Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA

Criminal law - Appeal against sentence - Totality - Where sentence for attempt within range of sentences customarily imposed for the completed offence - Turns on own facts

Buxton v The State of Western Australia [2009] WASCA 6

1 McLURE P: This is an appeal against sentence. The appellant was convicted on his plea of guilty of one count of attempted aggravated burglary contrary to s 401(1) of the Criminal Code (WA) (the Code) and one count of wilful damage contrary to s 444 of the Code.

2 On 30 November 2010 Sweeney DCJ sentenced the appellant to 2 1/2 years' imprisonment for the offence of attempted aggravated burglary and 12 months' imprisonment for the offence of wilful damage. The sentences were ordered to be served concurrently, resulting in a total effective sentence of 2 1/2 years' imprisonment.

3 The sole ground of appeal is that the total sentence infringes the first limb of the totality principle. However, the real focus of the appellant's submissions is on the length of the sentence for the offence of attempted aggravated burglary.

4 The facts are as follows. The appellant and his girlfriend were at a wedding reception at a hotel in Fremantle. The pair, who were very intoxicated, got into an argument which escalated into mutual physical violence. At some stage, the appellant's girlfriend headbutted the appellant, knocking out his front teeth. The complainant and his family lived close to the hotel. At about 1.30 am the complainant was woken by screaming coming from the hotel. He saw the girlfriend running and screaming from the balcony of the hotel into the car park and noticed the appellant following her. The complainant provided the appellant's girlfriend with refuge in his house for her safety. The appellant went to the complainant's house and tried to gain entry by the front door. The complainant was forced to stand behind the front door using all his strength to stop the appellant from gaining entry. After about five minutes the appellant gave up trying to enter the complainant's house through the front door. The appellant then took a plastic chair from the front of the house and began to swing it against the side of the house. In the process he smashed three wall panel sheets and 10 glass louvres. The appellant then went to the rear of the house and climbed onto the roof. He was there for a short time, damaging an aerial, before climbing down and fleeing the scene. The appellant caused damage to the house estimated at around $7,000.

5 At the time of the commission of the offences, the appellant's girlfriend, the complainant, the complainant's wife and their 10-year-old son were inside the house. Whilst the appellant was trying to force his way into the house, the complainant's wife handed the complainant a broom handle in case he needed a weapon to defend himself. Their son was crying, screaming and absolutely terrified during the incident. The complainant's wife hid him under a kitchen bench and told him not to move.

6 The appellant was aged 33 at the time of sentencing. He had a relatively lengthy record of what can be described as public disorder offences, including assaulting and obstructing public officers and alcohol-related driving offences.

7 After completing Year 10, the appellant completed a boilermaker apprenticeship. He has a good work history. At the time of sentencing, the appellant had ended the relationship with the girlfriend who was provided refuge and completed a four week drug and alcohol workshop. The author of the pre-sentence report noted that he presented as motivated to abstain from future alcohol use. The appellant recognised that he became aggressive and impulsive when under the influence of alcohol.

8 The first limb of the totality principle requires that the total effective sentence bear a proper relationship to the overall criminality involved in all the offences, viewed in their entirety and having regard to the circumstances of the case, including those referrable to the offender personally. As already noted, the appellant's submissions focussed primarily on the sentence for the offence of attempted aggravated burglary. The maximum penalty for attempted aggravated burglary (10 years) is half that for the completed offence (s 552(2)(b) and s 401(1)(a) of the Code).

9 The gravamen of the appellant's complaint is that the term of 2 1/2 years for the attempted aggravated burglary is within the range of sentences customarily imposed for the completed offence (see Buxton v The State of Western Australia [2009] WASCA 6 and the cases cited therein). That may be so. However, it does not follow that because the maximum penalty for a completed offence is double that for an attempted offence of the same type, the penalty imposed for an attempt must necessarily be less than for a completed offence. For example, the circumstances of an attempt can be more serious than the circumstances of a completed offence.

10 The circumstances of the offending in this case are high on the scale of seriousness. The appellant directed his violent conduct towards the innocent occupants of a home who provided refuge to a person perceived to be at serious risk of personal harm from the appellant. The sentencing judge fairly described the appellant as being in a 'crazed rage' that would

have been utterly terrifying for the people bravely providing refuge to a woman who was bleeding and distressed. In mitigation, the appellant pleaded guilty at the first opportunity, was remorseful for his offending and had taken steps to address the drinking problem that was the common thread in his offending behaviour.

11 Having regard to all relevant sentencing considerations, the total effective sentence can appropriately be characterised as high. However, I am not persuaded that it offends the totality principle. I would dismiss the appeal.