentencing factor does not reveal any error.
48 I would not grant leave to appeal on ground 2.
Ground 3: the tender of the State brief
49 By this ground the appellant complains that the sentencing judge wrongly permitted the prosecution to tender the whole State brief, rather than sentencing the appellant on the agreed statement of material facts. The appellant submits that:
(a) 'the agreed statement of material facts circumscribed the factual basis of sentencing'; and
(b) once objection was taken to the tender of the State brief, the 'accusatorial process [was] engaged' and the State brief was inadmissible.46
50 I do not accept these submissions.
51 Both parties accepted47 the principles applicable to the finding of facts for the purposes of sentencing outlined by Buss JA (McLure and Pullin JJA agreeing) in Law v The State of Western Australia.48
52 Section 15 of the Sentencing Act 1995 (WA)permits a sentencing court to inform itself in any way it thinks fit. The breadth of that power does not detract from the requirement for procedural fairness in the sentencing process.49
53 The provision by the parties of an agreed statement of material facts does not thereby exclusively and exhaustively constitute the factual basis for sentencing. That is not the objective intention revealed by a statement of agreed facts. Both the prosecution and the defence are at liberty to assert and, if necessary, prove additional facts not inconsistent with the agreed facts. These additional facts may provide context for the agreed facts. Further, and in any event, agreement by the parties cannot bind the court as to the facts that are to form the basis of sentencing.50 If and to the extent that the court considers the statement of agreed facts to be inadequate, the court must ensure procedural fairness in any further fact-finding that it proposes to undertake.
54 Fairness will dictate that if the sentencing judge proposes to find facts that are substantially different from, or additional to, the facts in a statement of agreed facts, the judge should draw this to the parties' attention and give them an opportunity to respond.51 As will be seen, that is what occurred in this case.
55 If there is no objection to the tender of the prosecution brief, there is no impediment to the sentencing court receiving it, subject to ensuring procedural fairness to the offender. If there is an objection to the tender of the prosecution brief, the appropriate course for the sentencing judge will be influenced by all the circumstances of the case, including the grounds of the objection.
56 In this case, the approach of the sentencing judge seems to me to have been impeccable. His Honour asked counsel for the appellant whether he wished to cross-examine any witness, indicating that the hearing could be adjourned for that purpose.52 Counsel for the appellant did not at any time indicate that he wished to cross-examine any witness. He said that he did not require the State's witnesses to be called.53 Counsel for the appellant accepted that what was said in the witness statements in the State brief about what the neighbours did at the two residential properties was true.54 Before the sentencing judge, counsel for the appellant contended that the agreed statement of material facts should be the sole factual basis for the sentencing.55 His Honour rightly rejected that contention, and invited counsel to identify any objections that he had to specific material in the prosecution brief.56 The sentencing judge heard and determined those objections, and there is no criticism of his rulings in that regard. The appellant's counsel also submitted to the sentencing judge that if the State brief was tendered there was a risk that the court would take into account aggravating material in it without counsel's knowledge.57 However, as counsel acknowledged at the appeal hearing,58 the learned sentencing judge subsequently brought to counsel's attention all of the matters in the State brief that he proposed to take into account in sentencing.59
57 At the appeal hearing, the appellant's counsel conceded that his Honour did not appear to rely on any aggravating material in the brief.60 In these circumstances, the appellant's oral submission on appeal that the sentencing judge's approach detracted from the integrity of the sentencing process is without substance.61
58 The matters from the State brief taken into account by the sentencing judge were relevant. They provided some context for, and elucidation of, the facts stated in the agreed statement of material facts. They were not in any way inconsistent with it.
59 Section 15 of the Sentencing Act empowers a sentencing court to receive information that is not admissible under the law of evidence.62 However, it is open to an offender to challenge the truth or accuracy of any material advanced by the prosecution. If the offender does so, the case is to be resolved by the calling of evidence in the conventional way, and the court making its findings.63
60 In this case, counsel for the appellant did not seek to challenge any fact in the prosecution brief or to cross-examine any witness, despite being given the opportunity to do so.
61 The appellant relies on what is said in Chow v Director of Public Prosecutions64 to the effect that if depositions are objected to on sentencing, they are inadmissible and the ordinary rules of evidence apply.65 In my view, the merit of that submission depends upon what is meant by 'objected to'. If an offender challenges the truth of what is in the prosecution brief then I agree that the ordinary rules of evidence apply. But absent any such challenge, it is not open to an offender to exclude receipt of the prosecution brief by a general statement of objection that does not identify a particularised ground of objection.
62 The appellant has not identified any factual finding by the sentencing judge, derived from the State brief, that was erroneous in fact, or which occasioned procedural or substantive injustice to the appellant.
63 For these reasons, ground 3 fails.
Ground 4: totality
64 There are two limbs to the totality principle of sentencing. Only the first limb is relevant to this appeal. This limb requires a total effective sentence to be a just and appropriate reflection of the total criminality involved in all the relevant offences, viewed in their entirety and having regard to the circumstances of the case, including the offender's personal circumstances.66
65 In order to determine whether a sentence for an individual offence is manifestly excessive (or inadequate) the offence should be viewed in light of the maximum sentence prescribed by law for the crime, the standards of sentencing customarily imposed with respect to it, the place that the criminal conduct occupies in the scale of seriousness of crimes of that type, and the offender's personal circumstances.67 Similar considerations apply to an assessment of whether multiple sentences for a number of offences infringe the first limb of the totality principle.68
66 The range of sentences customarily imposed for a crime does not establish the range of a sound exercise of the sentencing discretion.69 Sentences customarily imposed in comparable cases provide a yard stick or reference point for ensuring broad consistency in sentencing, bearing in mind the scope for significant variations in relevant sentencing factors.70
67 Among the considerations relevant to the seriousness of an arson offence are the motive with which the offence was committed, the extent of damage caused by the offence, the extent to which the offence endangered human life, and the nature of the property damaged.71 Targeting of a residential dwelling may elevate the seriousness of the offending.72
68 The appellant does not challenge any of the individual sentences imposed.73
69 The sentencing judge correctly identified a number of features of the appellant's offending that made it a very serious example of the offence of arson:
(1) the appellant lit three fires over a period of approximately 1 hour;
(2) the offences involved a degree of preparation;
(3) the offences were founded on the appellant's anger towards his ex-wife. His intention was to destroy the properties that he set on fire in order to defeat his ex-wife's claim to those properties;
(4) the appellant acted with 'grim determination';
(5) the offences endangered the lives and safety of a number of people;
(6) the fires the subject of counts 3 and 4 were lit at homes in residential areas and caused fear and distress to people living nearby;
(7) the fires caused very extensive damage totalling approximately $1.5 million;
(8) at both the Honeyeater Loop and Piggot Way properties, the appellant sought to deflect the concerns of a neighbour who saw the appellant preparing to light a fire;
(9) as the victim impact statement reveals, the appellant's offences have had devastating and enduring effects on his former wife and on their children.74
70 The sentencing judge took into account the appellant's previous good character,75 his remorse,76 his good prospects of rehabilitation,77 his low risk of reoffending78 and the fact that he was suffering from depression when he committed the offences.79 His Honour also took into account the appellant's plea of guilty, allowing a 25% discount on account of it.80
71 The sentencing judge rightly observed that the appellant's offending was an extremely serious example of arson, and that general deterrence was an important consideration.81
72 The sentencing judge took careful account of totality considerations. He made the sentences on counts 1 and 2 concurrent with each other, because they related to the same fire. He ordered that the sentences on counts 3 and 4 each be served partly concurrently. His Honour imposed longer terms for counts 3 and 4, reflecting the fact that they involved homes in residential areas.82
73 The appellant did not refer to any comparative cases in support of his contention that the total effective sentence in this case offended the totality principle.83 In my view, consideration of the decided cases does not support the appellant's contention. I have reviewed all of the cases referred to in the parties' submissions, as well as some other cases. In my opinion, none of them is sufficiently comparable to be of significant utility. Still less do the cases reveal a pattern against which the total sentence in the present case can be seen to be excessive.
74 Prior to 2009 amendments increasing the maximum penalty for arson84 from 14 years' imprisonment to life imprisonment, Miller JA observed in Bennett85 that while there was no tariff for the offence of arson, in very serious cases the offence commonly attracted sentences within a range of 2 years 8 months to 4 years 8 months and, in less serious cases, from 2 years to 3 years 4 months. That range does not establish a sentencing matrix. It provides general guidance, but does not fix an upper or lower limit.86
75 Since that range was established, Parliament has increased the maximum penalty for the offence of arson. An increase in the maximum penalty for an offence is an indication that sentences for that offence should be increased.87
76 Patterns of sentences for arson since the increase in the maximum penalty are yet to emerge.88
77 The question is not whether I would have imposed the same sentence as the learned sentencing judge. Rather, the question is whether, notwithstanding the discretionary character of the sentencing process, I am satisfied that the total effective sentence of 6 years does not bear a proper relationship to the overall criminality of the offending in all its circumstances. In my view, taking account of the following matters, that conclusion cannot be drawn:
(1) the appellant committed four offences, lighting three fires at different properties over the course of approximately 1 hour;
(2) the appellant's offending had the serious features identified at [69] above;
(3) when the maximum sentence for arson was 14 years, the range of sentences for an individual offence was up to 4 years 8 months;
(4) the maximum sentence has been increased to life imprisonment, indicating that sentences for the offence of arson should be increased from the previous range.
78 For these reasons, ground 4 has not been made out.
Conclusion
79 For the reasons I have given, I would refuse leave to appeal in respect of grounds 1 and 2 and dismiss grounds 3 and 4. Consequently, the appeal must be dismissed.
1The State of Western Australia v Rimington [2014] WASCSR 92 [2] - [11].
2 Sentencing ts 14 - 15, 32, 85, 87.
3Rimington [13] - [21].
4Rimington [22] - [26].
5 Appellant's submissions dated 30 September 2014 [15] - [16].
6 Respondent's submissions dated 18 November 2014 [21].
7Rimington [27].
8Rimington [28].
9Rimington [29].
10Rimington [30].
11Rimington [31].
12Rimington [32] - [36].
13Rimington [38].
14Rimington [39].
15Rimington [40].
16Rimington [42].
17Rimington [44].
18Rimington [45].
19 See, for example Wilson v The State of Western Australia [2010] WASCA 82 [2] (McLure P & Owen JA).
20Dinsdale v The Queen (2000) 202 CLR 321 [26] (Gaudron & Gummow JJ); Vagh v The State of Western Australia [2007] WASCA 17 [76] (McLure JA).
21Keating v The State of Western Australia [2007] WASCA 98 [28] (Steytler P & McLure JA).
22Keating [28] (Steytler P & McLure JA); see also Trompler v The State of Western Australia [2008] WASCA 265 [32] (McLure JA).
23 Psychiatrist's report dated 4 November 2013, 7.
24 Sentencing ts 35 - 37.
25 Psychiatrist's report, 7.
26R v Tsiaras [1996] 1 VR 398, 400 (Charles, Callaway JJA & Vincent AJA).
27Krijestorac v The State of Western Australia [2010] WASCA 35 [18] (Wheeler JA, Owen & Newnes JJA agreeing); Gok v The Queen [2010] WASCA 185 [55] (Mazza J, McLure P & Buss JA agreeing).
28Wheeler v The Queen (No 2) [2010] WASCA 105 [59] - [60] (Owen JA); Gok [56].
29Wheeler (No 2) [6] - [7] (McLure P, Newnes JA agreeing); Gok [57] (Mazza J, McLure P & Buss JA agreeing).
30Gok [59] - [60] (Mazza J, McLure P & Buss JA agreeing).
31Fernandes v The State of Western Australia [2009] WASCA 227 [9] - [10] (McLure P, Owen & Wheeler JJA agreeing).
32 Appellant's submissions [15] - [16].
33Rimington [25].
34 Appellant's submissions [20]; appeal ts 3.
35Rimington [40].
36Rimington [27].
37 Appellant's submissions [23] - [24].
38 Appellant's submissions [26], [28], [31] - [33].
39The State of Western Australia v Bennett [2009] WASCA 9; (2009) 194 A Crim R 137 [48] (Miller JA, Owen & Buss JJA agreeing).
40 See, for example Pustkuchen v The State of Western Australia [2010] WASCA 11 [41] (Owen JA, McLure P & Newnes JA agreeing); McLaughlin v The State of Western Australia [2012] WASCA 204 [49] (Buss JA, Mazza JA agreeing); Morcom v The State of Western Australia [2013] WASCA 31 [35] (Mazza JA, Martin CJ & Buss JA agreeing); Edmonds v The State of Western Australia [2013] WASCA 255 [23] (McLure P, Buss & Mazza JJA agreeing).
41Bellissimo v The Queen (1996) 84 A Crim R 465, 471 (Anderson J); The State of Western Australia v Andela [2006] WASCA 77 [16] (McLure JA, Roberts-Smith & Buss JJA agreeing); Apkarian v The State of Western Australia [2015] WASCA 67 [52] (Buss, Mazza JJA & Chaney J).
42 Appellant's submissions [23], [28], [32]; appeal ts 4.
43Veen v The Queen (No 2) [1988] HCA 14; (1988) 164 CLR 465, 476 (Mason CJ, Brennan, Dawson & Toohey JJ).
44Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357.
45Wong v The Queen [2001] HCA 64; (2001) 207 CLR 584 [60].
46 Appellant's submissions [42], [46] - [47]; appeal ts 5.
47 Appellant's submissions [37]; respondent's submissions [38].
48Law v The State of Western Australia [2009] WASCA 193 [27] - [34].
49Teakle v The State of Western Australia [2007] WASCA 15; (2007) 35 WAR 188 [45] (Pullin JA, Roberts-Smith JA agreeing), [65] (Buss JA, Roberts-Smith JA agreeing); Tanner v The State of Western Australia [2013] WASCA 142 [135] - [136] (Buss JA, Martin CJ & Mazza JA agreeing).
50Chow v Director of Public Prosecutions (NSW) (1992) 28 NSWLR 593, 606, 608 (Kirby P); Altham v The Queen (1992) 62 A Crim R 126, 127(Hunt CJ, Grove J agreeing).
51Duong v The Queen (1997) 99 A Crim R 218, 219 (Ormiston JA), 228 (Kenny JA, Tadgell & Ormiston JJA agreeing); Sloane v The State of Western Australia [2013] WASCA 53 [4] (McLure P, Mazza JA agreeing).
52 Sentencing ts 16.
53 Sentencing ts 16.
54 Sentencing ts 10.
55 Sentencing ts 9 - 11.
56 Sentencing ts 16.
57 Sentencing ts 25.
58 Appeal ts 8.
59 Sentencing ts 25 - 31.
60 Appeal ts 6 - 7.
61 Appeal ts 7.
62Tanner [134] (Buss JA, Martin CJ & Mazza JA agreeing).
63Pelemis v The State of Western Australia [2009] WASCA 151 [13] (McLure JA, Buss & Miller JJA agreeing); 'HAS' v The State of Western Australia [2005] WASCA 29 [49] - [55] (Roberts-Smith JA, Malcolm CJ & Pullin JA agreeing); The State of Western Australia v JWRL [2010] WASCA 179 [10] (Martin CJ, McLure P & Buss JA agreeing).
64Chow (1992) 28 NSWLR 593, 607 (Kirby P).
65 Appellant's submissions [46] - [47].
66Postiglione v The Queen [1997] HCA 26; (1997) 189 CLR 295, 307 - 308 (McHugh J); Roffey v The State of Western Australia [2007] WASCA 246 [24] (McLure JA, Steytler P & Miller JA agreeing).
67Chan v The Queen (1989) 38 A Crim R 337, 342 (Malcolm CJ).
68 See, for example, R v Baldock [2010] WASCA 170 [131] (Buss JA).
69Hili v The Queen [2010] HCA 45; (2010) 242 CLR 520 [54] (French CJ, Gummow, Hayne, Crennan, Kiefel & Bell JJ); Munda v The State of Western Australia [2013] HCA 38; (2013) 249 CLR 600 [39] (French CJ, Hayne, Crennan, Kiefel, Gageler & Keane JJ).
70The State of Western Australia v Munda [2012] WASCA 164 [59] (McLure P, Mazza JA agreeing).
71Newton v The State of Western Australia[2006] WASCA 247 [13] (Steytler P, Wheeler & McLure JJA agreeing).
72Newton [13] (Steytler P, Wheeler & McLure JJA agreeing).
73 Appeal ts 10.
74Rimington [13] - [21], [32] - [36].
75Rimington [23], [40].
76Rimington [38]
77Rimington [26], [40].
78Rimington [40].
79Rimington [25].
80Rimington [37], [39].
81Rimington [41].
82Rimington [42], [44].
83 See appeal ts 9.
84Arson Legislation Amendment Act 2009 (WA), s 11(1)(b).
85Bennett [48] (Owen & Buss JJA agreeing); McLaughlin [49] - [50] (Buss JA, Mazza JA agreeing).
86McLaughlin [56] (Buss JA, Mazza JA agreeing).
87Muldrock v The Queen [2011] HCA 39; (2011) 244 CLR 120 [31] (French CJ, Gummow, Hayne, Heydon, Crennan, Kiefel & Bell JJ); McLaughlin [61] (Buss JA, Mazza JA agreeing); Morcom [49] (Mazza JA, Martin CJ & Buss JA agreeing).
88McLaughlin [65] (Buss JA, Mazza JA agreeing); Morcom [50] (Mazza JA, Martin CJ & Buss JA agreeing).
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