Criminal law - Appeal against sentence - Appellant convicted after plea of guilty to aggravated burglary - Whether sentencing judge required to sentence on the basis of mitigating factors not contested by prosecutor - Whether sentence manifestly excessive

Sentencing Act 1995 (WA), s 8, s 9AA

Boddington v The State of Western Australia [2013] WASCA 179

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

CJ v The State of Western Australia [2009] WASCA 42

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

Hutchins v The State of Western Australia [2006] WASCA 258

Law v The State of Western Australia [2009] WASCA 193

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

Nguyen v The State of Western Australia [2009] WASCA 8

Papertalk v The State of Western Australia [2011] WASCA 229

The State of Western Australia v Wickham [2009] WASCA 137

Wragg v The State of Western Australia [2013] WASCA 198

1 The appellant, David Gregory Sartori, appeals against the sentence of 3 years and 3 months imprisonment imposed upon him following his plea of guilty to the offence of aggravated burglary, on the sole ground that the sentence was, in all the circumstances, manifestly excessive. For the reasons which follow, the sentence imposed was within the range available to the sentencing judge in the exercise of the discretion conferred upon him, and the appeal should be dismissed.

2 Mr Sartori was charged on an indictment which contained two counts - the count of aggravated burglary to which I have already referred, and another count of attempted aggravated armed robbery. Both counts arose from the same incident. Mr Sartori entered pleas of guilty on both counts at the earliest reasonable opportunity.

3 The offences were committed on 15 May 2013, when Mr Sartori was 20 years of age. During the early evening of that day, Mr Sartori and two others formed a common intention to commit a burglary. At around 8.15 pm they travelled together to a residence in Kalgoorlie occupied by the victims, who are a husband and wife aged 66 and 56 respectively. Mr Sartori went to the front door of the house, leaving his accomplices in a motor vehicle. Mr Sartori knew from information that he had received that there were firearms in the house, and his objective was to obtain them.

4 He donned a balaclava and was armed with a machete. He knew or ought to have known that the place was ordinarily used for human habitation. He knocked on the front door of the house, and when it was opened by the male victim, he pushed the door further ajar and pushed the machete against the chest of the male occupant of the house saying 'I want them fucking guns'.

5 Mr Sartori entered the house and forced the male victim to walk backwards down the hallway towards the lounge room of the house by continuing to push the machete against his chest. He reiterated his demand for the guns. He continued to push the male victim backwards, with the result that he fell over backwards into the lounge of the house. Mr Sartori then turned his attention to the female victim who was trying to call police. He knocked the phone out of her hand, but was then pushed away from the woman by the male victim of the attack. Mr Sartori then ran from the house to the waiting vehicle and decamped.

6 Police were called and found Mr Sartori's mobile phone on the front lawn of the property. Mr Sartori was later apprehended and interviewed by police. During that interview he denied any involvement in the offence.

7 The male victim sustained soreness in his right hip and right shoulder as a consequence of the incident. He also suffered lacerations to the web space of his right thumb and another laceration to his left ring finger. He was conveyed to the Kalgoorlie Regional Hospital, where the laceration to his thumb was sutured under local anaesthetic and the laceration to his left ring finger was glued and steri-stripped.

8 As I have noted, Mr Sartori was relatively young at the time of the offence. Although it cannot be said that he has an unblemished record, his prior offending could be described as minor, and of no particular significance to the sentence properly imposed for the serious offences he committed.

9 Mr Sartori is a qualified auto electrician. He had been working full-time in the mining industry, although he was unemployed for a period prior to his commission of the offences of burglary and attempted robbery. He had an uneventful childhood and enjoys the support of his family and others within the community who provided favourable references with respect to his character.

10 However, Mr Sartori came to associate with undesirable elements and to occasionally use illicit substances, including methylamphetamine. He told the psychologist who prepared a report prior to sentence that it was his association with those undesirable elements which led to the offences.

11 Mr Sartori was also reviewed by a psychiatrist, who did not consider that he had a serious mental illness, or that his offending behaviour was related to substance abuse. However, it was noted that about six months prior to the offences, Mr Sartori had been prescribed antidepressants as a result of suffering mild depression.

12 As I have noted, Mr Sartori was a relatively young man at the time the offences were committed, without a significant criminal record, who had been in stable employment and was living in a supportive family environment, and who was well regarded within the community. He entered pleas of guilty to the offences with which he was charged at the earliest reasonable opportunity.

13 The sentencing judge specifically found that Mr Sartori was remorseful. That remorse was demonstrated not only by his pleas of guilty, but also by the letters which he wrote to the victims of his offences, apologising sincerely for what had occurred.

14 Mr Sartori was assessed as being at a low risk of reoffending by the author of a pre-sentence report. Having regard to his good antecedents, minor prior record, favourable family environment, stable employment and residential history, community support and the fact that the offending appeared unrelated to substance abuse, the sentencing judge accepted that assessment, quite properly in my view.

15 Mr Sartori told the author of the pre-sentence report that he had been threatened with harm if he did not commit the offence. A similar submission was put by counsel on his behalf during the sentencing process. The prosecutor did not dispute the proposition, and so there was no trial of the issue. However, the assertion of a threat was put and left at an extremely high level of generality, without the source of the threat, its nature, or the reason for the threat being made ever being identified.

16 The sentencing judge specifically referred to the statement which Mr Sartori had made to the author of the pre-sentence report. It is not clear from the balance of his sentencing remarks that he had accepted the assertion as a matter of fact for the purposes of sentence. Given that the prosecutor did not contest the assertion, failure to sentence on the basis of the fact asserted, or to put counsel for Mr Sartori on notice as to the fact that this assertion was not accepted to allow Mr Sartori to bring additional evidence to the attention of the sentencing judge, would constitute a specific error - see Hutchins v The State of Western Australia [2006] WASCA 258 [25] (McLure JA, Steytler P & Wheeler JA agreeing); Law v The State of Western Australia [2009] WASCA 193 [32] (Buss JA, McLure & Pullin JJA agreeing); The State of Western Australia v Wickham [2009] WASCA 137 [29] (Miller JA, Martin CJ & Buss JA agreeing); CJ v The State of Western Australia [2009] WASCA 42 [4] (McLure JA, Buss JA agreeing) and Nguyen v The State of Western Australia [2009] WASCA 8 [20] (Steytler P).

17 When this issue arose during argument on the appeal, counsel for Mr Sartori, who is a very experienced criminal appellate lawyer, made it clear on several occasions that there was no assertion of specific error of this kind, and that the appeal was limited to an assertion of implied error arising from the asserted manifest excess of the sentence. In the result, this issue was put no higher than a matter which this court should take into account in its assessment of the question of whether or not the sentence imposed was manifestly excessive.

18 Viewed in that way, the generality of the assertions made with respect to the prior threats deprives them of significant mitigatory force. Unless the nature and source of the threats is known, or sufficient information provided to establish that Mr Sartori was justified in taking the threats seriously, and had limited alternative courses of action available to him, it is difficult, if not impossible, to make any meaningful assessment of the extent to which the threats provided any form of justification for the serious offences committed by Mr Sartori. Accordingly, while it is appropriate to assess the sentence imposed on the basis that the offences were prompted by the threats to which Mr Sartori has referred, the very general nature of the information provided on this topic appears to me to deprive it of significant mitigatory effect.

19 When Mr Sartori first came up for sentence, his counsel advised the court that he was willing to cooperate with police and give evidence if necessary with respect to the extent of the involvement of his accomplices. The prosecutor proposed that in those circumstances, the appropriate course would be to adjourn the hearing to enable Mr Sartori to provide a statement to police, together with an undertaking to cooperate further, after which the court would be in a position to assess the extent of any discount to be given as a result of that cooperation. Defence counsel ultimately agreed with this course, and the matter was adjourned for several days.

20 When the sentencing hearing resumed, the prosecutor advised the court that Mr Sartori had given a statement to police. In that statement he had named the persons who were present in the vehicle on the evening of the offence, although it is clear that their identity was already known to police as a result of information recovered from Mr Sartori's mobile phone. The prosecutor advised the court that the general tenor of the statement given by Mr Sartori to police was to the effect that the two others in the vehicle had no reason to know or suspect what was likely to occur at the house, and that he had only told them that he was going to the house to collect a debt. The prosecutor advised the court that Mr Sartori's statement was inconsistent with other evidence held by the State with respect to the knowing involvement of the two other men in the car, and as a result, it was not proposed that Mr Sartori would be called to give evidence at the trial of those two men. Accordingly, the prosecutor did not accept any undertaking by Mr Sartori to give evidence in the future, and submitted that the matter did not therefore fall within the specific provisions of s 8(5) of the Sentencing Act 1995 (WA) (the Sentencing Act). However, the prosecutor accepted that it was nevertheless in the interests of justice for Mr Sartori to provide the information in the statement, and that his cooperation with the authorities in that regard should be taken into account at the time of sentence.

21 As I have noted, there is no ground of appeal asserting specific error by the sentencing judge. It is therefore unnecessary to give detailed consideration to the observations which he made at the time of passing sentence. Consistently with the requirements of s 9AA of the Sentencing Act, the sentencing judge specified the discount which he was applying as a result of Mr Sartori's early pleas of guilty, which he fixed at the maximum discount available, namely 25%. Obviously there can be no complaint in respect of that component of the sentencing process. Further, the trial judge stated that he had allowed a specific discount of three months as a result of Mr Sartori's cooperation with prosecuting authorities by providing a statement to them. As there has been no allegation of specific error in the course of the sentencing process, it follows that there is no complaint with respect to this aspect of the sentencing process, nor, in the circumstances, would there be any prospect of such a complaint being made out.

22 After allowing for these specific discounts and for general mitigatory factors, the sentencing judge imposed a sentence of 3 years and 3 months imprisonment in respect of the count of aggravated burglary, and 18 months imprisonment in respect of the count of attempted aggravated armed robbery. The sentences were ordered to be served concurrently.

23 A ground of appeal which alleges that a sentence is manifestly excessive asserts the existence of an error to be implied from the term of the sentence imposed. In order to determine whether the sentence is excessive, so as to give rise to an implication of error, it is necessary to take into account the maximum sentence available for the offence, the seriousness of the offence in the scale of offences of that type, the particular circumstances of the offence, all aggravating and mitigating factors, and the standards of sentencing customarily observed: Chan v The Queen (1989) 38 A Crim R 337, 342.

24 I have referred at some length to the mitigating factors properly taken into account, including those which derive from Mr Sartori's favourable antecedents and personal circumstances. I have also identified the specific discounts which were applied by the sentencing judge in relation to which the appellant asserts no specific error. It is appropriate at this stage to say more of the other side of the coin, which concerns the factors which aggravate the seriousness of the offences committed by Mr Sartori, and those factors which are relevant to the placement of the offence of aggravated burglary which he committed in the scale of relative seriousness of offences of that character.

25 Those factors include the fact that the offence was premeditated and planned by Mr Sartori in conjunction with others. He recruited those others to assist him in the commission of the offence by assisting in making good his escape. The purpose of the offence was to obtain firearms. Although Mr Sartori entered the house alone, he was accompanied by others both before and after the forceable entry to the house.

26 The offence was committed at night, in respect of premises which Mr Sartori knew or reasonably expected would be occupied. Mr Sartori was not discouraged by the presence of the occupants, who I would not, myself, describe as elderly, but who were of advancing years. Mr Sartori forced entry into their home wearing a balaclava, which would no doubt have exacerbated their sense of alarm, and wielded a dangerous weapon which could have been used to cause serious injury, and did in fact cause minor injury to the male victim. Both victims were assaulted in the course of the offence, which must have been a terrifying experience.

27 The seriousness of the offences committed by Mr Sartori necessarily reduces the effect of the mitigating factors which were present.

28 The written submissions filed in support of the appeal refer to a significant number of cases in which sentences were imposed for aggravated burglary. Predictably enough, those sentences cover a significant range of circumstances and a significant range of outcomes. In respect of the older cases to which reference is made, allowance must also be made for differences in the sentencing regimes applicable at different times.

29 Neither in the written submissions nor in the oral argument advanced in support of the appeal was any attempt made to extract identifiable principles or a discernible range from the cases to which reference was made. The closest the submissions got to the extraction of principle was an assertion that Mr Sartori received a relatively long term of imprisonment when compared to some cases identified in the field, notwithstanding that those cases were said to be similar to or worse than Mr Sartori's case, and that Mr Sartori received a sentence similar to that imposed in another case which was said to be worse than his.

30 Aggravated burglary is one of those offences which can be committed in a wide variety of circumstances and with widely differing degrees of culpability. Where offences of that character are involved, it is often difficult to identify a readily discernible range of sentences customarily imposed in respect of offences with similar characteristics. Because, in the absence of legislative restriction, sentencing is a discretionary exercise in which there is no uniquely correct sentence to be imposed in respect of each offence, there will inevitably be a spread of sentences amongst any data set of sentences analysed for the purposes of assessing a customary range. In that context, error will not usually be made out merely by pointing to one or two cases in which lesser sentences were imposed for comparable offences committed in comparable circumstances by comparable offenders, or by pointing to one or two similar sentences imposed in respect of offences that are said to be more serious and to have less mitigating factors. Rather, error might be demonstrated if it can be said, from an analysis of sentences imposed for comparable offences committed by comparable offenders that the sentence imposed exceeds the range of sentences which was available to the sentencing judge in the sound exercise of his or her discretion.

31 A consideration of the sentences customarily imposed for the offence of aggravated burglary reveals a significant distinction between burglaries commonly described as a home invasion, which involve forcible entry into residential premises known or suspected to be occupied at the time, accompanied by threatened or actual violence, and burglaries which lack those characteristics. This distinction is understandable, and in my view, entirely appropriate. It reflects community standards and expectations, which would place a home invasion significantly higher in the scale of seriousness, and would regard such a perpetrator as significantly more culpable than, say, persons who surreptitiously enter an unoccupied residence in order to steal property: see Wragg v The State of Western Australia [2013] WASCA 198 [44] (Hall J, McLure P and Buss JA agreeing)

32 The aggravated burglary committed by Mr Sartori was a home invasion at the more serious end of the spectrum. A large and dangerous weapon as used to force entry and both occupants were assaulted. Although, in the event, no property was actually stolen, the purpose of the robbery was to obtain firearms.

33 In written submissions counsel for the appellant placed particular reliance upon the decisions in Boddington v The State of Western Australia [2013] WASCA 179 and Papertalk v The State of Western Australia [2011] WASCA 229. However, although lesser sentences were imposed in each of those cases, it is significant that in neither case was the offender armed with a weapon, nor did either offence have the elements of home invasion to which I have referred.

34 Particular reliance was also placed upon Fullgrabe v The State of Western Australia [2013] WASCA 130, in which a sentence of 3 years and 6 months imprisonment was imposed for the offence of aggravated burglary following the offender's conviction after trial. It is submitted that, as the offender in that case was not entitled to a discount for a plea of guilty, and the circumstances were comparable, it can be inferred that the sentence imposed upon Mr Sartori was erroneous.

35 However, in that case although the offender brandished an electronic shock device, no weapon was actually applied to any occupant of the house burgled, nor was any injury caused. Further, as I have noted, comparison with one case in which it might be said the sentence imposed was more lenient than that imposed in the case under appeal will seldom demonstrate implied error due to manifest excess.

36 Particular reference was also made to the sentence imposed in Nannup v The State of Western Australia [2011] WASCA 257. However, the circumstances of that case were quite different and involved sentences imposed in respect of seven counts on an indictment, and offences committed in the course of what might be described as a crime spree during the course of an evening. The total effective sentence imposed was 6 years imprisonment, following early pleas of guilty on all counts. Within the matrix of sentences imposed, a sentence of 4 years imprisonment was imposed for aggravated burglary which was reduced to 3 years 4 months as a result of an express error by the trial judge to take the offender's cooperation into account. Given the quite different circumstances, no inference of implied error in this case can be drawn from the sentences imposed in Nannup.

37 In Wragg v The State of Western Australia [2013] WASCA 198, Hall J reviewed a range of cases in which sentences were imposed for home burglary [46] - [60]. It is unnecessary to set out that review in full. As with the range of cases identified in the written submissions filed on behalf of the appellant, those cases reveal a varying range of sentences reflecting the varying range of circumstances in which the offence of aggravated burglary is committed. Perhaps all that can usefully be said from a consideration of the cases in this area is that notwithstanding the significant mitigatory factors that are present in this case, it cannot be said that a sentence of 3 years and 3 months imprisonment was outside the range of sentences customarily imposed for a serious home invasion of the kind committed by Mr Sartori. It follows that the sentence imposed does not manifest any implied error and the appeal against sentence must be dismissed.

38 PULLIN JA: I have read the reasons of the Chief Justice in draft form. I agree with the Chief Justice that the appeal should be dismissed. In my opinion, the appeal was entirely without merit. The sentence was extremely lenient rather than manifestly excessive. As the Chief Justice has explained, none of the authorities relied upon by the appellant support the ground of appeal.

39 MAZZA JA: I agree with the Chief Justice that this appeal against sentence should be dismissed for the reasons that he has given. I have also read Pullin JA's brief reasons. With great respect to his Honour, having regard to all the circumstances, I would not characterise the sentence imposed upon the appellant as extremely lenient.