Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA

Criminal law - State appeal against sentence - Fine of $5,000 imposed for offence of aggravated burglary after a trial - Whether sentence manifestly inadequate - Sentence of imprisonment only appropriate outcome

The respondent be sentenced to 2 years 6 months' imprisonment suspended for 12 months

Butler v The State of Western Australia [2012] WASCA 249

Drake v The State of Western Australia [2006] WASCA 209

Moody-Jackamarra v The State of Western Australia [2007] WASCA 7

Munda v The State of Western Australia [2013] HCA 38

The State of Western Australia v Munda [2012] WASCA 164; (2012) 43 WAR 137

The State of Western Australia v Sabek [2005] WASCA 207

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

3 HALL J: This is a State appeal against sentence.

4 The respondent and his 18-year-old daughter were convicted of aggravated burglary after a trial. The circumstances of aggravation were that the respondent and his daughter were in company with each other and that they knew or ought to have known that there was another person in the place where the burglary was committed. The offence was of the type referred to as a home invasion. The offence was particularised as being that the respondent and his daughter while in the place of another person without that person's consent committed the offence of assault.

5 The respondent was fined $5,000 and his daughter was placed on a 12 month intensive supervision order. The appellant contends that the fine imposed on the respondent was manifestly inadequate.

6 The facts found by the sentencing judge can be summarised as follows. The respondent's daughter had formerly been in a relationship with a man named Wayne Jones. Both had moved on to form other relationships. The daughter, out of jealousy, caused Jones to believe that his current partner had had an affair with the daughter's current partner. This news caused Jones to go to the daughter's partner's house and, amongst other things, damage a fish tank owned by the daughter.

7 When the daughter discovered the damage she became very angry and told her father, the respondent, what had happened. A decision was then made to go to Jones' home with the purpose of intimidating him. The respondent and his daughter arranged for others to accompany them, including two other men and the respondent's partner.

8 On arrival at Jones' home the respondent threw a beer bottle at the front door. Jones and his partner were at home, heard the noise and were fearful. The group, including the respondent and his daughter, then forcibly entered the house by a side window to the lounge room after tearing away a flyscreen. The two other males entered first. One of them was wielding a baseball bat. That person asked Jones if he was the person they were looking for. The group angrily confronted Jones and his partner and the partner made an emergency triple zero call.

9 The trial judge found that the man wielding the baseball bat had clearly been enlisted to act in a threatening way towards Jones. However, he did not find that there was any intention on the part of any in the group that Jones would actually be assaulted. The baseball bat was thrown at Jones and he then picked up an axe to defend himself. Both Jones and his partner retreated to the back of the house. Jones was forced to the ground still holding the axe. His fingers were injured when one of the group stood on the axe handle, trapping his fingers between the handle and the brick paving. Jones' partner was then assaulted by the respondent's daughter. This involved the respondent's daughter grabbing at Jones' partner, who then defended herself.

10 His Honour found that the respondent had entered Jones' house with the common unlawful purpose of committing a home invasion. He found that the respondent was responsible for the assault committed by his daughter because that assault was a probable consequence of the carrying out of the group's unlawful purpose.

Sentencing submissions on behalf of the respondent

11 It was submitted on behalf of the respondent that he had made an impulsive decision to assist his daughter to collect payment for the damaged fish tank. He had not met Mr Jones before the night in question and had not been involved in the background of disputes.

12 The respondent was 52 years of age at the time of sentencing. He had been in his present relationship for approximately three years. He was in full time employment in his own painting business which employed four other staff. A number of character references were provided. Some of these references referred to the respondent's willingness to employ people who otherwise could not obtain a job.

13 Counsel for the respondent conceded that the only appropriate disposition for an offence of this nature was one of imprisonment. However, she sought to urge the trial judge that the respondent's personal circumstances justified a suspended sentence.

14 A pre-sentence report was provided to the court. In that report the respondent gave an account of the events which very much minimised what had occurred and his own involvement in it. He said that his daughter had asked him to accompany her to Jones' house to seek financial reimbursement for damage that she claimed Jones had caused. He said that when he attended at the address his daughter was arguing with Jones whilst in possession of an axe and threatening his daughter. He said his parental instinct took over. These claims were inconsistent with the findings of the trial judge. The report writer noted that the respondent lacked consequential thinking and appeared to be seeking to justify his behaviour.

15 The respondent confirmed to the report writer that he owned his own painting business and that his fortnightly gross income was approximately $4,000. He had significant assets including two vehicles, a camper trailer, a boat and a motorbike. He viewed his financial situation as stable.

16 It was submitted on behalf of the respondent's daughter that she was 18 at the time of the offence and had no history of violence. She had no criminal record and it was suggested that her conduct had been influenced by her father. By the time she came to be sentenced she was 19 and pregnant. She had moved away from Geraldton where the offence occurred and was living in a more stable environment with her sister in Perth.

17 The sentencing submissions of the State were very brief. It was submitted that the appropriate disposition for both offenders was a term of imprisonment. Having regard to her age and antecedents a suspended term was not opposed in respect of the respondent's daughter.

18 As regards the respondent, it was said that the outcome depended upon the findings of fact. The prosecution said that if the trial judge was to find that the respondent intended to act violently then it would not be appropriate to suspend a term of imprisonment. The implication was that if no such finding was made a suspended sentence was open. On the hearing of the appeal it was accepted that such a concession had been made and it was maintained for the purposes of any resentencing that may occur.

19 The trial judge commenced his sentencing remarks by noting that any sentences imposed must be commensurate with the seriousness of the offending. He referred to the maximum sentence for aggravated burglary of 20 years' imprisonment. His Honour then made the findings of fact that I have referred to earlier in these reasons.

20 His Honour concluded that the respondent was more culpable than his daughter. In this regard, his Honour said:

Turning to you, Geoffrey Peacock, you had no part in any dispute between your daughter and Jones. You had never met him. Instead of giving good fatherly advice, you took the opportunity to participate for your own perverse satisfaction, I would say, in what was a pathetically juvenile but seriously wrongful and hurtful activity.

The courts see too much of this thuggish behaviour. Sometimes as in this case, little injury or damage is done, but in other cases the consequences of such incidents are catastrophic.

You, Geoffrey Peacock, acted in a bullying way toward Jones, and in doing so encouraged and tacitly approved of the actions of others who were in the group. Your actions are not mitigated by youth.

Rather, your offending is aggravated by the leadership that you provided to the group and the abrogation of your responsibility as a parent and as an older adult in counselling the other offenders. There is nothing in the facts which warrants any diminution of your responsibility for the offence (ts 347 - 348).

21 After referring to the respondent's personal circumstances his Honour then said:

I consider that your criminal responsibility is greater than that of your daughter because of the encouragement which your presence and that of your partner gave her.

It has been observed by the author of the pre-sentence report that you are seen to lack consequential thinking skills. It seems to me that your sense of fair play was distorted by your emotional response to your daughter's report of what had happened to her home. However, you are old enough to know better and you should not have responded as you did.

You have a prior record, which consists mainly of driving offences. It is a serious record, in that it shows repeated offences of driving without a motor driver's licence. These offences show disregard of the law and of the orders of the court. It appears that your repeated offending in this way was due to your intention not to allow your disqualification from driving to interfere with your work activities (ts 350 - 351).

22 His Honour referred to the offence as being very serious. He said that offences of this particular nature, being run-through-type offences, that were calculated to cause fear and intimidation were not uncommon. He said they needed to be deterred by appropriate sentences. He noted that offences of this nature were often committed in the course of feuding behaviour. However, he said that that feature did not in any way excuse them or reduce their criminality. He noted that mob behaviour is dangerous and puts people at risk of injury. Property rights are abused. Damage to houses is caused. In the result, police resources are deployed which are costly to the community.

23 His Honour acknowledged that an important sentencing consideration was general deterrence. He said that the court should be seen to impose a sentence that deters others from offending in a similar way. However, he considered that personal deterrence was of lesser significance as the respondent was unlikely to offend in the same way again. He noted that the respondent had earned no reduction in his sentence by showing remorse or by cooperating with the police.

24 His Honour concluded that imprisonment was an appropriate sentence. However, he said that he was not satisfied that it was the only appropriate sentence having regard to all of the circumstances. He said that the personal circumstances of the respondent militated against a sentence of imprisonment.

25 In regard to the respondent, his Honour concluded:

You, Geoffrey Peacock, present a more difficult case in terms of sentencing, particularly having regard to what I have said about the need for the court to sentence you in a way that serves the interest of general deterrence. You are not in need of any supervision or programs to correct your behaviour. You are a mature man who has shown himself to be capable of a serious offence involving violence.

It is conceded by your counsel that imprisonment is the only appropriate disposition. The submission made on your behalf is that any term of imprisonment should be suspended. Where counsel, on behalf of an offender, makes a concession of that nature, the court must give very careful consideration to it.

But in my view, imprisonment is not the only appropriate sentence in your case. You are a person who has, despite a very bad traffic record and reckless and other minor offences, no prior history of similar offending. You are well regarded.

The references which I have detailed speak very highly of you as an individual and as a businessman. You are seen to be generous in the way that you provide opportunities for employment to those who might otherwise have great difficulty finding work.

After giving your case very careful consideration, I've decided to impose on you a fine of $5,000. I will order that you have 28 days to pay the fine. If you do not pay the fine by Thursday, 4 April 2013, I order, pursuant to section 59 of the Sentencing Act, that you be imprisoned for the period determined by section 59(3); that is, 20 days. Effectively, you would have to cut out the fine in prison at the rate of $250 a day (ts 353 - 354).

26 The State takes no issue with his Honour's findings of fact. Nor does it suggest that there were any express errors. Rather it submits that the sentence imposed on the respondent was so clearly inadequate as to manifest an implied error in the exercise of sentencing discretion. The considerations relevant to determining whether a sentence is manifestly inadequate are the same as those relevant where a claim of manifest excess is made.

27 In determining whether or not a sentence is manifestly inadequate the sentence must be viewed in the perspective of the maximum sentence prescribed by law for the offence, the standards of sentencing customarily observed with respect to the offence, the place which the criminal conduct occupies on a scale of seriousness for offences of that type and the personal circumstances of the offender.

28 As has been noted, the maximum penalty for an offence of burglary committed in circumstances of aggravation is 20 years' imprisonment: s 401(2)(a) of the Criminal Code (WA).

29 As to the seriousness of this offending, it contained a number of aggravating features. The offence was committed at night and in company. The clear purpose was to intimidate and frighten the occupants of the house. Some planning was undertaken, including the recruitment of two other males. The group forcibly entered the premises and proceeded to terrorise the occupants. The occupants were threatened, including with a baseball bat. It was likely that someone would be assaulted and this occurred. His Honour, quite correctly, concluded that the respondent was more culpable than his daughter given his age and leadership role.

30 As regards the respondent's personal circumstances, there was nothing to indicate remorse. The respondent had been convicted after trial and had sought to minimise and justify his behaviour to the author of the pre-sentence report. The respondent did have favourable character references but as against this he had a significant record of traffic offences. Whilst the traffic offences were obviously different in character, the nature of those offences, in particular persistently driving whilst disqualified resulting in the imposition of suspended terms of imprisonment, indicated contempt for authority and the law.

31 As to the standards of sentencing customarily observed, home burglaries are viewed as being particularly serious: Moody-Jackamarra v The State of Western Australia [2007] WASCA 7. Such offences are generally seen as requiring substantial penalties in order to recognise considerations of personal and general deterrence and reflect the prevalence of the offence: Drake v The State of Western Australia [2006] WASCA 209 [60] and Butler v The State of Western Australia [2012] WASCA 249 [40]. A home invasion which is committed with intent to intimidate the occupants is more serious than a burglary which involves simply an intent to steal: The State of Western Australia v Sabek [2005] WASCA 207 [50].

32 Sentences imposed for offences of this nature were recently reviewed in Wragg v The State of Western Australia [2013] WASCA 198 [46] - [61]. It is unnecessary to repeat that review here. It is sufficient to note that offences of this nature and this level of seriousness almost invariably result in a sentence of imprisonment to be immediately served. Other than in exceptional cases, the sentences imposed in comparable cases were between 2 and 4½ years' imprisonment. The sentence imposed in this case is entirely inconsistent with those customarily imposed. Whilst inconsistency is only one factor to consider it strongly indicates the presence of implied error in this case.

33 Having regard to the seriousness of this offence and taking into account the respondent's personal circumstances the fine of $5,000 imposed on the respondent was clearly manifestly inadequate. A fine was inappropriate for this offence. With respect to the trial judge, it is difficult to understand how he could have concluded otherwise.

34 His Honour made reference to all of the relevant sentencing principles. He also referred to the particular factors applicable to offences of this nature. He referred to the importance of general deterrence. However, the proper exercise of sentencing discretion requires that the principles be engaged with and applied, not merely recited. In this case, the proper application of those principles to the facts and circumstances leads to the conclusion that a sentence of imprisonment was the only appropriate outcome.

35 It is inexplicable that his Honour could conclude that the respondent was more culpable than his daughter and yet impose a penalty on the respondent which is of a type lower on the hierarchy of sentences referred to in s 39(2) of the Sentencing Act 1995 (WA). That difference is not explained by the relative personal circumstances because those of the daughter could only be viewed as being more favourable given her youth and lack of criminal record.

36 It was suggested by counsel for the respondent that in some circumstances a fine can represent a significant penalty. That may be so but however high a fine may be it is clearly a less serious penalty than one of imprisonment, either suspended or immediately to be served. In any event, a fine of $5,000 could not be viewed as being a meaningful reflection of the seriousness of this offence. Such a penalty contains no realistic element of general deterrence. Nor was it likely to be an effective personal deterrent given that the respondent was earning $4,000 a fortnight gross.

37 In my view, the appellant has established that an implied error occurred in the exercise of the trial judge's sentencing discretion. It has not been suggested that there is any basis for exercising the residual discretion not to allow a State appeal: The State of Western Australia v Munda [2012] WASCA 164; (2012) 43 WAR 137 and Munda v The State of Western Australia [2013] HCA 38 [72] - [73]. The appeal should be allowed and the respondent resentenced.

38 Sufficient materials are available to enable this court to resentence the respondent. In resentencing on this appeal there are further factors that need to be taken into account. First, the State has maintained its concession that a suspended sentence would be an appropriate disposition in this case. Secondly, it is important in sentencing the respondent not to create any disparity with the sentence imposed on his daughter.

39 But for those factors this offending could properly have attracted a longer sentence than I will propose, and one to be immediately served. In my view, the appropriate disposition is a sentence of 2 years and 6 months' imprisonment to be suspended for a period of 12 months.

(2) Sentence imposed in the District Court be set aside.

(3) In lieu thereof the respondent be sentenced to 2 years 6 months' imprisonment suspended for 12 months to commence from delivery of this judgment.