Sentencing Act, s 8(2)

Australian Coal & Shale Employees Union v Commonwealth [1953] HCA 25; (1953) 94 CLR 621

Cheshire v R, unreported; CCA SCt of WA; Library No 7924; 7 November 1989

Gallagher (1991) 23 NSWLR 220; 53 A Crim R 248

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

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

Miles v R (1997) 17 WAR 518

Nguyen v R; Tran v R [1999] WASCA 54

Pavlic [1995] TASSC 96; (1995) 5 Tas R 186; 83 A Crim R 13

Pezzino v R (1997) 92 A Crim R 135

R v Doyle (1994) 71 A Crim R 360

R v Tait (1976) 46 FLR 386

Thorburn v R, unreported; CCA SCt of WA; Library No 7866; 27 September 1989

Veen v R (No 2) [1988] HCA 14; (1988) 164 CLR 465

Weng Keong Chan (1989) 38 A Crim R 337

1 TEMPLEMAN J: This is an appeal by Mr Sonny James Bates against sentences totalling 3 years imprisonment imposed upon him in the Court of Petty Sessions by the Chief Stipendiary Magistrate on 12 October 1999.

2 The appellant was charged with three offences, committed on 1 August 1999 at 11.30am, first entering a dwelling house without the consent of the owners and committing an offence, namely stealing, contrary to s 401(2) of the Criminal Code; secondly, upon premises without lawful excuse, contrary to s 66(13) of the Police Act; and thirdly, resisting lawful arrest by a member of the Western Australian police force then acting in the execution of his duty.

3 The appellant pleaded guilty to all three offences. When the matter was called on before the learned Chief Stipendiary Magistrate his Worship summarised the three offences and himself said that the appellant had pleaded guilty to the first offence, which was the burglary. He then clarified immediately that the appellant was pleading guilty to all three charges.

4 The prosecutor then summarised the offences. He said that the appellant had been observed to enter the residential property which was then unoccupied. He had gone to the rear of the house, removed a small, sliding glass window which led to a bathroom. The appellant climbed through the window and gained entry to the master bedroom. He there rummaged through several drawers and a cupboard in search of money. He located a large amount of gold and silver coins and a $5 note which he placed in a purse which he had also stolen from the premises. The total value was $122.90, the purse being worth $5.

5 The entry of the appellant into the premises had apparently been observed by the owners who were next door at the time. They called the police. The police arrived while the appellant was inside the house. He saw them coming and ran away. He jumped over a fence into a neighbouring property, thereby committing the second offence. The police found the appellant, who then ran away. He was apprehended after a short chase and he then struggled in an attempt to get away. That was the third offence.

6 After the prosecutor had outlined the facts as I have summarised them the Court received a verbal pre-sentence report which referred to the appellant's personal circumstances and to a number of offences of a similar kind which he had committed previously.

7 There was some lack of clarity about the extent of the appellant's earlier convictions. The learned Magistrate said as best he could make out, there had been about 12 previous dwellings, as he put it, the last one being in 1997. That was a matter which appeared, in the end, to be accepted; that is to say, there were something in the order of 12 previous offences for burglary, which I note have in more recent times attracted substantial terms of imprisonment. Indeed the community corrections officer who gave the verbal report said:

"Unfortunately he [the appellant] is getting to a stage where I would suggest that little can be achieved by further community supervision to address the issues because I don't know what other interventions we could try at this stage."

8 There was then a plea in mitigation by counsel. The plea opened with the statement that the appellant was realistic, as it was put: "He knows that he is going to prison today and he realises that." Counsel then went on to say that the appellant had, as he put it, empathy with the victim and that he took full responsibility for his actions. He knew that what he had done was wrong.

9 Counsel then referred to the fact that the offence had been committed on a Sunday morning after the appellant had been at a party on the previous night where he had been drinking. The others had left him and he was without any transport or any money to pay for a bus ride home. He went to knock on the door of the premises which he ultimately robbed to ask whether there was somebody there who might give him some money. As counsel pointed out, it was stupidity, sheer stupidity, for someone who was on parole as the appellant then was.

10 The thrust of the plea in mitigation was that the appellant should have parole. Indeed counsel said:

"All I'm arguing for is parole. If you have a mind to put him on parole, then I perhaps could go no further."

11 It is to be noted that in the plea in mitigation, counsel made no reference to the pleas of guilty and placed no weight on them.

12 There was then some discussion between counsel and the learned Magistrate as to various other matters, including the appellant's prospects of employment. At the very end of the plea in mitigation counsel said:

"Sir, I might say that he is maturing. All right, not at the rate that we would like but I think that he will and it's for those reasons I would ask you to consider him (1) for a concurrent sentence and (2) for parole.

13 I should say that the appellant was born on 5 July 1974 so he was then 25 years old.

14 It appears that the learned Magistrate gave his reasons immediately. He did so by quoting extensively from a decision of the Court of Criminal Appeal handed down on 20 July 1999. The learned Magistrate did not refer to the name of the case but it is quite clear from the extensive quotation that it was Fisher v The Queen [1999] WASCA 122.

15 Although there was some interpolation by the learned Magistrate, the greater part of his judgment was a quotation from Fisher in which the Court of Criminal Appeal noted that the maximum penalty for the burglary offence to which the appellant had pleaded guilty had been increased in 1996 from 14 years to 18 years imprisonment. When dealt with by a Magistrate, as the learned Magistrate pointed out, the maximum sentence which could be imposed was 3 years imprisonment. Having read from Fisher, the learned Magistrate went on to give short reasons. He said:

"...in this case I am restricted to a period of 3 years. As I say it is difficult to work out the precise number of previous burglaries on dwellings you have got, but I think it is agreed by everyone that it is in the vicinity of 12. You really do represent a great menace to society and as the Chief Justice said - - they have suggested that the penalties be firmed up.

What I propose to do in view of the number of offences, the fact that you have offended whilst on parole, the fact that the community corrections authorities do not feel that there is much they can do with you, I intend to propose the maximum penalty and to make it cumulative. I will however make him eligible for parole."

16 The learned Magistrate then imposed a sentence of 3 years imprisonment which was backdated to 20 September to take account of time spent in custody. For the second offence of being on premises without lawful excuse he imposed a sentence of 6 months imprisonment: and for resisting arrest, 3 months imprisonment, both sentences to be served concurrently with the head sentence. He did not make an order for reparation relating to the damaged window but he did make an order for return of the stolen property.

17 I should say at once that there is no complaint about the sentences of 6 months and 3 months imprisonment. The appeal in relation to the sentence of 3 years. As to that it is submitted that a sentence of 3 years imprisonment is manifestly excessive, first because it is above sentences commonly imposed for offences of a similar nature.

18 I have been referred to a number of cases in which lower sentences were imposed on appeal, in particular the decision of R v Thompson, unreported; CCA SCt of WA; Library No 940311; 21 June 1994, in which a sentence of 2-1/2 years imprisonment was imposed in respect of two offences following a plea of guilty. That was of course before the maximum penalty was increased to 18 years.

19 Then there is the case of Little v The Queen, unreported; CCA SCt of WA; Library No 970041; 3 February 1997 where there were three burglary and three fraud offences committed. There was a plea of guilty and the sentence was reduced to 2 years on appeal.

20 In both Thompson and Little the accused had a criminal record.

21 In Fisher, a sentence of 2 years was imposed for a burglary. That was upheld on appeal but it was cumulative on a 7-year sentence for drug offences and the totality principle was clearly applied. In all of these cases the accused person pleaded guilty.

22 In Fisher it was said by Owen J at par 24:

"It might be said that the 2-year sentence for the burglary offence was a sentence in full measure, but the starting point sentence imposed in the District Court was one of 3 years which was reduced to 2 years to take into account totality and the early plea of guilty."

23 I am also asked to take into account a number of circumstances which it is said place the appellant's offence in the lower range of the scale. The first is that the premises were unoccupied at the time of the offence and that was known by the appellant; secondly, the offence was committed during the day; thirdly, the stolen property was recovered and there was minimal damage to the premises; fourthly, the offence was unplanned; fifthly, the appellant had been stranded without transport and had committed the offence after seeing an open window.

24 Those factors certainly existed but they were not dissimilar to the factors which existed in Fisher's case, which may well be the reason that the learned Chief Stipendiary Magistrate quoted from it so extensively. Indeed, the point was made there that offences of this kind are often committed on an opportunistic basis.

25 It seems to me that although the offence may well have been at the lower end of the scale the sentence of 3 years imprisonment in all the circumstances referred to by the learned Magistrate was not excessive. The offence was committed while on parole. Counsel had accepted that a sentence of imprisonment had to be imposed. That was an entirely realistic concession, given the extensive criminal record and the terms of imprisonment which had been imposed for similar offences in the past. Although that was not an aggravating factor it was nevertheless a matter which the learned Stipendiary Magistrate was entitled to take into account.

26 Although the sentence might be somewhat above those which are commonly imposed for offences of this kind, in all the circumstances I am not persuaded that it was excessive. Certainly it does not manifest a mis-exercise of the learned Magistrate's discretion, in my view.

27 In case of this kind, of course, it must be shown, if the appeal is to succeed, that the Magistrate has mis-exercised his discretion by failing to take into account relevant matters or taking into account irrelevant matters. If it is not clear that either of those things has happened, it may be that the error or mis-exercise of discretion can be identified simply from the fact that the sentence is manifestly excessive. But in the present case, as I have said, I do not think it was.

28 That leaves a final point on which reliance is placed, namely that the appellant had pleaded guilty and had indeed co-operated with the police. It is said that, apparently, he was not given any credit for those matters.

29 It is said, quite rightly, that by reason of s 8(2) of the Sentencing Act 1995 a plea of guilty by an offender is a mitigating factor: and the earlier in the proceedings it is made, or indication is given that it will be made, the greater is the mitigation. Subsection (8)(4) provides this:

"If, because of a mitigating factor, a Court reduces the sentence it would otherwise have imposed on an offender, the Court must state that fact in open court."

30 It is quite clear from that provision that although a plea of guilty is a mitigating factor, as with any mitigating factor, the Court is not necessarily to reduce a sentence because it exists. I repeat that subs (8)(4) says that if, because of that factor, the Court reduces the sentence, it must state that fact in open court.

31 I have been referred this morning to the decision of Court of Criminal Appeal in Holland v R [1999] WASCA 43 and in particular to a passage in the judgment of Kennedy J in which his Honour said this:

"No reference either by counsel or her Honour was made to the applicant's early plea of guilty and it should, I consider, be assumed that no allowance was made by her Honour for that early plea or for the early indication of his intention to plead guilty to the two charges pending in the Court of Petty Sessions - see the Sentencing Act 1995 s 8(4). In my opinion a reduction in the sentences should have been made on this count."

32 His Honour then went on to deal with the appropriate reduction in that case. In the present case it is true that no reference was made by counsel or the learned Magistrate to the plea of guilty; that is to say, no reference was made in the plea in mitigation or in the sentencing remarks.

33 However, as I have already indicated, the proceedings opened by the learned Magistrate himself drawing attention to the fact that the appellant had pleaded guilty to all three charges and furthermore, of course, the learned Magistrate sentenced the appellant immediately. There was no adjournment of the matter while the appropriate sentence was considered. That is, I think, a feature which distinguishes Holland's case from the present situation.

34 Furthermore, it seems to me that the plea of guilty in the present case, although a mitigating factor, was not a factor which would have carried any great weight. That is because the appellant was caught leaving the house with the stolen goods in his possession and was arrested immediately. Although I accept that he saved the time of the court in pleading guilty as he did, the situation in which he found himself was one in which really he had very little alternative, sensibly, but to plead guilty.

35 Similarly, it is said, rightly, that the appellant co-operated with the prosecution, first by participating in a video record of interview and, secondly, by conceding that he was a repeat offender for the purposes of the three strikes legislation. Again, accepting those facts, I do not think they carry any great weight given the circumstances of the offence and the circumstances generally relating to the appellant.

36 In these circumstances it could not be said that the Magistrate did not take into account the plea of guilty. The inference is that he gave it very little weight and did not in fact reduce the sentence because of it.

37 It is to be noted that when the learned Magistrate concluded his citation of Fisher's case he pointed out to the appellant that in this case he was restricted to a period of 3 years imprisonment.

38 Having considered that remark in the context in which it was made it seems to me, on balance, that the effect of it was that the Magistrate was of the view that the offence warranted more than a period of 3 years imprisonment, which was the maximum he could impose. That is a view which is consistent with the circumstances of the offence and the sentences which had previously been imposed upon the appellant for similar offences in the District Court.

39 In all those circumstances it seems to me that the fact that the learned Magistrate did not refer expressly in his reasons to the plea of guilty does not reflect a failure on his part to take the plea into account. It merely reflects that the plea of guilty was not a mitigating factor of any weight and was not one which therefore had the effect of reducing the sentence.

40 In all those circumstances I am not persuaded that the learned Magistrate's discretion miscarried. I therefore conclude that the appeal should be dismissed.