The State of Western Australia v Warburton
[2004] WASCA 228
•19 AUGUST 2004
THE STATE OF WESTERN AUSTRALIA -v- WARBURTON [2004] WASCA 228
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2004] WASCA 228 | |
| COURT OF CRIMINAL APPEAL | |||
| Case No: | CCA:104/2004 | 19 AUGUST 2004 | |
| Coram: | MURRAY J WHEELER J MCKECHNIE J | 19/08/04 | |
| 9 | Judgment Part: | 1 of 1 | |
| Result: | Appeal allowed | ||
| B | |||
| PDF Version |
| Parties: | THE STATE OF WESTERN AUSTRALIA MICHAEL CHARLES WARBURTON |
Catchwords: | Criminal law and procedure Sentencing Arson State appeal against sentence Turns on own facts |
Legislation: | Nil |
Case References: | Dinsdale v R (2000) 202 CLR 321 Histon v R, unreported; CCA SCt of WA; Library No 970197; 1 May 1997 Paparone v R [2000] WASCA 127 R v Catts (1996) 85 A Crim R 171 R v Suarez-Mejia (2002) 131 A Crim R 577 R v Weston [2000] WASCA 389 R v Wright (1997) 93 A Crim R 48 Watson v R [2000] WASCA 119 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : COURT OF CRIMINAL APPEAL CITATION : THE STATE OF WESTERN AUSTRALIA -v- WARBURTON [2004] WASCA 228 CORAM : MURRAY J
- WHEELER J
MCKECHNIE J
- Applicant
AND
MICHAEL CHARLES WARBURTON
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram : FRENCH DCJ
File Number : IND 872 of 2002
Catchwords:
Criminal law and procedure - Sentencing - Arson - State appeal against sentence - Turns on own facts
(Page 2)
Legislation:
Nil
Result:
Appeal allowed
Category: B
Representation:
Counsel:
Applicant : Mr P J Urquhart
Respondent : Ms M L Huntly & Mr S W O'Sullivan
Solicitors:
Applicant : State Director of Public Prosecutions
Respondent : Sean O'Sullivan
Case(s) referred to in judgment(s):
Dinsdale v R (2000) 202 CLR 321
Histon v R, unreported; CCA SCt of WA; Library No 970197; 1 May 1997
Paparone v R [2000] WASCA 127
R v Catts (1996) 85 A Crim R 171
Case(s) also cited:
R v Suarez-Mejia (2002) 131 A Crim R 577
R v Weston [2000] WASCA 389
R v Wright (1997) 93 A Crim R 48
Watson v R [2000] WASCA 119
(Page 3)
1 MURRAY J: I would ask Wheeler J to give her reasons first.
2 WHEELER J: On 18 June 2004 the respondent was found guilty after trial of one count of criminal damage by fire. He was sentenced to 2 years' imprisonment, suspended for a period of two years. The State appeals from that sentence. There is no complaint about the length of the term of imprisonment. The real issue is whether it should have been suspended.
3 The circumstances were that in January 1999 the respondent purchased the stock, plant and goodwill of a service station and roadhouse in Dwellingup, with the previous owners retaining the freehold title. The premises were rented to the respondent. An element in the operation of the business was that the suppliers of fuel would charge the respondent's American Express charge account, which he was required to pay in full by the end of the month. In about the middle of 1999 he apparently began having difficulties paying that account and by early August 1999 he had received an account for not only the preceding month's purchases, but also the outstanding balances owing prior to July. The sum owing was in excess of $70,000, payable immediately, and his account was suspended.
4 On Friday, 13 August 1999 he contacted his insurance company and made enquiries about increasing the level of the insurance coverage of his business. The following Monday, 16 August, he again contacted his insurance company and on that occasion increased his level of insurance cover for the stock by a significant amount, requesting also additional cover for personal effects. The total of the increases was $65,000 and they were to come into effect immediately.
5 Over the weekend between these two dealings he had made a record, separate from his normal customer accounts, of certain amounts which he was owed, recording by whom they were owed.
6 On the night of 16 August he remained overnight at the premises, sleeping in a rear bedroom. He left some time around 4 am on 17 August. Within minutes of his leaving the premises a passing motorist noticed that the interior of the service station was on fire. Notwithstanding the prompt attendance of the volunteer fire service, the premises were substantially damaged by fire.
7 The principles governing State appeals are not in doubt, and it is not necessary to repeat them here. It is said by the State that the appeal in this case is fought principally on two bases. Firstly, it is submitted, the sentence reveals such manifest inadequacy or inconsistency in sentencing
(Page 4)
- standards as to constitute an error in principle, in that the sentence does not reflect adequate standards of punishment for criminal damage by fire. Second, it is alleged that the learned sentencing Judge made material errors in fact in finding that the offence was committed in an impulsive way and that the respondent's medical condition contributed to the commission of the offence.
8 So far as the second matter is concerned, I am not persuaded that the making of errors of fact - even significant ones - is by itself a sufficient foundation for a State appeal. It may be so if the result of those errors is a sentence which is so disproportionate as to shock the public conscience.
9 In any event, I am not persuaded that her Honour did make such errors. Her Honour said that it seemed to her that the respondent was:
"simply unable to sit down and quietly work out what you should do about the financial situation and in an impulsive way decided to – on the findings of the jury – set fire to the premises in the hope that a payout from the insurance would extricate yourself from the financial situation".
10 In my view, her Honour could not have overlooked the evidence of premeditation in the first enquiry to the insurance company, some few days before the offence, the increasing of the insurance many hours before the offence, and the preservation of a record of debtors undertaken over the weekend. While he had given evidence at trial suggesting an innocent explanation for those matters, light was necessarily shed on that explanation by the verdict of guilty of arson. It is difficult to see them in any other light than that of premeditation.
11 Her Honour's discussion with counsel suggests that what her Honour had in mind in the reference to "impulsivity" was a body of evidence which was referred to by the respondent at his trial as material indicating that he was not in significant financial need. I do not need to detail that evidence, but it suggested that he had other resources (both assets and income) and relatively low other debts. Against that background, it seems to me, her Honour took the view which, may well have been correct, that with proper advice and some restructuring of his finances or of the business, or both, the respondent might have been able to find a way out of the difficulties which he faced. In that sense, it was, I think, open to her Honour to find that his actions were a panic response to a relatively recent difficulty, albeit a response which, as the State quite properly points out, had involved some degree of planning over a number of days.
(Page 5)
12 Her Honour's finding in relation to the respondent's pre-existing medical condition is, I think, allied to her finding in relation to the relatively impulsive nature of his offence. He suffered from chronic fatigue syndrome, and had done so for some very considerable period of time. He had suffered also from sleep apnoea and tinnitus. The combination of those factors had apparently resulted in depression and had affected his concentration. It is true that no material was made available to her Honour directly establishing a cause or connection between any of his medical conditions and the commission of the offence, but it seems to me a matter of commonsense to find, as her Honour appears to have done, that a combination of those factors, in a mature man who had been law-abiding all his life might well have contributed to what appeared to be a disproportionate and irrational reaction to the difficulty in which he found himself.
13 It is true, as the State points out, that there was no suggestion in the evidence that the respondent did not act with the knowledge of what he was doing and with the knowledge of the gravity of his actions, but her Honour made no finding suggestive of a lack of such knowledge of that kind. In my view, therefore, her Honour made no errors of fact in evaluating either the respondent's medical condition or the combination of factors which led to his decision to commit the offence.
14 So far as the question of sentencing standards is concerned, it appears to be accepted by the State that if one leaves the two alleged factual errors aside, her Honour had regard to all relevant matters. She referred to the fact that arson is always a serious offence. She considered that a deliberate burning by an owner of a business in order to extricate himself from a financial situation was a particularly serious category of arson. She pointed to the danger to the community, to firefighters and other emergency personnel, and to other property. She noted that there was an additional concern in that the premises were attached to a petrol station, although she noted also evidence that it was rare for a petrol tank to be affected by a fire of this nature. She noted that the building had apparently not been insured by the owner, who suffered a financial loss as a result.
15 In terms of mitigating factors, her Honour referred not only to the chronic fatigue syndrome and other medical matters but to the respondent's previous good character. As is not unusual in a case of arson resulting from what are, or are perceived to be, sudden and serious financial difficulties, the respondent came before the Court as a person with no prior criminal record. Not only had he no prior record, but he was
(Page 6)
- positively a person of very good character. He had served in the Royal Australian Navy for a period of some 21 years, and had worked at high levels of security clearance until his illness resulted in his resignation. He had, between the time of the fire and the date of his trial, been working for the AIMS Corporation, which position would obviously not be available to him as a result of his conviction. He was by then 50 years of age and had been a useful member of the community for all that time. He had three children, ranging from relatively young to teenaged and he had separated from his wife, apparently as a result of stresses caused by the illness and the circumstances surrounding the offence.
16 Her Honour formed the view that the respondent's personal circumstances were very good and that there was in effect no need for personal deterrence. I have no difficulty with that finding. She also considered that his circumstances were sufficiently exceptional to render his case not a good vehicle for general deterrence. It is at that point that an error is in my view identifiable.
17 A dominant sentencing consideration in cases of arson is generally punishment by way of general deterrence. As Anderson J said in R v Catts (1996) 85 A Crim R 171 at 176:
"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."
- Importantly, his Honour went on to observe that:
"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."
(Page 7)
- the correct principle to be that enunciated by Murray J in Paparone v R [2000] WASCA 127. At par [52] his Honour said:
" … the offence and the offender may be seen to provide inappropriate vehicles for general and particular deterrence to be given their full weight. The extent to which such factors should be given weight will be a matter of degree depending upon the particular circumstances of the case in point, but it will often be the case, as Kennedy J put it in Dalgety, that such considerations of deterrence will continue to operate 'sensibly moderated'. Only in an extreme case will the relevance of such considerations be eliminated entirely."
20 Although the respondent's response could in one sense be described as panicky and impulsive, it must nevertheless be borne in mind that there was no manifestation of remorse in the form of a plea of guilty or confession or cooperation with authorities. Further, although the period of planning appears to have been relatively short, the offence does seem to have been planned over a number of days at any point during which the respondent could have chosen to withdraw from that enterprise.
21 When one has regard to all of these factors, it is my view that the circumstances could not on any view be so exceptional that the offence could be taken altogether outside the general category of arson cases. Authority makes it plain that in such cases the need for general deterrence is of very great importance, notwithstanding the personal circumstances of the offender.
22 Having reached the view that her Honour was in error in suspending the sentence, I turn to the question of how this Court should re-sentence. While there is no tariff for offences of arson, the general range of sentences commonly imposed for a single offence appears to have been in the vicinity of 3 to 5 years prior to the amendments to the Sentencing Act 1995. See, for example, Histon v R, unreported; CCA SCt of WA;
(Page 8)
- Library No 970197; 1 May 1997. The sentence which her Honour selected, being one which equated to a sentence of 3 years' imprisonment prior to the amendments to the Sentencing Act would have placed it at the bottom of that range but, having regard to the personal circumstances of the respondent, the State concedes, and in my view correctly, that it is not a sentence which would require the intervention of this Court. I had considered, therefore, simply varying the sentence imposed by her Honour by ordering that the term be served immediately rather than being suspended.
23 In my view, however, it is appropriate, notwithstanding that this appeal has been initiated and heard relatively promptly, to give some weight to the concept of the double jeopardy which an offender faces in relation to an appeal of this kind. The stress of that situation must be particularly acute where an offender who has not been sentenced to immediate imprisonment faces, yet again, the prospect of such a sentence on appeal. It would also, in my view, be a situation likely to weigh particularly heavily on an offender such as the respondent, having regard to his personal circumstances. Further, as this Court has pointed out on a number of occasions, a suspended sentence of imprisonment is a real punishment, and the respondent has by now served almost two months of it. For those reasons I would quash the sentence imposed by her Honour and substitute one of 18 months' imprisonment with eligibility for parole, to be served immediately.
24 MURRAY J: I agree, with respect, with the reasons now published by her Honour. I would add only two brief observations.
25 In the first place it seems to me that while it may be accepted that there was a causal relationship between the chronic fatigue syndrome and the commission of the offence, the relationship was of the kind described by her Honour the sentencing Judge. It appears that there is support for her Honour's conclusion that the respondent acted impulsively or, to an extent, irrationally or in panic, because he declined to sit back for a moment or two and consider the momentous nature of the offence the commission of which he had under contemplation.
26 So while one may accept that there was a causal relationship, nonetheless it seems to me that this was not a case where such a condition had the capacity to significantly mitigate punishment, or had the capacity to have a significant impact upon the need, which was otherwise perfectly apparent and accepted by her Honour the sentencing Judge, to impose a properly denunciatory sentence, one directed to give effect to the proper
(Page 9)
- requirements of sentencing principle in relation to matters of deterrence, both particular deterrence and generally.
27 The capacity to moderate the relevance of those circumstances seems to me was in this case limited. I agree then with Wheeler J that when one analyses the approach taken by the sentencing Judge and finds that, having regard to the respondent's medical condition and the harm he had done to himself personally by the commission of the offence for which he was to be sentenced, her Honour effectively discarded general deterrence in particular from the relevant considerations in relation to the question of suspension of punishment, that reveals the nature of the error committed by her Honour.
28 The proper approach to the suspension of sentence has been made abundantly clear by the High Court's decision of Dinsdale v R (2000) 202 CLR 321. The ratio of that decision is simply that the discretion to impose a term of suspended imprisonment conferred by the Sentencing Act 1995, s 39(2) and s 76 is one to be exercised having regard to all the circumstances of the case and all those matters seen to be the proper application in those circumstances of relevant sentencing principle. In this case, her Honour has abandoned part of that armoury of relevant considerations and, in my respectful view, it follows that the appeal must be allowed.
29 As to the sentence to be imposed by this Court, I unhesitatingly accept that for the reasons given by her Honour Wheeler J, it is appropriate, having regard to the fact that this is a State appeal against the inadequacy of sentence, to substitute a sentence of 18 months' imprisonment to be immediately served, with parole eligibility.
30 MCKECHNIE J: I agree with the reasons given by Wheeler J and the order she proposes.
5
6
1