Sentencing Act 1995, s 32, s 8(2), s 8(4)

Applicant : Unrepresented Criminal Appellants' Scheme

Atholwood v The Queen [1999] WASCA 256

Little v The Queen [2001] WASCA 87

Radebe v The Queen [2001] WASCA 254

Stretton v The Queen, unreported; CCA SCt of WA; Library No 950282; 1 June 1995

1 WALLWORK J: I agree with the reasons for judgment and the conclusions of Steytler J.

3 STEYTLER J: : On 9 November 2000 the applicant was sentenced to a total period of 7 years and 6 months' imprisonment, with eligibility for parole.

4 He had pleaded guilty to four charges and had been found guilty on a fifth. The offences to which he pleaded guilty were those of aggravated burglary, assault with intent to facilitate the commission of a crime, unlawful assault occasioning bodily harm and unlawful detention. He was found guilty of making a threat to kill. He was sentenced to a period of imprisonment of 6 years on the aggravated burglary charge, to one of 1 year on the charge of assault with intent to facilitate the commission of a crime, to one of 1 year on the charge of unlawful assault occasioning bodily harm, to one of 18 month's imprisonment on the charge of unlawful detention and to one of 2 years' imprisonment in respect of the threat to kill. All sentences were ordered to be served concurrently save for that in respect of the unlawful detention which was ordered to be served cumulatively.

5 The applicant was, at the same time, dealt with on a number of pending charges, to which he also pleaded guilty, pursuant to s 32 of the Sentencing Act 1995. There were seven such charges. On the first, breach of bail, he was sentenced to 4 months' imprisonment. On the second, being on a curtilage without lawful excuse, he was sentenced to 4 months' imprisonment. On the third, driving without a motor driver's licence, he was sentenced to 6 months' imprisonment, coupled with a disqualification of his driver's licence for two years. On the fourth, causing damage to a police van, he was sentenced to a period of 6 months' imprisonment. On the fifth, assault of a public officer, he was sentenced to a period of 6 months' imprisonment. On the sixth, using threatening words, he was sentenced to a period of 3 months' imprisonment. On the seventh, unlawful possession, he was sentenced to 4 months' imprisonment. In every case, the period of imprisonment was ordered to be served concurrently with all of the other periods of imprisonment to which I have referred.

6 The applicant's aggregate sentence of 7 years and 6 months' imprisonment was backdated to 13 February 2000 to take into account time which he had spent in custody.

7 The appeal books were less than fulsome as regards of the details of the applicant's offending. However, it is not in dispute that, so far as the more important charges were concerned, the applicant had broken into the complainant's house at night, while she was asleep. He was armed with a knife. When the complainant awoke, the applicant punched her several times to the head and threw her against a wall. After she had managed to leave her bedroom and flee to another part of the house, he followed her there and attacked her again.

8 The applicant has applied for leave to appeal against the total sentence of imprisonment imposed upon him. He wishes to rely upon only one ground of appeal. That is to the effect that the sentence was, in the circumstances, manifestly excessive. He has since provided an additional particular of that ground. This makes it plain that he relies solely upon the fact that the sentencing Judge failed to give him any, or any adequate, discount for his pleas of guilty.

9 I have mentioned that the applicant pleaded guilty to all counts other than that in respect of the threat to kill. He contended that he pleaded guilty, at the earliest possible opportunity, to the offences of aggravated burglary, assault with intent to facilitate the commission of a crime, unlawful assault occasioning bodily harm and unlawful detention. While little turns on this, in my opinion, not all of his pleas were, in fact, made at the earliest possible opportunity. The applicant pleaded guilty to the counts of assault with intent to facilitate the commission of a crime and unlawful detention only on his election date, being 19 April 200l. He had first been charged on 13 February 2000.

10 The sentencing Judge, in the course of his sentencing remarks, did not refer to the fact of the applicant's pleas of guilty. This was so notwithstanding that, by s 8(2) of the Sentencing Act, a plea of guilty by an offender is a mitigating factor and, by s 8(4) of that Act, 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.

11 However, even if it be accepted that his Honour overlooked the applicant's pleas of guilty, and that these should have attracted a discount of the kind contended for (one of at least 25 per cent), I am not persuaded that the overall sentence of imprisonment imposed upon the applicant should be interfered with.

12 By s 689(3) of the Criminal Code, the Court of Criminal Appeal is required, on an appeal against sentence, to quash the sentence passed at the trial only if they think that a different sentence should have been passed.

13 This was a serious set of offences. The charges of aggravated burglary and assault, in particular, were very serious. The gravity of an offence of aggravated burglary is recognised by the statutory maximum penalty of 20 years' imprisonment. It could not be said, in my opinion, that the sentence of 6 years' imprisonment in respect of this offence was excessive, even taking into account the early plea of guilty, when regard is had to the facts to which I have referred. Nor, in my opinion, could the overall sentence of 7 years 6 months' imprisonment be regarded as excessive, even taking into account the pleas of guilty, when regard is had to the nature and extent of the applicant's offending.

14 There was little, other than the fact of the pleas of guilty, to be said by way of mitigation. The applicant was already 30 years old at the time when he was sentenced. He had, by then, a very long criminal record, albeit not one for violent offending. The various reports, including a psychological and psychiatric report, which were prepared in respect of the applicant, disclosed little by way of mitigation. While the applicant has had a damaging and traumatic childhood, and while he has suffered from unstable moods and some depression, there was no information which, in the opinion of those examining him, would support a diagnosis of psychosis. Although the applicant did express regret and remorse, the sentencing Judge was, in my respectful opinion, quite right in saying that this could only mitigate punishment "to a degree" and that a substantial term of imprisonment was still required.

15 It is also apparent, from his Honour's sentencing remarks, that he considered it important that he should not "overreact" to the seriousness of the offences committed by the applicant and that he should leave the applicant with hope for the future, particularly having regard for the fact that he is in a de facto relationship and is the father of a young boy. His Honour said, in this respect, that the sentences which he had imposed were "actually reduced in themselves individually and .... in the orders made in respect of cumulative service".

16 In all of these circumstances, and even taking into account the fact that the sentencing Judge did not refer to the mitigation from which the applicant should have benefited in relation to his pleas of guilty, I am not persuaded that any different sentence should have been passed.

17 I would consequently refuse the application for leave to appeal.

18 OLSSON AUJ: I have had the advantage of reading in draft the reasons for judgment of Steytler J. I agree both with the conclusions to which he has come and that the application for leave to appeal ought to be refused. These were extremely serious offences which, on any view, well merited the sentences imposed.