BRINDLEY -v- THE STATE OF WESTERN AUSTRALIA [2019] WASCA 153 (4 October 2019)

(1) the individual sentence of 3 years 6 months' immediate imprisonment for the burglary offence was manifestly excessive as to length; and

(2) the total effective sentence of 4 years' immediate imprisonment for both offences infringed the first limb of the totality principle.

The appellant does not challenge the sentencing judge's conclusion that terms of immediate imprisonment were the only appropriate type of sentences for the offences.[2]

1. The appellant requires an extension of time in which to appeal. That application, and his application for leave to appeal, have been referred to the hearing of the appeal.
2. In our view, neither aspect of the ground of appeal has any reasonable prospect of succeeding. The application for an extension of time should be granted, leave to appeal should be refused and the appeal should be dismissed.

1. The following facts were read by the prosecutor[3] and admitted by the appellant.[4]
2. We shall refer to the victims of the offending by their first names, so as to avoid identifying them in these reasons. We intend no disrespect by doing so.
3. At about 6 pm on Monday, 10 October 2016, Natalie was at her home in High Wycombe in company with her four children. Her children were 18, 15, 12 and 3 years of age. A friend of her children, Dillon, arrived at the address with his two cousins, Brayden and Brodie. Dillon and Brodie were 19 years old, while Brayden was 21 years old.
4. After a short time, Dillon and Brayden left the house to walk to the shops to buy a cigarette lighter. While walking to the shops, the pair were confronted by an unknown man with dreadlocks. The man accused Dillon of breaking into his car. After a short verbal altercation, Dillon and Brayden continued to the shops and then returned to Natalie's house with the cigarette lighter.
5. Shortly after Dillon and Brayden arrived back at Natalie's house, a white Nissan utility arrived at the address. The appellant and three other unknown male co-offenders got out of the vehicle and approached the house. Natalie was out the front of the house with two of her younger children, and confronted the group, who she did not know. Natalie yelled at the appellant and his co-offenders, telling them to get off her property.
6. The appellant yelled back at Natalie and pushed her in the chest with enough force to cause her to stumble and fall backwards into a green wheelie bin.
7. A fight then took place out the front of the house. The appellant started assaulting Brodie. Natalie retreated to her neighbour's house to call the police.
8. Brayden approached the fight to try to break it up, but was grabbed from behind by one of the co-offenders. That co-offender placed Brayden in a headlock and threatened him saying:

Don't worry about these two. If you move, I'm going to beat the living shit out of you.

The co-offender continued to hold Brayden until Brayden surrendered and sat down on the ground. The co-offender repeatedly asked where Dillon was.

1. After a short period of time, Brodie was able to get away and run off down the street. The co-offender released Brayden, who got up and went inside the house. Brayden locked the security door and the front door. He then went into one of the bedrooms and locked that door as well.
2. The appellant approached the front door of the house and pulled at the security door, ripping the mesh out of it. The appellant kicked the front door a number of times and forced entry to the house, where he proceeded to search each room. The appellant reached the locked door of the bedroom, and forced entry by kicking in the door. Brayden was inside the room and fell backwards.
3. The appellant entered the bedroom and grabbed Brayden by the jacket and looked down to his feet asking him '[a]re you Dillon?' Brayden showed the appellant a medical band on his wrist from a recent hospital admission, which contained his personal details, to prove that he was not Dillon. The appellant said:

Where the fuck is Dillon?

Get the fuck up. Tell me if this is Dillon or not.

1. The appellant then forced Brayden out of the bedroom and walked him out to the front of the house, asking him if Brodie was Dillon. Brayden indicated that this was not Dillon. The appellant then said:

Well, where the fuck is he because our mate's car has been broken into five times and you cunts are going to face the music.

1. The appellant eventually let Brayden go. Brayden remained standing in the front yard while the appellant and a co-offender had a short conversation. The appellant walked over to Brayden and said:

The appellant punched Brayden with a closed fist, striking him to the right eyebrow and causing a laceration. Brayden fell to the ground and was punched and kicked several times by one of the co-offenders.

1. The appellant and his co-offenders then left Natalie's home in the white Nissan utility. The appellant was identified in digiboard procedures by Natalie, Brayden and Natalie's 18‑year‑old daughter. DNA matching the appellant's DNA was also recovered from a swab taken from a pair of broken sunglasses located in the front yard, which were dropped during the fight.
2. The appellant was arrested on Friday, 17 March 2017 and he declined to participate in a recorded interview. Police seized his mobile telephone, which contained text messages referring to the incident and to the appellant's involvement in it. The text messages contained offensive racial slurs directed to the appellant's Aboriginal victims and bragged about what the appellant had done.
3. Count 1 on the indictment alleged that the appellant, while in Natalie's place without her consent, committed the offence of criminal damage. The pleaded circumstances of aggravation were that:

(2) immediately before the commission of the offence, the appellant knew or ought to have known that there was another person in the place; and

(3) the place was ordinarily used for human habitation.

1. Count 2 on the indictment alleged that the appellant unlawfully assaulted Brayden and thereby did him bodily harm. This related to Brayden being punched and his right eyebrow lacerated in the front yard of Natalie's property.

1. The appellant was 34 years old at the time of the offending. He completed school to year 11. He was a good sportsman, and had played rugby for Western Australia.
2. In 2006, the appellant was convicted of a number of drug related offences including possession of prohibited drugs with intent to sell or supply to another. He was sentenced to a total effective sentence of 4 years' immediate imprisonment in respect of those drug offences.
3. The sentencing judge observed that, since being released from prison in 2008, the appellant had turned his life around in every respect.[5] Until the incident which is the subject of this appeal, he had not re‑offended. The appellant addressed his substance abuse issues, and commenced a successful business as a roof carpenter. He maintained that employment as a subcontractor for a decade prior to sentencing, built up a good reputation and was well-regarded by all of the people for whom he worked.[6] The appellant produced a number of references from people who spoke highly of him.
4. At the time of sentencing, the appellant was married with three young children. They lived on a property which the appellant rented from his parents.

1. The sentencing judge referred to the pre-sentence report, observing that the appellant:[7]

(1) did not have a history of offending in a violent manner but did use unprovoked violence on the night of the offending;

(2) presented as having needs in both poor decision making and poor emotional regulation; and

(3) was considered a suitable candidate for a community-based disposition with supervision and program requirements to ensure that his treatment needs were addressed.

1. In the course of his sentencing remarks, the sentencing judge identified the following aggravating factors, in addition to the circumstances of aggravation pleaded in the indictment:

(1) The appellant, a stranger to the victims, broke into the house of a vulnerable woman with four children.[8] The sentencing judge recognised that it 'must have been horrific for her'.[9]

(2) The appellant entered the house in a violent way, ripping off the security doors, knowing that people were inside.[10]

(3) The appellant searched the house and terrorised the occupants, behaving in a thuggish way.[11]

(4) The appellant forcefully punched a person he knew to be unconnected with the matter, to send a message to others.[12] It was, in the sentencing judge's view, 'simply gratuitous violence'.[13]

(5) The appellant drove up the road to the house to find the teenagers and sort them out, which showed that his offending was not spontaneous. There was a degree of planning and premeditation insofar as the offending was part of a plan to go and inflict punishment on people the appellant believed to have committed offences.[14]

(6) The text messages that the appellant sent demonstrated an attitude of entitlement to act outside the law, because the victims were 'local scum' that he had been sorting out.[15]

(7) The appellant's actions were those of a vigilante,[16] but went beyond those of a vigilante because he was not responding to a loss he had suffered.[17] In the sentencing judge's view, the appellant was 'lending the muscle'.[18]

1. The sentencing judge found that no excuse for the offending was provided by suggestions that the appellant was acting:

(2) in aid of a friend for fear that his pregnant wife was being troubled and might miscarry; or

(3) because of people attacking or damaging his friends' property or vehicles in the vicinity.[19]

1. The sentencing judge noted that the appellant claimed he had been drinking on the day of the offending.[20] His Honour remarked that there was no real explanation for the appellant's behaviour other than him helping a friend. It was an 'uncharacteristic aberration'. The sentencing judge said that, nevertheless, the appellant appeared to have taken the lead role in the offending.[21]
2. The sentencing judge noted the following mitigating factors in the course of his sentencing remarks:

(1) Referees expressed the view that the appellant was of good character, being honest, trustworthy, hard-working and family orientated.[22]

(2) This violent offending was, perhaps, out of character.[23]

(3) The appellant entered a fast-track plea of guilty, albeit against a powerful State case against him, for which his Honour allowed a discount of 20% under s 9AA of the Sentencing Act 1995 (WA).[24]

(4) The appellant had demonstrated remorse, acceptance of responsibility and a willingness to facilitate the course of justice.[25]

1. The sentencing judge remarked that the appellant's criminal history demonstrated that he was not entitled to any leniency.[26] His Honour did not consider that the appellant's imprisonment would cause exceptional hardship to his family, such that it should be taken into account in the sentencing process.[27]
2. The sentencing judge found that the seriousness of the appellant's offending made a term of imprisonment the only appropriate disposition.[28] His Honour said that violent aggravated burglaries will invariably attract a sentence of immediate imprisonment.[29]
3. The sentencing judge recognised that aggravated burglaries are prevalent and that the general sentencing objective is personal and general deterrence.[30] His Honour identified the need for some public denunciation of the appellant's offending, particularly in circumstances where he engaged in vigilante behaviour in respect of someone else's cause in a most violent and serious way.[31] As such, his Honour considered general deterrence an important factor.[32] The sentencing judge accepted that the need for specific deterrence was significantly mitigated by the lesson that the appellant had learned from the consequences of his offending.[33]
4. The sentencing judge considered that the total criminality involved in the appellant's offending warranted a total effective sentence of 4 years' immediate imprisonment. In order to achieve this, his Honour reduced the sentence he would otherwise have imposed on count 2 from 2 years' to 6 months' immediate imprisonment. The sentencing judge ordered that the sentence for count 2 be served cumulatively on the sentence for count 1.[34] His Honour backdated the sentence to 21 July 2018 and made a parole eligibility order.[35]

1. The sole ground of appeal asserts implied, rather than express, error. The relevant principles are well established, and were summarised by this court in Kabambi v The State of Western Australia:[36]

(1) Sentencing is a discretionary exercise. An appellate court can intervene only if the appellant demonstrates either an express or implied material error. Express error involves acting on a wrong principle, for example by mistaking the law or facts or taking into account an irrelevant matter. Implied error arises where the end result is so unreasonable or unjust that the court must conclude that a substantial wrong has occurred. Thus, an appellate court cannot substitute its own opinion for that of the sentencing court merely because the appellate court would have exercised a sentencing discretion differently.

(2) In order to determine whether a sentence for an individual offence is manifestly excessive or inadequate, the offence should be viewed in light of the maximum sentence prescribed by law for the crime, the standards of sentencing customarily imposed with respect to it, the place that the criminal conduct occupies in the scale of seriousness of crimes of that type, and the offender's personal circumstances.

(3) The first limb of the totality principle requires that the total effective sentence imposed on an offender who has committed multiple offences bears a proper relationship to the overall criminality involved in all of the offences (including those, if any, in respect of which the offender is still serving or is yet to serve a term of imprisonment), viewed in their entirety, having regard to all relevant facts and circumstances including those referable to the offender personally (and including, for example, the desirability of accommodating any wish to rehabilitate), all relevant sentencing factors and the total effective sentences imposed in comparable cases.

(4) The range of sentences customarily imposed for a crime does not establish the range of a sound exercise of the sentencing discretion. Sentences customarily imposed in comparable cases provide a yardstick or reference point for ensuring broad consistency in sentencing, bearing in mind the scope for significant variations in relevant sentencing factors, and that there is no single correct sentence. What is important is the unifying principles which sentences imposed in comparable cases reveal and reflect.

(5) When this court dismisses an appeal against sentence and when it resentences on a successful appeal, its decision does not fix the upper or lower limit of the range.

(6) Where there is a challenge on totality grounds, the severity of a sentence imposed on an individual count generally falls to be assessed in light of the sentences imposed in respect of the other counts and its contribution to the total effective sentence. A heavy individual sentence (which is not manifestly excessive) may be softened by an order that it be served concurrently with sentences imposed in relation to the other counts. A relatively light sentence (which is not manifestly inadequate) may, as a practical matter, have increased severity if it is ordered to be served cumulatively. The real question is whether the total effective sentence is unreasonable or plainly unjust.

1. The critical issue in this case is whether the individual sentence of 3 years 6 months' immediate imprisonment for the burglary offence is manifestly excessive. We see no reasonable basis for concluding that the 6 month sentence for the offence of assault occasioning bodily harm (for which the maximum penalty is 5 years' imprisonment), or the decision to make that sentence cumulative, was unreasonable or plainly unjust. Counsel for the appellant properly acknowledged that such an argument is made 'with great difficulty'.[37]
2. The maximum penalty for the offence of home burglary committed in circumstances of aggravation is 20 years' imprisonment.[38] The circumstances of the present offence were not such as to attract any minimum penalty.
3. 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 generally significantly more serious than home burglaries which lack those characteristics. A home invasion which is committed with intent to intimidate the occupants is generally more serious than a burglary which involves simply an intention to steal.[39]
4. The present offence was in the more serious category of a violent home invasion with intent to intimidate the occupants of the High Wycombe house. We accept that some aggravating features - such as the use of weapons - were absent. However, the offending was very serious, involving an attack after dark by a group of strangers on a house occupied by a woman and her children, who must have been terrified by the experience. The offence was a significant violation of the sanctity of their home, in which they were entitled to feel safe. Counsel for the appellant accepted that 'it would have been a very traumatic experience for the residents of the house'.[40]
5. The vigilante nature of the attack was also a significant aggravating feature of the offending. In Evans v The State of Western Australia,[41] the offender took it upon himself to mete out punishment by flogging the complainant with a length of hose. The court observed:[42]

The vigilante character of the attack also increases the significance of general deterrence as a sentencing consideration. Vigilante conduct of this kind is appropriately denounced by the courts. The rule of law requires that offenders be tried and, if convicted, punished by the courts in the manner provided for by the law. Members of the community must resolve their differences by lawful means rather than by purportedly taking the law into their own hands by physically harming perceived wrongdoers. The sentences that the courts impose on those who act contrary to the rule of law by taking personal vengeance need to be such as to deter not only the offenders from committing similar offences in the future but also to deter others from taking the law into their own hands. (citations omitted)

1. The appellant's written submissions simply point to five cases in which lower sentences than that received by the appellant were imposed or upheld by this court for a home invasion type of burglary.[43] However, manifest excess is not usually established merely by pointing to some cases where lower sentences were imposed.
2. In Wragg, the 26‑year‑old offender was convicted after trial of one count of aggravated home burglary contrary to s 401(2)(a) of the Code. The offender, accompanied by others, forced his way into a house occupied by a mother and her two sons. The mother was assaulted and windows in the house were broken. The motive for the offence was retribution and the intention was to confront and intimidate the occupants of the house. The offender had a record of violent offending. He was sentenced to 4 years 6 months' immediate imprisonment. The offender's challenge to this sentence, relevantly on the ground of manifest excess, was dismissed.
3. In Wragg, Hall J (with whom McLure P and Buss JA agreed) undertook an analysis of decisions of this court and its predecessor regarding sentences imposed for aggravated home burglary, most of which involved violence or threats of violence.[44] Hall J described the sentence of 4 years 6 months' immediate imprisonment as towards the higher end of the range for home invasion accompanied by an assault, but found that the sentence could not be said to be outside the range customarily imposed.[45]
4. In Herbert v The Queen,[46] this court's predecessor emphasised the prevalence and seriousness of burglaries involving breaking into and rummaging through an empty home in a search for property to steal. The court also emphasised the need for a firming up of sentences for the offence.[47] In that case, sentences of 5 years' imprisonment (equivalent to 3 years 4 months post-transitional) in respect of each of four counts of home burglary,[48] following pleas of guilty, were held not to be manifestly excessive. The decision in Herbert has been approved in subsequent cases.[49]
5. In Winmar v The State of Western Australia,[50] Mitchell JA remarked that the review of decisions in Wragg suggests that the need for a firming up of burglary sentences identified in Herbert may not have been implemented in the more serious cases of home invasion burglary accompanied by violence to the occupants.[51] In Winmar, the offender, who was 22 years old at the time of the offences, pleaded guilty to two counts[52] relating to him breaking into and ransacking an empty house from which he stole property valued at about $59,000. He was resentenced by this court to 3 years' immediate imprisonment.
6. Ultimately, as Mazza JA (Newnes JA agreeing) noted in Conley,[53] each case must be decided on its own facts. While Wragg referred to a range of sentences imposed in previous cases, that range does not set the limits of the exercise of a sound sentencing discretion in future cases.
7. In considering the significance of any identified range, it is necessary to bear in mind the need for the firming up of sentences for serious cases of home burglary, especially home burglary accompanied by violence to the occupants.
8. In our view, having regard to the comparable and distinguishing features in previous cases of aggravated home burglary and the present case, the sentence which the appellant received on count 1 is broadly consistent with the sentencing patterns revealed by the review in Wragg and by subsequent cases.[54]
9. Having regard to all of the circumstances of this case and all relevant sentencing factors, we are not satisfied that the sentence of 3 years 6 months' immediate imprisonment on count 1 was unreasonable or plainly unjust. Further, in our view, the total effective sentence of 4 years' imprisonment bears a proper relationship to the overall criminality involved in both of the offences viewed in their entirety, having regard to all relevant facts and circumstances (including those referable to the appellant personally) and all relevant sentencing factors. In our view, inferred error has not been established.

1. The appellant requires an extension of time in which to appeal. The delay was relatively short, has been explained by the appellant's counsel and has not occasioned any prejudice. We would grant the extension of time in which to appeal. However, given our view that the ground of appeal has no reasonable prospect of succeeding, we would refuse leave to appeal and dismiss the appeal. We would therefore make the following orders:

(1) The time for the appellant to appeal against his sentences is extended to 1 October 2018.

(2) Leave to appeal is refused on the sole ground of appeal.

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

[19] Primary ts 20. See also primary ts 25.

[36] Kabambi v The State of Western Australia [2019] WASCA 44 [21].

[39] 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]; McIntyre v The State of Western Australia [2016] WASCA 150 [15]; Page v The State of Western Australia [2018] WASCA 76 [40].

[41] Evans v The State of Western Australia [2019] WASCA 73.

[43] Appellant's submissions [32] - [37], referring to Humphreys v The State of Western Australia [2017] WASCA 208, Beins v The State of Western Australia [No 2] [2014] WASCA 54, McIntyre, Buxton v The State of Western Australia [2009] WASCA 6 and Topic v The State of Western Australia [2013] WASCA 157.

[46] Herbert v The Queen [2003] WASCA 61; (2003) 27 WAR 330.

[47] Herbert [5] - [7], [133], [168] - [171].

[48] Contrary to s 401(2)(b) of the Code (maximum penalty: 18 years' imprisonment).

[49] Pollock v The State of Western Australia [2004] WASCA 280 [49]; Sulejmani v The State of Western Australia [2005] WASCA 95 [21]; Buxton [17] and Conley v The State of Western Australia [2013] WASCA 95 [29] - [31].

[50] Winmar v The State of Western Australia [2018] WASCA 155.

[52] One contrary to s 401(2)(b) and the other contrary to s 378 of the Code.

[53] Conley [31] (a case involving, relevantly, an offence contrary to s 401(2)(b) of the Code).

[54] In addition to the cases cited by the appellant, see Page; Dos Santos v The State of Western Australia [2016] WASCA 46; Jolly v The State of Western Australia [2017] WASCA 181 and Smith v The State of Western Australia [2015] WASCA 234.