BEEKMAN -v- THE STATE OF WESTERN AUSTRALIA [2022] WASCA 130 (6 October 2022)

1. Count 2 alleged that, on the same date and at the same place, the appellant wilfully and unlawfully damaged property belonging to the complainant, and that:

(a) the appellant was in a family relationship with the complainant; and

(b) the complainant was over the age of 60 years,

1. On 27 August 2021, the appellant was convicted, on his pleas of guilty, of each count.
2. The maximum penalty for count 1 is 20 years' imprisonment and the maximum penalty for count 2 is 14 years' imprisonment.
3. On 3 September 2021, Barbagallo DCJ sentenced the appellant to 3 years 6 months' immediate imprisonment for count 1 and to 12 months' immediate imprisonment (reduced from 2 years' immediate imprisonment in the application of the totality principle) for count 2. Her Honour ordered that the individual sentences be served cumulatively. The total effective sentence was therefore 4 years 6 months' immediate imprisonment. A parole eligibility order was made. Her Honour backdated the total effective sentence to 9 September 2020 to take account of time the appellant had spent in custody for these offences.
4. Initially, the appellant relied upon three grounds of appeal. At the hearing of the appeal, this court granted the appellant leave to amend his grounds of appeal by adding a new ground 4. Counsel for the appellant then abandoned grounds 2 and 3 (appeal ts 13 ‑ 14).
5. Ground 1, read in the context of the written submissions in support of the ground, alleges, in essence, that the length of the total effective sentence of 4 years 6 months' immediate imprisonment infringed the first limb of the totality principle. On 14 January 2022, Buss P ordered that the application for leave to appeal on ground 1 be referred to the hearing of the appeal.
6. Ground 4 alleges, in essence, that the sentencing judge acted in contravention of s 11 of the Sentencing Act 1995 (WA) by ordering that the sentence for count 2 be served cumulatively upon the sentence for count 1.
7. At the hearing of the appeal, counsel for the State conceded that ground 4 had been established (appeal ts 12).
8. We are satisfied that the State's concession in relation to ground 4 is proper. Leave to appeal should be granted on ground 4 and the appeal allowed on that ground. The sentencing judge's sentencing decision, including the sentences imposed by her Honour, should be set aside and this court should resentence the appellant.

1. The facts and circumstances of the offending, as found by the sentencing judge or not in contest between the parties, were as follows.
2. The complainant, who was aged 68 at the time of the offending, is the appellant's mother. She lives alone at a home unit in Joondanna.
3. The complainant had expressed her fear of the appellant as a result of his behaviour towards her over a number of years.
4. On 14 June 2020, the appellant was served with a family violence restraining order which protected the complainant. The order prohibited the appellant from doing any of the following:

(a) causing or attempting to cause damage to any property in the complainant's possession;

(b) communicating or attempting to communicate with the complainant by any means, including SMS or text messages or any other electronic means;

(c) entering or remaining upon any premises where the complainant lives or works or is educated or being within 100 metres of the nearest external boundary of those premises;

(d) approaching within 50 metres of the complainant.

1. On 8 July 2020, the appellant entered into a bail undertaking at the Perth Magistrates Court. The bail undertaking was subject to a condition that the appellant not contact or attempt to contact the complainant by any means, nor approach within 20 metres of the complainant, nor enter, remain or loiter within 100 metres of the complainant's home unit.
2. On 9 September 2020, at about 8.50 pm, the appellant committed the offences at the complainant's home unit.
3. The sentencing judge made the following findings:

(a) The offences were committed at night. The appellant thumped loudly and aggressively on a window of the complainant's home unit. He then climbed onto the roof of the home unit and walked around on the roof. Next, the appellant beat loudly on the outside of the complainant's laundry door. He then smashed a kitchen window and entered the premises. The complainant ran in fear. She exited by the front door of her home unit and went to a neighbour's house (ts 64 ‑ 65).

(b) The appellant damaged the home unit and its contents. He pulled, pushed, smashed and broke property for about 15 minutes until police arrived (ts 64, 77).

(c) The value of the damage done by the appellant was 'not insignificant' as shown by photographs of the inside of the home unit (ts 64 ‑ 65).

(d) The appellant's offending behaviour was unprovoked (ts 77).

(e) The appellant was in a family relationship with the complainant.

(f) The appellant broke into the home unit knowing that his behaviour would frighten the complainant and cause her great fear (ts 69, 77).

(g) The complainant was vulnerable in that she was aged 68, has been frightened of the appellant for some years and lived alone in her home unit (ts 63, 65).

(h) The appellant relied upon the complainant's vulnerability to commit the offences (ts 65).

(i) The offences were not isolated, but were part of a history of criminal behaviour by the appellant towards the complainant for some years which resulted in the complainant being constantly fearful of the appellant (ts 77).

(j) The appellant had breached both the family violence restraining order and the bail undertaking (ts 63, 77).

(k) The appellant ran from the scene when police arrived (ts 65, 69).

1. The sentencing judge recounted the facts and circumstances of the offending in her sentencing remarks.
2. Her Honour referred to the appellant's personal circumstances and antecedents.
3. The appellant was aged 40 at the time of the offending and was 41 when sentenced.
4. The appellant's parents separated when he was aged 18 months. He lived with his mother until she began another relationship when he was aged about 11. The appellant described a dysfunctional relationship between his mother and his stepfather.
5. The appellant was rebellious. He was required to leave home when he was aged 13. The appellant was placed into care but absconded with a friend.
6. The appellant moved frequently and consequently attended six different primary schools and three different high schools. The appellant did not enjoy school. He was in trouble regularly and truanted before leaving school in year 9. Later, he completed his education to year 12.
7. The appellant's mother and his stepfather separated when the appellant was aged 18. After that time the appellant lived periodically with his mother.
8. When the appellant was aged 19 he met his biological father. The appellant felt unsupported by him. This period of the appellant's life coincided with the onset of heroin abuse.
9. The appellant perceives his relationship with his mother as more like a relationship of siblings than of mother and son. The relationship has been characterised by conflict. The appellant admits that various people have obtained violence restraining orders against him, including former partners, his mother, an aunt and a grandmother. The restraining order in relation to his grandmother was made to prevent the appellant asking her for money.
10. Before 2014 the appellant had a reasonable work history. However, between 2014 and 2019 he was unemployed. On more than one occasion his employment has been terminated as a result of his illicit drug use.
11. The appellant has had a few intimate relationships. Those relationships have encountered difficulties because of illicit substance use by the appellant and his partners.
12. The appellant is in good health physically but he has mental health issues that need to be addressed.
13. The appellant has used and abused many illicit substances, including heroin, cannabis and methylamphetamine. He has consumed alcohol to excess and has misused prescription medication. Substance use and abuse remains a significant issue for the appellant.
14. The appellant has a substantial prior criminal record. He has previous convictions for, amongst other things, possessing a prohibited drug (multiple offences); assaulting a public officer (multiple offences); unlawful assault occasioning bodily harm in circumstances of aggravation; assault in circumstances of aggravation or racial aggravation; damaging property (multiple offences); breaching a community based order (multiple offences); breaching a violence restraining order (multiple offences); breaching a police order (multiple offences); breach of an intensive supervision order (multiple offences); gaining a benefit by fraud; and traffic offences (multiple offences). The appellant has previously been sentenced to terms of immediate imprisonment.
15. The information before the sentencing judge included a psychological report dated 16 August 2021 from Claire Lynn, a forensic psychologist, and a pre‑sentence report dated 17 August 2021. The author of the pre‑sentence report noted that the appellant has treatment needs in the areas of illicit substance use, abuse of prescription medication, poorly developed consequential thinking skills, association with pro‑criminal peers, poor mental health and dysfunctional familial and intimate relationships. The author suggested that the appellant may benefit from psychological and substance abuse counselling.
16. The information before her Honour also included a victim impact statement. In the statement the appellant's mother indicated that she lived in constant fear of the appellant.
17. The sentencing judge said there was nothing in the psychological report or the pre‑sentence report which gave her Honour any confidence that the appellant had any care or concern about the impact of his offending on the complainant. The appellant had minimised his offending and had not demonstrated any victim awareness or empathy. The appellant had sent a letter to her Honour in which he asserted that he had victim empathy. Her Honour said she hoped this belated expression of empathy was genuine.
18. Her Honour noted the appellant's pleas of guilty. Her Honour allowed a discount of 20% for each plea pursuant to s 9AA of the Sentencing Act. Her Honour recognised that, in some cases, pleas of guilty can indicate remorse. However, her Honour was 'a little sceptical' about the appellant's expression of remorse (ts 75).
19. As we have mentioned, her Honour imposed a sentence of 3 years 6 months' immediate imprisonment for count 1 and a sentence of 12 months' immediate imprisonment (reduced from 2 years' immediate imprisonment in the application of the totality principle) for count 2. Her Honour said that count 1 and count 2 were 'part and parcel of offending that arise[s] out of a continuing set of circumstances', but 'count 2 [was] so serious that it [warranted] additional punishment to the aggravated burglary [the subject of count 1]' (ts 78). Her Honour made the individual sentences cumulative. The total effective sentence was therefore 4 years 6 months' immediate imprisonment.

The organisation of the balance of these reasons

1. It is convenient to deal, first, with ground 4. As we have mentioned, count 4 has been made out and it is necessary for this court to exercise the sentencing discretion afresh. In the circumstances, it is unnecessary to resolve ground 1. Leave to appeal on ground 1 should be refused.

1. Counsel for the appellant submitted that the sentencing judge, by imposing a cumulative sentence for count 2, contravened s 11 of the Sentencing Act.
2. It was submitted that:

(a) the elements that the State was required to prove for count 2 (namely wilfully and unlawfully damaging the complainant's property) were elements which the State was required to prove for count 1; and

(b) in those circumstances, s 11 of the Sentencing Act required that, while the appellant may be charged with both count 1 and count 2, the appellant was not to be 'sentenced' for more than one of the charged offences.

1. As we have mentioned, at the hearing of the appeal, counsel for the State conceded, properly, that ground 4 had been established.

1. It is a well established common law principle that when an offender is to be sentenced for multiple offences which contain one or more common legal or factual elements, care must be taken by the sentencing court to avoid punishing the offender twice (or more) for the commission of the common elements. See Pearce v The Queen;[1] Johnson v The Queen.[2]
2. No single correct mechanism exists for avoiding double (or more) punishment. For example, that outcome may be avoided by reducing the otherwise appropriate sentence for an offence or by ordering partial or total concurrency in relation to two or more sentences. See Cotterill v The State of Western Australia;[3] Hunter-Aragu v The State of Western Australia.[4]
3. Section 11(1) of the Sentencing Act provides:

If the evidence necessary to establish the commission by a person of an offence under the law of this State is also the evidence necessary to establish the commission by that person of another such offence, the person may be charged and convicted of each offence but is not to be sentenced for more than one of the offences.

1. In Kelly v The State of Western Australia,[5] this court held [29]:

(a) The commission of an offence is not established unless and until all of its elements are proved.

(b) Accordingly, the phrase 'the evidence necessary to establish the commission by a person of an offence', within s 11(1), refers to the evidence necessary to establish all of the elements of the offence.

(c) That proposition also applies to the phrase 'the evidence necessary to establish the commission ... of another offence', within s 11(1).

(d) Section 11(1) is therefore engaged if, and only if, the evidence necessary to establish the commission of one offence establishes, without more, all of the elements of, and consequently the commission of, another offence.

(e) Section 11(1) does not apply where there is overlap between the evidence required to establish the two offences, but where each offence requires some distinct additional evidence to establish the commission of that offence.

1. In the present case, the appellant was charged with the offence of aggravated burglary (count 1) and the offence of wilfully and unlawfully damaging property (count 2). The grounding offence for the aggravated burglary charge was wilfully and unlawfully damaging the complainant's property. The property the subject of the offence charged in count 2 was not different from the property the subject of the grounding offence for the aggravated burglary offence charged in count 1.
2. In the circumstances, the evidence necessary to establish the commission of count 1 also established, without more, all of the elements of, and consequently the commission of, count 2. No distinct additional evidence was required to establish the commission of count 2.
3. It follows, in our opinion, that the common law principle against double punishment and s 11(1) of the Sentencing Act precluded her Honour from punishing or sentencing the appellant for count 2. Her Honour infringed the common law principle and s 11(1) by ordering that the individual sentence for count 2 be served cumulatively upon the individual sentence for count 1.
4. Ground 4 has been made out.

The outcome of the appeal and the resentencing of the appellant

1. We would allow the appeal.
2. The sentencing judge's sentencing decision, including the sentences imposed by her Honour, should be set aside.
3. This court has the material necessary to resentence the appellant. At the hearing of the appeal, counsel for the appellant and counsel for the State made submissions in relation to the resentencing.
4. We would allow a discount of 15%, pursuant to s 9AA of the Sentencing Act, on the head sentence we would otherwise have imposed for count 1 to recognise the plea of guilty. This discount is less than the discount allowed by her Honour. The appellant's plea was entered at his seventh appearance in the Magistrates Court. The plea was entered after the preparation and service of a committal brief and after negotiation in relation to other charges. It was always open to the appellant to plead, or unconditionally to indicate a willingness to plead, and then negotiate in relation to the other charges. In the circumstances, we consider that a discount of more than 15% would be unduly generous.
5. We have taken into account (and allowed a discount for) the other mitigating factors referred to by the sentencing judge. However, the other mitigation was minimal both in nature and extent.
6. We have taken into account the aggravating factors mentioned by her Honour. It was significantly aggravating that the appellant's offending was committed in breach of a family violence restraining order and in breach of protective bail conditions. Personal deterrence is an important sentencing consideration.
7. The appellant's offending in relation to count 1 was undoubtedly very serious. The objective seriousness of that offending is apparent from the sentencing judge's findings which we have summarised at [19] above.
8. As we have mentioned, the maximum penalty for count 1 is 20 years' imprisonment. Relevant decisions and sentencing considerations in relation to the offence of aggravated burglary are set out in The State of Western Australia v McDonagh.[6]
9. We would exercise the sentencing discretion afresh in respect of count 1 by imposing a sentence of 4 years 6 months' immediate imprisonment. This sentence includes punishment for all of the factual elements of count 1, including the wilful and unlawful damage of the complainant's property. Photographs of the complainant's home unit, which we have seen, depict the damage done by the appellant.
10. We would avoid double punishment in the resentencing of the appellant by imposing no penalty for count 2.
11. The new sentence of 4 years 6 months' immediate imprisonment for count 1 should be backdated to 9 September 2020 to take account of time the appellant spent in custody before he was sentenced by her Honour. A parole eligibility order should be made. The appellant will be eligible to be considered for release on parole when he has served 2 years 6 months in custody calculated from 9 September 2020.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.

[1] Pearce v The Queen [1998] HCA 57; (1998) 194 CLR 610 [40].

[2] Johnson v The Queen [2004] HCA 15; (2004) 78 ALJR 616 [27], [34], [38].

[3] Cotterill v The State of Western Australia [2013] WASCA 52 [27].

[4] Hunter-Aragu v The State of Western Australia [2015] WASCA 80 [33].

[5] Kelly v The State of Western Australia [2020] WASCA 29.

[6] The State of Western Australia v McDonagh [2022] WASCA 108 [59] ‑ [63].