In Ashford v The State of Western Australia [No 2] [2016] WASCA 222 a volunteer firefighter with a West Australian bushfire brigade had his sentence of imprisonment reduced by the West Australian Supreme Court of Appeal.

The offences

The appellant, Ashford, had entered a plea of guilty to three charges.  The first related to a false fire call on 29 August 2014 when the appellant rang triple zero to report a non-existent fire.

The second offence was a count of arson.  The appellant rang triple zero to report a fire which he then lit.   He was then part of the responding brigade that was rapidly on scene and extinguished the fire.  ‘The fire was approximately 10 sqm, and took less than 10 minutes to extinguish’ ([3]).

The final offence again related to a false fire call on 18 September 2014.

The original sentence

On 3 March 2016 District Court Judge Keen sentenced Ashford to 12 months imprisonment.

Judge Keen noted (at [10]) that Ashford may ‘have been suffering a major depressive disorder’ but a psychiatrist’s report said ‘there was no direct relationship between the appellant’s mental illness and his offending’.  The appellant had taken MDMA (ecstasy) and said, in an interview with police, that ‘he was ‘amped up’ on MDMA and is ‘an adrenalin junkie’, and probably lit the fire to get an adrenalin rush the time of the first offence’ ([14]).   In his favour was the fact that when he set the fire, Perth had received significant rainfall so the risk from the fire was greatly reduced ([11]).

His Honour did note the cost to the community from fire and also false alarms to the emergency services, something that the appellant was aware of given his role as a volunteer firefighter ([15]-[16]).   His Honour took the view that the appellants role as a volunteer firefighter made the offending worse – that is his volunteering was a factor that warranted a more severe, rather than a reduced sentence ([19]).   The appellant did however get a ‘discount’ for entering a plea of guilty rather than putting the state to the expense of a trial ([20]).

The appeal

The appellant appealed to the Supreme Court of Appeal arguing that the sentence was ‘manifestly excessive’ and that a non-custodial penalty should have been the sentence.  The Court of Appeal agreed.

The Court of Appeal reviewed the law that says that a penalty of imprisonment should not be imposed ‘unless that is the only appropriate sentencing option’ ([26]).   The judges (Newnes JA, Mazza JA and Beech J) said (at [37] emphasis added):

We agree, with respect, with the sentencing judge’s conclusion that the appellant’s offending, in all its circumstances and in his personal circumstances, called for a sentence of imprisonment. However, in our respectful view, the unusual features of the appellant’s offence placed it very much at the lower end of the range of seriousness of offending of this kind. That, combined with the appellant’s personal circumstances, meant that a sentence of immediate imprisonment was not open.

The unusual circumstances were:

  • That the fire set by the appellant was lit on a day during which over 40mm of rain had fallen, and he called to report the fire at the time of lighting it, ensuring that their was a low risk of extensive damage.  ‘These aspects and circumstances of the offence meant that it was at or very close to the bottom of the range of seriousness of offences of this kind’ ([38]).
  • The appellant had taken steps to take control of his life, he had sought psychological treatment, had moved interstate and secured employment and was supported by his employer.  He was remorseful and had cooperated with police and entered a plea of guilty.  ‘As the sentencing judge recognised, the risk of reoffending was negligible, and the need for personal deterrence did not carry any weight’ ([39]).

The court of appeal agreed that a sentence of 12 months was appropriate but the appellant had already spent time in gaol.  He was sentenced on 3 March 2016, appealed on 12 April and was granted bail, pending the appeal, on 22 April 2016 (Ashford v The State of Western Australia [2016] WASCA 81) so he spent from 3 March to 22 April in custody.    Taking that period into account, the Court of Appeal imposed a new sentence of 9 months’ imprisonment.  The new sentence was immediately suspended to allow him to continue his treatment and his new life interstate.

A suspended sentence is still a sentence of imprisonment, remains on the offender’s record and if the offender does commit any further offence during the period of suspension, he stands to be returned to prison for that offence (a bit like the ‘go directly to gaol’ card in Monopoly).

Discussion

The Court of Appeal did not address the appellant’s role as a volunteer, that is they did not say that it was either a factor in his favour, or a factor that aggravated his offending.  It appears that the most significant factor for the Court of Appeal was that even though deliberately setting a fire is a serious offence, this case was not one where it was intended to cause damage, rather it was lit in circumstances where the appellant was minimising the risk of extensive damage.  This put the offending at the low end of the scale and considering the other personal matters (discussed above) a suspended sentence was appropriate.

Given that, the only legal lesson one might draw from the case is that, in most cases – absent exceptional circumstances – a person convicted of deliberately lighting a bushfire, volunteer firefighter or not, can expect a gaol sentence.