Criminal law - Sentencing - Aggravated burglary - Whether sentence manifestly excessive - Turns on own facts

Sentencing Legislation Amendment and Repeal Act 2003 (WA), sch 1 cl 2(1)

2 McLURE JA: This is an appeal against sentence. On 7 November 2007, the appellant was convicted on his own plea of guilty of one count of aggravated burglary contrary to s 401(2) of the Criminal Code (WA). The circumstances of aggravation were that the appellant assaulted the complainant and did her bodily harm, that the appellant knew or ought to have known that there was another person in the place he entered and that the place was ordinarily used for human habitation.

3 On 2 May 2008, Sweeney DCJ sentenced the appellant to a term of imprisonment of 2 years and 8 months. He was made eligible for parole. The sole ground of appeal is that the sentence is manifestly excessive because of its length.

4 The appellant initially disputed some of the material facts alleged by the prosecution. A trial of the issues commenced on 24 April 2008. During examination-in-chief of the complainant, the prosecutor tendered a series of 12 photographs of the complainant's injuries caused by the appellant. Prior to the production of those photographs, the appellant (and his counsel) were unaware of their existence. Having heard the complainant's testimony and seen the photographs, the appellant instructed his counsel not to cross-examine the complainant and to accept the facts as alleged by the prosecution. Those facts are as follows.

5 The appellant and the complainant had been in a relationship for about seven months which ended about six weeks prior to the offence. The appellant had never had keys to or resided at the complainant's residence. At about 9.30 pm on 8 January 2007, the appellant went to the complainant's house and knocked on the front door. The complainant answered the door and requested that the appellant leave because he was intoxicated and angry as he was suspicious of another male who was at the complainant's house. The appellant attempted to push the door open to get inside, causing the complainant to slam and lock the door. On being refused entry, the appellant went to the side of the house and jumped a boundary fence to get into the complainant's backyard. He walked up to the locked rear sliding security screen door and forcibly removed it to gain entry to the house. He walked into the family room and warned off the complainant's visitor. The appellant approached the complainant and threw two coffee mugs against the sink, smashing them. Fearing assault, the complainant went to her son's bedroom and attempted to call police. The appellant snatched the telephone from the complainant and threw it to the ground. The complainant walked back into the kitchen

and picked up the broken mugs. The appellant approached her again and firmly placed both his hands around her neck, causing her pain and discomfort. The appellant questioned the complainant on who the visitor was and when she responded, the appellant slapped the complainant with his right open hand on her left cheek, causing the complainant to fall backwards onto the ground and become momentarily stunned.

6 Whilst the complainant was still stunned, the appellant picked her up and put her on a bed. The complainant attempted to stand up, but the appellant prevented that by leaning over the complainant with his full body weight and holding her down. The complainant asked several times for the appellant to get off but he would not. He again slapped the complainant, hitting her across the left ear, cheek and temple with his open hand. He repeatedly hit her and pushed down harder when she made attempts to stand up or scream for help. After about three minutes, the appellant let the complainant get up. She grabbed a mobile phone and ran out of the front door onto the street. The appellant followed and snatched the mobile phone from her, grabbed her around the waist and dragged her back into the house. On returning to the house, the appellant placed both his hands around her neck, causing difficulty in breathing. Whilst forcing her down onto the bed, he held the complainant's neck for about 30 seconds and began slapping her all over the body. The complainant managed to get up and go to the kitchen. The appellant followed her and forced his right palm into the complainant's mouth in an attempt to stifle her screams for help. The complainant was having trouble breathing and began to fear for her life. Later, the appellant pushed the complainant on a couch. She screamed for help and the appellant picked up a cushion pushing it down on her face, causing her to have difficulty breathing. The offending came to an end when the appellant became aware that the police were at the complainant's premises.

7 The complainant suffered bruises to her thigh (12 x 19 cm), left calf (12 x 15 cm), right hand (7 x 9 cm), both ears (over a 7 cm diameter), upper left lip and cheek, left arm, upper right arm and back. The sentencing judge described the ordeal as sustained and terrifying (ts 84).

8 The appellant was aged 44 at the time he committed the offence. He was under the influence of alcohol, having a blood alcohol reading of 0.14%. He had a good work history, had been violently assaulted as a child and at the time of sentencing had commenced receiving counselling in an effort to deal with his childhood abuse issues. The appellant had a prior conviction for breach of a violence restraining order taken out by his former wife and a conviction for unlawfully remaining on premises. He had no prior convictions for offences involving violence.

9 The pre-sentence report notes that the appellant sought to justify his behaviour whilst at the same time belittling the character of the complainant. The author of the pre-sentence report concluded that the appellant appeared to remain unaware of the seriousness and impact of his offending behaviour and as a consequence found it difficult to accept responsibility for those behaviours. That is consistent with the psychological report which notes that the appellant impressed as accepting minimal responsibility for his offence by minimising his behaviour and rationalising his actions, claiming the situation was blown out of proportion by the complainant. These reports were prepared prior to the appellant becoming aware of the photographs tendered at the trial of the issues. However, the sentencing judge concluded that there were real limitations on the appellant's insight and remorse even after the trial of the issues.

10 A sentence is manifestly excessive if it is unreasonable or plainly unjust, in which event error is inferred. The appellant contends that the length of the term of imprisonment is manifestly too long. When determining whether a sentence is manifestly excessive, regard is had to the maximum sentence for the offence, the standards of sentencing customarily imposed for offences of that type, the level of seriousness of the circumstances of the offending and matters personal to the offender.

11 The appellant's primary contention was that the sentencing judge's starting point of 5 years, which she reduced for mitigating factors and by one-third pursuant to the transitional provisions, was manifestly excessive. That is the wrong focus. The only question for this court is whether the final sentence imposed is within a sound sentencing range.

12 The maximum penalty for the offence committed by the appellant is 20 years' imprisonment. As to the range of sentences customarily imposed, I repeat what I said in The State of Western Australia v Akizuki [2008] WASCA 267:

[T]he range of sentences customarily imposed for a particular offence does not establish the range of a sound sentencing discretion. Were it otherwise, sentences outside the customary range could not be imposed regardless of the particular circumstances of the case or because of broader considerations including changes in the prevalence of an offence. Moreover, the actual sentence imposed in a comparable case does not mean that is the only correct sentence. The only conclusion to be drawn from sentences imposed in comparable cases is that the sentence in each case was within the sound sentencing range [71].

13 The offence of burglary under s 401(2) of the Code requires that a person commit an offence in the place of another when in that place without that other person's consent. The seriousness of the offence is not lessened because the offence committed in the place was against the person (such as assault) and not against property (such as stealing or robbery). The appellant relied on Holland v R [1999] WASCA 43 in support of his claim that the sentence of imprisonment was too long and sought to distinguish Gallegos v R [1999] WASCA 191.

14 In Holland, the offender made a fast-track plea of guilty to aggravated burglary. The offence was that being in a place ordinarily used for human habitation he committed the offence of assault when, immediately before the commission of the offence, he knew or ought to have known that there was another person in the place. The assault did not occasion bodily harm. The offender was living apart from his wife who was the subject of the assault (the complainant). The offender, who was affected by alcohol, had been permitted entry into the complainant's house earlier in the evening but had left. He returned and requested that he be let in. The complainant refused and telephoned police. A short time later, the offender broke a window and climbed into the living room. The offender grabbed the complainant from behind, placed his hand around her chest and dragged her towards the bathroom. He placed his arm around her neck, choking her. He was then distracted by his younger son who was screaming. The offender proceeded to drag the complainant into the toilet. Shortly thereafter, the police arrived. The sentencing judge imposed a term of imprisonment of 2 years, which is equivalent to 1 year and 4 months under cl 2(1) of sch 1 of the Sentencing Legislation Amendment and Repeal Act 2003 (WA) (the transitional provisions). On appeal, the Court of Criminal Appeal held that the sentencing judge had made an express error in failing to reduce the term for the offender's plea of guilty. The sentence was reduced to 18 months (1 year post transitional).

15 The circumstances of the offending in the present case are more serious than in Holland. The appellant's violence was more sustained and caused bodily harm. Moreover, the mitigating effect of the plea of guilty is less.

16 In Gallegos, the offender made a fast-track plea of guilty to one count of aggravated burglary and one count of assault occasioning bodily harm. He was sentenced to imprisonment for 3 years and 6 months for the aggravated burglary (2 years 4 months post transitional) and 2 years for the assault occasioning bodily harm. The sentences were ordered to be served concurrently. The relevant facts are as follows. The offender and the complainant were in a relationship that the complainant sought to end. They did not live together. At about 10.45 pm on 25 October 1998, the offender entered the complainant's house without permission. The complainant telephoned the police. The offender ripped the telephone from the complainant's hands and pushed her into the lounge room, where he started punching her violently. He punched the complainant in the face, chest and arms. He then pushed her, causing her to fall over. He then kicked her in the back. During the course of the assault, the offender produced and threatened the complainant with a knife which he had obtained from the kitchen. She was in fear of her life. The complainant's injuries included a fractured right clavicle, bruising of the breast, the chest wall and the mid-thoracic region, redness of the left forearm and a soft tissue injury to the left of her neck. An appeal against sentence was dismissed. It appears that the assault which aggravated the burglary was also the assault which occasioned the bodily harm. The offender had no significant prior record.

17 Although the offending in Holland is less serious than in Gallegos, the sentences are difficult to reconcile. On any view, the sentence in Holland is lenient even by 1999 standards. However, sentences for burglary were firmed up in 2003. In Herbert v The Queen [2003] WASCA 61; (2003) 27 WAR 330, the Court of Criminal Appeal noted that Parliament had increased the maximum penalty for home burglary from 14 years to 18 years in 1996, but that the sentences being imposed did not reveal that there had been any significant firming up. Pre-transitional sentences of 5 years (3 years and 4 months post transitional) imposed in that case for home burglary offences to which the offender pleaded guilty were held not to be manifestly excessive.

18 The standards of sentencing customarily imposed in 1999 provide no reliable guide to contemporary sentencing standards for the offence of burglary. This is demonstrated in the recent case of Woodley v The State of Western Australia [2008] WASCA 92. In that case the appellant was convicted after trial of four counts including one count of aggravated burglary under s 401(1) (entry with intent to assault) and one count of assault occasioning bodily harm. The sentencing judge imposed post transitional sentences of 2 years and 8 months for the offence of aggravated burglary (count 1) and 1 year for the assault occasioning bodily harm (count 2). As the intention to assault was punished in

count 1, a sentence shorter than otherwise appropriate was imposed for count 2 [13]. As a consequence the appropriate course would be to order cumulation unless totality considerations justified a different course: Pearce v The Queen (1998) 194 CLR 610.

19 The facts in Woodley are that the offender, who was armed, travelled with others to his wife's home. He and his wife had separated. Leaving the weapons at the front door, the offender entered the complainant's home without her consent. He found the complainant, grabbed her by the hair and punched her around the head. He continued to assault her as he took her out of the house and put her into his car. The offender then drove off. He subsequently raped the complainant. The appellant expressed no remorse for his conduct and displayed no insight or victim empathy. The offender was sentenced to a total sentence of 6 years and 8 months. The sentences on counts 1 and 2 were ordered to be served concurrently for totality reasons. An appeal against sentence was dismissed.

20 It is the case that the sentence of 2 years and 8 months for the aggravated burglary in Woodley was imposed after a trial. However, the elements of the offence the subject of counts 1 and 2 in Woodley were reflected in the single offence of aggravated burglary in this case. Moreover, the violence against the complainant, in this case was more sustained. The sentence of 2 years and 8 months in this case is not inconsistent with Woodley. In any event, a sentence in a single case cannot and does not fix the upper limit of the appropriate sentencing range.

21 The circumstances of the offending in this case, particularly the nature and extent of the violence perpetrated on the complainant in her own home from which she had attempted to exclude the appellant, are serious. Although the appellant's antecedents are generally positive, there is no challenge to the sentencing judge's assessment that there were real limitations on his insight and remorse even after the trial of issues. I am not satisfied that the sentence is manifestly excessive. I would dismiss the appeal.