Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA

Criminal law - Appeal against sentence - Appellant pleaded guilty to 29 counts of aggravated burglary, one count of attempted aggravated burglary and one count of deprivation of liberty - Total effective sentence of 5 years' imprisonment - Totality - Miscarriage of justice occasioned by absence of evidence of utilitarian benefit of appellant's cooperation with police revealed in subsequent sentencing proceedings against co-offender

Total effective sentence reduced to 4 years 3 months' imprisonment

Anderson v The State of Western Australia [2014] WASCA 167

Burrows v The State of Western Australia [2014] WASCA 147

JM v The State of Western Australia [2015] WASCA 40

JWD v The State of Western Australia [2013] WASCA 233

MXP v The State of Western Australia [2010] WASCA 215; (2010) 41 WAR 149

Nolan v The State of Western Australia [2013] WASCA 235

Pennetta v The State of Western Australia [2013] WASCA 234

Pryor v The State of Western Australia [2014] WASCA 143

Ridley v The State of Western Australia [2013] WASCA 45

RIN v The State of Western Australia [2015] WASCA 51

Roffey v The State of Western Australia [2007] WASCA 246

Spry v The State of Western Australia [2013] WASCA 68

1 The appellant and a juvenile co-offender committed a series of 30 burglaries of small business premises at various locations in the Perth metropolitan area. Their mode of operation was to enter the store late at night, often forcing entry by breaking a window with a sledgehammer. The pair would look for money on the premises. They attempted to open or remove any safe which they found, using tools such as a sledgehammer or angle grinder. A total of $21,881 was stolen from six of the burgled premises. Offences were committed on 12, 13, 17, 20, 24 and 31 October 2014 and 4, 6, 7 and 10 November 2014.

2 In general, the burglaries were committed when the commercial premises were unoccupied. However, on one occasion (the burglary of Domino's Pizza in Leeming on 24 October 2014) the appellant and his juvenile co-offender entered the premises when they knew a worker was still inside, completing lockup. On that occasion, the offenders told the worker to sit in the corner. The juvenile co-offender stood over the worker holding a sledgehammer while the appellant unsuccessfully tried to open the store safe with an angle grinder. On another occasion (the burglary of Domino's Pizza in Thornlie on 7 November 2014), the offenders were interrupted by the business owner who was responding to the alarm. On that occasion, they ran from the premises, leaving behind tools and disguises.

3 The appellant was a 19-year-old bricklayer at the time of committing these offences. He had a significantly disrupted upbringing, had been unsettled at school and was a regular cannabis and methamphetamine user. While he had previous interaction with the criminal justice system as a juvenile, the appellant's adult record did not contain offences of this nature.

4 On 25 November 2014, the appellant was arrested and charged with the burglary offences. On that day, he admitted the offences and signed a statement giving an account of what he and the juvenile co-offender had done. That statement identified the juvenile co-offender and referred to, but did not identify, another co-offender who had driven them to the burgled premises.

5 The juvenile co-offender initially denied involvement in the offences. Subsequently, the juvenile co-offender was presented with the appellant's statement. At the same time, he was also presented with DNA evidence implicating him in the burglary of Domino's Pizza in Thornlie on 7 November 2014. This prompted the juvenile co-offender to admit his involvement in all the offences. On 28 November 2014, the juvenile co-offender signed a statement describing his offending. The juvenile co-offender's statement identified the appellant as well as two other co-offenders who had provided transportation.

6 The appellant was sentenced to a total effective term of 5 years' imprisonment. At the time of his sentencing, neither the sentencing judge, the appellant nor the appellant's counsel were aware of the utilitarian benefits which flowed from the appellant's cooperation with police. As a result, the sentence imposed did not properly take account of that mitigating factor.

7 The State accepts that the appellant's appeal should be allowed on the ground that this gave rise to a miscarriage of justice. That concession should be accepted. The total effective sentence, which was otherwise appropriate, should be reduced by 9 months to take account of the utilitarian benefits which flowed from the appellant's cooperation with police.

8 The appellant pleaded guilty to 29 counts of aggravated burglary, one count of attempted aggravated burglary and one count of deprivation of liberty (which related to the burglary of Domino's Pizza in Leeming on 24 October 2014). On 14 May 2015, he was convicted of the offences and sentenced to a total effective sentence of 5 years' imprisonment, structured as follows:

Aggravated burglary (stealing - s 401(2)(a) of the Criminal Code)

Aggravated burglary with intent (s 401(1)(a) of the Criminal Code)

Aggravated burglary with intent (s 401(1)(a) of the Criminal Code)

Attempted aggravated burglary with intent (s 401(1)(a) and s 552 of the Criminal Code)

Aggravated burglary (deprivation of liberty - s 401(2)(a) of the Criminal Code)

Deprivation of liberty (s 333 of the Criminal Code)

9 The appellant was made eligible for parole and the sentence was backdated to 25 November 2014 to take account of time spent on remand.

10 The appellant now appeals against these sentences.

Whilst the learned sentencing judge stated that he allowed a discount of 25% for the appellant's fast track plea of guilty, the sentencing remarks [do] not reveal the manner in which the discount was applied, or if it was applied at all.

12 The application for leave to appeal on this ground was referred to the hearing of the appeal. The appellant abandoned the ground at the hearing of the appeal (appeal ts 18), so that it is unnecessary for this court to deal with the issues it raises.

13 Ground 3 alleges that the sentencing judge failed to give proper effect to the totality principle in imposing an aggregate sentence of 5 years' imprisonment. While the appellant accepts that each individual sentence was appropriate, he contends that the total effective sentence does not bear a proper relationship to the overall criminality involved in all of the offences.

14 Ground 3 is advanced as an alternative to ground 2, which complains that the appellant did not receive a discount for giving a statement implicating the juvenile co-offender. The appellant contends that, even if the utilitarian benefits resulting from his statement implicating the co-offender are ignored, the total effective sentence infringes the first limb of the totality principle. It is convenient to begin by considering whether the sentence infringed the first limb of the totality principle having regard only to the material before the sentencing judge.

15 The principles governing this appeal are well established, and were summarised by McLure JA, with whom Steytler P and Miller JA agreed, in Roffey v The State of Western Australia:[1]

The legal principles relevant to the disposition of this appeal are not in dispute. An appellate court is not entitled to intervene merely because it would have exercised the sentencing discretion in a manner different than the sentencing judge. It can only intervene if the sentencing judge has made an express or implied material error of fact or law.

The appellant relies on the totality principle which 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).

16 An alleged breach of the totality principle does not rely on any express error. Rather, the question is whether error can be inferred because the end result is not one that could have been reached in the proper exercise of sentencing discretion. This requires consideration of all relevant sentencing factors to determine whether the sentence imposed was open in the circumstances.[2]

17 The appellant engaged in a large number of aggravated burglaries of small businesses. The offences were committed on 10 different nights over a period of about a month. The offences generally related to different premises, although the appellant broke into premises of Schutz Australia in North Coogee (counts 2 and 6) and Subway in Willetton (counts 9 and 14) on two separate occasions.

18 The circumstance of aggravation pleaded in the indictment for each offence, and accepted by the appellant when he pleaded guilty, was that he was in company with another. Additional circumstances of aggravation for count 18 were that the appellant was armed with 'a dangerous instrument, namely a grinder' and that, immediately before the commission of the offence, the appellant knew that there was another person in the place.

19 The sentencing judge identified the following further aggravating factors of the offences:

1. $21,881 was stolen, and more money would have been stolen but for the fact that there were no safes available to be broken into at some stores or the appellant and the juvenile co-offender were unable to break into safes that were found on the premises;[3]
2. there was an element of planning in the offences, an attempt at disguise and the targeting of fast food premises in which it was considered safes were likely to be found;[4]
3. in the case of count 18, premises were targeted when the offenders knew a worker, who must have found the experience absolutely terrifying, was inside;[5] and
4. the burglaries were committed by windows being smashed and safes being sought and, if located, opened forcefully.[6]

20 The repeated planned targeting of commercial premises late at night in a manner which caused significant damage to the premises and, in one case, considerable fear in a person working in those premises, constitutes a serious example of these kinds of offences. The overall criminality involved in all the offences was significant.

21 The sentencing judge identified a number of mitigating factors arising from the appellant's personal circumstances. He recognised the appellant's youth, unsettled upbringing, pleas of guilty at the earliest reasonable opportunity, cooperation with police, insight into the seriousness of his offending, work history and prospects for rehabilitation to be significant mitigating factors.

22 The sentencing judge correctly noted that the fact that the appellant committed the offences whilst being addicted to or a significant user of illicit drugs was not mitigatory.

23 As the sentencing judge also noted, the appellant did not come to the court as a person who was otherwise free of previous offending. This limited the mitigation to be found in the appellant's prior criminal record, although the fact that he had not previously committed offences of this kind or been imprisoned as an adult was mitigatory.

24 It is established that the primary sentencing considerations in relation to burglary are personal and general deterrence and a substantial penalty is ordinarily imposed.[7] Considerations of general and personal deterrence were the predominant sentencing considerations in the present case, and limited the weight appropriately given to the appellant's personal circumstances.

25 The appellant's submissions refer to a number of decisions of this court which inform an assessment of customary sentencing practice in cases involving multiple counts of burglary.

26 In Burrows v The State of Western Australia,[8] leave to appeal against a total effective sentence of 6 years 6 months' imprisonment was refused on totality grounds. The offences comprised four burglaries of pharmacies, a burglary of a dwelling and various stealing/receiving offences. The offender in that case was 28 years old, entered a late plea of guilty and there was very little which could be said to mitigate the offending. However, the number of burglaries was much less than in the present case and the total effective sentence imposed was higher.

27 In Anderson v The State of Western Australia,[9] an 18-year-old offender was convicted on her pleas of guilty and sentenced to a total effective sentence of 4 years' imprisonment. Leave to appeal on totality grounds was refused. That case involved one aggravated burglary of commercial premises, three aggravated home burglaries and associated offences by a person whose antecedents were broadly comparable with those of the appellant. The number of offences was again much less and none of the offences involved confrontation of a kind endured by the worker at Domino's Pizza in Leeming on 24 October 2014.

28 In Anderson, Hall J referred to cases where sentences comparable to the appellant's were imposed in respect of a much lower number of burglaries than that committed by the appellant.

29 In Ridley,[10] a sentence of 4 years 6 months' imprisonment after trial for a single count of burglary was found not to be manifestly excessive. Mr Ridley was 35 years old and had 48 prior convictions for burglary and numerous other convictions. While Mr Ridley's antecedents were much less favourable, the court upheld a sentence for a single burglary of commercial premises approaching the appellant's total effective sentence. Mr Ridley's offence was not committed in circumstances of aggravation, so that the maximum penalty in that case was only 14 years' imprisonment.

30 In Nolan v The State of Western Australia,[11] a 42-year-old offender was sentenced to a total effective term of 6 years' imprisonment in respect of a total of 21 burglary offences, many involving dwellings. The offences had been committed between 2003 and 2011. The total effective sentence was found to infringe the first limb of the totality principle, and a total effective sentence of 4 years' imprisonment was substituted. A significant factor in that case was that, after being arrested on suspicion of committing two burglaries, Mr Nolan voluntarily disclosed to police all of the other offences. His commission of those offences would not otherwise have been detected.

31 In Pryor v The State of Western Australia,[12] leave to appeal was refused in respect of a total effective sentence of 6 years' imprisonment for four counts of aggravated burglary of a dwelling and one count of aggravated armed robbery of a service station. Mr Pryor was a 36-year-old offender with an extensive criminal history. The utility of this decision is limited by the aggravated armed robbery conviction.

32 In Pennetta v The State of Western Australia,[13] a total effective sentence of 7 years' imprisonment was imposed in respect of nine residential burglaries and various other less serious offences. Mr Penetta was 35 years old and had an extensive criminal history.

33 Examination of other cases decided by this court is appropriate in an appeal alleging breach of the first limb of the totality principle, to ensure broad consistency. However, the range of sentences imposed in appellate cases does not represent the limits of the sentencing discretion. A sentence falling within that range can still be set aside for implied error. In the end, each case must be decided on its own particular facts and circumstances.[14]

34 When all relevant circumstances are considered, the total effective sentence imposed in the present case was not inconsistent with the range of sentences imposed in the cases to which the appellant refers.

35 Having regard to all of the above matters, but putting aside the matters raised by ground 2, the total effective sentence of 5 years' imprisonment was not disproportionate to the overall criminality involved in the appellant's offences. The total effective sentence does bear a proper relationship to the overall criminality involved in the offences considered as a whole, having regard to all of the circumstances of the offending and the offender disclosed by the material before the sentencing judge and all relevant sentencing principles. Ground 3 is not even arguably made out, and leave to appeal on that ground should be refused.

Ground 2: unrecognised assistance to authorities Ground of appeal

36 The appellant's second ground of appeal is that he should have received a further discount for having assisted authorities by giving a statement implicating his juvenile co-offender, who was prompted to plead guilty to the offences with which he was charged in the Children's Court of Western Australia.

37 Leave to appeal has been granted on this ground.

38 The appellant applies for leave to adduce further evidence in the appeal in relation to this ground of appeal. The further evidence comprises the statements of the appellant dated 25 November 2014 and the juvenile co-offender dated 28 November 2014, as well as a transcript of the remarks of Staude DCJ in sentencing the juvenile co-offender. The State applies to tender the whole of the transcript of the juvenile co-offender's sentencing.

39 Leave is not required to refer to the appellant's and co-offender's statements. Those statements comprised part of the hand-up brief which was incorporated into the State's statement of facts before the sentencing judge.

40 The parties agree that the court should receive the whole of the transcript of the sentencing proceedings before Staude DCJ as evidence in the appeal. That outcome is appropriately achieved by dismissing the appellant's application to adduce further evidence, and granting the State's application to adduce the whole of the co-offender's sentencing transcript as evidence in the appeal.

41 At the hearing of the appeal, counsel for the State advised the court as to certain aspects of the appellant's cooperation with police. Subsequent to the hearing of the appeal, and pursuant to directions made by the court at the conclusion of the hearing, the parties filed an agreed statement concerning the appellant's cooperation. It is appropriate to take account of those uncontentious statements of fact in resentencing the appellant.

42 Counsel for the State conceded ground 2, on the basis that a miscarriage of justice arose because the sentencing judge did not take account of the utilitarian benefits to the State derived from the appellant's cooperation with police. That is, the sentencing judge did not take account of the fact that the appellant's statement implicating the juvenile co-offender caused the juvenile co-offender to make admissions as to his own involvement in the offences (appeal ts 25 - 26). For reasons which follow, the State's concession should be accepted.

43 The following account of the assistance provided to police by the appellant is taken from the transcript of the co-offender's sentencing before Staude DCJ, the State's concessions at the hearing of the appeal and the joint statement provided by the parties.

44 The appellant was arrested at about 5.30 am on 25 November 2014. The juvenile co-offender was arrested at a different location about 6.30 am on the same day.

45 At the time of their arrest, police suspected their involvement in the offences. The co-offender's DNA profile was recovered from a T-shirt left behind during the burglary of Domino's Pizza in Thornlie on 7 November 2014. Telecommunications data showed communications between the appellant and the juvenile co-offender at times close to the commission of the offences. Anonymous information received from a member of the public indicated that they were involved in the burglaries.

46 The appellant was interviewed by police between approximately 9.30 am and 11.00 am on 25 November 2014. He admitted his own involvement in the offences and nominated the juvenile co-offender as being implicated in the offences with him.

47 A written statement was prepared, which was signed by the appellant at 1.20 pm on 25 November 2014. The statement described the offences and indicated that the appellant committed the offences with the juvenile co-offender, who the appellant named. The appellant also said they were driven to the burgled addresses by the same person in the same car. The appellant said that he did not want to name the driver, but said that the car was a Toyota Prado.

48 The juvenile co-offender denied any involvement in the offences in a recorded interview on 25 November 2014.

49 On 26 November 2014, the juvenile co-offender went to court and was given a copy of the appellant's statement which implicated him in the offences. The juvenile co-offender was also told that his DNA had been located on a T-shirt left behind after the burglary of Domino's Pizza in Thornlie on 7 November 2014.

50 The juvenile co-offender was re-interviewed on 27 November 2014 and admitted the offending he could remember, but denied the deprivation of liberty offence. The juvenile co-offender identified two persons who had acted as drivers. Those two persons were subsequently arrested as a result of the information provided by the juvenile co-offender. The juvenile co-offender agreed to give evidence against the drivers if required. On 28 November 2014, the juvenile co-offender signed a statement describing the relevant events.

51 The juvenile co-offender realised that he was incriminated by the appellant and considered that it was in his interests to make a full admission. The State accepts that the disclosure in the appellant's statement prompted the juvenile co-offender to subsequently tell police his version of events, which implicated himself and two others. Had the appellant not implicated the juvenile co-offender and prompted him to make admissions, the prosecution case against the juvenile co-offender would have been relatively weak. Other than for the burglary of Domino's Thornlie on 7 November 2014, the prosecution case would primarily have relied upon 'tendency reasoning' which seems unlikely to have established the juvenile co-offender's guilt beyond reasonable doubt.

52 The appellant says that he was not aware of the effect which his statement had, until he obtained a transcript of proceedings before the Children's Court indicating that the appellant's statement influenced the juvenile co-offender's decision to provide a similar statement to police. That transcript was not available to the sentencing judge, as the juvenile co-offender had not been sentenced when the appellant's sentence was imposed.

53 The appellant contends that it was not submitted to the sentencing judge that there should be some discount for the appellant's assistance to police and, consequently, no discount was afforded to him. The appellant submits he should receive some discount for having given a statement implicating the juvenile co-offender in circumstances where the juvenile co-offender was prompted to plead guilty because of that statement.

54 The voluntary provision by the appellant to the police of information of value in bringing the juvenile co-offender to justice in respect of these offences is a mitigating factor.[15] The mitigating effect of such cooperation may derive from the remorse and contrition which the assistance practically and unequivocally demonstrates. Cooperation may also be mitigating, even if motivated entirely by self-interest rather than contrition, because of the actual or potential utilitarian benefits in bringing another offender to justice.[16]

55 The extent of the discount applied by reason of voluntary assistance depends on all the circumstances of the case. It may depend on the value of the offender's cooperation, the resulting risk to the offender's personal safety and whether it reflects genuine remorse and contrition. Depending on all the circumstances, the discount may be very small or more than 50%.[17]

Utilitarian value of assistance in the present case

56 In the present case the cooperation which the appellant provided consisted of the provision of the written statement implicating himself and his juvenile co-offender in the offences. The offences were known to police, who had information leading them to believe that the juvenile co-offender participated in the offences. The appellant's statement was of practical value in the prosecution of the juvenile co-offender, in that it was a factor which persuaded the juvenile co-offender to provide his own confessional statement. The effect of the appellant's admission was to significantly strengthen the prosecution case which, for all but one of the offences, was otherwise properly characterised as weak.

57 The significance of the cooperation is limited by the fact that the appellant did not undertake to provide any future assistance to law enforcement authorities in the prosecution of the juvenile co-offender. There was no suggestion that s 8(3) of the Sentencing Act 1995 (WA) was engaged. It is also significant that the appellant did not name other co-offenders whose identities were not then known to police. There is no material suggesting that the appellant is subject to any particular risk, although his position as a person in prison who provided assistance to police is precarious for that reason.

58 The utilitarian benefits derived from the appellant's cooperation and described above were a mitigating factor. If known to the sentencing judge, they should have had the effect of reducing the length of the sentence the appellant would otherwise be required to serve.

59 The sentencing judge was aware of the appellant's statement to police, as it formed part of the prosecution brief incorporated into the statement of facts. The sentencing judge observed: [18]

You cooperated with police and that's to your credit. You made admissions immediately as to your involvement in these crimes.

60 The sentencing judge also accepted that the appellant was genuinely remorseful. The sentencing judge did take account of the contrition and remorse which was demonstrated by the appellant's cooperation with police.

61 However, the sentencing judge did not refer to the utilitarian benefits which the appellant's implication of the juvenile co-offender produced. It may readily be understood why the sentencing judge did not do so. Nothing was said about this aspect of the case by either the prosecutor or the appellant's sentencing counsel. The prosecution brief included the similar statement by the juvenile co-offender dated only a few days later. However, it is not apparent whether the judge was aware of that chronology (which was not drawn to his attention). He was clearly not informed of the utilitarian benefits flowing from that cooperation. The sentencing proceedings in the Children's Court had not yet occurred.

62 It does not appear that the sentencing judge gave any credit for the actual or potential utilitarian benefits which the assistance provided.

63 This is not a case in which relevant material available to a sentenced offender was not placed before the court. The statements of the appellant and the juvenile co-offender were before the sentencing court. The transcript of the sentencing proceedings in the Children's Court was not available because they had not occurred. This is not a case where the appellant says that his counsel made an error by failing to adduce reasonably available evidence now sought to be adduced on appeal.[19]

64 Nor is this a case where counsel declined to pursue a disputed factual issue as to the extent of assistance in a reasonable forensic decision.[20]

65 However, through no fault of the sentencing judge or counsel appearing before him, the sentencing court was not made aware of a significant mitigating factor. Because he was not informed of the utilitarian benefits resulting from the assistance, the trial judge did not take them into account. Information about the nature and extent of those benefits was not available to the appellant or his counsel at the sentencing hearing. The consequent denial to the appellant of any discount for that mitigating factor constitutes a miscarriage of justice.

66 The otherwise appropriate total effective sentence of 5 years' imprisonment should be reduced to take account of the utilitarian benefits resulting from the appellant's co-operation with police. This is achieved by reducing the sentence for count 31 on the indictment by 9 months from 2 years' imprisonment to 15 months' imprisonment, on totality grounds. The orders in the appeal should not otherwise interfere with the sentences imposed on the indictment, or the orders for accumulation and concurrency of those sentences. This results in a total effective sentence of 4 years 3 months' imprisonment. The appellant remains eligible for parole, and the sentence is still backdated to 25 November 2014.

67 For the above reasons, the following orders should be made in the appeal:

1. Leave to appeal on grounds 1 and 3 is refused.
2. The appellant's application in an appeal dated 1 October 2015 is dismissed.
3. The respondent's application in an appeal dated 30 October 2015 is allowed.
4. The appeal is allowed.
5. The sentence for count 31 on District Court indictment 51 of 2015 is set aside and substituted by a sentence of 15 months' imprisonment, to be served cumulatively on all other sentences on the indictment.

This results in a total effective sentence of 4 years 3 months' imprisonment.

[1] Roffey v The State of Western Australia [2007] WASCA 246 [23] - [26].

[2] JWD v The State of Western Australia [2013] WASCA 233 [40] - [41].

[7] Ridley v The State of Western Australia [2013] WASCA 45 [13].

[8] Burrows v The State of Western Australia [2014] WASCA 147.

[9] Anderson v The State of Western Australia [2014] WASCA 167.

[10] Ridley v The State of Western Australia [2013] WASCA 45.

[11] Nolan v The State of Western Australia [2013] WASCA 235.

[12] Pryor v The State of Western Australia [2014] WASCA 143.

[13] Pennetta v The State of Western Australia [2013] WASCA 234.

[14] Spry v The State of Western Australia [2013] WASCA 68 [37].

[15] JM v The State of Western Australia [2015] WASCA 40 [31] - [37].

[16] JM [34]; MXP v The State of Western Australia [2010] WASCA 215; (2010) 41 WAR 149 [8], [53].

[19] See JM v The State of Western Australia [2015] WASCA 40 [39] - [42].

[20] See RIN v The State of Western Australia [2015] WASCA 51 [58].