The State of Western Australia v Bennett - [2009] WASCA 93

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT : THE COURT OF APPEAL (WA)

CITATION: THE STATE OF WESTERN AUSTRALIA -v- BENNETT [2009] WASCA 93

CORAM: OWEN JA
BUSS JA
MILLER JA

HEARD: 11 MARCH 2009

DELIVERED : 18 MARCH 2009

PUBLISHED : 26 MAY 2009

FILE NO/S: CACR 139 of 2008

BETWEEN: THE STATE OF WESTERN AUSTRALIA
Appellant
AND
STEPHEN MARK BENNETT
Respondent

ON APPEAL FROM:
Jurisdiction              :  DISTRICT COURT OF WESTERN AUSTRALIA
Coram  :SCHOOMBEE DCJ
File No  :IND 1050 of 2008

Catchwords:

Criminal law - Sentence - Offences of stealing motor vehicle, wilful damage by fire and threat to kill - Aggregate sentence of 15 months' imprisonment - Whether manifestly inadequate - Whether concurrency appropriate - Principles now applicable to prosecution appeals

Legislation:

Criminal Appeals Act 2004 (WA), s 41(4)(b)
Criminal Code (WA), s 338B, s 371A, s 444
Sentencing Legislation (Transitional Provisions) Amendment Act 2008

Result:

Appeal allowed
Resentenced to aggregate sentence of 4 years 9 months' imprisonment

Category: B

Representation:

Counsel:

Appellant: Mr B Fiannaca SC
Respondent: Ms K J Farley

Solicitors:

Appellant: Director of Public Prosecutions (WA)
Respondent: Legal Aid (WA)

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

Carroll v The Queen [2009] HCA 13
Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321
House v The King (1936) 55 CLR 499
Jarvis v The Queen (1993) 20 WAR 201
Mill v The Queen [1988] HCA 70; (1988) 166 CLR 59
Newton v The State of Western Australia [2006] WASCA 247
Postiglione v The Queen [1997] HCA 26; (1997) 189 CLR 295
R v Catts (1996) 85 A Crim R 171
R v S (1992) 60 A Crim R 121
Roffey v The State of Western Australia [2007] WASCA 246
The State of Western Australia v BLM [2009] WASCA 88
The State of Western Australia v Porter [2008] WASCA 154
The State of Western Australia v Wallam [2008] WASCA 117
Walgar v The State of Western Australia [2007] WASCA 241

OWEN JA: On 18 March 2009 the court announced that the appeal should be allowed and the appellant resentenced. I joined in those orders for the reasons expressed by Miller JA, with which I agree.
BUSS JA: For the reasons expressed by Miller JA, I joined in the orders made by the court on 18 March 2009.
MILLER JA: On 18 March 2009, the court allowed this appeal, set aside the sentences imposed by the sentencing judge and resentenced the respondent in the manner set out at the end of these reasons.
The court undertook to give reasons for its decision and these are the reasons why I joined in the decision.
The respondent was indicted on three counts:
(1)On 10 October 2007 at Kojonup [he] stole a motor vehicle, namely a KIA Sorento registration number GNP028, the property of Nicolette Pratt.
(2)On the same date and at the same place [he] wilfully and unlawfully damaged a residential property
And that the residential property was damaged by fire.
(3)Between 3 October 2007 and 10 October 2007 at Kojonup [he] made a threat to unlawfully kill Paula Louise Clark.
The offence of stealing a motor vehicle is an offence against s 371A of the Criminal Code (WA). The offence is punishable by imprisonment for 7 years. The offence of criminal damage is an offence against s 444 of the Criminal Code. Where a person wilfully and unlawfully destroys or damages any property, he is guilty of a crime and is liable, if the property is destroyed or damaged by fire, to imprisonment for 14 years. The offence of threatening to unlawfully kill is an offence against s 338B of the Criminal Code and is punishable by imprisonment for 7 years.
The respondent pleaded guilty to each count on the indictment and appeared before the sentencing judge on 10 September 2008. The facts of the three offences were then read to the court. They revealed as follows.

Count 1

Between 12.40 pm and 1.10 pm on 10 October 2007, the respondent was at the Caltex service station on Albany Highway, Kojonup. He

located an unoccupied Kia Sorento four‑wheel drive vehicle, the owner of which was inside the service station paying for fuel. The respondent found the vehicle to be unlocked, with the ignition keys on the front seat. He got into the vehicle, started it and drove some 50 metres to his residence at 4 Kojonup‑Katanning Road, Kojonup. There, he crashed the vehicle into a brick wall at the front of the premises, as a result of which the vehicle would not move. He then abandoned it.

Count 2

The respondent obtained possession of a 20‑litre jerry can which contained petrol. He entered the premises at 4 Kojonup‑Katanning Road, where he spread petrol throughout the house. He then went to the kitchen and ignited the source of the fuel. He ran from the house as it became engulfed in flames. He was apprehended by police whilst running down the driveway away from the burning house. The house was owned by the complainant, Paula Louise Clark. She had purchased it in January 2007. She had been in a relationship with the respondent for a period of time, but had been separated from him until some seven weeks before the fire, when she started living with him again at 4 Kojonup‑Katanning Road. She had left the house on 6 October 2007 without telling the respondent and travelled from Kojonup to Perth. She did this because she was afraid of him.
Whilst Ms Clark was living away from the respondent, she received numerous text messages and several telephone calls from him. He threatened her that, if she did not return, he would smash the house up. He also said that he was selling everything.
The depositions reveal that, on 8 October 2007, between 1 pm and 2.15 pm, the respondent rang Teresa Gail Harper. Ms Harper had known the respondent for three to four years and she lived in Werribee, Victoria. The respondent complained that Ms Clark had left him. He asked Ms Harper to contact Ms Clark and tell her to return. He told Ms Harper that if Ms Clark would not come back, he would smash the place up. In her deposition, Ms Harper said:
He said 'There's a $6000.000 surround sound, I'll sell that, fuck it, I'll smash it. I'll smash everything, there will be nothing left'.
...
Baldy said 'She won't come back, fuck her, fuck everything; I'll smash the fucking joint. There will be nothing left! Then I'll start on the doors and windows. Then I'll start smashing the walls, there will be nothing left!'
Baldy was getting even angrier and said 'Fuck it, I'll burn the fucking joint down.'
I said 'Baldy, stop! Where will that get you?'
Baldy said 'No Teresa, I mean it; I'll burn the fucking joint down. Then I'll steal a car and go and kill Jinx and spend the rest of my life in jail. If I can't have Paula, I don't have nothing on the outside, so I'll kill Jinx and go back to Jail. End. That's what I'll do'.
Constable Simon James Womersley was called to the Caltex service station in Kojonup at about 12.50 pm on 10 October 2007. He there spoke with Nicolette Pratt, who told him that her car had been stolen. Constable Womersley attended at an address which he described as 4 Katanning Road, Kojonup, and there saw Ms Pratt's vehicle. It had apparently been involved in an accident. He also observed smoke coming from the house at the end of the driveway. He ran up to the house and saw flames inside the front room and front door. He ran to the side of the house and saw flames in the kitchen area. The flames were climbing the walls. Constable Womersley was concerned as to whether there was any occupant in the house. He called for the occupant, but heard no reply. He ran back to the police vehicle and told his partner to call 000. Constable Womersley then ran back to the house and again called for the occupant. As there was no response, he ran to the Caltex service station and requested that all power to the fuel pumps and gas tank be shut down. He returned to the house, where he observed that the flames were beginning to burn along the roof. He then waited at the bottom of the driveway for a fire crew to arrive. While standing in the driveway, he saw the respondent walk from the rear of the property. By this time, the fire engine had arrived and the respondent walked past it. Constable Womersley walked up to the respondent and grabbed his arm. He placed him under arrest on suspicion of arson.
A deposition of Constable Christopher Gregory Hodges reveals that he attended at 4 Kojonup‑Katanning Road, Kojonup, on 10 October 2007 and there saw the respondent. He described the respondent's demeanour as extremely aggressive. He was swearing at, and challenging to fight, anyone who looked at him. He appeared to be intoxicated and possibly under the influence of drugs. Constable Hodges spoke with the respondent (who was sitting in an ambulance). He could smell petrol on him and particularly on his boots.
There are numerous other statements in the depositions which reveal that the respondent told others that he intended to burn down the house.
In due course, the house and grounds surrounding it were declared to be a protected forensic area. Paul Coultard, captain of the fire crew, directed Constable Womersley's attention to a set of keys lying in the grass at the side of the house and to a red fuel can placed behind the fence at the rear of the property.
Once the fire had been extinguished by the fire brigade, Constable Womersley entered the house. He went to the rear of the house and entered the rear bedroom. There was a strong smell of petrol coming from that room. He then departed the house and returned to the police station.
The house a 4 Kojonup‑Katanning Road sustained severe fire, smoke and structural damage. It was so badly damaged that it required demolition and rebuilding.

Count 3

On or about 3 October 2007, the complainant was lying on the bed in the bedroom of her residential premises at 4 Kojonup‑Katanning Road, Kojonup. The respondent approached her and was shouting abuse at her. The complainant told the respondent that she was leaving and asked him to calm down. The respondent was standing over her and put his face right up to her face. The respondent said in an aggressive manner, 'I'll do 25 over you. If I can't have you, no one will have you.'
On or about 5 October 2007, the respondent again became very aggressive towards Ms Clark. There was an argument during the course of the day and Ms Clark told the respondent that the relationship was over. Later in the day, whilst Ms Clark was in bed, the respondent came into the bedroom. He called her a bitch and said things like, 'If you think you're going to walk away I will kill you'. He had his face very close to Ms Clark and she was worried for her safety. The respondent walked out of the room and Ms Clark stayed in it, pretending that she was asleep. On the following day, the respondent left the house, saying that he was going to Dwellingup. He returned in the early hours of Sunday morning, 7 October. Ms Clark heard him come into the house. She assumed that he was drunk. The respondent came to her bedroom, where she was lying on the left side of the bed. He grabbed her by the throat. What then followed is set out in Ms Clark's deposition, dated 16 July 2008, as follows:
He grabbed my throat hard enough that it hurt me. It didn't stop me from breathing totally but it [sic I] did have trouble breathing. I thought I was going to pass out.
He put his face very close to mine. His eyes were wide open and his face was very scary. He was looking very angry. He stunk of alcohol.
He said 'I am going to kill you. If I can't have you, no one can.'
I thought he was going to kill me. I have never been scared in my life but I was petrified.
I said 'Do it. Just do it or leave me alone.'
...
He also clenched his right fist again as if to hit me.
After I said 'Just do it' to him, something happened and he just let me go. He walked out [of] the room.

Sentencing

The sentencing judge related the facts of the case in summary form and then turned to the personal circumstances of the respondent. He was 46 years of age at the time of sentencing, single, but with eight children from three previous relationships. He was raised in Victoria and his childhood was a violent one, due to his father's anger problems and domestic violence against the respondent's mother. From the age of 14 years, when his parents separated, the respondent had lived on the streets and had begun offending against the law. He had left school at the age of 13, had an erratic work history, had previously had a substance abuse problem and continued with a high level of consumption of alcohol. He was in poor physical health because he suffered severe burn injuries a few days prior to the offences he had committed. This occurred when he attended a barbecue and one of his elder sons had unthinkingly thrown an aerosol can into the fire, causing an explosion. This caused serious injury to the respondent's arms and, shortly afterwards, he suffered a heart attack. He underwent heart surgery and received a pacemaker.
The sentencing judge's observations about the respondent's personal circumstances were taken from a pre‑sentence report and psychological report made available to the court.

Pre‑sentence report

The pre‑sentence report indicates that the respondent claimed no recollection of committing the offences the subject of the indictment. He accepted responsibility for his behaviour and pleaded guilty on the basis that 'police would not lie'. The writer of the report suggested that the offences were committed in the context of relationship problems and against a background of the respondent's heavy and dependent alcohol use. The writer recorded that the respondent had expressed regret at the effect of the offences on his family, but it does not appear that there was any remorse expressed in relation to the complainant. The writer considered that the respondent was at risk of relapse to heavy alcohol use in times of stress and, accordingly, his risk of offending would 'inevitably increase'.
The pre‑sentence report attaches the respondent's court history, which indicates that the respondent's record of convictions is quite serious. He had been convicted in Western Australia of threatening to injure, endanger or harm a person, aggravated burglary with intent, burglary and committing an offence in a place, using threatening words or behaviour, and stealing. In addition, there were offences against the Weapons Act 1999 (WA), offences against the Road Traffic Act1974 (WA) and other incidental offences. There was also a record of interstate convictions. In Victoria, there were convictions for offences including motor vehicle theft, burglary, theft, assault with intent to rob, assault by kicking, assault occasioning bodily harm, and receiving stolen goods. There were multiple convictions for motor vehicle theft.
It appears also from the pre‑sentence report that the respondent was subject to an interstate (South Australian) probation order, which commenced on 5 February 2004 with an expiry date on 4 February 2006. He reoffended whilst subject to that order.
In May 2006, the respondent was sentenced in the Magistrates Court at Mandurah to 15 months' imprisonment for aggravated burglary. He was granted eligibility for parole. In August 2007, he was released on parole, subject to certain conditions. They included a requirement to engage in substance abuse counselling/treatment. The respondent maintained regular contact with Community Justice Services and was said to be generally compliant with reporting requirements, but the offences the subject of the indictment occurred only one and a half months after his release to parole. He was then returned to custody. On 16 October 2007, his parole order was suspended. His earliest release date then became 22 August 2008, which was a date prior to his sentencing in the District Court at Perth on 10 September 2008.

Psychological report

The psychological report of Dr Victoria Pascu reveals that the respondent has a personal history characterised by domestic violence, which led to him leaving the family at the age of 14 years and thereafter having no contact with his mother or siblings for over 30 years. He presented with a history of conduct disorder and illicit substance abuse from an early age. Both had contributed to a mixed personality disorder with marked antisocial and narcissistic traits.
Dr Pascu observed that, although the respondent now claimed to have no recollection of the events the subject of the indictment, 'he gave a coherent description on admission to Graylands Hospital'. Dr Pascu found that the respondent's offences occurred following a period of being 'heavily intoxicated with various illicit, prescribed substances and alcohol'. Dr Pascu was unable to find any underlying major psychiatric disorder which could explain the respondent's behaviour.
Because there was no major psychiatric disorder, Dr Pascu had no specific recommendations regarding psychiatric treatment. She thought that, in the event of a custodial disposition, the respondent could benefit from follow‑up by the prison medical services. He could also benefit from involvement in anger management and alcohol and drug counselling sessions.
When sentencing the respondent, the sentencing judge considered that there was an indication of remorse contained within a letter addressed to 'the magistrate'. A copy of that letter has been made available to this court. In it, the respondent expresses a desire to rehabilitate himself and to become 'a better person'.
The sentencing judge took account of the respondent's plea of guilty at what she described as a relatively early stage, although not on the fast‑track system. The delay was occasioned by the need to obtain a psychiatric report. Her Honour thought that the pleas of guilty indicated an acceptance of responsibility, showed remorse and contrition and facilitated the course of justice. The plea was therefore a mitigating factor to be taken into account.
The sentencing judge also took account of the respondent's personal circumstances as a mitigating factor. Her Honour considered that the offences were not premeditated, but seem to have occurred 'in an alcohol and medication‑induced stupor'.
The sentencing judge observed the need to imposed a sentence which included both personal and general deterrence. She said that arson was an offence that is easy to commit, with extremely destructive, if not tragic, consequences and, thus, general deterrence was an important factor in the sentencing process.
The sentencing judge considered the offence of arson to be the most serious of the offences. Her Honour thought that a significant term of imprisonment, commonly in the range of 3 to 5 years prior to application of the transitional provisions, was appropriate. She chose a starting‑point of 2 1/2 years' imprisonment (which was below that range) and then reduced it by 25% for the respondent's plea of guilty and a further one‑third because of the need to apply the transitional provisions then applicable to the case. The result was a sentence of 15 months' immediate imprisonment for that offence.
For stealing a motor vehicle, the sentencing judge imposed a sentence of 6 months' imprisonment, and, for the threat to kill, a sentence of 9 months' imprisonment.
The sentencing judge then turned to the question of concurrency. Her Honour concluded that the offences of stealing the motor vehicle and damaging the residence by fire were part of the one episode of offending, as they were closely connected in time and circumstance. She therefore directed that the sentences for those offences should be served concurrently.
Her Honour recognised that the offence of threatening to kill took place on a different occasion, but, in considering the question of totality, her Honour thought that all three sentences should be served concurrently. The aggregate sentence imposed was, therefore, one of 15 months' imprisonment.

Grounds of appeal

The appellant was, on 15 October 2008, granted an extension of time within which to appeal and, on 8 December 2008, granted leave to appeal. There are three grounds of appeal, which are in the following terms:
1.The sentences imposed were, individually and in aggregate, so inadequate as to manifest error, in that:
(a) The sentences for the offences of criminal damage by fire and threat to kill, and the total effective sentence, failed to reflect adequately the seriousness of the offending conduct, having regard in particular to:
i.the fact that the threat to kill charge involved actual violence and was a particularly serious example of this category of offending;
ii.the fact that the charge of criminal damage by fire involved the causing of extensive damage by fire to a residential property and was pre‑meditated;
iii.the fact that the offences were part of a course of violent conduct directed at a particular victim in the context of a relationship breakdown.
(b)The sentences failed to reflect adequately the need for personal and general deterrence.
(c)The sentences failed to reflect the standards of sentencing ordinarily observed for offending of a similar nature.
2The learned sentencing judge erred in law by:
(a)regarding as a mitigating factor the effect of the respondent's voluntary ingestion of medication, drugs and alcohol prior to the commission of the offences; and
(b)placing undue weight on the respondent's personal circumstances, when the paramount sentencing considerations ought to have been the need for personal and general deterrence.
3.The learned sentencing judge erred in law in her application of the totality principle and, consequently, in failing to order that the sentence for the offence of threat to kill be served cumulatively on the sentences for the other offences.

Ground 1

This ground contends that the sentences imposed were individually, and in the aggregate, so inadequate as to manifest error. The sentences concerned are those for the offences of criminal damage by fire and threat to kill. No challenge is mounted in relation to the sentence for stealing the motor vehicle.
The offence of criminal damage (which in this case is more properly described as arson) is punishable by imprisonment for 14 years. The dominant sentencing consideration in relation to arson is one of deterrence. In R v Catts (1996) 85 A Crim R 171, a sentence of 12 months' imprisonment imposed for an offence against s 444 of the Criminal Code was held to be manifestly inadequate. The case involved a plea of guilty to wilfully and unlawfully damaging a building and contents by fire, in circumstances where the respondent and a co‑offender fire‑bombed the French Consulate as a political protest against French nuclear testing. The fire destroyed an office which was occupied by two specialist medical practitioners. All patient records, medical equipment, library, surgical instruments, research records and valuable personal property were lost. The respondent pleaded guilty, but not at an early stage in the proceedings.
In allowing the appeal, the Court of Criminal Appeal (Rowland, Ipp and Anderson JJ) considered that the dominant consideration for the sentencing court was general deterrence, especially in view of the political element underlying the offence. The sentence of 12 months' imprisonment was considered to be manifestly inadequate and a sentence of 2 1/2 years would have been imposed, but for the double jeopardy principle which then applied in Crown appeals. The ultimate sentence imposed was 2 years' imprisonment. Anderson J (with whom Rowland and Ipp JJ agreed) said, at 176:
[T]he dominant consideration for the sentencing court was general deterrence, especially in view of the political element underlying the particular offence. It is absolutely necessary that the courts should enforce the policy of government revealed through the maximum penalty of 14 years imprisonment which is prescribed for this offence. People who commit it must know they are very likely to receive stiff punishment. Arson in any form is very easy to commit. It is simple and easy to do and the consequences can be and often are extremely destructive, if not tragic. This is one of the reasons why the need for general deterrence is so important.
In cases where the dominant sentencing consideration is the need to deter others from engaging in similar conduct, the personal considerations - the matters personal to the offender - that might otherwise weigh quite heavily in favour of a lesser sentence cannot be given so much weight Elvin (1976) Crim L R 204; Wozencroft, (unreported Court of Criminal Appeal, WA, Library No 6606 25 February 1987). (176)
There have been other instances of the Court of Criminal Appeal stating that the crime of arson usually calls for a substantial term of imprisonment. In R v S (1992) 60 A Crim R 121, Malcolm CJ (with whom Seaman and Ipp JJ agreed) said, at 135:
There is, as yet, no 'tariff' for the offence of arson. The offence is very serious and commonly attracts sentences within a range of four to seven years in very serious cases, although lesser sentences are frequently imposed in less serious cases. In James [(1981) 27 SASR 348], Walters, Zelling and Williams JJ said (at 351):
'In our view, the crime of arson cannot be regarded as a crime so usually or so often dealt with in this Court as to be identified with any particular tariff or range of penalty. We doubt very much whether any sophisticated formulation of tariff can be devised, or any precise guidelines laid down, for a crime where there can be so many different, aggravating or mitigating circumstances. Varying factual situations must necessarily be encountered in relation to the crime of arson and, to our minds, there can be no established pattern of dealing with any particular set of facts.'
Unfortunately, in this jurisdiction, there has been an increase in the frequency with which the crime of arson in various forms has been called upon to be dealt with in this Court. It is an offence which ordinarily will attract a term of imprisonment by reference to the gravity of the crime and the consequences. It is not simply a property offence. It frequently exposes officers of the Fire Brigade and others to the risk of personal injury or even death. It has a personal impact upon the owners and occupiers of premises.
R v S was a Crown appeal against sentence. The respondent, who was just under 18 years of age at the time of commission of the offences, and who had committed them in company with other young persons, had broken and entered the premises of an organisation known as MY Party Hire. The respondent was found after trial to have wilfully and unlawfully set fire to the premises. The total damage caused by the fire was estimated at $246,000. The respondent was placed on probation by the president of the Children's Court, but that sentence was considered to be manifestly inadequate and a sentence of 2 years' imprisonment was substituted. It was a sentence which took account of the double jeopardy principle then applicable to Crown appeals.
In Newton v The State of Western Australia [2006] WASCA 247, the appellant pleaded guilty to two counts of wilful and unlawful damage or destruction by fire, one count of stealing, one count of wilfully attempting to destroy or damage property by fire, and one count of burglary with intent. He was sentenced in respect of these offences to a total term of 12 months' imprisonment. He was a 19‑year‑old man, who had been driving in the Mandurah area with a co‑offender. The appellant and his co‑offender purchased an aerosol can of degreaser and petrol and a jerry can. They came across a recycling bin and the appellant set it alight, causing some damage to it. This was the first of the offences of wilful and unlawful damage or destruction by fire. They then went to a land sales office, where they removed some flags (the stealing offence), sprayed those flags with degreaser, set them alight and placed them under the sales office, which was a demountable building. They did so with the intention of setting the office alight, but they were unsuccessful. This attempt gave rise to the offence of wilfully attempting to destroy or damage property by fire. The appellant and his co‑offender then returned to the car, took out the jerry can and returned to the sale office. The appellant was the prime mover. He smashed a window of the office and entered it. The alarm sounded and they then left. This was the offence of burglary with intent.
The appellant and his co‑offender then travelled to an area known as Meadow Springs. They went to a sales office, where the appellant poured petrol into an external air‑conditioning unit and set the sales office alight. This resulted in damage to a total of $69,502. This constituted the second offence of wilful and unlawful damage or destruction by fire.
Steytler P (with whom Wheeler and McLure JJA agreed) said, at [11], that what will be an appropriate penalty in a case of arson depends upon the individual circumstances of the offence and the offender. However, Steytler P pointed out that the cases provided some guidance.
At [12], Steytler P noted that general deterrence is an important consideration in cases of this kind. At [13], his Honour noted that amongst the considerations to be taken into account in determining the seriousness of an offence of arson are motive, the extent of damage caused and the extent to which the offence endangered human life. It is also often relevant to consider the nature of the property damaged. The targeting of a residential dwelling may elevate the seriousness of the offending.
Because the court was concerned in Newton with the transitional provisions (enacted by the Sentencing Legislation Amendment and Repeal Act 2003 (WA)), Steytler P considered, at [14], that the range of 4 to 7 years' imprisonment in very serious cases of arson now had to be reduced by one‑third. His Honour said:
... It has also been said that, although there is no established tariff, the range of sentences commonly imposed for a single offence of arson appears to be in the vicinity of 3 to 5 years' imprisonment under the former regime: Histon [unreported; CCA SCt of WA; Library No 970197, 1 May 1997] at 14; Warburton [[2004] WASCA 228] at [22]. Once again, that range must be considered against the maximum sentence provided for by the legislature. [14]
The appeal against sentence was dismissed.
From these cases, the following conclusions can, in my opinion, be drawn:
(1)the dominant sentencing consideration in cases of arson is general deterrence;
(2)the personal circumstances of an offender carry less weight in cases of arson than they might otherwise do;
(3)there is no tariff for the offence of arson, but in 'pre‑transitional' terms the offence commonly attracts sentences within a range of 4 to 7 years in very serious cases and 3 to 5 years in less serious cases;
In the circumstances of the present case, the offence committed by the respondent was very serious and therefore required the imposition of a deterrent sentence. The personal circumstances of the respondent were less important than they might otherwise have been, but, in any event, they did not provide a great deal in mitigation of sentence. The appellant was of mature age, had an extensive record of convictions and although he had a substance abuse problem, it afforded only an explanation for the offences he committed and not an excuse.
It cannot be doubted that the offence of arson committed in this instance was serious enough to bring it within the category of 'very serious cases of arson' in which a range of sentences of 4 to 7 years' imprisonment, in 'pre‑transitional' terms, has been identified. This is so because the respondent's offending was apparently motivated by revenge, it caused the destruction of a residential building, and it was against the background of a violent domestic relationship.
In my opinion, the sentence of imprisonment imposed by the sentencing judge was manifestly inadequate. The sentencing judge was in error because the sentence was plainly unjust. This court can draw an inference that there was a failure properly to exercise the discretion which the law reposed in the sentencing judge. The nature of the error is not discoverable, but the exercise of discretion demonstrates that a substantial wrong has occurred: House v The King (1936) 55 CLR 499 per Dixon, Evatt and McTiernan JJ, at 504 ‑ 505. See also Carroll v The Queen [2009] HCA 13 at [7] ‑ [8].

Resentencing for the offence of arson

The effect of the repeal of the transitional provisions by the Sentencing Legislation (Transitional Provisions) Amendment Act 2008 has been the subject of determination by this court in The State of Western Australia v BLM [2009] WASCA 88.
It is unnecessary to refer in detail to that decision. In the present case, the offence committed by the respondent was a very serious case of arson and the sentence of imprisonment imposed by the sentencing judge was so manifestly inadequate that it should be set aside and replaced with a sentence of 4 years' imprisonment. This sentence is within the range of sentences applicable to very serious cases of arson. The 'post‑transitional' range is 2 years 8 months to 4 years 8 months. See the approach of the majority in BLM. The sentence takes account of the appellant's plea of guilty.

Sentence for threat to kill

The threat to kill in this case was a very serious one. It was a threat made against a background of domestic violence between the respondent and the complainant. The complainant was clearly afraid of the respondent. He had abused her on numerous occasions and in the days leading up to the threat which is the subject of a count on the indictment. He had frightened her by putting his face against her and saying to her, in an aggressive manner, 'I'll do 25 over you. If I can't have you, no one will'. He did this on more than one occasion. In consequence of the respondent's behaviour, the complainant was forced to leave Kojonup and to stay away from the respondent. She was afraid that he would kill her.
In the circumstances of the case, a sentence of only 9 months' imprisonment was clearly manifestly inadequate. In exercising the discretion to impose such a sentence, the sentencing judge failed properly to exercise the discretion which the law reposed in her. A substantial wrong occurred: House (supra).
Ordinarily, a sentence of 2 years' imprisonment would properly mark out the seriousness of the offence of threatening to kill. However, the sentence to be imposed needs to be considered in the context of ground 3.

Ground 3

This ground contends that the sentencing judge erred in law in her application of the totality principle in failing to order cumulative sentences in relation to counts 2 and 3 on the indictment.
The sentencing judge understood that the offence of arson and the offence of threatening to kill occurred on different occasions and under different circumstances. It therefore seems that the sentencing judge appreciated that the offences could not be described as being 'part of the one transaction'. In any event, the so‑called 'one transaction rule', even if it involved a case in which the offender was engaged upon one multi‑facetted course of criminal conduct, is only a general working rule which suggests that terms of imprisonment should be made concurrent. In every case, the sentencing judge must consider whether the application of the general rule would result in an appropriate measure of the total criminality involved in the conduct: Walgar v The State of Western Australia [2007] WASCA 241, McLure JA, at [9].
In no sense were the two offences here part of 'one transaction'. They required separate and discrete consideration, but the totality principle was relevant and applicable. This was recognised by the sentencing judge. Unfortunately, the sentencing judge appears to have failed to appreciate that the totality principle of sentencing requires a judge sentencing an offender for a number of offences to ensure that the aggregation of the sentences appropriate for each offence is a just and appropriate measure of the total criminality involved: see Postiglione v The Queen [1997] HCA 26; (1997) 189 CLR 295 per McHugh J at 307 ‑ 308. The totality principle traditionally comprises two limbs. It was described in Roffey v The State of Western Australia [2007] WASCA 246, at [24] ‑ [26], as follows:
[T]he totality principle … comprises two limbs. The first limb is that the total effective sentence must bear a proper relationship to the overall criminality involved in all the offences, viewed in their entirety and having regard to the circumstances of the case, including those referable to the offender personally: Woods v The Queen (1994) 14 WAR 341.
The second limb is that the court should not impose a 'crushing' sentence. The word crushing in this context connotes the destruction of any reasonable expectation of a useful life after release: Martino v The State of Western Australia [2006] WASCA 78 [16]. An aggregate sentence may be inappropriately long under the first limb even if it cannot be described as crushing: Jarvis v The Queen (1998) 20 WAR 201, 216 (Anderson J).
The practical effect of the totality principle is ordinarily to arrive at an aggregate sentence that is less than that which would be arrived at by simply adding up all the terms appropriate for the individual offences: R v Holder [1983] 3 NSWLR 245, 260 (Street CJ). A rationale for the totality principle is that there is assumed rehabilitation and reduced demand for retribution after the initial sentences have been served. Where the principle of totality comes into effect, it is of little importance how the ultimate aggregate is made up: R v Holder (260).
The sentencing judge spoke of a 'crushing sentence' in the present case, but there could have been nothing crushing about aggregating the sentences imposed on counts 2 and 3.
The overriding principle to be applied was that the aggregate sentence should fairly and justly reflect the total criminality of the offender's conduct: Jarvis v The Queen (1993) 20 WAR 201, per Ipp J, at 207.
In the present case, the sentences imposed in relation to counts 2 and 3 should clearly be served cumulatively. The sentence on count 1 should be served concurrently with that imposed on count 2. However, in the interests of an appropriate measure of the total criminality of the respondent's behaviour, the sentence imposed on count 3 should be reduced to one of 9 months' imprisonment and served cumulatively upon the 4 years imposed on count 2. The sentence which would otherwise be appropriate for the offence of threat to kill should therefore be lowered to reflect the totality principle: see Mill v The Queen [1988] HCA 70; (1988) 166 CLR 59 per Wilson, Deane, Toohey and Gaudron JJ, at 63.
At the hearing of the appeal, the court was informed that, since his imprisonment, the respondent has shown encouraging signs of rehabilitation. He has been given a minimum security rating and has been placed at Karnet Prison, where he is under minimum supervision. He is studying for a forklift driver's certificate. He works away from Karnet Prison, with minimum supervision. He has completed a number of programmes relating to his rehabilitation and he has had some requisite medical treatment.
The respondent's positive steps towards rehabilitation were a factor in the decision of the court to reduce the sentence for the offence of threatening to kill from what would ordinarily have been a 2‑year sentence to one of 9 months' imprisonment.

Ground 2

It is unnecessary to deal with this ground. It contends that the sentencing judge placed undue emphasis on the respondent's personal circumstances. It was not pressed in argument and it does not require determination.

Conclusion

For the reasons that I have given, I joined in the conclusion of the court on 18 March 2009 that the appeal should be allowed, the sentences imposed by the sentencing judge should be set aside and the respondent should be resentenced in the following way:
(a)count 1 - 6 months' immediate imprisonment;
(b)count 2 - 4 years' immediate imprisonment;
(c)count 3 - 9 months' immediate imprisonment;
(d)the sentence for count 1 be concurrent with the sentence for count 2;
(e)the sentence for count 3 be cumulative on the sentence for count 2;
(f)the sentences for counts 1 and 2 are to commence from 18 August 2008;
(g)the respondent is to be eligible for parole;
(h)the earliest date on which the respondent could be released on parole will be upon serving 2 years and 9 months calculated from 18 August 2008 (that is, the earliest date is 18 May 2011).
This is a prosecution appeal to which what were termed 'time‑honoured concepts of double jeopardy' would once have applied: Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321, Kirby J, at 340 ‑ 341. However, s 41(4)(b) of the Criminal Appeals Act 2004 (WA) has done away with the double jeopardy principle and its consequence that, when resentencing an offender on a prosecution appeal, a sentence will ordinarily be less than the sentence which should have been imposed at first instance. Section 41(4)(b) applies to cases in which the sentence being appealed from dates after 27 April 2008: The State of Western Australia v Porter [2008] WASCA 154, Miller JA, at [21].
In this case, the sentence was imposed on 10 September 2008. The principles now to be applied are the same as those which apply in a case of an appeal by a sentenced person; namely, those set out in House by Dixon, Evatt and McTiernan JJ, at 504 ‑ 505: see The State of Western Australia v Wallam [2008] WASCA 117, Miller JA, at [66].