Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA

Criminal law and procedure - Sentencing - Three counts of aggravated burglary - Appellant gained entry by deceiving occupiers - Offences did not involve force or violence - Purse and credit cards stolen - Sentence of 12 months immediate imprisonment - Whether offences of a less serious nature - Whether proper consideration of suspended sentence or intensive supervision order - Whether adequate weight given to mitigating factors including rehabilitation

Sentencing Act 1995 (WA), s 6(4), s 39(2), s 39(3), s 76(2)

Ashworth v The State of Western Australia [2006] WASCA 36

Chan (1989) 38 A Crim R 337

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

Heferen [1999] WASCA 81; (1999) 106 A Crim R 89

Herbert v The Queen [2003] WASCA 61; (2003) 27 WAR 330

Macri v The State of Western Australia [2005] WASCA 25

Newburn v The State of Western Australia [2004] WASCA 108

Nguyen v The Queen [1999] WASCA 54

Pezzino (1997) 92 A Crim R 135

Rogers (1989) 44 A Crim R 301

The State of Western Australia v Bruce [2004] WASCA 226

The State of Western Australia v Skaines [2006] WASCA 160

Urbano v The State of Western Australia [2006] WASCA 147

Ward [1999] WASCA 157; (1999) 109 A Crim R 159

Woodley (1994) 76 A Crim R 302

Casbolt v The State of Western Australia [2005] WASCA 41

Duncan (1983) 9 A Crim R 354

Duong v Western Australia [2006] WASCA 110; (2006) 32 WAR 246

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

Lowndes v The Queen [1999] HCA 29; (1999) 195 CLR 665

R v Bell [1982] Qd R 216

R v King [2000] WASCA 130

R v Millar [2001] WASCA 54

2 McLURE JA: This is an appeal against sentence. On 2 August 2006 the appellant pleaded guilty to three counts of aggravated burglary. On 1 September 2006, she was sentenced to 12 months' imprisonment on each count to be served concurrently and backdated to commence on 28 July 2006. The appellant was made eligible for parole, making her earliest release date 28 January 2007.

3 The relevant facts were not in dispute. In relation to count 1, the offender and another entered into an agreement to attend a dwelling where they would trick the occupant into letting them into the premises to use the telephone. After gaining entry, both the appellant and the offender intended to steal money from the complainant. At 9.45 pm on 25 July 2003 the appellant and her co-offender attended the complainant's premises. The complainant was 59 years old. The appellant approached the complainant and asked to use the complainant's telephone, stating that someone was trying to break into her premises down the road. The complainant, believing the appellant's story, let her and her co-offender into her premises to use the telephone. Whilst the complainant was elsewhere in the unit the appellant located the complainant's handbag and removed the complainant's purse which contained assorted cards and $200 in cash. The appellant and her co-offender then left the premises. They later spent the complainant's money and discarded her purse.

4 In relation to count 2, the appellant and others entered into an agreement to attend a dwelling in order to trick the occupant into letting the appellant into the premises to use the telephone. After gaining entry, the appellant intended to steal money from the complainant. In the afternoon of Thursday 30 December 2004 the appellant and the other offenders drove to the complainant's premises. The complainant was aged 73. The offender approached the complainant and asked to use the complainant's telephone as her car had broken down around the corner. The complainant, believing the appellant's story, let the appellant into the premises to use the telephone. While the appellant pretended to use the telephone, the complainant moved to another part of the premises. Once the complainant was out of the room, the offender stole the complainant's purse containing assorted cards and $70 cash. The appellant then left the premises and returned to the vehicle where the other offenders were waiting. They all shared in the stolen money and discarded the complainant's purse.

5 The facts of count 3 are substantially similar to the facts of count 2. The offence also occurred on 30 December 2004; it was premeditated and planned with others; the appellant tricked the complainant (also aged 73) into giving access to her premises. The offender stole the complainant's purse containing assorted cards and $300 cash.

6 After extensive investigation by police involving the search for fingerprints, the police interviewed the appellant on 31 January 2005 when she made admissions as to the offences. After obtaining a court ruling that the facts gave rise to the offence of aggravated burglary, the appellant pleaded guilty to the offences on 2 August 2006.

7 There is only one ground of appeal. The appellant contends that each sentence of 12 months' imprisonment is manifestly excessive it being said the sentencing Judge should have imposed an intensive supervision order or a term of suspended imprisonment or both. In essence, the appellant's claim is that each sentence was manifestly excessive having regard to the appellant's plea of guilty, her remorse, antecedents and her circumstances at the time of sentencing, a favourable pre-sentence report and the circumstances and date of the offences.

8 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 is only entitled to intervene if a material error of fact or law is discerned in the sentencing Judge's reasons or if error can be inferred because the sentence is manifestly excessive.

9 To determine whether a sentence is manifestly excessive, it is necessary to consider it in the context of the maximum sentence prescribed by law for the crime, the standards of sentencing customarily observed with respect to the crime, the place which the criminal conduct occupies on a scale of seriousness of crimes of that type and the personal circumstances of the offender: Chan (1989) 38 A Crim R 337 at 342.

10 The statutory maximum penalty for aggravated burglary is imprisonment for 20 years (s 401(2) of the Criminal Code (WA)). The learned sentencing Judge correctly described the circumstances of the offending as serious. They were pre-meditated, involved pre-planning with co-offenders and the deception of people who are entitled to feel secure in their own homes, two of whom were elderly.

11 As to her personal circumstances and antecedents, the appellant was born on 27 December 1974. She was aged 31 at the time of sentencing. At the time of the offending the appellant was using illicit drugs and said she committed the offences to buy drugs. She had what the sentencing Judge described as an extremely deprived childhood. Her mother was an alcoholic. She had little contact with her father and was cared for by extended family members. At the beginning of year 8 she was taken away, sexually abused and virtually imprisoned by the man who became her husband. He is 20 years her senior. The appellant and her husband have had 10 children who, at the time of sentencing, were aged between 16 months and 16 years. As and from November 2000 all the appellant's children have been placed in the care of the Department for Community Development ("Department"). They were removed by the Department because of their parents' alcohol abuse and ongoing domestic violence within the relationship. A progress report from the Department was before the sentencing Judge. The report disclosed that since 2005 the appellant had attended every contact visit with her children, completed urine analysis and remained drug and alcohol-free and engaged with parenting programmes and domestic violence counselling. The Department was working towards reunification of the appellant with eight of her children. The pre-sentence report referred to these matters and said that the appellant was considered to be a suitable candidate for a community-based sanction.

12 The appellant has a prior record of dishonesty offences. In July 1996 she was convicted of two counts of burglary; in December 1999 she was convicted of three counts of stealing; in February 2006 she was convicted of a further three counts of stealing (the offences having been committed in September 2002 and April and September 2004) and a breach of bail. Consistent with the principle that imprisonment is the sentence of last resort, the appellant had not received a custodial sentence for any of her prior offences. She had received two community-based orders, her compliance with which is described in the pre-sentence report as extremely poor.

13 The same general sentencing principles apply to all adult members of the community: Woodley (1994) 76 A Crim R 302; Rogers (1989) 44 A Crim R 301 at 307. However, the principle of equality before the law does not prevent the Court from taking into account relevant cultural, ethnic and socio-economic factors in the exercise of the sentencing discretion. The appellant's deprived and abused childhood is a relevant factor that affects the level of her moral culpability for the offending. Experience demonstrates that there is a clear correlation between underlying factors of deprivation and abuse in a person's formative years (over which they have no control and for which they bear no

responsibility) and their rates of offending and thus imprisonment as adults.

14 The final factor is the standards of sentencing customarily imposed for offences of this type. The range of sentences imposed for burglary offences have firmed up in recognition of the fact that the prevalence of the offence caused considerable community concern. The courts regard home burglaries as serious offences: Ward [1999] WASCA 157; (1999) 109 A Crim R 159; Heferen [1999] WASCA 81; (1999) 106 A Crim R 89; Herbert v The Queen [2003] WASCA 61; (2003) 27 WAR 330 at [130] - [133]. What these cases reveal is that ordinarily the offence of aggravated burglary attracts a term of immediate imprisonment. As with all serious offences, examples can be found where a non-custodial sentence is imposed. However, that is irrelevant to the question before the Court which is whether, in the particular circumstances of this case, the penalty of immediate imprisonment was outside the range of a sound sentencing discretion.

15 In mitigation is the appellant's admissions to police, her plea of guilty, her demonstrated remorse, her deprived and abused background and the steps she had taken towards rehabilitation between the time of her admission of the offences and her sentencing. These factors are reflected in the relatively short term of imprisonment imposed by the sentencing Judge. The fact that the appellant's children have been in the Department's care for a considerable time means the appellant's imprisonment will be less disruptive and detrimental than if she was their primary carer. Imprisonment often causes hardship to innocent persons and it is only in exceptional circumstances that it has the effect of substantially mitigating the sentence: The State of Western Australia v Skaines [2006] WASCA 160. This case is not in the exceptional category. Although the circumstances of the offending were not in the worst category, the seriousness of the offences is aggravated by the fact that each offence was pre-meditated and planned with others, that the appellant gained entry into people's homes by trickery thereby abusing the trust of the victims two of whom were elderly and that the three offences occurred over an extended period. Further, the offences were not isolated but part of a continuing course of dishonesty offences commencing in 1996. Having regard to all relevant sentencing considerations, it cannot be said that it was not open to the sentencing Judge to impose a term of immediate imprisonment. Accordingly, the appeal must be dismissed.

16 PULLIN JA: This is an appeal against three sentences of 12 months' immediate imprisonment, imposed by O'Sullivan DCJ on 1 September 2006.

17 The appellant pleaded guilty in the District Court to three counts of aggravated burglary. O'Sullivan DCJ imposed a term of 12 months' imprisonment on each count, and ordered that the three terms be served concurrently. The sentence was backdated to 28 July 2006, and the appellant was made eligible for parole. The appellant's earliest release date is therefore 28 January 2007.

18 Each of the three offences was carried out in a similar manner. On each occasion, the appellant and others approached a house when the occupier was at home. The appellant knocked on the door and gained entry by asking to use the telephone, pretending that there was an emergency. After being let inside the house, the appellant waited until the complainant was out of the room. The appellant then stole the complainant's purse out of a handbag, along with credit cards and personal documents. The complainant in first offence was 59 years old. The complainants in both the second and third offence were 73 years old.

19 The sentencing Judge had before him a pre-sentence report which described the appellant's personal circumstances. His Honour accepted that the appellant had had an extremely deprived childhood. The appellant's mother was an alcoholic, and the appellant had limited contact with her parents. She was initially placed with a grandmother, and later with extended family members when her grandmother was unable to care for her. The nature of these placements was transient and the appellant was often required to move.

20 At the beginning of year 8, the appellant had been taken away by her husband who was some 20 years older and virtually imprisoned. The sentencing Judge noted that the appellant had suffered sexual abuse by her husband, and soon became pregnant. The appellant's husband was in and out of gaol over the years, however their relationship continued, and the appellant had 10 children by him. At the time of sentencing, the appellant's children were aged between 16 years and 16 months.

21 The sentencing Judge discussed the appellant's record of offending, which comprised traffic offences, offences of dishonesty, stealing, and an offence of burglary in 1996. His Honour also noted that the appellant had a history of drug abuse, and the offending in question was undertaken to feed her amphetamine habit. However, the results of urinalysis supported the submission that the appellant had addressed her habit. The sentencing Judge accepted that this was a matter in the appellant's favour.

22 None of the appellant's children were in her care at the time of sentencing. However, the sentencing Judge referred to a report from the Department of Community Development which outlined the appellant's progress towards reunification with her children. The report recommended a non-custodial disposition.

23 Despite the "significant matters" going to mitigation, the sentencing Judge was ultimately of the view that the offences were too serious to warrant anything other than a sentence of immediate imprisonment. His Honour concluded that such a result was dictated both by considerations of seriousness and the need to impose sentences which have a deterrent effect.

"1. The sentence imposed was manifestly excessive in that his Honour:

(a) erred in not imposing an intensive supervision order or suspended imprisonment or both;

(b) did not give sufficient weight to the following mitigating factors:

(i) the appellant's plea of guilty and remorse;

(ii) the circumstances and dates of the offences;

(iii) the appellant's antecedents, including that she had not previously been sentenced to imprisonment;

(iv) the appellant's present circumstances including her present drug free status, the recent achievement of stable accommodation and the efforts the appellant has made towards reunification with her ten children; and

(v) the appellant's favourable pre-sentence report."

25 I will deal first with ground 1(a). The ground alleges that the sentence was manifestly excessive in that the sentencing Judge imposed a term of immediate imprisonment rather than an intensive supervision order or suspended imprisonment or a combination of both.

26 In Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321 at [6], Gleeson CJ and Hayne J said that manifest inadequacy of sentence, like manifest excess, is a conclusion. A sentence is, or is not, unreasonable or plainly unjust; inadequacy or excess is, or is not, plainly apparent. It is a conclusion which does not depend upon attribution of identified specific error in the reasoning of the sentencing Judge and which frequently does not admit of amplification except by stating the respect in which the sentence is inadequate or excessive. See also Kirby J at [59] - [60]. See also Urbano v The State of Western Australia [2006] WASCA 147 per McLure JA (at [11]).

27 However, as Wheeler JA said in Macri v The State of Western Australia [2005] WASCA 25 at [7], there are a number of ways in which the Court of Appeal may be assisted in understanding the basis for the contention that a sentence is manifestly excessive. Thus it may be asserted that the wrong type of sentence entirely has been imposed, for example by imposing a custodial rather than a non-custodial sentence. Sometimes a sentence is the appropriate type of sentence but it is alleged that the sentence falls outside the range of sentences usually imposed.

28 Ground 1(a) alleges that the wrong type of sentence was imposed. The submission is that there should have been a suspended sentence, an ISO or a combination of both.

29 The maximum sentence for the crime of aggravated burglary was increased to 20 years in 1996. In 1997 the Court indicated the need for "firming up" of sentences for burglary. See Pezzino (1997) 92 A Crim R 135. See also Herbert v The Queen [2003] WASCA 61; (2003) 27 WAR 330 and Ashworth v The State of Western Australia [2006] WASCA 36. It must be noted however, that the transitional provisions introduced into the Sentencing Act 1995 in 2003 had the effect of reducing the maximum sentence by one-third to 13.3 years.

30 This type of offence is one where the circumstances can vary enormously. Very large amounts of money may be stolen in the course of a burglary offence, in some cases the entry may be gained by extreme violence and victims may be very badly traumatised by the offence. Victims may be traumatised and affected by fear caused by lack of knowledge about the identity of the intruders and what other motives they may have had at the time the burglary occurred. Victims may worry about the possibility that the intruders may return and commit some other imagined offence at some time in the future. The offences here did not involve violent entry, the sums stolen were relatively small and the victims saw the offender and in fact allowed her into their houses. As a result of the wide range of circumstances which are involved in burglary offences, sentences range from substantial sentences of immediate imprisonment, down to and including, non-custodial sentences. The cases of Newburn v The State of Western Australia [2004] WASCA 108 and Nguyen v The Queen [1999] WASCA 54 provide examples of cases where the circumstances related were more serious than the circumstances in this case and where sentences of immediate imprisonment were not imposed. In Newburn, the applicant stole property and food items to the value of $1915 from a fish and chip shop. He also engaged in gratuitous vandalism of the premises, by turning on the water taps, flooding the shop floor, and turning on the deep fryers and throwing food into them. The applicant received a term of 12 months imprisonment for the aggravated burglary, and 12 months imprisonment cumulative upon the first term, for previous convictions in respect of which he had been serving a community based order. He appealed his sentence on the basis of lack of parity with a co-offender (who received a community based order). The Court (EM Heenan and Templeman JJ, Wheeler J dissenting) allowed the appeal, holding that the applicant's terms of imprisonment should each be suspended for 18 months.

31 In the case of Nguyen (supra), three co-offenders stole property to the value of $5000. The second applicant and a third co-offender gained entry to the house by breaking a window. The first applicant waited outside the premises as a look-out. Each of the three offenders received a term of 21/2 years' imprisonment, however the first applicant's term was suspended. On appeal, the second applicant's sentence was affirmed, but the first applicant's was reduced to 18 months, suspended for 18 months. There was evidence that all three offenders were heroin users. The second applicant had a more serious record than the first applicant's, which comprised only traffic offences and one prior conviction for possession of heroin.

32 Although the facts of Newburn and Nguyen are different to those of the present case, they are examples of cases which warranted sentences at the lower end of the range of appropriate sentences for aggravated burglary.

33 The appellant in this case gained entry to the complainants' homes under a false pretext, rather than by means of force or damage to the premises. There was no suggestion of aggression or violence towards the complainants. The manner in which the offences were committed were likely to instil a lesser sense of violation than a burglary carried out when householders were absent or sleeping. Although aggravated burglaries are serious offences, the circumstances of the appellant's offending in these cases would place them at the lowest end of the spectrum for aggravated burglaries. In my view, these offences were clearly less serious than cases such as Newburn and Nguyen. The appellant's entry was not by way of a "break in", and the amount and value of property stolen was minimal.

34 The sentencing Judge referred to the fact that the appellant has never had the benefit of any significant education, has been a victim of abuse herself, and in effect, had little by way of a childhood. The pre-sentence report disclosed that due the appellant's extremely transient upbringing, she never really developed close relationships with family members, apart from her grandmother. She reported that she gave birth to her first child at the age of 13 years. She was beaten and raped during her teenage years by her husband. However, the appellant reported that their relationship was currently "good". The pre-sentence report also noted that the appellant's husband was currently engaged in programmatic intervention to address domestic violence in their relationship.

35 The appellant had commenced using drugs in 2003, shortly after her grandmother passed away. The sentencing Judge noted that the appellant developed an amphetamine habit, and undertook this offending to feed that habit. The pre-sentence report stated that the appellant had overcome her addiction without professional help by moving to her auntie's residence, and had remained drug free since February 2005. The sentencing Judge noted that the results of urinalysis supported the assertion that the appellant had dealt with her amphetamine habit.

36 In my opinion, the sentence imposed, being a sentence of immediate imprisonment, was disproportionate to the seriousness of the offences. It was also manifestly excessive given the mitigating factors which were present, in particular the substantial rehabilitation which the appellant has demonstrated since committing these offences. I would uphold ground 1(a). There are far too many Aboriginal people in gaol and this Aboriginal woman should not have been sentenced to immediate imprisonment. This is not a factor I am permitted to take into account (and do not take into account) in reaching my decision. See Woodley (1994) 76 A Crim R 302. It is an observation which follows from the fact that I would uphold the appeal and dispose of it as I do later in these reasons.

37 I would dismiss ground 1(b). All of the listed factors were taken into account by the sentencing Judge.

38 Some additional material relevant to re-sentencing was tendered to this Court. A letter dated 1 November 2006 from the Department of Community Development states:

"Since 2005 Mrs Moody-Jackamarra has attended every contact visit with her children, completed urine analysis and remained drug/alcohol free, engaged with parenting programs, domestic violence counselling, engaged with the Department for Community Development."

39 The letter states that the appellant's contact with her children had increased prior to her imprisonment, and that she has progressed so much that reunification will recommence upon her release. It states that the older children need to be returned to the appellant's care as they are misbehaving because they are not in the care of their parents. The letter recommends that the appellant be released early as it is in the best interests of her children.

40 A letter dated 24 November 2006 from a clinical psychologist was also tendered. The psychologist assessed the appellant and her husband with regard to the prospect of three of their children returning to their care. The psychologist indicates that her assessment suggests that with an appropriate level of consistent and on-going support from the Department of Community Development, the appellant is capable of providing full time care for these children. She also states that it is clear that the children strongly wish to return to their parents' care and that this will best meet their needs.

41 The general principle is that a sentencing Court should have no regard to the impact which a sentence of imprisonment will have upon members of the prisoner's family, although this is not an absolute principle and may be departed from in exceptional cases: see The State of Western Australia v Skaines [2006] WASCA 160 per Roberts-Smith JA at [43]; The State of Western Australia v Bruce [2004] WASCA 226 per Murray ACJ at [34]. In my opinion, there are no exceptional circumstances here because the children are presently in care.

42 The appellant does not have a serious record, and has not previously been sentenced to imprisonment. There were three convictions for stealing recorded in early 2006, but these offences were committed in the period when the offences the subject of this appeal were committed. She has expressed remorse for her offending, which was also reflected in her plea of guilty. She has successfully dealt with her drug addiction, and has also made considerable progress towards her goal of regaining full time care of her children. In light of her extremely deprived childhood and the sexual abuse and domestic violence she suffered from early adolescence, these efforts are particularly significant.

43 I would allow the appeal and re-sentence the appellant to a 6 month intensive supervision order with a programme requirement in relation to count 1 and to 6 months' imprisonment on counts 2 and 3 to be suspended for a period of 6 months. All sentences should be served concurrently.

• Sentencing Remarks
• Ground of Appeal