Seaton v The State of Western Australia
[2021] WASCA 12
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: SEATON -v- THE STATE OF WESTERN AUSTRALIA [2021] WASCA 12
CORAM: BUSS P
MAZZA JA
HALL J
HEARD: 17 DECEMBER 2020
DELIVERED : 28 JANUARY 2021
FILE NO/S: CACR 35 of 2020
BETWEEN: BIRRELA BINDA SEATON
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram: O'NEAL DCJ
File Number : IND 2249 of 2018
Catchwords:
Criminal law – Appeal against sentence – One count of being a person in charge of an ignition source unlawfully omitted to do an act, namely to use reasonable care and take reasonable precautions to avoid lighting a fire that destroyed property – Criminal Code s 444A and s 445A – Appellant convicted after trial – Residential building – Risk to safety of other residents – Sentence of 2 years 6 months immediate imprisonment – Whether sentence manifestly excessive
Legislation:
Nil
Result:
Extension of time granted
Leave to appeal refused
Appeal dismissed
Category: B
Representation:
Counsel:
| Appellant | : | M D Howard SC & J C Solliss |
| Respondent | : | J A Scholz & T B L Scutt |
Solicitors:
| Appellant | : | Matthew Howard SC |
| Respondent | : | Director of Public Prosecutions (WA) |
Cases referred to in decision:
CJH v The State of Western Australia [2013] WASCA 139
Harris v The State of Western Australia [2016] WASCA 34
Hope v The State of Western Australia [2019] WASCA 12
MLT v The State of Western Australia [2013] WASCA 140
R v Engert (1995) 84 A Crim R 67
Rimington v The State of Western Australia [2015] WASCA 102
Suleiman v The State of Western Australia [2017] WASCA 26
JUDGMENT OF THE COURT:
This is an appeal against sentence.
The appellant was convicted after trial of one count of being a person who had charge of an ignition source and unlawfully omitted to do an act which it was her duty to do, namely to use reasonable care and take reasonable precautions to avoid lighting a fire that destroyed property contrary to s 444A and s 445A of the Criminal Code (WA). On 13 December 2019 she was sentenced to a term of 2 years 6 months immediate imprisonment with eligibility for parole.
The notice of appeal was filed on 25 February 2020 and accordingly an extension of time is required. The reason given for the delay is that the appellant's lawyer did not receive the sentencing transcript until 28 January 2020. The extension required is relatively short and should be granted.
There is a single ground of appeal, namely that the sentence imposed is manifestly excessive. Taking into account the maximum penalty for the offence, the standards of sentencing customarily observed with respect to the offence, the place which the criminal conduct occupies on the scale of seriousness of offences of this kind and the personal circumstances of the offender, it has not been established that the sentence imposed was not one that was properly open to the learned sentencing judge. The sentence was not, in all of the relevant circumstances, unjust or unreasonable. Leave to appeal should be refused and the appeal dismissed. Our reasons for coming to that conclusion are as follows.
Facts
The uncontested facts as found by the sentencing judge are as follows.
At around 2.00 pm on 31 January 2019 the appellant returned to her unit on the first floor of an apartment block in Como. She returned to her unit because she had had a fight with her boyfriend at his house a short time earlier. Police had been called as a result of that fight and the appellant had been served with a notice requiring her to leave her boyfriend's house at around 1.45 pm.
At 3.30 pm to 3.45 pm a neighbour from an adjacent apartment returned home from work. As the neighbour came up the stairs to the common landing she heard the appellant calling out 'help, help, he's attacking me'. The neighbour did not respond because she had heard the appellant calling out in a similar manner before and on those previous occasions had attended to find the appellant sitting alone. The neighbour went to her own unit, closed her doors and windows and put on some music.
Five young men were staying temporarily in a downstairs unit occupied by a relative of theirs. They were not familiar with the appellant's behaviour. They had been to the beach and came back at around the same time as the neighbour, or perhaps shortly after. They parked their car at the back of the building in a carpark which is overlooked by the appellant's bedroom. When they got out of their car they heard the appellant calling out for help. They began calling out to try and locate the appellant. The appellant answered by saying that she was upstairs and several of the young men went up to the first floor of the building. They found that the door to the appellant's unit was locked and called out again to determine if she was all right.
The appellant then came to the door, unlocked it and the security screen and let the young men in. They entered and saw that there was no one else in the unit. The appellant was quiet when she came to the door but then began saying 'help' and walked off to the rear bedroom and sat on a bed. She continued to ask for help and talked about the devil. One of the young men described her as looking a bit shocked and another like she was on drugs. One of them said that the appellant's behaviour freaked them out and they left.
About 15 minutes later, while the young men were downstairs, they heard the sound of breaking glass. They went outside to the parking lot and saw the appellant hanging half way out the bedroom window of her first floor unit. She had rigged a sheet or blanket that was also hanging out of the window. Smoke could be seen coming from the window. The sentencing judge noted that it was apparent that despite the fact that a fire had started in the room the appellant had time to organise the sheet or blanket as a means of escape.
The appellant fell from the window into a garden bed that contained large spiny succulent plants. She rolled out of the garden and got to her feet. Meanwhile, the young men organised a hose to spray water through the window. One of them also obtained a fire extinguisher. The sentencing judge found that the appellant's behaviour very strongly suggested that she was under the influence of drugs or alcohol or both.
The sentencing judge accepted the evidence of an expert fire examiner that a mobile heat source, such as a cigarette lighter, was used to ignite something flammable in the rear bedroom causing other things in the room to very quickly catch alight. The door to the rear bedroom was closed at the time and the contents were consumed by fire.
The appellant was interviewed by police and also gave evidence at the trial. The sentencing judge stated that he did not believe much of what the appellant said to the police and none of what she said in her evidence. He noted that the appellant had told the police she could not recall what had happened but in evidence had a 'sudden recovery' of a memory that an acquaintance of hers had been in the apartment at the time the fire broke out. His Honour described this as 'a cartoonish attempt to implicate that person for something that [the appellant was] responsible for'.[1]
[1] ts 316 (13/12/2019).
Seriousness of the offence
The sentencing judge was satisfied that the following aggravating factors were established beyond reasonable doubt:
1.The fire occurred as a result of some kind of act by the appellant that resulted in setting alight flammable material in her bedroom. The fire took off very quickly and caused considerable damage, estimated to be approximately $263,000 in value.
2.The appellant's unit was one of eight in a residential complex. Some of the other occupants were, to the appellant's knowledge, people with mental and physical health issues. The appellant placed them at risk and some of them were made homeless for a time.
3.The appellant's actions placed at risk the safety of the young men who were staying downstairs and who bravely took it on themselves to fight the fire and to alert other residents. Those actions also put at risk the emergency services personnel who responded to the fire. Those risks could have been anticipated in measuring how much care needed to be taken in dealing with the fire source that the appellant had in her control.
His Honour expressly acknowledged that the appellant had not been charged with arson, that is with deliberately setting a fire with the intent that it should cause damage. He said that the appellant's responsibility was properly characterised as criminal negligence.
In terms of the degree of objective culpability, his Honour said that whilst it was difficult to determine exactly what had occurred in the bedroom, the appellant's lack of care was of a very high order. This had to be viewed in a context where the fire source was in a block of flats where the risk to others would have been obvious. The appellant's actions put the safety of others at risk and left residents homeless for a period of time. Her actions also caused serious financial harm to an organisation that provides housing for people who would otherwise have difficulty obtaining it. That organisation was insured, but that only had the effect of passing the loss onto others. His Honour concluded that this was a serious example of this kind of offence.
Personal circumstances
At the time of sentencing the appellant was 50 years old, having been born in August 1969. She was married at 22 years old and has two daughters from that relationship who are now in their twenties. Her relationship with her husband failed due to her alcoholism, instability and violence. She lost the custody of her two daughters for those reasons. She is estranged from most of her family.
A pre-sentence report and a report from a psychologist were prepared for the purposes of sentencing. The sentencing judge noted that it was difficult to be confident about the appellant's background as reported by her to the authors of those reports because she had not told the truth and had made claims that appeared to be delusional. In particular his Honour was not prepared to accept claims regarding the circumstances of the appellant's upbringing. On the other hand he noted that her earlier life had been sufficiently stable that she had completed Year 12 at high school and then obtained nursing qualifications. The appellant's life appeared to have gone downhill in her twenties, at least in part due to alcohol and drug issues. She has not worked since about the age of 36. She had surgery to her knee in 2011.
The pre‑sentence report states that the appellant maintained her stance of denial regarding the offence. She also denied having any treatment needs, which limited the scope for intervention programs. The report states that it was questionable whether the appellant would have the capacity to successfully address her behaviour or treatment needs by any court ordered intervention. It is noted that upon her remand into custody the appellant had said that she was 'heavily withdrawing from alcohol' but that when interviewed for the purposes of the report she denied any alcohol or illicit drug use.
The psychological report states that the appellant denied any current or past mental health issues or substance abuse problems. She is described as being wary throughout the assessment and provided limited information about any past mental health treatment. A significant delusional disorder and paranoia were said to be evident. Medical records indicated that since 2005 the appellant had displayed a pattern of chronic persecutory/paranoid delusions relating to home invasions and assaults. There had been repeated inpatient admissions and attendances at hospital emergency departments in the context of alcohol intoxication. The appellant had been diagnosed with alcohol dependence, alcohol abuse, alcoholism, drug induced psychosis, complex post‑traumatic stress disorder and a delusional disorder.
The psychological report states that the appellant was a challenge to assess due to her delusional disorder, level of denial of her problems and lack of insight. It was difficult for the author to determine the factors that motivated the offending, however it is suggested that the appellant was likely to have been affected by alcohol (and possibly other drugs) and delusional at the time of the offence. The factors that appeared to the author to be relevant include substance misuse issues, mental health problems, emotional regulation and impulse control problems, poor judgment and consequential thinking. It is also possible that feelings of anger and resentment and wanting a sense of power and control are relevant. The appellant's treatment needs relate to her substance misuse and mental health issues, however her denial and lack of motivation to address these matters make it unlikely that positive change can be achieved. There was a possibility that chronic alcohol and substance use had caused permanent damage and that abstaining would not improve the appellant's mental health.
Sentencing remarks
As the ground of appeal does not allege any express errors by the sentencing judge it is not necessary to refer to the sentencing remarks in great detail. The appeal must proceed on the basis that the findings of fact made by the sentencing judge are unchallenged.
The sentencing judge noted that the appellant may well have a mental health problem, however it was not clear where 'the line is between your mental health issues and years of alcohol and other drug abuse'.[2] He said that the appellant was in denial not only about the offending but about the significant problems that she has with drugs and alcohol. His Honour concluded that the appellant had 'some significant mental health problems' that in his view placed her at risk of further offending. He noted that the appellant had opportunities in the past to deal with her drug and alcohol issues and to address the mental health concerns but that she had rejected those opportunities.
[2] ts 317 (13/12/2019).
His Honour acknowledged that there could be an argument that mental health issues played a part in the offending. He noted that where there is a causal connection between mental illness and offending that can be a mitigating factor, however in this case it appeared that the condition was self‑induced by reason of long term substance abuse. He also noted that in some circumstances a mental health issue can lead to a conclusion that an offender represents a continuing danger to the community. He said that was a concern in this case given the appellant's stance of denial, her efforts to blame another person and her rejection that she has any drug or alcohol problems.
His Honour concluded that, in view of the nature and seriousness of the offence, a term of imprisonment was the only appropriate disposition. He was satisfied, in effect, that given the nature and seriousness of the offending and the appellant's complete lack of remorse or contrition, suspension was not an available sentencing option. He imposed a sentence of 2 years 6 months immediate imprisonment with an order that the appellant be eligible for parole, that sentence being backdated to 18 October 2019 when the appellant was remanded in custody.
Ground of appeal
The sole ground of appeal is as follows: the sentence imposed was an error of law in that it was manifestly excessive.
As noted earlier, the appellant does not contest any of the sentencing judge's findings. The ground does not allege that the sentencing judge made any express error or any other implied error.
Merits of the ground of appeal
A ground of appeal which alleges that a sentence is manifestly excessive asserts the existence of an implied error. Such an implied error is established where the sentence is so unreasonable or unjust that it is apparent that a substantial wrong has occurred. An appellate court cannot substitute its own opinion for that of the sentencing judge merely because the appellate court would have exercised the sentencing discretion differently.
It is necessary, in determining whether a sentence is manifestly excessive, to examine it from the perspective of the maximum sentence prescribed by law for the relevant offence, the standards of sentencing customarily observed with respect to that offence, the place which the criminal conduct occupies on the scale of seriousness of offences of the kind in question and the personal circumstances of the offender.
Section 445A of the Criminal Code provides that a person who unlawfully omits or refuses to do any act which it is the person's duty to do under s 444A is guilty of a crime and is liable to imprisonment for 15 years. Section 444A provides that it is the duty of a person who has charge of or is in control of a source of ignition to use reasonable care and to take reasonable precautions to avoid lighting a fire that destroys or may destroy or cause damage to property that the person is not entitled to damage or destroy. A person is held to have caused any destruction or damage to that property by reason of any omission to perform that duty.
In order to determine the sentencing standards that are usually observed in relation to an offence of the kind committed by an offender it is necessary to have regard to any comparable cases. However each case turns on its own particular facts and circumstances, thus sentences imposed in other cases can only provide general guidance and do not set the limits of sentencing discretion. To the extent that a sentencing range is discernible it is merely one of the factors to be taken into account in deciding whether a sentence is manifestly excessive. What is important is the unifying principles which sentences imposed in comparable cases reveal and reflect.
There are comparatively few cases dealing with sentences imposed for offences contrary to s 445A of the Criminal Code. There have been too few cases to conclude that sentences fall within an established range. There have been more cases dealing with the offence of arson under s 444(1)(a) of the Criminal Code but that is an offence of a different nature with a higher maximum penalty such that comparisons with those cases are of limited utility.
The appellant referred to the following cases: Suleiman v The State of Western Australia;[3] CJH v The State of Western Australia;[4] MLT v The State of Western Australia;[5] Hope v The State of Western Australia;[6] Harris v The State of Western Australia;[7] and Rimington v The State of Western Australia.[8] Of these Hope, Harris and Rimington were cases involving offences of arson which are not useful comparators. CJH and MLT did involve offences under s 445A of the Criminal Code but the appellants in those cases were juveniles to whom special considerations applied that did not arise in the present case. The appellant accepts that CJH and MLT provide only limited guidance for that reason. The only case which is meaningfully comparable to that of the appellant is Suleiman.
[3] Suleiman v The State of Western Australia [2017] WASCA 26.
[4] CJH v The State of Western Australia [2013] WASCA 139.
[5] MLT v The State of Western Australia [2013] WASCA 140.
[6] Hope v The State of Western Australia [2019] WASCA 12.
[7] Harris v The State of Western Australia [2016] WASCA 34.
[8] Rimington v The State of Western Australia [2015] WASCA 102.
In Suleiman the offender set fire to his own car which was parked in a communal carport at the rear of his ex‑partner's unit. His car was destroyed but only minor damage was caused to the carport and minor smoke damage to the exterior of the building, which was later washed away by rain. The offender was charged under s 445A with lighting a fire that may have destroyed or damaged the building and carport. At the time of the offending, the offender was suffering an acute relapse of inadequately treated paranoid schizophrenia that was causative of his offending conduct. A sentence of 3 years immediate imprisonment was reduced to 2 years immediate imprisonment on appeal. That sentence took into account a maximum discount of 25% for the offender's early plea of guilty.
The outcome in Suleiman does not support the appellant's contention that the sentence of 2 years 6 months immediate imprisonment imposed in this case is manifestly excessive. The appellant in the present case was convicted after trial, in circumstances where far more significant damage was caused by a fire lit inside an inhabited apartment complex, where there was no remorse and ongoing denial of mental health issues. Furthermore, in Suleiman the appeal was allowed on the basis that the sentencing judge had erroneously rejected that at the time of the offending the offender was suffering an acute relapse of his mental illness. When the offender was resentenced on appeal that factor, together with efforts that the offender had made to obtain treatment, resulted in a reduction of the sentence to 2 years immediate imprisonment. In the present case the significance of any mental illness (independent of substance abuse) was unclear, the appellant pleaded not guilty, showed a complete lack of remorse or contrition and was in denial regarding her problems with alcohol and illicit substances.
It is unnecessary to refer to the facts of the other cases relied on by the appellant. We have considered those cases and none of them support the contention that the sentence imposed here was unreasonable or unjust.
As to the seriousness of the offending, the appellant submitted that the sentencing judge's conclusion that the offence was a serious example of its type was not supported by the fact that it could not be determined how the fire commenced and that there was no allegation of planning or premeditation. These submissions are not well founded. The sentencing judge expressly acknowledged that precisely how the fire came to be out of control was known only to the appellant. However, the level of care required in controlling an ignition source was determined by the surrounding circumstances, in particular that the ignition source was in a residential building. His Honour's assessment of the seriousness of the offence was based upon this and other factors, including that the safety of other residents and firefighters was put at risk and the extent of the damage and inconvenience resulting from the fire. It is not to the point to say that the offence was not planned or premeditated as an offence of this nature, which is one of negligence, will not have such a feature. An offence of damage by fire that is planned or premeditated would constitute the more serious offence of arson.
It was also submitted that it was not open to the sentencing judge to conclude that the appellant was a continuing danger to the community. Whilst there is no ground of appeal that challenges this finding, it was plainly open given other findings made by his Honour. Those findings include the appellant's lack of remorse, her refusal to accept her alcohol and drug problems, and that the underlying causes of this offending were those problems and were unlikely to be addressed. Though it was not possible to say to what extent mental health issues, independent of alcohol and substance abuse, had contributed to the appellant's offending conduct; or whether both had contributed to some extent, none of those issues were likely to be addressed by the appellant given her stance of denial. In these circumstances it was open to conclude that there was a real risk that the conduct could occur again in the future.
Whilst in some cases mental illness that is shown to be causative of offending can be a mitigating factor, that will depend on the nature of the illness and the response of the offender to it. In this case the appellant had not taken up opportunities to address issues with drug and alcohol use, was in denial as to the existence of any issues in those respects and it was not clear that there was any mental illness independent of that drug and alcohol use. In these circumstances his Honour found that no mitigation could be derived from mental illness or substance abuse issues. To the contrary these unaddressed issues heightened the need for community protection. That is a conclusion that may be open in cases such as the present: see R v Engert[9] and Suleiman at [62] ‑ [63].
[9] R v Engert (1995) 84 A Crim R 67.
In our opinion the sentence of 2 years 6 months immediate imprisonment was commensurate with the seriousness of the appellant's offending. Taking into account the maximum penalty of 15 years imprisonment, the circumstances of the commission of the offence (including the aggravating factors relating to the amount of damage, that a residential building was involved and the risk to the safety of others), and the personal circumstances of the appellant, the sentence imposed was not unreasonable or plainly unjust.
The ground of appeal cannot succeed. Accordingly, leave to appeal is refused and the appeal is dismissed.
I certify that the preceding paragraphs comprise the reasons for decision of the Supreme Court of Western Australia.
EM
Associate to the Honourable Justice Hall
22 JANUARY 2021
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