Mr Campbell, a volunteer bush firefighter,  appeared before the District Court of Western Australia and entered a plea of guilty to the charge of ‘wilfully lighting a fire under such circumstances as to be likely to injure a person or damage property’ (contrary to s 32 of the Bush Fires Act 1954 (WA)). He was sentenced to 12 months full-time imprisonment.  In Campbell v The State of Western Australia [2020] WASCA 131 the Court of Appeal upheld his appeal and substituted a sentence of 9 months imprisonment suspended for 12 months provided he complied with the terms of a release program. In other words, if he complies with the terms of is program for 12 months he does not go to gaol, but if he does not he holds a ‘go directly to gaol’ card and will serve 9 months in custody.

The circumstances of the offence were that the appellant lit a fire on a roadside verge on 11 January 2019. At the time the fire danger rating was low to moderate, the maximum temperature was 260 C and the winds were under 10 km/h for most of the day.  The appellant was driving a vehicle provided by his employer ‘which was equipped with a water tank, pump and hose, to help put out fires’ ([3]). After lighting the fire, the appellant began to take steps to extinguish it.  The local fire brigade attended and the appellant joined with them in extinguishing the fire.

In upholding the appeal and finding that the 12 months full time custody was ‘manifestly excessive’ their honours (Buss P, Mazza and Mitchell JJA) noted that the appellant was 19 years old at the time of the offence with no prior criminal history. At [18] (emphasis in original) they said:

The sentencing judge said that, while the appellant was the only person who truly knew why he lit the fire, the psychologist’s view that he was motivated by a desire for positive attention in his role as a volunteer firefighter was likely to be correct. Later, the sentencing judge observed:

Your learning disability and your ADD is obviously not your fault and it sets you up to be a bit of an outsider and a loner, which then leads to the depression.  And I accept this is all part of a complex picture as to why you would light a fire, deliberately, because it seems to me you were living a fairly lonely sort of life and feeling down and this fire-fighting brought you into contact with people, as part of a group.

And sometimes, beers were drunk afterwards. You told the police that. And it made you a part of something.  It gave you something to belong to.  So I do consider that your mild impairment and your moderate depression are linked to why you lit the fire.

The sentencing judge also said (at [23]-[24]):

I take into account that the day on which you lit the fire was a mild one for January.  There was no strong wind. The fire was very small, before you began to put it out.  And you did stay put to put it out.  That distinguishes this from a fire lit on a day with a high fire risk conditions and one that is left to burn unattended.

However, as I commented earlier, you know very well the risks in lighting a fire.  The wind can change.  The environment you were in was rural, with paddocks.  There were trees where you lit the fire.  Gum trees, that is.  It was January and the west is dry and a grass fire can move very, very quickly and meet more fuel and gain momentum.

So while I will take into account that the fire itself was small, and that the risk was less than it would have been had the fire conditions that day obviously been high, I do not consider the risk to have been slight, particularly not when you yourself said one of the fires that started only hours earlier was big and another was medium.

As against the matters in mitigation, when you deliberately light a fire in Australia in January when the land is dry and ready to burn, even though you are there to put it out, you deliberately take the risk that it will get away from you. There is little point deliberately lighting a fire if you don’t [sic] put it out when it’s only a few inches big.  There was no guarantee you would be able to put it out…

Notwithstanding your mild cognitive impairment, no one is suggesting that you don’t know right from wrong and you certainly know all about the risks of fire.  To take the risk, any risk whatsoever, with something so lethal as fire, shows so little regard for your fellow man and the animals in the area, such total self-absorption, that you must be considered at risk to the community…

And you must know that people sometimes suspect volunteer firefighters as people who start fires.  And people like you are the reason why.  It is so very unfair on the vast majority of volunteer firefighters who are simply brave people who are willing to risk their lives to keep everyone else safe from fire that people like you give rise to these lurking suspicions in the community.

The Court of Appeal noted that the judge correctly said (at [26]) ‘I must not impose an immediate term unless it would be inappropriate to suspend it.’ Her Honour found that ‘it would be inappropriate to suspend it’ and so imposed a sentence of immediate full time imprisonment.  The question before the Court of Appeal ([28]) was ‘whether it was reasonably open to the sentencing judge to conclude that suspended or conditionally suspended imprisonment were inappropriate sentencing options’?  Their honours said (at [30]-[33]):

It is also well established that, under s 39 and related provisions of the Sentencing Act, a sentencing judge must be positively satisfied that it is not appropriate to suspend or conditionally suspend a term of imprisonment before the term can be ordered to be served immediately.  The discretion to suspend or conditionally suspend a term of imprisonment is not confined by considerations relating to rehabilitation.  In a particular case, the objective features of an offence may outweigh the personal considerations of rehabilitation.

In Smith v The State of Western Australia, this court observed:

As has been noted on a number of occasions, the courts do not ordinarily impose a term of immediate imprisonment on youthful offenders of prior good character without considerable pause and reflection.  There are circumstances where the seriousness of the nature and circumstances of offending may require a sentence of immediate imprisonment.  While mitigating factors must be given appropriate weight, they must not be allowed to lead to the imposition of a penalty which is disproportionate to the gravity of the offence.  However, youth combined with prior good character may lead a sentencing court to refrain from imposing what would otherwise be an appropriate custodial sentence. (citations omitted)

The appellant had just turned 19 years old at the time of the offence and was of prior good character.

The maximum penalty for the offence is 20 years’ imprisonment.  However, as reflected in the sentence of 12 months’ imprisonment imposed by the sentencing judge, the criminality of the offending was very much towards the lower end of the scale of seriousness of offending of this kind.

The court noted (at [39])

… the seriousness of the offending, in terms of the risk of harm to persons and property, was reduced by the fact that:

(1)          The road verge area in which the fire was started was not heavily or densely vegetated, and was readily accessible to firefighters.

(2)          The appellant did not leave the area after starting the fire.

(3)          The appellant had firefighting equipment with him, which he could and did use to help extinguish the fire.

(4)           The fire was not started in proximity to buildings used for commercial or residential purposes.

At [43]-[44] they concluded:

While the appellant’s offending was undoubtedly serious, when account is taken of the nature and degree of risk of harm to persons or property, the offending was not so serious as to demand the immediate imprisonment of a very young man of prior good character who suffered from the cognitive impairment described above.  In the circumstances, it was not reasonably open to her Honour to be positively satisfied that conditionally suspended imprisonment was an inappropriate sentencing option.  The decision to impose a term of immediate imprisonment was unreasonable and plainly unjust.

In our view, the appropriate sentencing disposition is a term of imprisonment, conditionally suspended with a programme requirement to enable the appellant’s treatment needs to be addressed.  The term of imprisonment to be conditionally suspended should be reduced from 12 months to 9 months to take account of the approximately 3 months the appellant has spent in custody since being sentenced.  A suspension period of 12 months is appropriate.