Seaton vs. the state of Western Australia - (28 Jan 2021)

A person who unlawfully omits or refuses to do any act which it is the person's duty to do under Section 444A of the Criminal Code is guilty of a crime and is liable to imprisonment

Criminal

Present is an appeal against sentence. The Appellant was convicted after trial on basis of being a person who had charge of an ignition source and unlawfully omitted to do an act which it was her duty to do, namely to use reasonable care and take reasonable precautions to avoid lighting a fire that destroyed property contrary to Section 444A and Section 445A of the Criminal Code (WA). On 13 December 2019, she was sentenced to a term of 2 years 6 months immediate imprisonment with eligibility for parole. There is a single ground of appeal, namely that the sentence imposed is manifestly excessive.

A ground of appeal which alleges that, a sentence is manifestly excessive asserts the existence of an implied error. Such an implied error is established, where the sentence is so unreasonable or unjust that, it is apparent that, a substantial wrong has occurred. An appellate Court cannot substitute its own opinion for that of the sentencing judge merely because the appellate Court would have exercised the sentencing discretion differently.

It is necessary, in determining whether a sentence is manifestly excessive, to examine it from the perspective of the maximum sentence prescribed by law for the relevant offence, the standards of sentencing customarily observed with respect to that offence, the place which the criminal conduct occupies on the scale of seriousness of offences of the kind in question and the personal circumstances of the offender.

Section 445A of the Criminal Code provides that, a person who unlawfully omits or refuses to do any act which it is the person's duty to do under Section 444A is guilty of a crime and is liable to imprisonment for 15 years. Section 444A provides that, it is the duty of a person who has charge of or is in control of a source of ignition to use reasonable care and to take reasonable precautions to avoid lighting a fire that destroys or may destroy or cause damage to property that the person is not entitled to damage or destroy. A person is held to have caused any destruction or damage to that property by reason of any omission to perform that duty.

In order to determine the sentencing standards that are usually observed in relation to an offence of the kind committed by an offender, it is necessary to have regard to any comparable cases. However, each case turns on its own particular facts and circumstances, thus sentences imposed in other cases can only provide general guidance and do not set the limits of sentencing discretion.

The sentence of 2 years 6 months immediate imprisonment was commensurate with the seriousness of the appellant's offending. Taking into account the maximum penalty of 15 years imprisonment, the circumstances of the commission of the offence (including the aggravating factors relating to the amount of damage, that a residential building was involved and the risk to the safety of others), and the personal circumstances of the appellant, the sentence imposed was not unreasonable or plainly unjust. Appeal dismissed.

Tags : CONVICTION SENTENCE LEGALITY