Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA

Criminal law - Application for leave to appeal against sentence - Multiple counts of aggravated burglary - Totality principle

Sentencing Act 1995 (WA), s 9AA

Angus v The State of Western Australia [2012] WASCA 54

Cockie v The State of Western Australia [2006] WASCA 66

Dunks v The State of Western Australia [2009] WASCA 82; (2009) 195 A Crim R 130

Howorth v The State of Western Australia [2007] WASCA 78

Martino v The State of Western Australia [2006] WASCA 78

Michael v The Queen [2004] WASCA 4

Moody-Jackamarra v The State of Western Australia [2007] WASCA 7

Nannup v The State of Western Australia [2011] WASCA 257

Otway v The State of Western Australia [2008] WASCA 165

Papas v The State of Western Australia [2011] WASCA 3

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

Slater v The State of Western Australia [2006] WASCA 206

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

Sulejmani v The State of Western Australia [2005] WASCA 95

Thomas v The State of Western Australia [2012] WASCA 182

Wilson v The State of Western Australia [2010] WASCA 82

2 MAZZA JA: This is an application for leave to appeal against sentence. The appeal was brought approximately one month out of time. As the delay is relatively short and has been adequately explained, I would grant the extension of time.

3 The appellant entered pleas of guilty in the District Court to six offences contained in an indictment; being, three counts of aggravated burglary on a dwelling (counts 1, 5 and 6), criminal damage (count 2), assault with intent to resist detention (count 3), and burglary on commercial premises (count 4). On 26 April 2013, the learned sentencing judge imposed a total effective sentence of 5 years 4 months' imprisonment with eligibility for parole, backdated to commence on 30 May 2012.

4 The sole proposed ground of appeal is that the total effective sentence infringed the first limb of the totality principle.

5 For the reasons that follow the proposed ground does not have reasonable prospects of success. Accordingly, the appeal must be taken to be dismissed: Criminal Appeals Act 2004 (WA), s 27(1),(2) & (3).

6 I will deal with the facts of each offence in the order in which they appear in the indictment, rather than in chronological order.

7 At about 11.15 pm on 22 May 2012, the appellant entered the house of Mr Martin Hughes by forcing open a flyscreen on a kitchen window. While inside he stole a set of car keys and a kitchen knife. He was confronted by Mr Hughes. The appellant told Mr Hughes that he was seeking refuge from people who were chasing him. The appellant was permitted to leave the premises by taxi (count 1).

8 At approximately 6.45 am on 23 May 2012, the appellant went to the business premises of Lion Nathan Pty Ltd in Bentley. At the time, a number of staff members were at work. The appellant entered the premises and went into a computer room which was not open to the public. There he took a laptop computer, a cash tin containing approximately $10, five SIM cards and a set of keys. As he did so he was confronted by Mr Colin Smith, an employee, who attempted to stop the appellant from leaving. The appellant attempted to punch Mr Smith but missed him. The appellant dropped the laptop computer and cash tin. He

pushed Mr Smith causing him to fall to the ground. Other staff members attempted to detain the appellant in an office area but released him when he kicked the door of the office. The appellant left the building and went to his car, which had been locked within a cyclone fence. The appellant climbed the fence, got into the car and drove through the fence, causing approximately $1,500 damage (counts 2, 3 and 4).

9 Between 8.00 pm on 28 May 2012 and 6.00 am on 29 May 2012, the appellant entered the house of Mr Skamp without his consent by walking through a back door which may have been unlocked. While inside the house, the appellant stole two passports and a small cash tin which contained two sets of car keys. The appellant left the house and stole the occupier's Ford Falcon station wagon. When the car was subsequently recovered it had been fitted with false number plates (count 5).

10 At approximately 6.20 am on 26 April 2012, the appellant entered the house of Ms Michaela Cunningham without her consent by forcing open a back room window. The appellant entered the room and was searching through it when Ms Cunningham's 6-year-old daughter saw the appellant. The child woke her mother when she screamed, 'There is a man in the toy room'. Ms Cunningham went to the toy room, saw the appellant and said, 'What are you doing, you dumb prick? Fuck off'. Ms Cunningham went to get her husband, but by the time she had done so the appellant had left the house. A Nintendo Wii the appellant had taken from the toy room was left on a table in the back yard (count 6).

11 At the time of sentencing, the appellant was 33 years of age. He has a long history of illicit drug abuse which is reflected in his long and persistent criminal history. He has 14 prior convictions for burglary. He has been convicted of burglary offences in 2001 (twice), 2003 (twice), 2004 (three times), 2007 (four times), and 2009 (three times). He has served periods of imprisonment for some of these offences. His performance on parole and community orders has been unsatisfactory. He is a repeat offender as defined by s 400(3) of the Criminal Code (WA). In addition to the burglary offences, he has been convicted on many occasions of various traffic offences, not to mention other convictions for stealing and offences under the Misuse of Drugs Act 1981 (WA).

12 The materials before the learned sentencing judge revealed that upon his release on parole in July 2010 the appellant obtained employment in the building industry. He remained abstinent from illicit drugs for 16 months. However, he injured his knee at work and underwent a knee reconstruction. During his convalescence he was prescribed strong pain killers and these combined with his inability to work and other adverse life events, including his mother being diagnosed with a terminal illness, led him to relapse into illicit drug use. The offences for which he was sentenced were committed to support that drug use.

13 After the appellant's arrest he was remanded in custody. The pre-sentence report indicates that while in custody his mother passed away and his long term partner has had significant medical problems, as a result of which their two young children have been placed in the care of the appellant's father-in-law. The appellant told the author of the pre-sentence report that he was determined not to relapse again and confirmed his intention to undertake substance abuse counselling.

14 The expert psychological report before his Honour noted that the present offences formed part of a pattern of antisocial conduct since the appellant was 17 years old. The author said that while the appellant expressed embarrassment with respect to his actions, 'his lack of appreciation for victims and his family over many years indicates a remarkable capacity for self-focus and indulgence, along with emotional detachment'. The psychologist noted that psychometric testing indicated the presence of an 'antisocial personality process'.

15 With respect to the offending, his Honour noted the physical confrontation at the premises of Lyon Nathan Pty Ltd and the confrontations with the householders in counts 1 and 6. While recognising the appellant's professed intention and determination to rehabilitate himself, his Honour observed that there was a 'disconnect' between the appellant's words and his actions.

16 His Honour had regard to the appellant's criminal history, observing that the offending was characteristic of the appellant. Accordingly, he concluded that retribution, deterrence and public protection warranted greater prominence. His Honour took into account as mitigating factors the appellant's pleas of guilty, for which he gave a 20% reduction pursuant to s 9AA of the Sentencing Act 1995 (WA), the steps the appellant had taken towards his rehabilitation, and his remorse. His Honour expressly had regard to the totality principle. He regarded counts 2 to 4 as being part of the one transaction and ordered that the sentences for those offences be served concurrently with each other.

17 The learned sentencing judge imposed the following individual sentences:

18 His Honour ordered that the sentences for counts 3, 5 and 6 be served cumulatively, thus resulting in the total effective sentence of 5 years and 4 months' imprisonment.

19 This court can only intervene where an appellant demonstrates that an implied or express error has been made. The allegation that the total effective sentence infringed the totality principle is an allegation of implied error. The appellant must demonstrate that the total effective sentence of 5 years 4 months' imprisonment was unreasonable or plainly unjust: Wilson v The State of Western Australia [2010] WASCA 82 [2].

20 The totality principle comprises two limbs. This appeal is concerned with an alleged infringement of the first limb, which provides 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 referrable to the offender personally: Roffey v The State of Western Australia [2007] WASCA 246 [24].

21 The appellant does not complain about the individual sentences that were imposed upon him. He has submitted that the total sentence was disproportionate to the total criminality of his offending. He has sought to demonstrate that by reference to what he claims are comparable cases; namely, Thomas v The State of Western Australia [2012] WASCA 182; Angus v The State of Western Australia [2012] WASCA 54; Nannup v The State of Western Australia [2011] WASCA 257; Papas v The State of Western Australia [2011] WASCA 3; Otway v The State of Western Australia [2008] WASCA 165; Moody-Jackamarra v The State of Western Australia [2007] WASCA 7; Slater v The State of Western Australia [2006] WASCA 206; Martino v The State of Western Australia [2006] WASCA 78; Cockie v The State of Western Australia [2006] WASCA 66; Sulejmani v The State of Western Australia [2005] WASCA 95 and Michael v The Queen [2004] WASCA 4.

22 It is unnecessary to analyse each of these cases. All of them, save for Martino, Thomas and Angus, involved offenders who were convicted of multiple counts of burglary or aggravated burglary. Most of the appellants had lengthy criminal histories.

23 As I noted in Spry v The State of Western Australia [2013] WASCA 68, cases involving multiple counts of burglary and aggravated burglary differ markedly [36]. In Spry I referred to Howorth v The State of Western Australia [2007] WASCA 78 where it was said by Steytler P, Wheeler & Pullin JJA:

There are no hard and fast rules in relation to sentencing for multiple offending of this kind. Having regard to the very great variations in the number of possible offences, and in the possible combinations of offences, comparison is difficult [30].

See also Dunks v The State of Western Australia [2009] WASCA 82; (2009) 195 A Crim R 130 [30] - [40] (Buss JA).

24 The primary sentencing considerations in relation to aggravated burglary are personal and general deterrence, particularly when a burglary is committed on residential premises. The sentencing range for offences involving home burglary have firmed up in recognition of the prevalence of these offences.

25 The circumstances of each of the aggravated burglaries on a dwelling were serious. On each occasion the appellant entered the victim's house at a time when it was likely somebody would be at home. Indeed, on each occasion somebody was at home. The burglaries the subject of counts 1 and 6 resulted in the appellant being confronted by the occupier. In count 6, a very young child came across the appellant and was plainly terrified. In such circumstances, the possibility of unintended consequences is ever present.

26 The offences the subject of counts 2 to 4 were brazen and involved an actual physical confrontation and damage to property as the appellant escaped.

27 As the learned sentencing judge observed, the offending was characteristic of the appellant. His Honour was correct to emphasise deterrence, retribution and the protection of the public. The appellant's pleas of guilty, his desire for rehabilitation and his remorse were taken into account and were given due weight. It is to be hoped that the appellant will rehabilitate himself but that cannot, in light of his history, prevail against the seriousness of the offending.

28 The appellant's offending occurred over the space of approximately one month. He committed separate and distinct offences on four occasions. Accumulation of some of the offending was justified.

29 Having regard to the totality of the appellant's offending and all of the circumstances of it, including those personal to him, I have not been persuaded that it is reasonably arguable that the total effective sentence imposed upon the appellant infringed the first limb of the totality principle.

30 Although not a ground of appeal, the appellant, who was unrepresented, queried in his oral submissions whether the learned sentencing judge should have given him a 25% discount for his pleas of guilty.

31 His Honour was obliged to deal with the pleas of guilty in accordance with s 9AA of the Sentencing Act which, in general terms, provides that where an offender pleads guilty, a court has a discretion to reduce the head sentence by an amount of no more than 25%. The earlier in the proceedings the plea is made, the greater the reduction may be. However, a reduction of 25% may only be given where an offender pleads guilty, or indicates that a plea of guilty will be entered, at the first reasonable opportunity.

32 As I have said, the amount of any reduction for a plea of guilty is discretionary. Section 9AA does not require that a discount of 25% must be given in each case where a plea of guilty is entered at the first reasonable opportunity. The amount of the reduction will depend upon all of the circumstances. Here, the only plea of guilty that was entered at the first reasonable opportunity was in respect of count 1. The appellant's involvement in that offence was established by forensic evidence and thus the case against him was strong. The pleas of guilty in respect of the remaining counts were not entered at the first reasonable opportunity, but were entered after negotiations at a relatively early stage. His Honour's decision to accord a 20% reduction on each offence was amply justified.

33 The proposed ground of appeal has no reasonable prospect of succeeding. Accordingly, the appeal must be dismissed. The orders that I would make are as follows:

1. An extension of time within which to appeal is granted.
2. Leave to appeal is refused.
3. The appeal is dismissed.