Roberts v The State of Western Australia

[2014] WASCA 239

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT  :   THE COURT OF APPEAL (WA)

CITATION:   ROBERTS -v- THE STATE OF WESTERN AUSTRALIA [2014] WASCA 239

CORAM:   MARTIN CJ

BUSS JA
MAZZA JA

HEARD:   3 DECEMBER 2014

DELIVERED          :   3 DECEMBER 2014

PUBLISHED           :  5 MARCH 2015

FILE NO/S:   CACR 69 of 2014

BETWEEN:   BEN McDONALD ROBERTS

Appellant

AND

THE STATE OF WESTERN AUSTRALIA
Respondent

ON APPEAL FROM:

Jurisdiction              :  DISTRICT COURT OF WESTERN AUSTRALIA

Coram  :FENBURY DCJ

File No  :IND BUN 18 of 2014

Catchwords:

Criminal law - Offences under s 557(1) and s 304(1)(b) of the Criminal Code (WA)

Criminal law - Sentencing - Express error - Whether sentencing judge took into account pleas of guilty - Whether sentencing judge took into account voluntary disclosure of offences

Criminal law - Sentencing - Implied error - Whether manifest excess in sentences - Whether suspended imprisonment should have been imposed

Legislation:

Criminal Appeals Act 2004 (WA), s 31(5), s 41(4)
Criminal Code (WA), s 304(1)(b), s 557(1)
Explosive Substances Act 1883 (Imp), s 4
Sentencing Act 1995 (WA), s 9AA, s 39

Result:

Appeal allowed

Category:    B

Representation:

Counsel:

Appellant:     Mr D S Hunter

Respondent:     Mr J McGrath SC

Solicitors:

Appellant:     Legal Aid (WA)

Respondent:     Director of Public Prosecutions (WA)

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

Atherden v The State of Western Australia [2010] WASCA 33

Ciantar v The Queen [2010] VSCA 313

Dinsdale v The Queen [2000] HCA 54; (2002) 202 CLR 321

H v The State of Western Australia [2006] WASCA 53; (2006) 163 A Crim R 151

Hill v The State of Western Australia [2014] WASCA 150

Kentwell v The Queen [2014] HCA 37; (2014) 313 ALR 451

R v Bowen [2002] VSCA 199

R v Dupuy [2008] VSCA 63

R v Fyffe [1991] 2 VR 72

R v Lloyd (Robert) [2001] EWCA Crim 600; [2001] 2 Cr App R (S) 111

Rowsell v The State of Western Australia [2015] WASCA 2

Skrijel v Mengler [2003] VSC 270

Wheeley v The State of Western Australia [2007] WASCA 168; (2007) 173 A Crim R 436

REASONS OF THE COURT:   

Summary

1. Mr Ben McDonald Roberts appealed from the total effective sentence of 2 years and 6 months imprisonment to be immediately served imposed following his conviction after pleading guilty to five counts of making an explosive substance and two counts of unlawfully doing an act that endangered or was likely to endanger the life, health or safety of a person.  After hearing argument, this court unanimously ordered that the appeal be allowed, the sentences imposed upon Mr Roberts be set aside, and instead that he be resentenced to a total effective sentence of 8 months imprisonment, to be taken as having taken effect on 28 March 2014.  As Mr Roberts had already served slightly more than that period of imprisonment at the time those orders were made, the effect of the court's orders was that he had completed his sentence and was to be released immediately.

2. The court further ordered that reasons for its decision would be published in due course.  These are our reasons for allowing the appeal and the orders which were made.

The circumstances of the offences

1. The only fact that was in contention during the course of the sentencing hearing was the precise quantity of explosive substance manufactured by Mr Roberts.  The sentencing judge expressed the view that findings with respect to the precise quantities of the substance involved was not necessary for the purpose of sentence and neither party contended otherwise on appeal.  In those circumstances, in these reasons we will refer to the quantities alleged by the prosecution, although it should be noted that Mr Roberts does not accept that the quantities asserted are accurate.

2. Triacetone triperoxide (TATP) is a powerful explosive that is usually improvised rather than commercially produced.  It is sensitive to heat, shock, friction and static electricity.  It is inherently unstable and dangerous to manufacture, store and handle.[1]  Few case studies have been carried out with respect to the volatility of TATP.  As a result, little is known about the effect that TATP might have if detonated in different quantities or detonated wholly underwater.[2]

   [1] Affidavit of Sergeant Bennie [35].

   [2] Magistrates Court hearing, 13 December 2013, ts 23 ‑ 27.

3. After casual conversations in a social setting on the topic of explosives and home made bombs, sometime between 1 July and 28 October 2013 Mr Roberts sought information on the internet relating to explosive devices.  He came across a website which provided the information necessary to manufacture a substance described on that site as 'acetone peroxide', which was in fact TATP.  Mr Roberts did not know that the substance to which the website referred was TATP, and in fact had never heard of TATP prior to his arrest.

4. Mr Roberts wrote down the information on the website relating to the manufacture of acetone peroxide, and acquired the necessary chemicals.  He mixed the chemicals according to the instructions he had obtained from the website in his garage, utilising an old oil container, soft drink bottles, a bucket and an esky.  After crystals formed, Mr Roberts took them into his back garden and poured them onto a rag, which was then hosed with water from a garden hose.  The crystals were then put into sandwich bags.  They were then kept on ice, and sheltered from the light during the relatively short period before Mr Roberts attempted to explode the substance.

5. On the first occasion Mr Roberts manufactured explosives, he made approximately 1 kg of what was in fact, but unbeknown to him, TATP.  The sandwich bags in which the substance had been placed were strapped together with duct tape and electrical wire was inserted into the combined bags in order to enable them to be ignited from a distance.

6. The day after making the substance Mr Roberts took the package in which it was contained to an area of State forest near Donnybrook.  He attached a rock and an extension cord to the package before throwing it into a pool of water which was approximately 1 m deep.  He connected the extension cord to his car battery, producing a spark in the wiring which caused the substance to explode.  The explosion did not cause any apparent damage.  Mr Roberts retrieved the extension cord and left the area.  These events were the subject of the first charge brought against Mr Roberts.

7. About two to three weeks later, Mr Roberts manufactured a similar amount of the substance using the same methods.  On this occasion he took the package to an area of beach near Bunbury known as 'the Cut'.  He dug a hole about 1 m deep into the sand on the beach into which he placed the package and to which an extension cord had been attached.  As on the previous occasion, Mr Roberts attached the extension cord to his car battery and detonated the substance.  It does not appear that any damage was caused.  Mr Roberts retrieved the extension cord and left the area.  These events were the subject of the second charge brought against Mr Roberts.

8. Another two or three weeks later, Mr Roberts manufactured a further quantity of the substance, using the same techniques.  However, on this occasion he installed a mechanical initiator in addition to the electrical wiring inserted into the substance for the purpose of detonation.  On this occasion Mr Roberts took the package of explosive to an area of beach known as 'Buffalo Beach' near Leschenault.  He was accompanied by a friend.  They dug a hole approximately 1 m deep into which the explosive package was placed.  After the mechanical initiator failed to detonate the substance, Mr Roberts again used the extension cord and his car battery to detonate the package.  The explosion does not appear to have caused any damage.  Mr Roberts retrieved the mechanical initiator and the extension cord and left the area.  These events were the subject of the third charge.

9. The next occasion upon which Mr Roberts manufactured the explosive substance was on or about 19 October 2013.  On this occasion he used the same method of manufacture to produce about 2 kg of the substance, which was placed in an empty soft drink container.  Some of the substance was also placed into a sandwich bag which was strapped to the soft drink container.  A mechanical initiator was inserted into the top of the soft drink container to which a string was attached.  The intention was that the device would be detonated by pulling on the string attached to the mechanical initiator.

10. Mr Roberts took the package to a jetty on the Leschenault Estuary near Australind.  He was accompanied by a friend.  He attached a rock to the package and threw it into the water.  He attempted to ignite the package by pulling on the string attached to the mechanical initiator.  However, the package did not explode.  He and his friend left, leaving the package in the water.  Mr Roberts told police that he thought the water would disperse the substance and that no danger would be caused to any member of the public, given the difficulty which he had experienced in attempting to detonate the substance.  The manufacture of this package gave rise to the fourth charge brought against Mr Roberts, and his act of leaving the package in the water was the subject of the fifth charge, of doing an act that endangered or was likely to endanger the life, health or safety of another.

11. About a week later Mr Roberts manufactured about 3 kg of the substance using the same techniques.  He placed the substance into sandwich bags and strapped them together.  He inserted a light globe filament attached to a wire, which was intended to be the detonating mechanism.  Some of the substance which he manufactured was placed into a soft drink container to which a similar detonating device was attached.

12. Mr Roberts went back to the same jetty at the Leschenault Estuary in Australind with a number of friends.  He threw both packages into the water.  He successfully detonated the package in the soft drink container by connecting the wire from the globe filament to a battery pack.  That explosion did not cause any known damage.  His attempts to detonate the larger package using the same method proved unsuccessful, and Mr Roberts and his friends left the area.  He again stated to police that he thought that the water would disperse the substance without risk to any member of the public, given his own failure to detonate the substance.  His manufacture of the explosive substance gave rise to the sixth charge against him, and his abandonment of one of the packages in the water in the estuary gave rise to the seventh charge against him, of doing an act that endangered or was likely to endanger the life, health or safety of another.

13. On 28 October 2013 two members of the public fishing in the area near the jetty snagged a fishing line on the second undetonated package which Mr Roberts had left in the water.  They notified police, who took possession of the package, suspecting its contents to be a prohibited drug.  During preliminary testing of the contents of the package at Bunbury Police Station, a small amount of the substance exploded, causing minor injuries to the hand of a police officer.  The package was then conveyed from Bunbury to Perth for further testing.

14. Following further examination of the substance at the police station in Perth, the powder was identified as an explosive substance and the building was evacuated.  Traffic was disrupted in order to allow the Bomb Response Unit to convey the substance to Gloucester Park for safe disposal.

15. After the nature of the substance had been identified, police and navy divers conducted a search of the Leschenault Estuary.  They discovered the first package which had been left by Mr Roberts and safely disposed of it within the confines of the estuary.

16. Mr Roberts was arrested by police on 8 November 2013.  He participated in a video recorded interview in which he cooperated fully with police.  During the course of that interview he voluntarily disclosed the first three occasions upon which he had manufactured the explosive substance.  Without those admissions, police would have had no way of identifying those offences.  Mr Roberts directed police officers to the locations at which he had detonated the substances the subject of the first and second charges.

17. Mr Roberts entered pleas of guilty to all charges at the earliest reasonable opportunity.

Antecedents and personal circumstances

1. Mr Roberts was 34 years of age at the time of the offences.  He was raised in Queensland by his mother and late father before relocating to Bunbury with his ex‑partner and 7‑year‑old son.  Although his ex‑partner and son had later returned to Queensland, Mr Roberts maintained regular telephone contact with his son.  At the time of the offences Mr Roberts was in a de facto relationship with his partner of two years, and enjoyed a positive relationship with his partner's daughter.  He ceased working on a fly‑in fly‑out basis and took a job in Bunbury in order to be with his partner and her daughter on a full‑time basis.  Mr Roberts had always been in full‑time employment as a fitter, mechanic or driller until he was charged with the offences the subject of the appeal.  He had been unable to find work as a result of the charges brought against him.

2. Mr Roberts was convicted of three minor and unrelated offences in Queensland some time ago, which are not significant to the sentencing process.

The pre‑sentence report

1. The author of the pre‑sentence report tendered to the court at the time of sentence noted that Mr Roberts denied any motivation for his offending conduct other than entertainment and 'fun'.  Those statements were consistent with statements which he repeatedly made during the course of his interviews with police.  He explained his experimentation as comparable to childlike fascination with 'sparklers' or his exposure to gun powder in his father's shed at around the age of 10.

2. During the course of his interview with the author of the pre‑sentence report, Mr Roberts acknowledged the stupidity of his actions and stated that he now recognised the danger to which he had exposed himself, his friends, and members of the public.  He expressed remorse for his actions and demonstrated empathy for the collateral victims of his offences.  He expressly acknowledged the unintended consequences of his actions including exposing police to danger, and the dissipation of resources used to respond to the threat which he caused, including the evacuation of the police building and the disruption to the community caused by the road closures to which we have referred.  Mr Roberts also acknowledged the trauma which he had caused to his partner and her 7‑year‑old child who were present at the time armed police entered their home in the early hours of the morning in order to effect his arrest.  Mr Roberts noted that his partner and her child were receiving counselling as a result of ongoing issues arising from those events.  The author of the pre‑sentence report observed 'that Mr Roberts has learned a salient lesson in the consequences of his behaviour'.

3. The author of the pre‑sentence report did not identify any current substance use issues relating to Mr Roberts and assessed Mr Roberts as a low risk of reoffending.  The author of the report assessed Mr Roberts as suitable for a community based disposition and community work, but did not consider that Mr Roberts would require supervision or programme intervention in the event of such a sentencing disposition.  The author concluded that Mr Roberts had a clear understanding of the consequences of his actions and that this understanding was likely to deter similar behaviour in the future.

The psychological report

1. A report prepared by a clinical psychologist was also tendered during the course of the sentence hearing.  The author of that report observed that 'it was apparent that Mr Roberts was highly remorseful for his offending behaviour, commenting that he was "truly sorry"'.  The author noted that Mr Roberts acknowledged the stupidity of his actions and revealed a good understanding of the danger in which he had placed others, and also demonstrated an appropriate understanding and regret for the significant level of inconvenience and frustration that his actions had caused.

2. The author of the psychological report noted Mr Roberts' assertion that he believed that he had done all he could to prevent danger to others by containing the explosions by burying them in sand or submerging them in water, and that all explosions took place in relatively isolated places.

3. The author of the psychological report concluded that the explanation for Mr Roberts' offences appeared to lie in a proclivity for adventurous and slightly risk‑taking behaviours, in order to maintain a sense of excitement in his life and as an escape from boredom.  The author noted that Mr Roberts had been raised from a young age with encouragement to engage in a wide range of outdoor adventure activities such as fishing, camping, boating, motor biking, swimming and surfing which was consistent with his appetite for adventure.

4. The author of the psychological report noted that Mr Roberts had been dismissed from his employment as a result of the charges pending against him, which had increased the trauma experienced by the family unit as a result of his actions.

5. The author of the psychological report reviewed a number of factors relevant to the risk of reoffending, and concluded that there was a 'minimal presence' of such factors.  Like the author of the pre‑sentence report, the author of the psychological report concluded that Mr Roberts was at low risk of future offending behaviour.

The sentencing hearing

1. Prior to the sentencing hearing counsel appearing on behalf of Mr Roberts tendered a number of documents.  Those documents included a report from a counsellor who had counselled Mr Roberts, his de facto partner and her daughter since the police raid that led to Mr Roberts' arrest.  In that report it is noted that Mr Roberts was dismissed from his employment as a result of the charges, and his partner's capacity to work had been significantly diminished by the police seizure of all the computers in the house.  Because the family had lost their rental accommodation, they had been forced to reside with family members.  The counsellor noted that media scrutiny had exacerbated the stress upon Mr Roberts and his partner, although they had protected the child from such scrutiny.  We digress to observe that while there are real limits upon the extent to which consequences of this kind can influence the sentencing process, they nevertheless have some limited relevance.

2. Counsel appearing on behalf of Mr Roberts also tendered a letter from Mr Roberts to the court in which he expressed his remorse and denied any intention to cause any harm.  In that letter he acknowledged the folly of his actions and the adverse consequences which his conduct had caused.

3. Letters from Mr Roberts' partner were also tendered to the court in which she described the adverse effects which Mr Roberts' arrest had had upon her and her daughter and the family unit.

4. Character references were also tendered from members of Mr Roberts' family and a number of friends and associates, who all wrote very positively of Mr Roberts' character and reputation.

5. During the course of the sentencing hearing the prosecutor expressly accepted that Mr Roberts had entered pleas of guilty at the earliest opportunity and, in response to a question from the sentencing judge, acknowledged that in his dealings with police Mr Roberts made admissions which revealed offences of which they were unaware.  As the judge passed sentence within two hours of argument, it seems unlikely that he overlooked those matters although, as will be seen, he made no reference to their effect upon the sentences he imposed in the course of his observations at the time of passing sentence.

The observations of the sentencing judge

1. The sentencing judge commenced his observations upon sentence by observing, somewhat unusually but perhaps presciently, that each party had a right of appeal against sentence. He then said that he had reluctantly reached the view that a sentence of immediate imprisonment was required. Although he referred to Mr Roberts' pleas of guilty to the offences with which he was charged, he made no observations with respect to the time at which those pleas were entered, or as to the effect which those pleas had upon the sentence to be imposed upon him. In particular, at no point during his observations did the judge make any reference to a reduction in sentence by reason of the pleas of guilty, nor did he comply with the obligation imposed by s 9AA of the Sentencing Act 1995 (WA) which requires the court to state the fact and extent of any reduction in sentence by reason of the entry of a guilty plea.

2. After referring to the maximum penalties for the offences of which Mr Roberts had been convicted, the trial judge repeated his earlier observation to the effect that the particular quantity of the explosive substance was not material to the sentencing process.

3. After referring to the pre‑sentence and psychological reports, the sentencing judge accepted that Mr Roberts meant no harm at the time he manufactured the explosive substance, and that it was his intention to explode the substance in safe isolated places.  He also accepted Mr Roberts' assertions with respect to regret and remorse, and that he had little idea of how serious and dangerous his conduct was.  He also accepted that Mr Roberts was very unlikely to reoffend in any way, and that there was 'no need for personal deterrence, or, really, punishment in this case'.

4. The sentencing judge also accepted that:

   You are much loved and respected in the community, indeed, as your friend ... said, you're a good man.

5. However, the trial judge considered that the key issue in the case arose from the fact that the explosive substance which Mr Roberts had made was extremely dangerous.

6. In that context the sentencing judge referred to the disruption which had been caused when police discovered the substance, and went on to express the view that 'plainly it is very, very important that everything is done to prevent - discourage - people from manufacturing this substance in the community' and reinforced those observations by the fact that the components necessary to manufacture the substance were readily available within the community.  In his view, those facts required:

   The court to make an emphatic statement by dealing with you in a way that may seem very harsh to some, but it is required in the case, in my view, for the greater good.

7. In that context the trial judge expressed the view that although offences of the kind committed by Mr Roberts could not be said to be prevalent, their implications were so grave that the fact that Mr Roberts was, in substance, a first offender, a young father, a family man and loved, could not be given much weight with respect to the type of sentence to be imposed, although it would be taken into account with respect to the length of the term to be imposed.

8. In the context of the offences of doing an act likely to endanger life, the sentencing judge observed that the actions which rendered Mr Roberts' liable for those offences were essentially acts of omission, and accepted that Mr Roberts considered it highly likely that the substance would be dissipated and rendered harmless by the water in which it was immersed.  He also accepted that Mr Roberts did not know how dangerous the substance was.  The sentencing judge also acknowledged the detriment which Mr Roberts had already suffered, including personal stress, anxiety and adverse family consequences, and had lost his employment and was in dire financial straits, along with his family.  He accepted that the charges had caused great personal stress and family stress and that this was likely to continue.  The sentencing judge also accepted that Mr Roberts was a particularly well liked and supported member of the community and a devoted family man.

9. In relation to the five charges of making an explosive substance a term of imprisonment for 2 years and 6 months was imposed in respect of each offence.  In relation to the two charges of doing an act likely to endanger life, sentences of imprisonment of 1 year were imposed on each.  All sentences were directed to be served concurrently, with the result that the total effective sentence imposed was a term of 2 years and 6 months imprisonment to be served immediately.  An order was made for parole eligibility.

10. We have already noted that in the course of his observations the sentencing judge made no mention of any reduction in sentence by reason of Mr Roberts' pleas of guilty, nor did he identify the extent of any such reduction.  It is also worthy of note that the sentencing judge made no reference during his observations to the fact that Mr Roberts revealed his commission of the first three offences with which he was charged to police, who would not otherwise have known of those offences, nor was any different penalty imposed in respect of those offences.  It should also be noted that, apart from declaring at the commencement of his observations that a sentence of immediate imprisonment was required, the sentencing judge made no reference to the possibility of a suspended term of imprisonment at any point in his observations, nor is there anything within those observations to suggest that the judge had undergone the staged process explained by the High Court in Dinsdale v The Queen,[3] in which a sentencing judge must first determine whether imprisonment is warranted and then as a separate exercise, determine whether the term of imprisonment can be suspended before imposing a term of imprisonment to be immediately served.

    [3] Dinsdale v The Queen [2000] HCA 54; (2002) 202 CLR 321.

The grounds of appeal

1. There were two grounds of appeal.  As the argument on appeal went beyond those grounds as a consequence of express concessions appropriately made by the State, it is unnecessary to set out the grounds of appeal in detail.  In essence the argument advanced in support of the appeal was to the effect that having regard to the various mitigating factors, including reductions in sentence appropriate to reflect Mr Roberts' pleas of guilty at the earliest reasonable opportunity, and his admission of offences that would not otherwise have been known to police, the judge erred by imposing a total effective term of imprisonment of 2 years and 6 months to be served immediately and should instead have imposed a suspended term of imprisonment for a lesser period.

2. As we have noted, the State concedes, quite properly, that the sentencing process reveals express error by the sentencing judge in two respects.  First, the sentencing judge made no reference to any reduction in sentence as a consequence of Mr Roberts' pleas of guilty at the earliest reasonable opportunity, nor was any reference made to a reduction in sentence appropriate to reflect the fact that Mr Roberts volunteered information to police which led to his conviction on the first three charges brought against him.

3. However, as the plurality recently observed in Kentwell v The Queen,[4] not all errors made in the sentencing of an offender vitiate the exercise of the sentencing discretion and enliven an appellate court's jurisdiction to intervene.  Rather, that jurisdiction will only be enlivened if the error is material.[5]  The question therefore is whether the errors conceded by the State were material to the sentencing process.

   [4] Kentwell v The Queen [2014] HCA 37; (2014) 313 ALR 451 [42] (French CJ, Hayne, Bell & Keane JJ).

   [5] Rowsell v The State of Western Australia [2015] WASCA 2 [34] (McLure P, Newnes & Mazza JJA agreeing).

4. The sentencing judge was plainly aware that Mr Roberts had pleaded guilty to all charges.  However, the question is not whether he was aware of that fact, but rather, whether he adjusted the sentences which he imposed because of that fact.  In relation to that question, as Steytler P observed in H v The State of Western Australia:[6]

   [T]he failure to refer to the effect of a plea of guilty will ordinarily be an indication that a sentencing judge has overlooked it.[7]

   [6] H v The State of Western Australia [2006] WASCA 53; (2006) 163 A Crim R 151 [10].

   [7] See also Atherden v The State of Western Australia [2010] WASCA 33.

5. The inference that the effect of the pleas of guilty was overlooked is to be drawn from the sentencing judge's failure to refer to any discount for Mr Roberts' pleas of guilty, or to satisfy the obligation imposed by s 9AA of the Sentencing Act to specify the extent of the discount. That inference is reinforced by the sentences which he imposed. In the circumstances of this case, there is no reasonable basis upon which Mr Roberts could have been denied the maximum discount of 25% available pursuant to s 9AA of the Sentencing Act.  That discount is to be applied before the sentence is adjusted to reflect other mitigating factors such as, in this case, Mr Roberts' full cooperation with police including his revelation of other offences not known to police, his favourable antecedents, his remorse and his low risk of reoffending, all of which must have attracted a collective discount of well over 6 months.  If the sentences of 2 years and 6 months imprisonment imposed in relation to the offences of manufacturing an explosive substance are accordingly adjusted upwards to identify the sentences which would have been imposed but for those mitigating factors, and then increased by one‑third to reflect the effect of a discount of 25% before other mitigating factors, the sentencing judge's starting point must have been terms of imprisonment well over 4 years, which seems either improbable or manifestly excessive.  It cannot therefore be concluded that the judge's failure to refer to or specify the extent of the discount given to reflect the guilty pleas was immaterial.

6. Turning now to the failure of the sentencing judge to make any reference to any reduction in sentence as a consequence of Mr Roberts' voluntary disclosure of the offences the subject of the first three charges brought against him, it is well established that such disclosures are significant factors in the sentencing process:[8]

   It is part of the policy of the criminal law to encourage a guilty person to come forward and disclose both the fact of an offence having been committed and his or her guilt.  Such a confession may well not be motivated by fear of discovery or acceptance of the likelihood of proof of guilt, and will often exhibit the offender's remorse and contrition:  AB v The Queen [1999] HCA 46; (1999) 198 CLR 111 [113]; JWD v The State of Western Australia [2013] WASCA 233 [45]. When a conviction follows upon a plea of guilty that is itself the result of a voluntary disclosure of guilt by the offender of an offence which was otherwise unlikely to have come to light, that is ordinarily a significant matter to the credit of the offender to be taken into account in the sentencing process: Ryan v The Queen [2001] HCA 21; (2001) 206 CLR 267 [11] - [15]; R v Ellis (1986) 6 NSWLR 603, 604; Schriever v The State of Western Australia [2008] WASCA 133 [22]. How significant it is in the sentencing process depends upon the facts and circumstances of the case: Ryan [15].

   [8] Hill v The State of Western Australia [2014] WASCA 150 [33] (Buss, Newnes & Mazza JJA).

7. Plainly the sentencing judge was aware that Mr Roberts had disclosed his commission of the first three offences to police.  He made specific mention of it during the course of the hearing which preceded the passing of sentence.  However, again the question is not whether the sentencing judge was aware of the relevant fact, but rather, whether he brought that fact to account in the sentences which he imposed.  There is no reference in his observations to that effect, nor was any different sentence imposed in respect of the first three offences.  If, instead of reducing the sentences imposed in respect of those three offences, the sentencing judge had reduced all sentences imposed, for reasons of totality, then again, the starting point before allowance for the reduction in sentence appropriate to pleas of guilty at the earliest opportunity, and the various other mitigating factors present is so high as to be either improbable or manifestly excessive.

8. For these reasons it cannot be concluded that the failure of the sentencing judge to make any reference to a reduction in sentence appropriate to reflect Mr Roberts' confession of offences not known to police was immaterial.

Manifest excess

1. Either of the material express errors to which we have referred was sufficient to vitiate the exercise of the sentencing discretion and to require this court to resentence Mr Roberts.  However, for the sake of completeness it is desirable to make some short observations with respect to the assertion that the sentences imposed were manifestly excessive, which is, of course, an allegation of implied error.

2. There is no doubt that the substance manufactured by Mr Roberts was extremely dangerous, with the consequence that the offences which he committed must be regarded as serious.  However, it is also clear that there were very strong mitigating factors which were expressly acknowledged by the sentencing judge.  Those factors include:

   •Mr Roberts was not aware of the volatility and explosive power of the substance he had manufactured;

   •Mr Roberts had no malicious or nefarious purpose in manufacturing the explosives - rather he was motivated by a desire for fun and excitement;

   •all of the explosives manufactured by Mr Roberts were taken to relatively remote places for detonation, in order to avert risk to others;

   •Mr Roberts believed that the two parcels of explosive which he left in the Leschenault Estuary would not be dangerous to others, and would be dispersed by the water in which they were immersed;

   •Mr Roberts was properly regarded as a person of prior good character as his minor criminal record was of no relevance;

   •Mr Roberts was well respected within the community and was highly regarded by his friends and associates;

   •Mr Roberts had a stable record of employment;

   •Mr Roberts was assessed at low risk of reoffending;

   •the sentencing judge concluded that there was no need for personal deterrence or indeed, punishment;

   •there was no doubt as to Mr Roberts' remorse in relation to his conduct;

   •Mr Roberts had demonstrated clear insight into the consequences of his actions and well understood the risks to which he had exposed others, and the harm which he had caused;

   •Mr Roberts cooperated fully with police at all times and revealed the commission of offences not known to police;

   •Mr Roberts entered pleas of guilty at the earliest reasonable opportunity;

   •Mr Roberts had suffered significant adverse consequences as a result of the offences which he committed, including the loss of his employment and the loss of the accommodation in which he and his family were residing; and

   •Mr Roberts was very concerned that the trauma which he had caused to his partner and her child at the time of his arrest was causing ongoing anxiety and stress.

3. In combination these mitigating factors are extremely significant to the sentencing process.  While the seriousness of the offence might have led to the reasonable conclusion that a sentence of imprisonment was justified, at the next stage of the process enunciated by the High Court in Dinsdale, the combination of these mitigating factors compelled the conclusion that a sentence of suspended imprisonment could not be excluded, with the consequence that, pursuant to s 39 of the Sentencing Act, a term of imprisonment to be immediately served should not have been imposed.

4. Happily there have been so few cases of contravention of s 557 of the Criminal Code (WA) that it is impossible to discern from previous decisions in this jurisdiction any standards of sentence customarily imposed for offences of that kind. Although there have been more offences of that character committed in other Australian jurisdictions, it is clear from a consideration of cases in those jurisdictions that the circumstances of the offences, and the penalties imposed, vary widely.[9]  As might be expected, a consideration of those cases shows that the penalties imposed correlate significantly to the purpose for which the explosive was manufactured - so that, if the purpose of manufacturing the explosive is to cause injury or to effect some other unlawful purpose such as a burglary, sentences of imprisonment to be immediately served are generally imposed.

   [9] See R v Bowen [2002] VSCA 199; Skrijel v Mengler [2003] VSC 270; R v Dupuy [2008] VSCA 63; and Ciantar v The Queen [2010] VSCA 313.

5. On behalf of the State it was contended that the English decision in R v Lloyd (Robert)[10] provides guidance.  In that case an appeal against a sentence of 3 years and 6 months immediate imprisonment for a contravention of s 4 of the Explosive Substances Act 1883 (Imp) was dismissed, in circumstances in which the offender had manufactured the explosive in order to make 'a loud bang' to entertain his friends, and had no intention to harm anyone or to damage property.  However, in that case the offender had 14 prior convictions for firearm offences and for the possession of offensive weapons.  He was also found to have an unhealthy interest in explosives, and a psychological report expressed the view that he had a personality disorder which placed him at risk of reoffending in the future.  Comparison with that case should also take account of the historical context in which the Explosive Substances Act was passed, being a fear that terrorists were planning the imminent destruction of public buildings, with the result that its provisions were intentionally drastic.[11]

   [10] R v Lloyd (Robert) [2001] EWCA Crim 600; [2001] 2 Cr App R (S) 111.

   [11] Wheeley v The State of Western Australia [2007] WASCA 168; (2007) 173 A Crim R 436 [33], citing R v Fyffe [1991] 2 VR 72, 95 ‑ 97 (Brooking J).

6. Given the particular circumstances of this case, including the very significant mitigating factors, it could not be said that the imposition of a term of a suspended imprisonment for the offences committed by Mr Roberts would have been inconsistent with the proper exercise of the sentencing discretion.  To the contrary, in our view, the circumstances of Mr Roberts' offences and the mitigating factors to which we have referred compelled the conclusion that suspended sentences of imprisonment were appropriate.

Resentencing

1. Because the exercise of the sentencing discretion reposed in the judge at first instance was vitiated by both express and implied error, it was necessary for this court to resentence Mr Roberts.[12]  For the reasons we have given, the most appropriate sentences to have imposed upon Mr Roberts would have been concurrent terms of suspended imprisonment for a term somewhat less than the period of 2 years and 6 months.  However, by the time this court came to exercise the power to resentence, Mr Roberts had already served in excess of 8 months imprisonment.  That fact was properly taken into account by the court.[13]  In that context, the imposition of terms of imprisonment suspended for a period longer than the period already served by Mr Roberts would have exposed him to the risk of further punishment which, in all the circumstances, would have been unjust.  For that reason it was appropriate to impose sentences of imprisonment which, when backdated to the date upon which Mr Roberts went into custody, had the consequence that the terms were fully served by the time the sentences were imposed, with the result that Mr Roberts was entitled to be released immediately without risk of further punishment.  As terms of imprisonment of 8 months on all offences had that effect, those were the sentences imposed by the court.

   [12] Criminal Appeals Act 2004 (WA), s 31(5).

   [13] Criminal Appeals Act, s 41(4).