Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA

Criminal law - Appeals against sentence - Aggravated burglary and assault causing bodily harm - Manifest excess - Whether sentence of immediate imprisonment the only open sentencing option - Turns on own facts

Beins v The State of Western Australia [No 2] [2014] WASCA 54

Edmonds v The State of Western Australia [2013] WASCA 250

Fogg v The State of Western Australia [2011] WASCA 11

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

Munda v The State of Western Australia [2013] HCA 38; (2013) 249 CLR 600

Papas v The State of Western Australia [2011] WASCA 3

Sartori v The State of Western Australia [2014] WASCA 98

Tapper v The State of Western Australia [2016] WASCA 140

Wragg v The State of Western Australia [2013] WASCA 198; (2013) 234 A Crim R 380

1 REASONS OF THE COURT: For the following reasons, the appellants' appeals against sentences of immediate imprisonment imposed in respect of a violent home invasion offence must be dismissed.

2 Matthew McIntyre and his father, Hughan McIntyre, were frustrated by the victim's failure to pay a $700 debt he owed to Matthew, arising from the sale of a trail bike to the victim. They decided to take matters into their own hands. At about 8.10 pm on 13 May 2015, Matthew and Hughan were driven to the victim's house. Matthew took a wooden axe handle and Hughan took a tyre iron. Their intention was to demand payment of the debt or the return of the trail bike from the victim.

3 The appellants were told to leave when they arrived at the front door of the victim's house. Matthew walked around to the rear of the house and smashed a small window with the axe handle. At the front of the house, Hughan smashed a window with the tyre iron. Matthew and Hughan entered the victim's house through the broken front window and found the victim sitting on a bed in his bedroom. They demanded that the victim give them the trail bike or payment for the trail bike. Hughan struck the victim to the forehead with the tyre iron. Matthew pinned the victim down with the axe handle while Hughan punched the victim.

4 Hughan's blow with the tyre iron lacerated the right side of the victim's face near his eye, requiring two stitches. The victim also sustained abrasions and bruising to various parts of his body and two broken ribs. Following the offence, the victim was unable to return home until extra security was put on his windows. The victim suffered panic attacks and found it difficult to leave his house. He lost his job because he was unable to leave home in the week following the attack without experiencing panic symptoms.

5 The appellants were interviewed by police and admitted the offences. They were charged with aggravated burglary and assault causing bodily harm. Both pleaded guilty to these charges at the earliest reasonable opportunity and, on 15 December 2015, were sentenced for the offences.

6 The sentencing judge noted a number of mitigating features of the case. Neither appellant had a criminal record and both had good employment histories. Her Honour accepted that the offending behaviour was out of character for both appellants. Neither appellant had substance abuse issues and, although they had been drinking on the night of the offence, neither was drunk at the time. The sentencing judge noted Matthew's age (20 years at the time of the offence compared to Hughan's age of 54 years) as a mitigating factor. She reduced the sentences by 25% under s 9AA of the Sentencing Act 1995 (WA) by reason of the pleas of guilty. She took into account that Matthew had 'some remorse over the incident and some victim empathy', felt ashamed by what he had done and was encouraged in the offending by his father. While, in Hughan's case, the sentencing judge did not see 'evidence of compelling regret' (ts 23) she accepted that he was experiencing a stressful time in his life due to his mother's terminal illness.

7 The sentencing judge accepted that the appellants' plan was to get either the money or the trail bike from the victim, rather than 'simply to go there to give him a flogging'.

8 Hughan was sentenced to 2 years' imprisonment, and Matthew to 18 months' imprisonment, in respect of the aggravated burglary offence. No penalty was imposed in respect of the assault offence.

9 The sentencing judge considered whether she should suspend the sentences, recognising that 'I mustn't impose an immediate term of imprisonment unless it would be inappropriate to suspend it'. She considered that the mitigating matters to which she referred were 'simply overwhelmed by the seriousness of what you did'. The sentencing judge considered the seriousness of the offence and the need for general deterrence precluded the suspension of the terms of imprisonment she was to impose (ts 24).

10 Each appellant appeals against the sentence on the ground that the sentencing judge erred in law in not suspending the terms of imprisonment and the sentence thereby imposed was manifestly excessive. The appellants do not complain about the length of the terms imposed. The appellants have been granted leave to appeal. Applications for an extension of time in which to appeal were referred to the hearing of the appeal. In light of the short delay, which has been adequately explained, we would grant extensions of time within which to appeal.

11 The general principles governing this appeal are well established:

1. A ground of appeal which alleges that a sentence is manifestly excessive asserts an implied error. It is necessary, in determining whether a sentence is manifestly excessive, to examine it from the perspective of the maximum sentence prescribed by law for the relevant offence, the standards of sentencing customarily observed with respect to that offence, the place which the criminal conduct occupies on the scale of seriousness of offences of the kind in question, and the personal circumstances of the offender.
2. The discretion conferred on sentencing judges is of fundamental importance and this court may not substitute its opinion as to sentencing for that of the sentencing judge merely because it would have exercised the discretion in a different manner. The appellant must demonstrate the sentence imposed to be unreasonable or plainly unjust.
3. The guidance afforded by comparable cases is flexible rather than rigid. The mere fact a sentence is within the range of other sentences imposed for similar offending does not necessarily establish that there was an appropriate exercise of the sentencing discretion in the particular case. Similarly, the mere fact a sentence is outside the range does not necessarily establish that the exercise of the sentencing discretion in the particular case miscarried.
4. A sentencing range for comparable offences is merely one of the factors to be taken into account in deciding whether an individual sentence is manifestly excessive. A range of sentences customarily imposed is of significance for the purpose of ensuring broad consistency in the sentencing of offenders in broadly comparable cases. However, a sentencing range for comparable cases does not fix the range of a sound exercise of the sentencing discretion in a particular case.
5. When this court dismisses an appeal against sentence, and when it allows an appeal against sentence and resentences the offender, this court's decision on the sentencing outcome does not, of itself, fix the upper or lower limit of the range.

12 It is also well established that a sentencing judge must be positively satisfied that it is not appropriate to suspend or conditionally suspend a term of imprisonment before the term can be ordered to be served immediately. The discretion to suspend or conditionally suspend a term of imprisonment is not confined by considerations relating to rehabilitation. The objective features of an offence may, in a particular case, outweigh the personal considerations of rehabilitation.[1]

13 The appellants accept that the aggravated burglary offence was serious because it was committed at night, they were in company, they were armed with weapons and they assaulted the victim, who offered no resistance, and caused injuries which resulted in his hospitalisation. However, the appellants also point to their pleas of guilty at the earliest opportunity, the absence of a prior criminal record, reasonably good antecedents, an unlikelihood of similar offending in the future and, in Matthew's case, his youth and the fact that he was with his father. The appellants contend that, when account is taken of these mitigating factors, the only conclusion open to the sentencing judge was that a term of immediate imprisonment was not the only appropriate sentencing disposition (appeal ts 8).

14 The maximum penalty provided for in this case is 20 years' imprisonment.

15 The circumstances of burglary offences can vary widely and attract a wide range of sentences. Home burglaries are viewed as being particularly serious offences, and are generally seen as requiring substantial penalties in order to recognise considerations of personal and general deterrence, and reflect the prevalence of the offence. Home invasions, which involve forcible entry into residential premises known or suspected to be occupied at the time accompanied by threatened or actual violence, are significantly more serious than home burglaries which lack those characteristics. A home invasion which is committed with intent to intimidate the occupants is more serious than a burglary which involves simply an intention to steal.[2]

16 The present case involves a home invasion with the use of weapons and actual violence, causing significant physical and psychological trauma to the victim, committed with the intention of intimidating the victim into paying a debt. It is clearly in the more serious of the categories described above.

17 As to the customary standards of sentencing, it has been recognised in a number of cases that, as a matter of fact, sentences of immediate imprisonment are almost always appropriate for violent aggravated burglaries. It has been recognised that aggravated burglaries are prevalent and the sentencing objectives of general deterrence and denunciation are of particular importance in the exercise of the sentencing discretion.[3] This court has, in a number of cases, imposed or upheld sentences of immediate imprisonment imposed on first offenders, including young first offenders, for home invasions motivated by vigilantism or retribution and involving threatened or actual violence to intimidate a victim.[4] The sentences imposed in the present case are broadly consistent with the customary sentencing standards reflected in these decisions.

18 There were a number of significant mitigating factors applicable to both appellants, particularly Matthew by reason of his youth and the fact that he was acting with the encouragement of his father. As McLure P noted in Fogg, the courts do not ordinarily impose a term of immediate imprisonment on youthful offenders of prior good character without considerable pause and reflection. However, there are circumstances where the seriousness of the nature and circumstances of the offending require a sentence of immediate imprisonment. The seriousness of the circumstances and nature of the offending can in appropriate circumstances outweigh mitigatory factors personal to the offender. While mitigating factors must be given appropriate weight, they must not be allowed to lead to the imposition of a penalty which is disproportionate to the gravity of the offence.[5]

19 Having regard to all of the above matters, it was open to the sentencing judge to conclude that the seriousness of the aggravated burglary offence and considerations of general deterrence outweighed the mitigating factors and made it inappropriate to suspend or conditionally suspend the sentences of imprisonment. Given the nature and circumstances of the offence and the offenders, the sentences of immediate imprisonment are not unreasonable or plainly unjust.

20 Therefore, while we would grant the applications for an extension of time in which to appeal, the appeals must be dismissed.

[1] Tapper v The State of Western Australia [2016] WASCA 140 [68] - [70] and cases there cited.

[2] Wragg v The State of Western Australia [2013] WASCA 198; (2013) 234 A Crim R 380 [44]; Sartori v The State of Western Australia [2014] WASCA 98 [31].

[3] Beins v The State of Western Australia [No 2] [2014] WASCA 54 [120] - [121] and cases there cited.

[4] Harrison v The State of Western Australia [2009] WASCA 58; Papas v The State of Western Australia [2011] WASCA 3; Fogg v The State of Western Australia [2011] WASCA 11; Edmonds v The State of Western Australia [2013] WASCA 250; Beins.

[5] Munda v The State of Western Australia [2013] HCA 38; (2013) 249 CLR 600 [53].