Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA

Criminal law - Sentencing - Aggravated burglary - Assault - Vigilante action - Whether sentence of 4 years 6 months' imprisonment manifestly excessive

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

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

Buxton v The State of Western Australia [2009] WASCA 6

Chan v The Queen (1989) 38 A Crim R 337

Cheung v The Queen [2001] HCA 67; (2001) 209 CLR 1

Drake v The State of Western Australia [2006] WASCA 209

Fullgrabe v The State of Western Australia [2013] WASCA 130

Harrison v The State of Western Australia [2009] WASCA 58

Henderson v The State of Western Australia [2007] WASCA 198

Hibbs v The Queen [2002] WASCA 204

Miller v The State of Western Australia [2013] WASCA 84

Mippy v The State of Western Australia [2012] WASCA 254

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

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

Newburn v The Queen [2004] WASCA 108

Nguyen v The State of Western Australia [2007] WASCA 114

Prempeh v The State of Western Australia [2013] WASCA 150

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

The State of Western Australia v JWRL (a child) [2010] WASCA 179

The State of Western Australia v Sabek [2005] WASCA 207

Topic v The State of Western Australia [2013] WASCA 157

Woodley v The State of Western Australia [2008] WASCA 92

Wragg v The State of Western Australia [2013] WASCA 117

3 HALL J: On 3 October 2012, the appellant was sentenced to 4 years 6 months' imprisonment with eligibility for parole on one count of aggravated burglary, contrary to s 401(2) of the Criminal Code (WA). That sentence was imposed following a trial. The appellant has been refused leave to appeal against his conviction: Wragg v The State of Western Australia [2013] WASCA 117. He now appeals against his sentence.

4 On the evening of 22 September 2011, KD, who was 16 years old at the time, and his friend, RM, who was 17 years old at the time, were driving in RM's car. They were engaged in what was referred to as 'egging'. This involved throwing eggs at houses and cars.

5 At around the same time, a friend of the appellant named Rebel Moore was attempting to change a flat tyre on a car parked by the side of the road. Mr Moore claimed that a bottle was thrown from a passing car which bounced off his car and hit him on the head. The trial judge was unable to determine whether Mr Moore had been hit by a bottle or an egg. In any event, the appellant arrived at the scene in his black Holden Commodore a short time later intending to assist with the flat tyre and noticed that Mr Moore had a slight abrasion to his head.

6 Another car, a black Nissan Skyline, also arrived at the scene at around the same time. The occupants of that car told the appellant that they knew where the person who had thrown an item at Mr Moore lived and invited the appellant to follow them.

7 KD and RM had by this time returned to KD's house in Kardinya. KD lived at the house with his mother and brothers. The brothers were aged 22 and 11 years old. On arrival, KD noticed a dark coloured car follow them and that something was yelled from that car before it drove off. The inference was that this car was the black Nissan Skyline. KD told his mother about being followed home by a car but did not mention the egging.

8 The appellant and Mr Moore travelled together in the appellant's car and followed the black Nissan Skyline to KD's residence. The purpose

was to confront the occupants of the house about the throwing incident. They arrived at KD's house at about 10.30 pm and the appellant parked his car in the driveway. The other car was parked on the verge. The appellant got out of his car and approached the front of the house. Mr Moore remained in the appellant's car. The three occupants of the other car also approached the front of the house.

9 KD's mother, Mrs D, heard the noise of the cars and screamed out to KD's older brother that the car had returned. She and the older brother then stood in the entry facing the front door. KD and his younger brother were behind them.

10 A masked intruder kicked open the front door. He then punched Mrs D to the side of the head as she turned to look for her youngest son. The punch knocked her to the floor. Upon seeing what happened to his mother, the older brother used a curtain rod to repeatedly hit the masked intruder about the head and force him back out the front door. KD followed them out.

11 The masked intruder then retreated away from the older brother along the porch towards the driveway. Mrs D came outside to see what had happened to her two older sons and the house then came under attack by others throwing bottles and a pot plant.

12 The older brother ushered his mother and KD back inside the house. As the older brother was trying to close the broken front door, he heard the front window smashing. He went outside two to five seconds later and saw the masked intruder punch the front windows as he again retreated along the porch towards the driveway.

13 The masked intruder then got into the driver's side of the appellant's car and made a pointing gun gesture. The car was then reversed out of the driveway and both it and the Nissan Skyline drove off.

14 The trial judge said that it was unnecessary for the purpose of sentence to determine whether the appellant was the masked intruder because the assault on Mrs D was part of the joint criminal enterprise in which the appellant was knowingly engaged. His Honour said that on the appellant's own evidence he went to the house in the company of others in order to confront the occupants. This had included yelling out to the occupants and banging on the front window causing it to break. The appellant had conceded that in doing so he had cut his wrist. However, he denied entering the house and punching Mrs D.

15 His Honour said that in the circumstances the appellant's culpability was the same whether he was the masked intruder or merely another party to the home invasion. He said that this was an offence committed for the purpose of retribution. It was vigilante type behaviour in respect of which violence was a reasonably foreseeable consequence. He said that the offence was not opportunistic and had an element of premeditation. However, his Honour said that there was in fact strong and compelling evidence from which it could be inferred that the appellant was the masked intruder. I will refer to this evidence in more detail in respect of ground 2.

16 His Honour noted that there were several aggravating features about the offending. First, the appellant was on bail at the time for offences of assault occasioning bodily harm, possession of drugs, possession of an article with intent to injure and driving without a valid motor driver's licence. Secondly, the appellant committed the offence knowing that there were persons in the house. Thirdly, the offence was committed in company; there were at least four and possibly five people in total. Fourthly, at least one of those men was wearing a mask.

17 His Honour found that the intention was to confront and intimidate the occupants of the house. Violence was inevitable in circumstances where there was a forcible entry into the home at night. The fact that weapons in the form of bottles and a flower pot were used was also an aggravating factor. His Honour also referred to the vulnerability of the victim, Mrs D, a woman in her own home.

18 Victim impact statements were received from Mrs D and the older brother. Mrs D referred to the frightening nature of the experience and that, fearful of a recurrence, she has had sleepless nights and panic attacks since that time. As a result of being punched, Mrs D fell and injured her knee. She referred to going through a lot of pain while waiting for surgery. Mrs D said that the younger brother had subsequently suffered from nightmares.

19 As to the appellant's personal circumstances, he was 26 years of age at the time he came to be sentenced and living in a de facto relationship. He had completed Year 12 at school and had various trade qualifications. He had been employed in scaffolding prior to being remanded in custody.

20 His Honour noted that the appellant had a history of substance abuse and had found it difficult to regulate his emotions when intoxicated. He had completed a 10-session drug and alcohol programme whilst on remand and also a cognitive skills programme. It was accepted that he was taking positive steps towards his own rehabilitation.

21 His Honour noted that the appellant had committed other offences of common assault and assault occasioning bodily harm and this tended to indicate a propensity for violence. It was suggested that the two prior assault convictions had been fuelled by alcohol, but that did not explain the present offence as there was no suggestion that the appellant was intoxicated on the night in question.

22 The appellant had also been charged with an offence of criminal damage in relation to the broken window. He pleaded guilty to that charge on the first day of the trial. The evidence against the appellant in regard to the broken window was overwhelming bearing in mind that blood was found containing DNA that was a match to that of the appellant.

23 Although the appellant pleaded not guilty in respect of the aggravated burglary, his Honour accepted that he had shown remorse. This was expressed in letters that were written to the court and to Mrs D. The expressions of remorse were offset to some extent by the fact that the appellant continued to maintain that his only real involvement was to break the window.

24 His Honour said that this was a particularly serious case of home invasion because the offence was committed at night in the home of the victim. He said that there was obvious premeditation in that the appellant's car and the other car had travelled by convoy for 10 to 15 minutes to locate the house of KD. Although they had got lost at times, they had persisted and managed to find the house. The intention was to confront the occupants and there were at least four and possibly five people present, although Mr Moore remained in the car throughout. His Honour described the punching of Mrs D in front of her children as a cowardly and callous attack.

25 His Honour said that there was a need for specific and general deterrence for offences of this type. He said that what was described as 'run throughs' caused considerable community concern. He noted that a threat to return was made and there was a motion to shoot made by the masked intruder.

26 His Honour considered that the criminal damage was part of the home invasion and was to be taken into account in respect of the aggravated burglary sentence. For that reason, a conviction was recorded on the damage charge but no separate sentence was imposed for that offence.

27 Ground 1 is that the sentence imposed for the offence of aggravated burglary was, in all the circumstances, manifestly excessive. Ground 2 asserts that it was not open to the trial judge to be satisfied beyond reasonable doubt that the appellant was the principal offender who struck Mrs D. It is submitted that the trial judge should have sentenced the appellant as an aider and abetter and, as such, his criminality should have been seen as less than that of the principal offender and attracted a lesser sentence.

28 Leave to appeal has been granted by Mazza JA on ground 1. The application for leave to appeal on ground 2 was referred to the hearing of the appeal.

29 I will deal with ground 2 first as it challenges the factual basis upon which the appellant was sentenced.

Ground 2 - Was there an error in assessing the appellant's level of culpability?

30 The trial judge expressed the view that whether or not the appellant was the masked intruder, he bore criminal responsibility for what had occurred because it was a reasonably foreseeable consequence of the joint offending in which the appellant was admittedly a part. Nonetheless, his Honour concluded that the appellant was in fact the masked intruder. The appellant submits that this finding was not open and that the appellant's culpability as an aider and abetter was significantly less than it would have been as the principal.

31 His Honour referred to nine pieces of evidence as justifying the conclusion that the appellant was the masked intruder. First, the appellant's admission that it was he that broke the front window. Secondly, the appellant's admission that he wanted the occupants to come out so that he could confront them about the earlier throwing incident concerning Mr Moore. Thirdly, the description of the masked intruder given by Mrs D, KD and the older brother, when compared with evidence of the appellant's appearance at the time of his apprehension and at the time of trial. Fourthly, the evidence of the older brother that he focused on the masked intruder after the intruder had hit his mother. Fifthly, the evidence that the masked intruder punched the front window and broke it as he retreated along the porch towards the driveway before he got into the driver's side of the appellant's car, which was parked in the driveway. Sixthly, the appellant's evidence and that of Mr Moore that the appellant had driven his car to the house and parked it in the driveway. Seventhly, the evidence of the appellant and Mr Moore that the appellant drove his car away from the house. Eighthly, the appellant's evidence that he cut his wrist after breaking the main front window and that it was bleeding. Ninthly, the appellant's admission that his blood and DNA were found on the front right window sill of the broken front window and at the top of the driveway.

32 The appellant submits that the State's case at trial was that whether or not the appellant was the masked intruder, he was nevertheless a party to the home invasion and his act of criminal damage in breaking the front window was part of the criminal enterprise. In fact, in opening, the State prosecutor said that the State case was that the appellant 'was the male that broke the windows and intruded' (ts 57). However, even if he was not the intruder and had merely broken the window, the State said that he would nonetheless be guilty on the basis of aiding and abetting.

33 The jury's verdict did not distinguish upon which basis the appellant was convicted. The fact that during their deliberations the jury asked a question about aiding and abetting does not necessarily imply that this was the basis for their conclusion as to guilt. This was a matter that was open to be the subject of findings by the trial judge.

34 The principles applicable to determining facts for sentencing after a trial are well-settled. It is for the trial judge to determine the facts relevant to sentencing. The facts found by a judge must be consistent with the verdict of the jury. There is no general requirement that an offender must be sentenced on the facts most favourable to the offender. However, where findings of fact are made against an offender, the judge must be satisfied of those facts beyond reasonable doubt: Cheung v The Queen [2001] HCA 67; (2001) 209 CLR 1 [14]. See also The State of Western Australia v JWRL (a child) [2010] WASCA 179 [9] - [10].

35 In this case, it was open to the trial judge to make a finding in regards to whether the appellant was the masked intruder. His Honour's finding in that regard was made to the appropriate standard and was amply supported by the evidence. There was clear evidence from both KD and the older brother that the man who they saw punching the front windows was the same man who had been the intruder. In particular, they gave evidence that the man punching the windows was wearing a mask, and was the only man on the porch when they went out a few seconds after that man had been driven out. The fact the same man then drove off in the appellant's car was also significant.

36 His Honour did not err in finding that the appellant was the masked intruder. Ground 2 has no merit and leave to appeal in respect of it should be refused.

Ground 1 - Was the sentence manifestly excessive?

37 A sentence is manifestly excessive if it is unreasonable or plainly unjust. To determine whether a sentence is manifestly excessive, it is necessary to view it in the perspective of the maximum sentence prescribed by law for the offence, the standards of sentencing customarily observed with respect to that offence, the place which the criminal conduct occupies in the scale of seriousness of offences of that type and the personal circumstances of the offender: Chan v The Queen (1989) 38 A Crim R 337, 342.

38 The maximum penalty for an offence of aggravated burglary is 20 years' imprisonment. In this case, the circumstance of aggravation that was alleged was that the appellant knew or ought to have known that there was another person in the place where the offence was committed. It was also alleged that that place was ordinarily used for human habitation.

39 There were a number of factors which placed this offending into a particularly serious class. The offence was committed at night, involved some level of planning, was committed against a mother and her children in their home, was committed with others, a mask was worn, there was violence in the form of breaking windows, throwing of bottles and pots and the assault of Mrs D and that assault occurred in front of her children.

40 This was an attack intended to terrorise the occupants of residential premises in their own home. The implication that this was vigilante action does nothing to mitigate the offence. There is no suggestion that the appellant was the victim of any egging. The person who might have borne some grievance in that regard, Mr Moore, remained in the appellant's car throughout. In any event there was no justification for the appellant behaving as he did. Deterrence, both general and particular, must be an important consideration in respect of vigilante action.

41 The fact that the offence was committed whilst the appellant was on bail for other offences of violence was also a particularly aggravating factor. This revealed a blatant disregard for the law and underscored the need for personal deterrence.

42 The appellant's personal circumstances provided little by way of mitigation. At the time of the offending he was 26 years old and any suggestion that he should receive a lenient sentence on account of youth could not be sustained. His Honour accepted that the appellant had shown some remorse, albeit belatedly.

43 At the hearing of this appeal there was a question as to the accuracy of the appellant's criminal record. The respondent subsequently provided an amended record. The amendments were to remove a conviction for possession of methylamphetamine on 18 October 2011 because that charge had in fact been dismissed and to change the date of conviction on two other charges, namely charges for possessing a prohibited weapon and possessing an article with intent to injure contrary to the Weapons Act 1999 (WA), from 18 October 2011 to 19 February 2013. The date change was due to a successful appeal and subsequent convictions on a re-trial. That did not affect the date on which those offences occurred, being 13 September 2011. Accordingly, at the time the appellant committed the present offence he had very recently committed the Weapons Act charges and had also committed offences of common assault in 2009 and assault occasioning bodily harm on 14 May 2011. Notwithstanding the errors in the record the characterisation of the appellant as a person who had shown a propensity for violence was correct.

44 As to the standards of sentencing customarily observed, the circumstances of burglary offences can vary widely and attract a wide range of sentences. Home burglaries are viewed as being particularly serious offences: Moody-Jackamarra v The State of Western Australia [2007] WASCA 7. Such offences are generally seen as requiring substantial penalties in order to recognise considerations of personal and general deterrence, and reflect the prevalence of the offence: Drake v The State of Western Australia [2006] WASCA 209 [60] and Butler v The State of Western Australia [2012] WASCA 249 [40]. A home invasion which is committed with intent to intimidate the occupants is more serious than a burglary which involves simply an intent to steal: The State of Western Australia v Sabek [2005] WASCA 207 [50].

45 The appellant referred to a number of cases to illustrate sentences customarily imposed for offences of this nature. That review was incomplete and failed to refer to many recent cases. Many of the cases referred to by the appellant were not meaningfully comparable to the present case. They differed as to the facts and seriousness of the circumstances. The appellant also referred to some older cases without regard for the fact that sentences for offences of this type have firmed up in more recent years.

46 In Hibbs v The Queen [2002] WASCA 204, the appellant and a group of co-offenders drove to the victim's house with intent to settle a score. The co-offenders were armed with baseball bats and metal bars. The appellant's role was to provide the transport. On arrival the co-offenders forced their way into the house and beat one of the occupants causing serious injuries. The appellant had been unaware that the co-offenders had weapons before arriving at the house. He remained in the car but became worried at the violence being used and drove away without waiting for the co-offenders to return. The appellant was sentenced to 2 years' imprisonment for aggravated burglary and 1 year cumulative for assault occasioning bodily harm. The appellant pleaded guilty and was assessed as having a lower level of culpability than the co-offenders. The sentences were described as lenient [20], but the appeal was allowed only to the extent of ordering that the sentences be served concurrently and only to ensure appropriate parity with the sentence imposed on a co-offender.

47 In Newburn v The Queen [2004] WASCA 108, the appellant pleaded guilty to one count of aggravated burglary and admitted breaching an intensive supervision order. He was sentenced to 12 months' imprisonment in respect of the burglary. On appeal the sentence was suspended, but this was only to reflect parity with a co-offender. The facts of that case were that the appellant and the co-offender had broken into and stolen property from a fish and chip shop. No assault was involved.

48 In Woodley v The State of Western Australia [2008] WASCA 92, the appellant travelled to his estranged wife's house with weapons, though he did not bring them inside. He entered the premises, assaulted his wife and took her out to his car where he sexually assaulted her. The appellant pleaded not guilty and was convicted after a trial. He showed no remorse, and no acceptance of responsibility or insight into what he had done. He was sentenced to 2 years and 8 months' imprisonment for aggravated burglary, 12 months' imprisonment for assault occasioning bodily harm, 12 months' imprisonment for deprivation of liberty and 4 years' imprisonment for the sexual assault. The sentences for the aggravated burglary and the sexual assault were ordered to be served cumulatively, making a total effective sentence of 6 years and 8 months. A ground relating to whether the sentence for the aggravated burglary offence was manifestly excessive was found to be without merit. The sentence was said to be within the range of sound sentencing discretion.

49 In Buxton v The State of Western Australia [2009] WASCA 6, the appellant was convicted on his plea of guilty of one count of aggravated burglary. The facts were that the appellant had assaulted the complainant, who he had previously been in a relationship with, after forming a suspicion that another male was at her house. He had attended her house when intoxicated and, on being refused entry, forced open the back door. The assault in that case was serious and sustained. A sentence of 2 years and 8 months' imprisonment was not found to be manifestly excessive.

50 In Harrison v The State of Western Australia [2009] WASCA 58, the appellant and three other men decided to seek retribution against a person they believed was responsible for breaking into the appellant's house. They drove to the victim's house and gained entry by kicking in the front door. A woman and three young children were at the home. One or more members of the group smashed windows, damaged furniture and abused the woman before leaving the house. They then drove to another house and again gained entry by kicking in the front door. Again, a woman and young children were at home. They fled through the back door and members of the appellant's group then smashed windows and damaged furniture. The appellant in that case committed no actual violence on the occupants and there was an early plea of guilty. The appellant received a sentence of 2 years' immediate imprisonment. The appeal, which related only to the question of whether the sentence should have been suspended, was dismissed.

52 In Nannup v The State of Western Australia [2011] WASCA 257, the appellant was an 18-year-old man with an extensive record of prior offending who pleaded guilty to seven serious offences committed over a short period of time. Among those offences were three counts of aggravated burglary. The most serious of the burglary offences involved the appellant and co-offenders breaking into a house occupied by two young women demanding money and car keys from them, while threatening them with violence. A sentence of 4 years' imprisonment was imposed on that count after taking into account the guilty plea. On appeal, the sentence on that count was reduced to 3 years and 4 months, but only because the sentencing judge failed to take into account post-offence cooperation with the police.

53 In Mippy v The State of Western Australia [2012] WASCA 254, the appellant pleaded guilty to one count of aggravated burglary and one count of criminal damage. The offence occurred at the appellant's mother's house where he behaved in an aggressive manner and was refused entry. He then damaged his mother's car before breaking windows and entering the house. He kicked in a bedroom door and assaulted his mother in front of a number of children. He was sentenced to an effective term of 3 years' imprisonment, being 3 years' imprisonment for the aggravated burglary and 12 months' imprisonment concurrent for the damage offence. He had an extensive criminal record, limited insight into his offending and no remorse despite his plea of guilty. An appeal against the sentence on the aggravated burglary offence on grounds that it was manifestly excessive was rejected.

54 Another case with some similarities is Henderson v The State of Western Australia [2007] WASCA 198. In that case the appellant was convicted after trial of several offences including aggravated burglary, unlawful detention and stealing. He was sentenced to a total of 4 years' imprisonment. The appellant had committed all of the offences on the same day in an effort to obtain repayment of a debt. The aggravated burglary offence arose from the entry by the appellant into residential premises where he assaulted the occupant; one of the men who owed him money. The sentence for that offence was 20 months' imprisonment. The assault involved a single punch and there was no forcible entry. A claim of manifest excess was rejected. The particular need for deterrence and public protection in 'enforcer' cases was noted.

55 Other more recent cases are also indicative of the sentences customarily imposed for offences of this nature.

56 In Fullgrabe v The State of Western Australia [2013] WASCA 130, the appellant was sentenced to 3 years and 6 months' imprisonment for an aggravated burglary involving a home invasion. That sentence was imposed following a trial. An appeal against that sentence was dismissed.

57 In Ridley v The State of Western Australia [2013] WASCA 45, a burglary on commercial premises that was well planned and committed by an offender who had a long record of similar offences resulted in a sentence of 4 years and 6 months' imprisonment following a trial. An appeal on the grounds of manifest excess was unsuccessful.

58 In Topic v The State of Western Australia [2013] WASCA 157, the appellant was convicted after a late plea of guilty to an aggravated burglary which involved breaking into his estranged wife's home in breach of a violence restraining order and using a knife to threaten her. An appeal against a sentence of 2 years' imprisonment was unsuccessful.

59 In Prempeh v The State of Western Australia [2013] WASCA 150, the appellant broke into a house and committed a sexual assault on the female occupant. He was convicted after a trial and a sentence of 4 years and 6 months' imprisonment was imposed. An appeal against that sentence was unsuccessful.

60 In Miller v The State of Western Australia [2013] WASCA 84, the appellant was convicted after trial of a violent home invasion and was sentenced to 3 years 6 months' imprisonment.

61 See also the reviews of sentences for this type of offence undertaken in Ashworth v The State of Western Australia [2006] WASCA 36, Drake v The State of Western Australia [2006] WASCA 209, Nguyen v The State of Western Australia [2007] WASCA 114 and Butler v The State of Western Australia [2012] WASCA 249.

62 The cases referred to indicate that a sentence of 4 years and 6 months is towards the higher end of the range for a home invasion accompanied by an assault. However, it is not a sentence that could be said to be outside the range customarily imposed. In any event, that is only one factor to take into account.

63 The circumstances of this case were particularly serious and justified a sentence at the higher end of the range. Those circumstances include that the appellant was the principal offender, he was masked, in company, forcibly entered a house, at night, while the house was under attack from others, and assaulted a middle-aged mother in front of her young children. The appellant had previous relevant offences indicating a propensity for violence and a disregard for the law and was convicted after trial. He was thus not entitled to a discount for pleading guilty, as was the case in many of the cases referred to. There was a particular need for both general and personal deterrence in the circumstances of this case.

64 The sentence imposed was one that was open to the trial judge in the proper exercise of his discretion. Absent the demonstration of error, it is not open to an appeal court to allow an appeal against sentence on the basis that a different sentence could have been imposed. No error is apparent and this ground of appeal cannot succeed.