Sloane v The State of Western Australia
[2013] WASCA 53
•26 FEBRUARY 2013
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: SLOANE -v- THE STATE OF WESTERN AUSTRALIA [2013] WASCA 53
CORAM: McLURE P
PULLIN JA
MAZZA JA
HEARD: 8 NOVEMBER 2012
DELIVERED : 26 FEBRUARY 2013
FILE NO/S: CACR 103 of 2012
BETWEEN: ALAN ROBERT SLOANE
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
ON APPEAL FROM:
Jurisdiction : SUPREME COURT OF WESTERN AUSTRALIA
Coram :JENKINS J
File No :INS 199 of 2011
Catchwords:
Criminal law - Sentencing - Arson - Factual errors - Totality - Turns on own facts
Legislation:
Arson Legislation Amendment Act 2009 (WA), s 11
Criminal Appeals Act 2004 (WA), s 31(5)(a)
Criminal Code (WA), s 378, s 444(1)(a)
Sentencing Act 1995 (WA), s 6(2)(a), s 9AA
Result:
Appeal allowed
Appellant resentenced
Category: B
Representation:
Counsel:
Appellant: Ms C A McKenzie
Respondent: Mr J McGrath
Solicitors:
Appellant: McKenzie & McKenzie
Respondent: Director of Public Prosecutions (WA)
Case(s) referred to in judgment(s):
Forkin v The State of Western Australia [2013] WASCA 51
McLaughlin v The State of Western Australia [2012] WASCA 204
Muldrock v The Queen [2011] HCA 39; (2011) 244 CLR 120
Schriever v The State of Western Australia [2008] WASCA 133
The State of Western Australia v Bennett [2009] WASCA 93
McLURE P: The background material is detailed in the reasons of Pullin JA and not repeated here. Although the grounds of appeal rely on implied error, the appellant's submissions raise two factual errors which are said to have contributed to an erroneous characterisation of count 1 as the most serious offence. The claimed factual errors relate to the value of the damage occasioned to the front‑end loader the subject of count 1 and the objective risk to the livelihood of persons employed at the mine.
The appellant also contends that the sentencing judge erred in failing to find that, but for the appellant's admissions to police, there would or may not have been sufficient evidence to convict him of all the offences to which he pleaded guilty.
I start with the value of the damage to the front‑end loader. The agreed statement of material facts on count 1 for sentencing purposes was that damage to the value of $143,543 was caused to the front‑end loader (the agreed value). The victim impact statement of La Mancha Resources Australia Pty Ltd, copied to the appellant's solicitor under cover of letter dated 29 February 2012, stated that the fire totally destroyed the front‑end loader which had a value of $330,000. The sentencing judge resolved the prima facie conflict between the agreed fact and the victim impact statement as follows:
The front end loader which was valued at $330,000 was written off because of the fire damage. That was even though the amount of the damage was not initially to that extent [31].
On my reading, the sentencing judge regarded the agreed value as having been overtaken by the figure of $330,000 in the victim impact statement. That is, the inconsistency between the agreed value and the victim impact statement was resolved by the trial judge against the appellant. That course was not open without putting the appellant on notice of the proposed departure from the agreed facts.
The appellant also contends the trial judge erred in finding that 'people's livelihoods were put in jeopardy' as a result of count 1 [58]. The victim impact statement is to the effect that the fire caused significant damage to 'the plant' which caused it to be stopped for two days. In context, that is a reference to the 'paste plant', described as a critical piece of infrastructure which would take more than 12 months to rebuild and without which the mine could not operate profitably. Under the heading of the 'emotional impact' of the offence, the victim impact statement refers to the fact that the mine employs approximately 170 people and that '[t]he workforce was concerned that the damage to the paste plant could cause mining operations to cease thus threatening their livelihoods'. The agreed facts on count 1 make no mention of damage to the paste plant. All that is agreed is that embers from the loader caused a toilet block to catch alight but this self‑extinguished in moments. I am not persuaded that the objective inference drawn by the sentencing judge in [58] is open on the evidence.
The factual errors relating to the value, extent and effect of the damage enliven this court's power to intervene, not only in relation to ground 1 but also on the issue of totality.
Section 9AA of the Sentencing Act 1995 (WA) applies to the resentencing of an offender under s 31(5)(a) of the Criminal Appeals Act 2004 (WA). As to the scope and effect of s 9AA, see Forkin v The State of Western Australia [2013] WASCA 51 [17] ‑ [23]. The appellant entered his pleas of guilty at the first reasonable opportunity.
The appellant, who bore the onus, fell short of establishing that, but for his admissions to police, there would or may not have been sufficient evidence to convict him of all the offences to which he pleaded guilty. On the other hand, the evidence is insufficient to permit the court to draw an inference that the appellant's wife (who was sentenced at the same time as the appellant) had pre‑empted the appellant's admissions by making prior disclosure to police of all the appellant's offences. Indeed, the implication in the appellant's second record of interview is to the contrary (ts 5 ‑ 7). A transcript of the wife's interview with police was not before the sentencing judge. I will proceed on the basis that the appellant's cooperation with police had the effect of facilitating the administration of justice.
The appellant was aged 30 at the time of sentencing, had no relevant prior convictions, a good employment history and sought medical and psychological help after being arrested and charged. The evidence was that the appellant committed the offences when intoxicated by alcohol.
Having regard to all relevant sentencing factors, I would characterise the seriousness of count 1 as equivalent to counts 2 and 4, both of which jeopardised the safety of the inhabitants of 23A Carrington Street. That is, the sentence on count 1 should be 4 years' imprisonment. The sentences on the other individual counts should be the same as that imposed by the sentencing judge. The head sentence for each offence has been reduced under s 9AA(2) for the plea of guilty to the extent of 25%.
The next question is what total effective sentence would bear a proper relationship to the overall criminality involved in all of the
offences, viewed in their entirety and having regard to the circumstances of the case, including those referable to the appellant personally.
The overall criminality of the appellant's offending requires the imposition of a lengthy period of imprisonment notwithstanding the many mitigating factors in his favour including prior good character, cooperation with police, fast‑track pleas of guilty and genuine remorse. In my assessment, a total effective sentence of 7 years and 9 months meets all the relevant sentencing objectives including punishment, retribution and deterrence. I would achieve that result by ordering that the sentences on counts 1, 3 and 6 be served cumulatively, and the balance of the sentences concurrently.
For these reasons, I would allow the appeal, set aside the sentence on count 1 and the orders made by the sentencing judge for cumulation and concurrence and in lieu thereof impose a sentence of 4 years' imprisonment on count 1 and order that the sentences on counts 1, 3 and 6 be served cumulatively, with the remaining sentences to be served concurrently, resulting in a total effective sentence of 7 years and 9 months. The appellant will be eligible for parole after serving 5 years and 9 months.
PULLIN JA: This is an appeal against sentence. The appellant was convicted on his own plea of 19 counts of criminal damage by fire, contrary to s 444(1)(a) of the Criminal Code (WA), one count of stealing a motor vehicle contrary to s 378 of the Criminal Code and one count of stealing contrary to s 378 of the Criminal Code. The facts relating to these offences as found by the sentencing judge were as follows:
In respect of count 1, on 18 November 2010 you, Mr Sloane, were a passenger in the car that you, Mrs Sloane, were driving. Your twins were also in the car. Mr Sloane directed Mrs Sloane to drive to Frog's Leg goldmine in Coolgardie. Mr Sloane, you were a previous employee of that mine.
You, Mr Sloane, directed Mrs Sloane to stop near a part of the plant. Mr Sloane got out of the vehicle and obtained a small tin full of petrol from a generator which was in the back of the car. You walked over to a front-end loader, threw the petrol onto the cabin of the machine and set fire to it. You then got back into the car and told Mrs Sloane to drive to a mine site administration area. There you, Mr Sloane, alerted staff to the fire, obviously without advising them that you had started it. You then returned with the mine staff and assisted them to extinguish the fire. It goes without saying that they would have been horrified to have later learned
that they were permitting the person who had lit the fire to assist them to put it out.
Damage to the value of nearly $150,000 was caused to the front-end loader. A further $15,000 was spent in hiring a second machine to continue already contracted work. Embers from the loader also caused a nearby toilet block to catch fire however this extinguished itself after catching alight. Nevertheless approximately $20,000 worth of damage was done to the building.
In respect of count 2, at about 11 pm on 10 January 2011 you, Mr Sloane, walked to 23A Carrington Street and noticed a front window was open. You used a cigarette lighter to set fire to the curtains in the front living area.
An elderly woman, a 62-year-old man and a 46-year-old woman lived in that house. At the time one of the occupants was taking a shower and another occupant was asleep in their bedroom. The occupant taking the shower smelled and saw smoke coming from the lounge room and went to investigate. On seeing the fire she was able to extinguish it. However, the room was filled with smoke and the fire alarms had gone off. No doubt this was a frightening experience for the occupants. The fire destroyed the curtain and caused minor damage to the interior wall nearest to the window.
In respect of count 3, at about 1.00 am on 11 January 2011 you, Mr Sloane, walked next door to 34B Turner Street. You took with you a plastic bucket full of methanol. You poured the contents of the bucket through an open window and set the methanol alight. At the time the house was vacant. It is estimated that the fire caused about $50,000 worth of damage before it was extinguished by FESA.
In respect of count 4, on 23 January 2011 you, Mr Sloane, made a Molotov cocktail using methanol which was stored in a 44-gallon drum in your shed. You usually utilised that for a speedway vehicle. At about midnight you walked to 23A Carrington Street. You noticed again the front window was open. You lit the Molotov cocktail and dropped it into the lounge room of the house. At the time one of the occupants was watching TV and was able to extinguish the fire. It caused minor damage to the front living area floor and curtain.
Count 5: At about 1.00 am on 23 January you, Mr Sloane, walked back to 34B Turner Street and poured methanol onto the boarded up front window of the house and set it on fire. At the time the house was vacant. The fire did extensive damage beyond repair to the house and was extinguished by FESA. The insured value of the house was $280,000.
Count 6: At about 10.55 pm on 26 January 2011, you, Mr Sloane, made a Molotov cocktail again using methanol. You walked across the road to 32 Turner Street, lit the Molotov cocktail and threw it into the rear yard, causing the grass to catch alight. At the time the occupants were home. The victim was alerted to the fire by his wife and he was able to extinguish it. It caused minor damage to a trailer, Jeep chassis and grass in the rear courtyard, causing approximately $670 worth of damage.
Count 7: At about 12.45 am on Thursday, 27 January 2011, you, Mr Sloane, walked to 34B Turner Street and poured methanol through the window of the house and set it alight. At the time the house was vacant. The house had been extensively damaged in previous fires. However, this fire burnt anything else that could be burnt. The fire had to be extinguished by FESA. The house was demolished by the owner shortly afterwards.
In respect of count 8. At about 11.00 pm on 1 February 2011, you, Mr Sloane and Mrs Sloane, were driving around the South Kalgoorlie area. At the direction of you, Mr Sloane, Mrs Sloane stopped the car at the rear of 230 Boulder Road, which is the back of the Tyrepower premises where you, Mr Sloane, worked. Mr Sloane got out of the vehicle to check the gates and whilst you were outside you set fire to the rear yard of 224 Boulder Road using a cigarette lighter.
You got back into the car and told Mrs Sloane to drive around the block. The fire quickly burnt the grass and also a shed, causing $500 damage to the shed. Having driven around the block, you pointed out the fire to Mrs Sloane and proceeded to help extinguish it. FESA was called and extinguished the fire completely.
Count 9: At about 8.45 pm on 6 February 2011, you, Mr Sloane, walked to 32 Turner Street and lit a bundle of newspapers before throwing them into a rear yard, causing the grass to catch alight. At the time the occupants were home. They were alerted to the fire by a girl from a neighbouring house. The victims were able to extinguish the fire. It caused a water meter to be totally destroyed. The value of the water meter was approximately $250.
Count 10: At about 10.20 pm on 22 April, you, Mr Sloane, stopped your car at the rear of 42 Dwyer Street, Boulder. You set fire to an unregistered 1992 sedan which was parked in the rear yard. The owner had left it there and intended to do it up in order to sell. FESA were called and extinguished the fire. The vehicle, which was then valued at only $200, was totally destroyed. At the time the occupants of the home were at home.
Count 11: At about 12.35 am on 23 April 2011, you, Mr Sloane, were driving around when you noticed an unregistered vehicle parked out the front of premises in Lamington. You set fire to the vehicle valued at approximately $1,000, totally destroying it. FESA were called and extinguished the fire.
Counts 12 to 14: On 12 August 2011, the owner of a Toyota Landcruiser took the vehicle to have its wheels fixed at Tyrepower in Kalgoorlie. That is your place of employment. The owner was unable to collect the vehicle on the Friday. Sometime between 12.30 am on Saturday and 8.00 am the following morning you, Mr Sloane, stole the car from the front of Tyrepower. You were able to do so because you had access to the vehicle's keys.
You then drove the vehicle to an unknown bush location in Kalgoorlie. Later you returned to the car. Not wanting people to know it was stolen with a set of keys, you made it look as if the car had been hot wired and then set the car on fire. The car burnt itself out and was later located by the victim. The estimated value of the vehicle was $42,000.
Prior to burning the vehicle you stole from the back of it a portable refrigerator valued at $1,200 and put that into your vehicle. That is the count of stealing. Otherwise those counts relate to the stealing of the motor vehicle and the damage of it by fire.
Count 15: At about 10.00 pm on 20 August 2011, you, Mr Sloane, were the passenger in a vehicle being driven by you, Mrs Sloane. You drove to a location on the edge of Lake Lefroy. You, Mrs Sloane, stopped the car with the intention of allowing Mr Sloane to light a fire. Mr Sloane set fire to a caravan, totally destroying the caravan and race marking equipment inside it. You, Mrs Sloane, watched on. The caravan had an estimated value of $400 and the racing equipment a value of $2,500.
Count 16: At about 12.30 am on 21 August 2011, a similar offence occurred. On this night you, Mrs Sloane, drove Mr Sloane to South Boulder. You stopped the car with the intention of allowing Mr Sloane to light a fire. Mr Sloane set fire to an unregistered vehicle valued at about $40 which was parked at the front of 30 Chaffers Street.
Count 17 was also a similar offence. At about 7.15 pm on 27 August 2011, you were again both driving around. You, Mrs Sloane, were driving and you parked the car on the highway. There was an abandoned Toyota Lexcen there. Mr Sloane set fire to the vehicle. Police were unable to identify the owner of that vehicle.
Count 18: Similarly, at about 12.40 am on 17 September 2011, you were both driving around. You, Mrs Sloane, drove to Piccadilly and there located an abandoned Holden station wagon. You, Mrs Sloane, stopped at that location with the intention of allowing Mr Sloane to light a fire. Mr Sloane set fire to the vehicle which was valued at $2,000.
Count 19: Again at about midnight on 18 September 2011, you, Mrs Sloane, drove to Williamstown and located an unregistered Holden Commodore. Mr Sloane was with you. Mrs Sloane, you stopped at this location with the intention of allowing Mr Sloane to light a fire. Mr Sloane set fire to the vehicle. The fire spread to another vehicle, being a Nissan Pulsar. The victim valued each vehicle at $500.
Count 20: At about 10.30 pm on 24 September 2011, you both again drove to the same address in Williamstown and located an unregistered Ford Falcon. Mr Sloane set fire to the vehicle, valued at $100 whilst you, Mrs Sloane, watched.
Count 21: At about midnight on 25 September 2011, you again both drove to Boulder. Mr Sloane set fire to an industrial bin whilst Mrs Sloane watched. The fire caused the lid to the bin, valued at approximately $500, to be destroyed [4] ‑ [28].
The appellant was 30 years old when sentenced on 4 April 2012. He worked as a motor mechanic. He had some clinical and personality disorders, but not such as to constitute significant mental illness or to provide the appellant with significant mitigation in the sentencing process. According to the pre‑sentence report, he said he moderately consumed alcohol until about three years before the period of offending but since then and during the period of offending, he had been drinking heavily. He associated his offences with his heavy drinking. He had no relevant previous criminal record.
The trial judge said that the appellant should be given credit for his previous good character, his plea of guilty, his cooperation with the police and his remorse. The trial judge set individual sentences for the offences as follows:
Count 1:5 years' imprisonment
Count 2:4 years' imprisonment
Count 3:3 years' imprisonment
Count 4:4 years' imprisonment
Count 5:3 years' imprisonment
Count 6:9 months' imprisonment
Count 7:3 years' imprisonment
Count 8:6 months' imprisonment
Count 9:9 months' imprisonment
Count 10:6 months' imprisonment
Count 11:6 months' imprisonment
Count 12:18 months' imprisonment
Count 13:6 months' imprisonment
Count 14:18 months' imprisonment
Count 15:9 months' imprisonment
Count 16:6 months' imprisonment
Count 17:6 months' imprisonment
Count 18:6 months' imprisonment
Count 19:6 months' imprisonment
Count 20:6 months' imprisonment
Count 21:6 months' imprisonment
If all sentences were served cumulatively, the appellant would have been sentence to 32 years and 3 months in prison. In relation to count 1, the sentencing judge said:
Alan Sloane, in respect of count 1, this is a very serious offence and, in my view, the most serious offence on the indictment. Significant property damage was caused, people's livelihoods were put in jeopardy, and those who had to put out the fire had their own safety put at risk in doing so. An appropriate penalty for this offence is 5 years' imprisonment [58].
The sentencing judge then turned to make a determination about whether the sentences should be served concurrently or cumulatively. The trial judge considered whether any of the offences arose out of the same sets of facts, or whether the offences were entirely distinct conduct. The sentencing judge noted the general rule that individual crimes must be punished separately according to their individual gravity, which rule is qualified by the principles that consecutive sentences passed for individual crimes must not be allowed to result in a total sentence which is inappropriately long, having regard to the course of criminal conduct viewed as a whole and that the total sentence must not be 'crushing'.
The trial judge noted that the only offences which could be said to arise out of the same transaction were counts 12 to 14. As a result, her Honour ordered that those sentences be served concurrently with one another. All the other offences were found to be separate transactions committed on separate occasions, which meant that the only consideration then was totality.
The trial judge found that the sentence would be inappropriately long if all other sentences were served cumulatively and that a significant degree of concurrency was warranted to ensure that the sentence was not inappropriately long and not crushing.
Her Honour concluded that the sentence on counts 1, 2 and 15 should be served cumulatively on one another and that all other sentences should be served concurrently with one another, making a total sentence of 9 years 9 months' imprisonment.
The appellant appeals on two grounds which read:
1.The Learned Sentencing Judge erred in imposing a period of 5 years imprisonment for Count 1 on the Indictment for the offence of arson which sentence was manifestly excessive in all of the circumstances.
2.The Learned Sentencing Judge erred in the exercise of her sentencing discretion by failing to apply, or alternatively, failed to properly apply, the totality principle by imposing the term of 9 years and 9 months imprisonment. This resulted in a sentence that was overly crushing on the Appellant and excessive in regards to the offending conduct viewed as a whole, having regard to both the circumstances of the case and those referable to the Appellant personally.
Ground 1 - the sentence on count 1
Ground 1 as it appears, alleges inferred error. However, the written and oral submissions also alleged express error. The submission was that the sentencing judge misstated the facts. To explain this submission, it is necessary to observe that the statement of facts read to the court stated that the damage to the Komatsu front‑end loader referred to in count 1, amounted to $143,543. The appellant submitted that the sentencing judge sentenced on the basis that damage to the loader was $330,000 and not the lesser figure agreed to by the parties.
This submission must be rejected. The sentencing judge recorded what the parties had agreed, namely that the damage to the vehicle was 'nearly $150,000': see [6] of the sentencing remarks. The appellant's submission was based on what the sentencing judge said in [30] and [31] of the sentencing remarks. These paragraphs read:
I have received a victim impact statement from the complainant, La Mancha Resources Pty Ltd in respect of count 1. As I have already said, the plant, which had $20,000 worth of damage done to it, also had to be shut down for two days.
The front end loader which was valued at $330,000 was written off because of the fire damage. That was even though the amount of the damage was not initially to that extent. The 170 strong workforce were anxious about their financial security because they feared the mine may have to be closed because of the damage to the plant.
It is clear that the sentencing judge kept in mind that what was agreed as a fact, that damage to the value of $150,000 was caused to the front‑end loader by the fire lit by the appellant. This is because the sentencing judge having mentioned the value of the vehicle as being $330,000 noted that the damage 'was not initially to that extent'. The sentencing judge did not make any observation suggesting that she was rejecting the fact that the damage caused by the fire was 'nearly $150,000'. The appellant's written submissions say that 'undue' weight was given to the victim impact statement. That submission must be rejected. All that her Honour did, was to refer to what was in the victim impact statement.
It is then necessary to turn to what the ground alleges, namely that the sentence on count 1 was manifestly excessive.
In considering whether the sentence on count 1 or the total sentence imposed was excessive, it is necessary to take into account the maximum penalty which applied. See s 6(2)(a) of the Sentencing Act 1995 (WA). For the offence of arson the subject of count 1, the maximum penalty was increased from 14 years' imprisonment to life imprisonment by s 11 of the Arson Legislation Amendment Act 2009 (WA) which came into operation on 19 December 2009. The maximum penalty for a statutory offence serves as an indication of the relative seriousness of the offence. An increase in the maximum penalty for an offence is an indication that sentences for that offence should be increased: Muldrock v The Queen [2011] HCA 39; (2011) 244 CLR 120 [31]. As a result, any sentences imposed for arson offences on similar facts but in relation to offences committed before 19 December 2009, will not necessarily be comparable. Submissions were made and the sentencing judge noted, that cases before the amendment suggested that this type of offence usually attracted a sentence in the range of 2 years 8 months to 4 years 8 months for serious offences: The State of Western Australia v Bennett [2009] WASCA 93. It would be wrong to treat that case as indicating the range of sentences to be imposed for arson offences now that the amendment has come into effect. The considerations to be taken into account when sentencing for an arson offence and the effect of the 2009 legislative amendments, were referred to in McLaughlin v The State of Western Australia [2012] WASCA 204.
One of the ways in which the appellant sought to support the submission that the sentence on count 1 was excessive, was to say that some of the other offences, particularly those involving setting fire to houses while the occupants were in the house, were more serious and that the sentences in relation to those offences were less than the sentence in relation to count 1. As to that submission, the following observations are apposite. Generally speaking, where there is a challenge on totality grounds, the severity of a sentence imposed on an individual count will usually fall to be assessed in light of the sentences imposed in respect of the other counts and its contribution to the total effective sentence. A heavy individual sentence, for example, may be softened by an order that it be served concurrently with sentences imposed in relation to the other counts. On the other hand, a relatively light sentence may, as a practical matter, have increased severity if it is ordered to be served cumulatively. The real question is whether the total effective sentence is excessive: Giglia v The State of Western Australia [2010] WASCA 9 [40]. In this case such a question is raised by the second ground.
However, as the appellant in oral submissions persisted with ground 1, it is only necessary to say that the fact that other sentences were lighter does not mean that the sentence on count 1 was excessive. It was a heavy sentence, but given the deliberateness of the act, the judge's sentencing discretion did not miscarry by imposing a sentence of 5 years.
Ground 2 - totality
The appellant's conduct when looked at in its entirety was deliberately planned, persistent and extremely serious. On 18 days over a period of approximately 10 months, the appellant deliberately lit fires and wantonly destroyed property throughout the Kalgoorlie area. He targeted the property of multiple individuals. On one occasion there was some motive of revenge but usually there was no reason at all. While some of the property had a small monetary value, all property owners experienced some personal loss and inconvenience. There was also present the risk that fires would escalate and cause damage to other property or injury to people in the vicinity. On numerous occasions, the Fire & Emergency Services were required to attend to extinguish the fires, expending valuable resources and putting workers at some personal risk of harm.
On several occasions the appellant consciously targeted the same victims. The appellant deliberately targeted the occupants of 23A Carrington Street, which is the property referred to in counts 2 and 4. On two separate occasions the appellant ignited fires inside the house when the occupants were at home. The appellant admitted he was aware at the time he lit those fires that the house was occupied. Similarly, the occupiers of 32 Turner Street were targeted on two occasions. The victim impact statement in relation to one of the offences attests to the resultant fear that the victim experienced that it would happen again.
The total sentence to be imposed had to reflect the high level of criminality and the persistence of the appellant's offending conduct. It was conduct that the sentencing judge described as 'without precedent in Western Australia'. Individually, each offence was not in the worst category and no complaint is made about the individual sentences save in relation to the sentence on count 1. However, as a whole the appellant's offending conduct makes this a case of great criminality. When that aspect is coupled with the recent increase in the maximum penalty to life imprisonment for each of the 19 arson offences committed by the appellant, it is to be expected that his total effective sentence would fall beyond the boundary of sentences imposed in previously decided cases none of which are comparable.
Counsel for the appellant submitted that if the appellant had not confessed to his crimes, they would have gone undetected. It was submitted that this cooperation with police was a substantial mitigating factor and that the sentence imposed did not reflect this. Speaking generally, it is correct that the voluntary disclosure of offences which may remain undetected will be a significant mitigating factor: Schriever v The State of Western Australia [2008] WASCA 133 [22] ‑ [23].
However, the appellant's submission must be rejected. It is important to bear in mind how events unfolded. When the appellant was apprehended, he was questioned at the Kalgoorlie Detectives' Office. He was interviewed twice on 28 September 2011. The first interview began at 1.21 pm. The interview concluded at 3.02 pm on the same day. He was questioned about most of the fires referred to in the counts in the indictment. The questioning detective, after detailed questioning about one of the fires said that:
[W]e believe that there's 24 fires okay. That we believe that you're involved. Either been seen at, assisted fighting, contacted FESA, your vehicle's been at, either vehicle, your Magna or your Ford Ranger which you say that only you and Rebecca drive (AB 137).
He then continued:
What I'm going to do is to go through each individual fire stating the offence report, the address and the time of those fires and the day those fires occurred and I'd ask you to bring your mind to them and think about them and let me know if there's anything you would like to tell us about those fires? (AB 137)
The appellant said that he had committed no arson offences at all (AB 138). The particulars of each fire were then put to him and he denied any involvement.
After he was interviewed on this first occasion, he went down to lockup and talked to his wife (AB 167). After that, he was interviewed again in the evening of 28 September 2011. He was asked whether he had had the opportunity to speak to his wife and he said that he had. He then made full admissions.
In the prosecution brief, the amended statement of material facts revealed that '[b]oth offenders participated in a video record of interview on 28 September 2011 and made full admissions'. This means the appellant's wife made full admissions and it may be inferred that the appellant learned of this when he spoke to his wife because by the time of the second interview, she had already been charged (AB 167). In the second interview, the appellant said that he 'wanted to stop lying to everyone' (AB 168) and he then made his confessions. It must have been obvious to the appellant after speaking to his wife, that there was not much point in further denying his involvement. Counsel for the appellant contended that his full confession in the second interview should have a mitigating effect beyond merely indicating that he was remorseful. The submission that without his admissions, he could not have been charged because of lack of evidence cannot be accepted. His wife provided evidence of the appellant's involvement and the police interviewer made it clear in the first interview that there was circumstantial evidence linking him to the fires.
The total sentence imposed was an appropriate reflection of the appellant's criminality. The first limb of the totality principle was not infringed.
As to the second limb of the totality principle, the appellant, if released on parole, will be 38 years old when he completes his sentence
and 40 years of age if he is not released on parole. He will be a man only just middle aged. His children will still be primary school aged and until his release will be cared for by family members. The total effective sentence cannot be said to destroy any reasonable prospect of a useful life after release and is not crushing in the relevant sense.
The appeal should be dismissed.
MAZZA JA: I agree with McLure P.
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