Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA

Criminal law - Appeal against sentence - Express error of law - Sentencing judge took into account erroneous maximum penalty - Whether error material - Manifest excess

Criminal Appeals Act 2004 (WA), s 31

Sentencing Act 1995 (WA), s 9AA, s 32

Armstrong v The State of Western Australia [2013] WASCA 290

Baxter v The Queen [2007] NSWCCA 237

Butler v The State of Western Australia [2012] WASCA 249

Conley v The State of Western Australia [2013] WASCA 95

Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321

Downey v The State of Western Australia [2012] WASCA 55

Fernandes v The State of Western Australia [2009] WASCA 227

House v The King [1936] HCA 40; (1936) 55 CLR 499

Joslin v The State of Western Australia [2012] WASCA 177

Kentwell v The Queen [2014] HCA 37; (2014) 313 ALR 451

Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357

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

Papertalk v The State of Western Australia [2011] WASCA 229

R v Mouloudi [2004] NSWCCA 96

R v Oliver (1980) 7 A Crim R 174

Smith v The Queen [2007] NSWCCA 138

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

Teakle v The State of Western Australia [2007] WASCA 15; (2007) 33 WAR 188

Tyler v The State of Western Australia [2005] WASCA 237

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

1 The appellant, Ryan Robert Harding, appeals against a sentence of imprisonment for 2 years imposed by a judge of the District Court following his plea of guilty to the offence of burglary. The sentence was imposed at the same time as various other sentences which were imposed following his plea of guilty to 17 other charges which were pending against him in the Magistrates Court, and which were brought before the District Court at Mr Harding's request pursuant to s 32 of the Sentencing Act 1995 (WA). The sentencing judge adjusted a number of the sentences which she imposed for reasons of totality, including the sentence under appeal, which she reduced from a term of 3 years imprisonment. After those adjustments, and as a result of the orders made for cumulative and concurrent service of the sentences imposed, the total effective sentence was a term of 6 years imprisonment, backdated to take account of time which Mr Harding had spent in custody prior to being sentenced.

2 The sole ground of appeal asserts that the trial judge erred in respect of the sentence which she imposed for the offence of burglary, because she described the offence as the offence of aggravated burglary, carrying a maximum of 20 years imprisonment, when in fact the offence charged was not attended by any circumstance of aggravation and carried a maximum penalty of 18 years imprisonment. There is no doubt that the trial judge erred in this respect. However, in all the circumstances of this case, including in particular the reduction of the sentence under appeal by one-third for reasons of totality, it should be concluded that this error had no effect upon the exercise of the sentencing judge's discretion. Further and in any event, the appellant has failed to establish that any other sentence should be imposed by this court if the sentencing discretion was to be exercised afresh, either as to the particular sentence under appeal or as to the total effective sentence imposed. The appeal must therefore be dismissed.

3 The circumstances of the various offences committed by Mr Harding were described by the sentencing judge in the course of her observations at the time of sentence in the chronological order in which they were committed. There is no challenge to the findings made by the sentencing judge with respect to those circumstances. The following summary is taken from her remarks.

4 On 17 October 2011, Mr Harding attended business premises in Wangara, smashed a window and entered the building. After gaining entry he stole computer equipment, three mobile phones, five electronic parcels and a safe. The total value of the property stolen was $4,500. Mr Harding's fingerprints were found in the office area of the building. Three days later Mr Harding was arrested and charged with burglary and committing an offence in the place burgled and stealing.

5 On 30 November 2011, a motor vehicle was stolen during a burglary in Morley. Two days later, on 2 December 2011, Mr Harding was seen driving the motor vehicle with an associate. A member of the public noticed them acting suspiciously and photographs were taken and supplied to police. When Mr Harding was arrested in relation to other matters he was questioned with respect to the stolen vehicle. His fingerprints were found inside the stolen vehicle and he was charged with stealing it.

6 Four days later, on 6 December 2011, Mr Harding was being questioned by police in relation to other matters. He was strip searched and a number of clip seal bags containing a white powder later found to be methylamphetamine were discovered in Mr Harding's rectum. Mr Harding told police that the drug was for his own use, and he was charged with possession of a prohibited drug.

7 Three days later, on 8 December 2011, police were conducting inquiries into a stolen BMW Z3 sports car which had been found in a side street in Ballajura, and which was under surveillance. Mr Harding arrived in a stolen Renault hatchback driven by another. Mr Harding got out of the Renault and walked across to the stolen BMW. He had the key for the BMW. He entered the vehicle using the key and started the engine. Police attempted to arrest Mr Harding by trying to open the driver's side door, yelling to Mr Harding to turn off the vehicle as he was under arrest. However, Mr Harding reversed the stolen vehicle, forcing the police officer out of the way in order to avoid serious injury and then manoeuvred the vehicle past police, leaving the area at high speed, and nearly colliding with an oncoming car. Police pursued Mr Harding through Ballajura, where he attained speeds in excess of 100 km per hour, before police abandoned their pursuit.

8 However, a little later that day Mr Harding was spotted again by another police car. Mr Harding drove the stolen BMW down a cul-de-sac, driving through wooden bollards erected at the end of the cul-de-sac in order to prevent through traffic, causing damage to the stolen vehicle which was later found abandoned. Not only was the stolen vehicle driven recklessly, in the manner I have described, but Mr Harding had been disqualified from holding a driver's licence for life as a result of previous convictions for reckless driving.

9 Later that morning, Mr Harding was found by police travelling as a passenger in the stolen Renault that had been seen earlier that day. Mr Harding resisted arrest by diving into the rear seat of the vehicle and struggling with police, before being arrested at the scene. Mr Harding was found to be in possession of a clip seal bag containing 0.7 g of heroin and another five small clip seal bags containing a total weight of 2.2 g of methylamphetamine. He told police that the heroin was for his own use and that he intended to share the methylamphetamine with his associates.

10 As a result of these events, Mr Harding was charged with receiving stolen property, being the key to the stolen BMW vehicle; stealing that vehicle; stealing the Renault motor vehicle; assault with intent to prevent arrest, as a result of the impact which his reversing of the BMW had upon the officer who was attempting to arrest him; reckless driving; failing to stop when called upon; driving without a driver's licence; obstructing police officers at the time they endeavoured to arrest him in the Renault motor vehicle; possession of a prohibited drug with intent to sell or supply, namely, methylamphetamine; and possession of a prohibited drug, namely, heroin.

11 Police obtained a search warrant relating to Mr Harding's home and executed that warrant later that day. A number of items of stolen property were found, which resulted in Mr Harding being charged with possession of property which was stolen or unlawfully obtained. Police also found 12 dexamphetamine tablets in a container, leading to another charge of possession of a prohibited drug.

12 Following his arrest for these various offences on 8 December 2011, Mr Harding was remanded in custody. However, in circumstances that have not been satisfactorily explained, on 21 March 2012 Mr Harding was inadvertently released from custody. Within eight days of his release, on 29 March 2012, Mr Harding committed the offence of burglary (erroneously described by the sentencing judge as aggravated burglary) which is the subject of this appeal.

13 The circumstances of that offence were that during the day, Mr Harding gained entry to the backyard of a house in Mount Lawley. He climbed to the top of a structure over the patio at the rear of the house, and from there climbed to a balcony at the first floor level. He discovered a window which was partially open and forced entry to the house. He went systematically through all the rooms of the house, stealing various items to a total value of $11,837.91. Because the value of the property stolen exceeded $10,000, the charge of burglary could not be dealt with summarily, and was brought on indictment in the District Court.

14 Mr Harding's fingerprints were found on the inside of the window frame at the point of entry, and he was again arrested. However, again inexplicably, before being dealt with by the court, he was again released from custody on 22 February 2013.

15 At around 6 am on 4 April 2013, Mr Harding climbed the front wall of business premises in Malaga, smashed a window and gained access to the office. He rummaged through the office and tried to remove a large flat screen television from the wall. However, while seeking tools to remove the television, he activated the alarm and left the premises without taking anything. Mr Harding's fingerprints were found on the television and he was again arrested and charged with burglary. He remained in custody until being sentenced.

16 The sentencing judge made various findings with respect to Mr Harding's antecedents and personal circumstances. Those findings are not challenged. The following summary is taken from her observations at the time of sentence.

17 At the time of sentence Mr Harding was 30 years old, and was single without dependants. He is the youngest of three children whose parents separated when Mr Harding was 18 months old. He was raised by his father and had minimal contact with his mother. In a report tendered to the court, a psychologist observed that Mr Harding appeared to have issues relating to his perceived abandonment by his mother. Mr Harding also had issues arising from his assertion that he was sexually abused as a child.

18 Mr Harding's sister died from a heroin overdose when she was 15 and Mr Harding was 14. The death of his daughter caused Mr Harding's father to have a breakdown, and Mr Harding was sent to live with another family member. He started to perform badly at school and also started using illicit drugs. Notwithstanding his sister's death, he commenced using heroin at the age of 14.

19 Mr Harding left school during year 10. Since then he has been largely unemployed, apart from occasional manual work.

20 By the time Mr Harding was 22 he was heavily addicted to heroin, and remained addicted to that drug at the time of the offending conduct. He was also using other illicit drugs, although his drug of choice was heroin.

21 Mr Harding has an extensive record of offending prior to the 18 offences for which he was sentenced by the judge of the District Court. Those offences include four convictions for burglaries committed in dwellings, and nine convictions for burglaries committed in premises other than dwellings. Mr Harding's record also includes nine previous convictions for stealing, eleven previous convictions for stealing motor vehicles, and a number of previous convictions for reckless driving.

22 The sentencing judge observed that as a result of his drug addiction, Mr Harding was prone to reoffend within a short while of his release from prison. The sentencing judge observed that previous attempts to cure Mr Harding's drug addiction had failed, including supervision by the Drug Court, a residential programme from which Mr Harding absconded, and the methadone programme.

23 The sentencing judge did, however, note that Mr Harding had apparently performed well while in custody awaiting sentence, obtaining work within the prison system and graduating to a self-care unit. However, the sentencing judge noted that history demonstrated that Mr Harding's resolve disappeared upon his release into the community and accepted the view expressed by the author of the pre-sentence report tendered to the court to the effect that Mr Harding was a repeat offender who appeared to lack the skills to independently address the core issues of substance abuse which precipitated his offending behaviour.

24 As I have noted, at a number of points during her remarks at the time of sentence, the sentencing judge erroneously described the offence the subject of this appeal as the offence of aggravated burglary. At the outset of her remarks she erroneously described the maximum penalty for that offence as imprisonment for up to 20 years, when in fact the maximum penalty is a term of imprisonment for up to 18 years.

25 The judge described Mr Harding's offending behaviour as 'really serious',[1] a description entirely justified by the circumstances she had related. She also observed, correctly, that Mr Harding's extensive criminal record did not aggravate the offences for which he was to be sentenced, but did establish that those offences were characteristic of his behaviour and that specific deterrence and protection of the community were therefore significant factors to be taken into account.

26 The sentencing judge also noted that Mr Harding was entitled to a discount for his plea of guilty to all offences charged, but because those pleas were not entered at the earliest available opportunity, she allowed a discount of 20% rather than the maximum available discount of 25%.

27 The sentencing judge noted that other mitigating circumstances included Mr Harding's expressions of remorse and the personal circumstances she had described.

28 The sentencing judge then listed the specific sentences which she proposed to impose in respect of the various offences with which she had to deal. In this context, in relation to the sentence under appeal, the judge observed:

This is a serious offence. It's the subject of real community concern. The main sentencing consideration is personal and general deterrence, especially when the burglary is committed on residential premises as this was. Ordinarily a substantial penalty will be imposed.

The particular circumstances of this burglary were serious. To do what you did in order to gain entry to the house it involved [sic] some planning and premeditation. You stole a substantial amount of property. Although the occupier of the house wasn't home at the time, the prospect of confronting someone at home and the consequences that can flow from such a confrontation are relevant factors. People are entitled to feel that they and also their property will be safe in their homes, and offending like this undermines their confidence.

So taking into account all of these factors and of course the mitigating circumstances I've already mentioned, I consider the appropriate term of imprisonment for this aggravated burglary is three years.[2]

29 The sentencing judge then turned to considerations of totality and the concurrent service of some of the sentences to be imposed, and in that context referred to the sentencing principles involved in terms which have not been challenged.

30 Because of those considerations, the sentencing judge reduced the sentence which she would have imposed for the 'aggravated burglary' from three to two years, which was to be the head sentence, and the sentence which was to be imposed in respect of another charge of burglary from 18 months to 12 months, although that sentence was to be cumulative upon the head sentence.

31 The sentencing judge also noted, correctly, in the course of her remarks, that because Mr Harding was a repeat offender in relation to the burglary charges which he faced, she was required to sentence him to a term of imprisonment to be immediately served of not less than 12 months.

32 The sentencing judge reduced a number of other penalties which she proposed to impose for reasons of totality, including one of the terms of imprisonment for stealing a motor vehicle, which was reduced from 9 months to 8 months; the term for assault with intent to prevent arrest was reduced from 12 months to 9 months; the term of imprisonment for reckless driving was reduced from 10 months to 9 months, and the penalty for the third offence of burglary was reduced from 12 months to 10 months imprisonment.

33 After the adjustment of the sentences to which I have referred for reasons of totality, and as a result of the orders made with respect to concurrent and cumulative service of the sentences imposed, the net effective sentence imposed upon Mr Harding was a term of 6 years, which the judge backdated to commence on 31 January 2012, in order to take into account the various periods of time Mr Harding had spent in custody prior to sentence. Mr Harding was made eligible for parole.

34 Leave to appeal has been granted in respect of the sole ground, in which it is asserted:

The learned sentencing judge erred in fact and in law when sentencing the appellant on the basis that his conviction on indictment was for aggravated burglary, carrying a maximum penalty of 20 years imprisonment.

35 The respondent properly concedes that the sentencing judge erred in this way. The burglary charge brought against Mr Harding on indictment was not alleged to have been attended by any circumstance of aggravation. It follows that the maximum penalty applicable to that offence was a term of 18 years imprisonment.[3]

36 However, it does not necessarily follow from the fact that an express error is evident in observations made at the time of passing sentence that the sentencing discretion has miscarried. As an appeal against sentence is an appeal against the exercise of judicial discretion, the appeal can only be upheld if error of the kind explained in House v The King[4] is established:[5]

It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so. [6]

37 It is implicit in this description of the nature of the error which will enliven the jurisdiction of the appellate court to resentence the appellant that the error established must be material to the exercise of the sentencing discretion. As McLure P observed in Fernandes v The State of Western Australia:[7]

This court can only intervene if the sentencing judge made an express or implied material error of fact or law: Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321.

A 'material' error of fact is one that affects, or is capable of affecting, the sentence actually imposed by the sentencing judge.

38 It is inevitable that errors will be made from time to time by judicial officers in observations made at the time of passing sentence, given the volume of cases with which the courts are required to deal, and the limited time available for the disposition of those cases. Errors of fact are probably more common than other types of error. However, an error of fact will only be material, and will only give rise to an error of the kind explained in House if it affects, or is capable of affecting the sentence actually imposed.[8] Fernandes provides an example of a minor error of fact, relating to the quantity of illicit drug involved in the offence, which was not material and which was therefore not an error of the kind to which reference is made in House.

39 I do not understand the recent observations of the High Court in Kentwell v The Queen[9] to express any different principle. In that case the plurality observed:

When a judge acts upon wrong principle, allows extraneous or irrelevant matters to guide or affect the determination, mistakes the facts or does not take into account some material consideration, the Court of Criminal Appeal does not assess whether and to what degree the error influenced the outcome. The discretion in such a case has miscarried and it is the duty of the Court of Criminal Appeal to exercise the discretion afresh taking into account the purposes of sentencing and the factors that the Sentencing Act, and any other Act or rule of law, require or permit.[10]

40 It is clear from the language used in this passage, and from the specific reference to 'error of the kind described in House' in the paragraph which immediately follows, that the assertion that the appellate court 'does not assess whether and to what degree the error influenced the outcome' is conditioned by the requirement that error of the kind described in House be first established, which in turn requires that the error be material in the sense that it affected, or was capable of affecting the sentence actually imposed. In my respectful view, the plurality could not have been suggesting that every error of fact or law, no matter how insignificant or inconsequential, vitiates the exercise of the discretion and requires the appellate court to re-exercise the discretion afresh.

41 Section 6 of the Sentencing Act requires the statutory penalty for the offence (and therefore the maximum penalty which may be imposed) to be taken into account when assessing the seriousness of an offence.[11] The significance of the maximum penalty stipulated by the legislature to the exercise of the sentencing discretion is well established:

Legislatures do not enact maximum available sentences as mere formalities. Judges need sentencing yardsticks. It is well accepted that the maximum sentence available may in some cases be a matter of great relevance. In their book Sentencing, Stockdale and Devlin observe that:

'A maximum sentence fixed by Parliament may have little relevance in a given case, either because it was fixed at a very high level in the last century ... or because it has more recently been set at a high catch-all level ... At other times the maximum may be highly relevant and sometimes may create real difficulties ...

A change in a maximum sentence by Parliament will sometimes be helpful [where it is thought that the Parliament regarded the previous penalties as inadequate].'

It follows that careful attention to maximum penalties will almost always be required, first because the legislature has legislated for them; secondly, because they invite comparison between the worst possible case and the case before the court at the time; and thirdly, because in that regard they do provide, taken and balanced with all of the other relevant factors, a yardstick. That having been said, in our opinion, it will rarely be, and was not appropriate for Hulme J here to look first to a maximum penalty, and to proceed by making a proportional deduction from it. That was to use a prescribed maximum erroneously, as neither a yardstick, nor as a basis for comparison of this case with the worst possible case ...[12]

42 Because of the significance which usually attaches to the statutory maximum penalty in the exercise of the sentencing discretion, a significant error in relation to that maximum penalty will usually be material[13] to the exercise of the sentencing discretion and will vitiate the exercise of that discretion. So, in R v Mouloudi,[14] an erroneous apprehension by the sentencing judge to the effect that the maximum penalty available was a term of 5 years imprisonment rather than 14 years imprisonment was held to vitiate the exercise of discretion. Similarly in Armstrong v The State of Western Australia,[15] an erroneous apprehension by the sentencing judge to the effect that the maximum penalty for the offence was life imprisonment, when in fact the maximum penalty available was 20 years imprisonment, was held to vitiate the exercise of the sentencing discretion.

43 However, as the passage from the text cited with apparent approval in the judgment of the plurality in Markarian shows, there may be cases in which the maximum penalty available in respect of the offence is of much less significance, because that maximum is far removed from the range of sentences customarily imposed in respect of such offences. This case arguably falls within that category, as the range of sentences reasonably open to the sentencing judge was far removed from the statutory maximum available, irrespective of whether that maximum was 18 years or 20 years imprisonment.

44 The extent to which an error as to the maximum penalty available is to be regarded as a material error enlivening the jurisdiction of the appellate court to exercise the sentencing discretion afresh has been considered in two decisions of the New South Wales Court of Criminal Appeal subsequent to Mouloudi. In Smith v The Queen,[16] James J (Campbell JA and Smart AJ agreeing) observed:

I would not regard Mouloudi as authority for a proposition that an error by a sentencing judge in stating the maximum penalty for the offence for which the offender is to be sentenced necessarily amounts to an error of such materiality as to require this Court to intervene.

There will clearly be cases where an error by the sentencing judge as to the maximum penalty for the offence for which the offender is being sentenced will require that an appeal against sentence be allowed. An extreme example is Sharwood v R [2006] NSWCCA 157 where a sentence imposed actually exceeded the correct maximum penalty.

However, an error by the sentencing judge as to the maximum penalty for the offence for which the offender is being sentenced will not necessarily require that an appeal against the sentence be allowed.[17]

45 The issue was revisited in Baxter v The Queen.[18] In that case the sentencing judge stated at the time of sentence that the maximum penalty available for one of the offences with which he was dealing was 25 years imprisonment, when in fact the maximum penalty was 20 years. All members of the court concluded that the error was material, but for differing reasons. The reasoning of Spigelman CJ was preferred by the plurality in Kentwell, but in my view is to be understood in the manner I have set out above.

46 In this case, there are two factors which, in combination, lead to the conclusion that the sentencing judge's error as to the maximum penalty available for the offence for which the appellant was sentenced was not material, in the sense that it did not affect, nor was it capable of affecting, the sentence actually imposed. First, the magnitude of the difference between the period of 20 years which the sentencing judge erroneously thought was the maximum penalty, and the period of 18 years which was in fact the maximum penalty available is significantly less than the magnitude of the error made in the other cases to which I have referred. Second, the range of sentences reasonably open to the sentencing judge in the exercise of her discretion was so far removed from the maximum penalty available, that the difference between a maximum of 18 years and a maximum of 20 years had no bearing upon the sentence actually imposed, or the range of sentences reasonably open to the sentencing judge.

47 Of course, the sentencing judge's erroneous description of the offence as an offence of 'aggravated burglary' should not be overlooked. However, the significance of that error must be evaluated in a context in which it is clear that the sentencing judge had a full and proper appreciation of the circumstances of the offence, and made no error of fact in the description of those circumstances, or in respect of the considerations relevant to the sentence properly imposed having regard to those circumstances, or in her characterisation of the circumstances of the offence as serious. Viewed in that context, it seems clear that the erroneous description of the offence had no impact upon the factors properly taken into account by the sentencing judge in the exercise of her discretion.

48 Finally, on the question of whether the judge's error had any material effect upon the exercise of her discretion, it is of particular significance that the judge reduced the sentence which she would otherwise have imposed from a term of 3 years imprisonment to a term of 2 years imprisonment because of totality considerations. Those considerations required the sentencing judge to take account of considerations well beyond the circumstances of the particular offence the subject of this appeal, and to structure a total sentencing package which resulted in an effective sentence which was proportionate to the total criminality and culpability involved in all the offences with which she was required to deal. In that context it is also of particular significance that the judge made no error in her assessment of the factual circumstances of the offence under appeal, or with respect to the sentencing considerations relevant to those circumstances, or in her characterisation of the criminality and culpability of Mr Harding's conduct in relation to that offence. In those circumstances, the prospect that the judge's error as to the proper description of the offence and as to the maximum penalty available had any impact, or was capable of having any impact, material or otherwise, on the sentence of 2 years imprisonment ultimately imposed can be safely eliminated.

49 For these reasons, it should be concluded that the express error made by the sentencing judge in the course of her remarks with respect to the proper description of the relevant offence and the maximum penalty available for that offence had no effect and was not capable of having any effect upon the sentence which she actually imposed, after adjustment for considerations relating to totality.

50 That conclusion is sufficient to dispose of the ground of appeal as enunciated. However, in the course of oral argument, counsel for Mr Harding went somewhat further than the ground enunciated and in reply to the respondent's contention that the appeal should in any event be dismissed because no different sentence should have been imposed, in effect submitted that the sentences imposed were manifestly excessive on the basis that the sentence properly imposed in respect of the offence of burglary the subject of the indictment, was a term of imprisonment of 18 months, and the total effective sentence properly imposed in respect of all of the offences dealt with by the sentencing judge was a term of 5 years and 6 months imprisonment.

51 There are a number of general observations which are in themselves fatal to any assertion that this appeal should be allowed on the ground of manifest excess, rather than express error. First, the ground is not pleaded. Second, because the sentences imposed in respect of particular offences were adjusted by reference to considerations of totality, in the manner in which I have described, an appeal on the ground of manifest excess could only succeed if it were demonstrated that the total effective sentence of 6 years imprisonment was not proportionate to the total criminality and culpability involved in all the offending conduct. However, no argument was advanced in support of that proposition, which would require detailed consideration of the 18 offences for which Mr Harding was sentenced. Third, the proposition that a total effective sentence of 6 years imprisonment was manifestly excessive, whereas a total effective sentence of 5 years and 6 months imprisonment was within the range, would appear to be contrary to the general principles relating to implied error as a result of manifest excess and contrary to the principles relating to appellate tinkering with sentences imposed.

Should a different sentence have been imposed?

52 Even if it was concluded, contrary to my view, that an error of the kind described in House had been established, this court could only allow the appeal if, in its opinion, a different sentence should have been imposed.[19] Accordingly, in case a different view is taken on the question of material error, for the sake of completeness it is appropriate to deal with the respondent's contention that the appeal should in any event be dismissed because even if material error had been established, no different sentence should have been imposed.

53 The range of sentences customarily imposed for the offence of burglary was recently reviewed by Mazza JA in Conley v The State of Western Australia[20] by reference to a range of relevant cases in the Full Court and Court of Appeal. As his Honour observed:

There is no tariff for home burglary, but in recent years sentences have increased to reflect the prevalence of the offence and to provide proper personal and general deterrence.[21]

As Mazza JA also observed in Papertalk v The State of Western Australia,[22] householders are entitled to feel confident that they and their property will be safe at home, and the offence of home burglary undermines that confidence.[23]

54 In Conley, leave was refused to appeal against a sentence of 3 years imprisonment imposed in respect of a burglary on a dwelling during which a motor vehicle was stolen. In that case, the offender's antecedents were not dissimilar to Mr Harding's. It is difficult to see how the decision in that case could provide support for the proposition that this court should impose any sentence other than the sentence of 2 years imprisonment imposed by the sentencing judge.

55 Counsel for Mr Harding drew attention to a number of cases which were said to sustain the proposition that some sentence less than 2 years imprisonment should have been imposed upon Mr Harding, being in particular a sentence of 18 months imprisonment. One of the cases relied upon is Joslin v The State of Western Australia.[24] However, that case provides little assistance for two reasons. First, the case involved the burglary of a construction site reasonably thought to be, and in fact, unoccupied, as the burglary took place over the weekend. By contrast, Mr Harding burgled a house which may or may not have been occupied. The cases clearly establish that, generally speaking, home burglaries are properly regarded as more serious than the burglary of commercial premises.

56 Second, Joslin involved an appeal against a sentence of 18 months imprisonment imposed by the sentencing judge. The only question before the Court of Appeal was whether the sentence was manifestly excessive. There was no cross-appeal by the State on the ground that the sentence was manifestly inadequate. Accordingly, the decision of the Court of Appeal establishes nothing more than the fact that the sentence imposed was not manifestly excessive.

57 However, to the extent that the sentence imposed in Joslin sheds any light upon the sentence imposed upon Mr Harding, it suggests that the sentence imposed upon Mr Harding was entirely appropriate, given the more serious circumstances of his offending behaviour.

58 During oral argument, counsel for Mr Harding referred also to the decision of this court in Pannetta v The State of Western Australia.[25] However, that case is also of little assistance. It involved an application for leave to appeal and an extension of time within which to appeal against a number of sentences imposed for a series of burglaries, giving rise to a total effective sentence of 7 years imprisonment, on the ground that the total effective sentence was manifestly excessive because it was disproportionate to the total criminality involved. There was no challenge to any of the individual sentences imposed for particular offences and accordingly, there was no occasion for this court to comment upon the appropriateness or otherwise of those sentences. The fact that the sentencing judge arrived at the total effective sentence of 7 years imprisonment by imposing individual sentences which appeared to demonstrate a pattern of 2 years imprisonment for aggravated burglary and 18 months imprisonment for burglaries not attended with circumstances of aggravation (with some exceptions) cannot be relied upon to support the proposition that such an approach is customarily taken, having regard to the range of sentences confirmed by this court in the various cases to which reference is made in Conley.

59 Reliance was also placed upon the decision of this court in Downey v The State of Western Australia,[26] in which leave to appeal was refused in respect of an appeal against a sentence of 18 months imprisonment imposed for the offence of aggravated home burglary. The State did not appeal on the ground that the sentence was manifestly inadequate. Accordingly, the only question which it was necessary for this court to address was whether there was any arguable prospect that the sentence of 18 months imprisonment was manifestly excessive. The fact that such a sentence was imposed at first instance falls well short of establishing any customary standard of sentencing practice which would reveal error in the circumstances of this case.

60 On behalf of Mr Harding, reliance was placed upon the decision in Tyler v The State of Western Australia.[27] In that case, a sentence of 18 months imprisonment was imposed for the burglary of a dwelling in the course of which property was stolen of significantly greater value than that stolen by Mr Harding. However, once again, the fact that such a sentence was imposed at first instance falls well short of establishing a customary standard of sentencing from which the sentence imposed upon Mr Harding departed, particularly in light of the increase in sentences imposed for home burglary in recent years to which I have already referred. The breadth of the possible range of sentences for home burglary, the lack of any defined standards in relation to such sentences, and the importance of the individual circumstances of each case, is well established by the various decisions of this court to which reference is made in Conley, and in particular, by the fact that in a number of those decisions, sentences for home burglary which are equal to or greater than the sentence imposed upon Mr Harding have been upheld.

61 For these reasons, even if I had concluded that the sentence under challenge was vitiated by material error, I would, nevertheless, have dismissed this appeal on the ground that no different sentence should have been imposed by this court, if called upon to exercise the sentencing discretion afresh.

62 For these reasons, the appeal against sentence should be dismissed.

63 MAZZA JA: I agree with Martin CJ that this appeal against sentence should be dismissed. My reasons for arriving at this conclusion are as follows.

64 The background to this appeal has been fully and accurately described by Martin CJ and does not to be repeated, except to the extent that is necessary to explain these reasons.

65 The appellant was charged on indictment with one offence. He pleaded guilty to that offence in the District Court before Davis DCJ on 29 August 2013. On 10 October 2013, he pleaded guilty before the same judge to 17 offences contained in a notice pursuant to s 32 of the Sentencing Act 1995 (WA). Later that day, her Honour sentenced the appellant in respect of both the indictable offence and all the offences on the s 32 notice. He received a total effective sentence of 6 years' imprisonment with eligibility for parole.

66 The appeal concerns only the sentence imposed for the indictable offence. In respect of this offence, the appellant was sentenced to 2 years which she reduced, for totality reasons, from 3 years' imprisonment.

On 29 March 2012 at Mount Lawley [the appellant], while in the place of Jenny Colleen McCloskey without her consent, committed the offence of stealing.

And that the place was ordinarily used for human habitation.

68 The sole ground of appeal alleges that the primary judge erroneously sentenced the appellant on the basis that he had committed an offence of aggravated burglary which carries a maximum penalty of 20 years' imprisonment when in fact the offence he committed was not committed in any circumstance of aggravation and carried a maximum penalty of 18 years' imprisonment. This is an allegation of express error. The respondent conceded that the primary judge made the alleged error. The concession was properly made.

69 The circumstances of aggravation which apply to offences of burglary are set out in s 400(1) of the Criminal Code (WA). None of these circumstances of aggravation were pleaded in the indictment. The maximum penalty of 20 years is reserved only for burglary offences committed in circumstances of aggravation. If the place burgled is ordinarily used for human habitation, but the offence is not committed in circumstances of aggravation, the maximum penalty is 18 years' imprisonment: s 401(2)(b) of the Criminal Code.

70 The ground having been made out, the question which now arises is whether the appeal should be allowed or dismissed.

71 Appeals are creatures of statute. The starting point is s 31 of the Criminal Appeals Act 2004 (WA), which relevantly provides:

(1) This section applies in the case of an appeal commenced by an offender under section 23, or by a prosecutor under section 24(1), against -

(a) the sentence imposed or any order made as a result of -

(i) a conviction on indictment; or

(ii) a conviction by a court of summary jurisdiction in respect of which the offender was committed for sentence;

(b) a refusal by a superior court to make an order that might be made as a result of such a conviction.

[(2) deleted]

(3) Unless under subsection (4) the Court of Appeal allows the appeal, it must dismiss the appeal.

(4) The Court of Appeal may allow the appeal if, in its opinion -

(a) in the case of an appeal referred to in subsection (1)(a), a different sentence should have been imposed; or

(b) in the case of an appeal referred to in subsection (1)(b), an order should have been made.

(5) If the Court of Appeal allows an appeal referred to in subsection (1)(a), it must set aside the sentence and -

(a) may instead impose a new sentence that is either more or less severe; or

(b) may send the charge back to the court that imposed the sentence to be dealt with further.

(6) If the Court of Appeal allows an appeal referred to in subsection (1)(b), it -

(a) may make any order that should have been made; or

(b) may send the charge back to the court that refused to make the order to be dealt with further.

72 As the statutory text makes clear, this court may only allow an appeal against sentence if it forms the opinion that a different sentence should have been imposed. This should not be understood as meaning that the court will intervene simply because it forms the view that, had it been sentencing the offender at the original hearing, it might have imposed a different sentence. To the contrary, this court's warrant to intervene only arises if the appellant demonstrates error in the exercise of the sentencing discretion. Even when error is demonstrated, the appeal can only be allowed if the court is satisfied that a different sentence should have been imposed: Wilson v The State of Western Australia [2010] WASCA 82 [2].

73 It is important to appreciate that not all errors made in the sentencing of an offender vitiate the exercise of the sentencing discretion and enliven this court's jurisdiction to intervene: Kentwell v The Queen [2014] HCA 37; (2014) 313 ALR 451 [42] (French CJ, Hayne, Bell & Keane JJ). The nature of the error which enlivens this court's jurisdiction to intervene was described by Dixon, Evatt and McTiernan JJ in House v The King [1936] HCA 40; (1936) 55 CLR 499, 504 - 505. The error must be in the exercise of the sentencing discretion at first instance. An express error which is not material to the exercise of the sentencing discretion, that is, one that did not affect or was incapable of affecting the sentence imposed, is not an error of the type described in House v The King and does not enliven this court's jurisdiction: see Fernandes v The State of Western Australia [2009] WASCA 227 [9] - [10] (McLure P, Owen & Wheeler JJA agreeing). Whether a particular express error is material will depend upon a consideration of the circumstances of the particular case, but it is as well to appreciate that combing through sentencing remarks on the hunt for some minor express error will be unproductive unless it can be shown to be material to the exercise of the sentencing discretion.

74 Once an express error of the type described in House v The King has been demonstrated, the appellate court does not assess whether and to what degree the error influenced the outcome. In such a case, the sentencing discretion has miscarried and it is the duty of the appellate court to exercise the discretion for itself afresh: Kentwell v The Queen [42]. In undertaking this task, this court will have regard to, so far as is relevant:

(b) any additional material put before this court; and

(c) the submissions made by the parties to this court.

75 If this court would have imposed a sentence which is different from the primary judge, then it will have decided that a different sentence should have been imposed, the appeal may be allowed and the appellant resentenced. If this court is of the view that no different sentence should be imposed, the appeal will be dismissed: Teakle v The State of Western Australia [2007] WASCA 15; (2007) 33 WAR 188 [73] (Buss JA).

76 Speaking generally, an error as to the maximum penalty will be a material error: see, for example, Armstrong v The State of Western Australia [2013] WASCA 290. However, having regard to the circumstances of this case, and for the reasons given by the Chief Justice, the error, in this instance, was not material and thus this court's jurisdiction to intervene has not been enlivened and the appeal must be dismissed.

77 If it was necessary for me to determine afresh the appropriate sentence, I would not have imposed a different sentence. My reasons for this conclusion are as follows.

78 This court has been provided with all the materials it needs to resentence the appellant. The parties made submissions as to the appropriate sentence.

79 The circumstances of the offence committed by the appellant and his antecedents are accurately described by the Chief Justice in his reasons at [3] - [23]. It is unnecessary for me to repeat what he has written.

80 This was undoubtedly a serious offence. With stealth and determination, the appellant entered the premises from a first floor balcony. He then systematically went through the house, stealing items of value. At the time he committed the offence he had been inadvertently released from custody. This situation is analogous to someone who is on bail.

81 Acknowledging the deprivations and tragedies that have beset the appellant's early life, his antecedents are unfavourable and provide little, if any, mitigation. He has an extensive record of prior relevant offending, which shows a disregard for the law. His record is such that personal deterrence and the protection of the public are important sentencing considerations.

82 The only mitigating factor of substance was the appellant's plea of guilty. The plea was entered early, although it was not a fast-track plea of guilty. In the circumstances, a discount of 20% pursuant to s 9AA of the Sentencing Act is appropriate.

83 The parties referred to a number of sentencing cases with respect to the offences of burglary and aggravated burglary. The Chief Justice has analysed them. As I explained in Spry v The State of Western Australia [2013] WASCA 68 [36], three things are clear from an examination of the cases. First, specific and general deterrence are the dominant sentencing considerations. Second, there is no tariff for burglary offences. Third, sentences for home burglary have firmed up over time.

84 Of course, in resentencing the appellant, it is necessary to have regard to the totality principle, bearing in mind the other sentences which have been imposed upon the appellant and which are not challenged in this appeal.

85 It is also necessary to take into account the maximum penalty for the offence is 18 years' imprisonment.

86 Having regard to all of these factors, a sentence of 2 years' imprisonment with eligibility for parole is the appropriate sentence in the present case. This is the same sentence as that imposed by Davis DCJ. As no different sentence should have been imposed, the appeal must be dismissed.

[3] Section 401(1)(b), Criminal Code (WA).

[4] [1936] HCA 40; (1936) 55 CLR 499.

[5] Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321.

[6] [1936] HCA 40; (1936) 55 CLR 499, 505.

[7] [2009] WASCA 227 [9] - [10].

[9] [2014] HCA 37; (2014) 313 ALR 451.

[10] Kentwell [42] (French CJ, Hayne, Bell & Keane JJ).

[11] Sentencing Act 1995 (WA), s 6(1), s 6(2).

[12] Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357 [30] - [31] (Gleeson CJ, Gummow, Hayne & Callinan JJ); see also R v Oliver (1980) 7 A Crim R 174, 177.

[13] Fernandes v The Queen [2009] WASCA 227.

[14] [2004] NSWCCA 96.

[15] [2013] WASCA 290.

[16] [2007] NSWCCA 138.

[18] [2007] NSWCCA 237.

[19] Criminal Appeals Act 2004 (WA), s 31(3), s 31(4); Armstrong v The State of Western Australia [2013] WASCA 290 [27] (Mazza JA, Newnes JA & Hall J concurring); Kentwell v The Queen [2014] HCA 37 [43].

[20] [2013] WASCA 95.

[21] Conley [29]; see also Butler v The State of Western Australia [2012] WASCA 249 [40].

[22] [2011] WASCA 229 [29].

[24] [2012] WASCA 177.

[25] [2013] WASCA 234.

[26] [2012] WASCA 55.

[27] [2005] WASCA 237.