Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA

Criminal law - Application for leave to appeal against sentence - Aggravated burglary - Whether failure by trial judge to order pre-sentence report resulted in miscarriage of justice - Discount for guilty plea - Whether sentence should have been suspended

Sentencing Act 1995 (WA), s 9AA

Cartwright v The State of Western Australia [2010] WASCA 4

Collins v The State of Western Australia [2007] WASCA 108

Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321

Fowler v The Queen [2002] WASCA 296

Gavin v The Queen (1992) 6 WAR 195

House v The Queen [1936] HCA 40; (1936) 55 CLR 499

Wilson v The State of Western Australia [2010] WASCA 82

2 MAZZA JA: This is an application for leave to appeal against sentence.

3 On 19 November 2012, on the first day of a scheduled four-day trial, the appellant pleaded guilty to one count of aggravated burglary contrary to s 401(2) of the Criminal Code (WA). The charge was in these terms:

On 9 February 2012 at Atwell [the appellant] while in the place of [the victim], without her consent, committing the offence of assault.

And that [the appellant] did bodily harm to [the victim].

And that [the appellant] detained [the victim].

And that the place was ordinarily used for human habitation.

4 The appellant pleaded not guilty to an alleged aggravating circumstance included in the charge, being that he had threatened to kill the victim. There was a trial of issues as to whether the appellant had made such a threat. The victim was required to give evidence and be cross-examined. In the end, his Honour was not persuaded beyond reasonable doubt that the appellant made the threat to kill. At the conclusion of the trial of issues, the appellant was remanded on bail to reappear on 17 January 2013 for sentence. His Honour ordered that pre-sentence and psychological reports be prepared for that day. On 17 January 2013, the proceedings were adjourned to 28 February 2013. On 28 February 2013, the appellant was sentenced to 2 years' immediate imprisonment backdated to commence on 5 January 2013, with eligibility for parole. The order backdating the commencement of the sentence took into account a period of pre-trial custody with respect to the offence.

5 The appellant's proposed grounds of appeal are as follows:

1. The sentencing Judge erred on 17 January 2013 in not ordering an additional Pre-Sentence Report for sentencing purposes on 28 February 2013 as to the consideration of suspending the term of imprisonment.
2. The sentencing Judge erred in proceeding to sentence the appellant, to an immediate term of imprisonment on 28 February 2013:-

(a) in the absence of any additional Pre-Sentence Report; and

(b) without the evidence of the appellant's improvement of attitude, rehabilitation and unlikelihood of re-offending, and

(c) without proper and sufficient consideration of the -

(i) the appellant's excellent personal antecedents,'

(ii) the appellant's lack of relevant criminal record

1. The sentencing Judge erred by giving the appellant insufficient consideration and discount for his plea of guilty.
2. The sentencing Judge erred in not suspending the appellant's term of imprisonment.

6 For the reasons that follow, none of the proposed grounds of appeal have a reasonable prospect of succeeding. Accordingly, the appeal is taken to have been dismissed: s 27(2) and (3) of the Criminal Appeals Act 2004 (WA).

7 The appellant and the victim were, at all relevant times, married, but had been separated for some months. The victim and the children of the marriage were residing in the former matrimonial home. The appellant was the subject of a violence restraining order to protect the victim.

8 On the afternoon of 9 February 2012, the appellant climbed over the back fence of the house and, after entering the premises, waited in his son's bedroom for the victim to come home. The appellant was wearing gloves. At the trial of issues he said that he wore the gloves to protect his hands whilst climbing the fence. The learned sentencing judge noted that no explanation was offered for the appellant continuing to wear the gloves once inside the house.

9 The victim entered the house through the front door and went into the kitchen. When she saw the appellant enter the kitchen, she started to back up against the kitchen bench. The appellant then grabbed the victim's neck with both hands. The victim fought back and the appellant let her go. However, the appellant again approached her and grabbed her neck with both hands. While the appellant had the victim by the neck, she knocked over a pot of oil. This caused the appellant to let the victim go. The victim then slipped on the oil and fell to the floor. After she got up, the appellant grabbed her by the neck again. The victim then reached for something from the bench and took hold of a knife. The appellant took the knife from the victim and pointed it at the victim's stomach for a minute or two. Then, while holding the victims' throat with his left hand, he put the knife, which he held in his other hand, under her throat.

10 The victim told the appellant that she was feeling unwell and asked to sit in the lounge. Eventually, the appellant permitted the victim to move to the lounge. He followed her to the lounge, still holding the knife. The appellant then put the knife into the kitchen sink, but detained the victim in the lounge room until their children returned from school. He continued to detain her against her will for some time after the children had returned home.

11 Photographs taken not long after the incident showed bruising to the left side of the victim's neck and other injuries to her face, which clearly constituted bodily harm.

12 The appellant was 45 years of age when he was sentenced. He was born in Serbia and came to Australia with his wife when he was approximately 30 years of age. He has worked as an electrician and as a taxi driver. There is no doubting his capacity for hard work. He has a short minor record of convictions but no prior convictions for violent behaviour.

13 The appellant found it difficult to accept that his marriage had broken down. As referred to earlier, following the break down of the marriage, the victim obtained a violence restraining order against the appellant. Subsequent to the offending on 9 February 2012, the appellant engaged in conduct which was found by the Fremantle Magistrates Court to be in breach of the violence restraining order and protective bail conditions. On 4 December 2012, the Fremantle Magistrates Court sentenced the appellant to a 12 month community based order with a program requirement. He was referred to a men's domestic violence program, which had not commenced by the time of his appearance in the District Court on 17 January 2013.

14 The pre-sentence report was dated 31 December 2012. The author of the report noted that while the appellant had made some admissions in relation to the offence, the appellant apportioned the majority of the blame upon the victim and minimised the impact the offence had had upon her.

The psychological report of Ms Roxanne Buktenica dated 10 January 2013

15 In Ms Buktenica's opinion, the offence related to the appellant's difficulties in coping with the breakdown of his marriage. Ms Buktenica noted that when discussing the offence, the appellant tended to externalise blame towards the victim. She found that the appellant had difficulties accepting responsibility for his behaviour, portraying himself as the victim. In Ms Buktenica's opinion, the appellant lacked insight into his behaviour and showed 'minimal remorse' for what he did, believing it to be justified. Ms Buktenica assessed the appellant's risk of future offending involving domestic violence using the Spousal Risk Assessment Guide. She said that according to that guide, the appellant did not have significant risk factors for further domestic violence, noting that he did not have a reported history of spousal assault, no previous violent offences and no substance abuse issues. However, she noted that there were areas of concern, including that the appellant presented with relationship difficulties, a recent history of violating a violence restraining order, lack of insight into his behaviour and externalisation of blame to the victim.

The psychiatric report of Professor Paul Skerritt dated 21 February 2013

16 The appellant's solicitor, during the sentencing proceedings, sought a psychiatric opinion from Professor Paul Skerritt. Professor Skerritt did not offer any psychiatric reason for the appellant's offending. He noted that the appellant had received treatment for mild depression, but he did not regard that condition as being of any significance in the offence.

The proceedings on 17 January and 28 February 2013

17 Proposed grounds 1 and 2 concern the proceedings on 17 January and 28 February 2013.

18 On 17 January 2013, the learned sentencing judge had before him the pre-sentence report, Ms Buktenica's report and the State's written sentencing submissions. In those submissions, the State called for the imposition of an immediate term of imprisonment.

19 Defence counsel (not the appellant's counsel on appeal) submitted that a suspended imprisonment order was the appropriate disposition. In discourse with defence counsel, his Honour voiced a concern that a suspended term of imprisonment would not be a sufficient personal deterrent. Defence counsel responded, saying, in effect, that a relevant matter for his Honour to take into account was that the appellant was the subject of the community based order. Defence counsel informed the court that the appellant was due to commence the program requirement the following day, 18 January 2013. Defence counsel sought the opportunity to obtain a further report from Community Justice Services. Defence counsel did not specify why such a report was required, although it may be assumed that the report was to address the appellant's progress in the men's domestic violence program. After defence counsel made the submission, the following exchange occurred:

CURTHOYS DCJ: Look, these are my thoughts at the moment. Unless there is a report before me suggesting that what he's undergoing is productive of change - - -

MARGARETIC, MR: And would alleviate any threat of any future offending.

CURTHOYS DCJ: - - - I'd have - there has to be a term of imprisonment without question for an offence like this. Unless the report were to suggest fairly strongly that he is responding, then I would find it difficult to suspend.

MARGARETIC, MR: Your Honour, it's obviously - - -

CURTHOYS DCJ: I think, in fairness to him and in fairness - and because of my concerns of re-offending behaviour, what I'm minded to do is adjourn this for, I don't know, a month so he can go to that next - it doesn't mean that if the report is - - -

MARGARETIC, MR: Of course.

CURTHOYS DCJ: But, I mean, at the moment - on the evidence before me at the moment, then it would be - I'd be looking at a term of immediate imprisonment.

MARGARETIC, MR: I'm obliged to your Honour for affording the offender that opportunity. And your Honour, what I would do is I would immediately, through my chambers, contact Frernantle Community Justice Services, who I believe [the appellant] is - excuse me, your Honour.

CURTHOYS DCJ: You can find that out from him.

MARGARETIC, MR: Your Honour, it is the Fremantle Community Corrections.

CURTHOYS DCJ: All right (ts 124).

20 The proceedings were then adjourned to 28 February 2013.

21 When the matter resumed on 28 February 2013, defence counsel drew his Honour's attention to the report of Professor Skerritt. Defence counsel then explained that he had received an email from Community Justice Services to the effect that a report of the type requested could not be provided without an order from a court. Defence counsel was asked when he had contacted Community Justice Services. Counsel replied to the effect it was on either 25 or 26 February 2013. This is notwithstanding defence counsel's assurance given in the earlier proceedings that he would immediately contact Community Justice Services.

22 Defence counsel did not expressly seek an adjournment of the proceedings, saying to his Honour, 'The matter is in your hands' (ts 132). The prosecutor made brief submissions concerning Professor Skerritt's report and submitted that the sentencing should proceed. His Honour then indicated that he intended to sentence the appellant. He elaborated:

I will proceed to sentencing today. Although there's not a report from the Fremantle - from the South-West Coastal Community Justice Services at Fremantle, I have received a report from Paul Skerritt, the psychiatrist, which doesn't address on a psychiatric basis, as one would have expected, the risk of re-offending. It seems to be more a comment on what he thinks is a proper sentencing disposition.

But it seems to me that I gave the offender some time, additional time, to bring whatever evidence he could before - and there is, other than Dr Paul Skerritt's report - I haven't been provided with anything, and I intend to proceed to sentencing because it cannot, as I said at that occasion, proceed indefinitely (ts 135).

23 His Honour regarded the offence as serious and aggravated because it was committed in breach of a violence restraining order and involved violence and the use of a knife. Unsurprisingly, he concluded that what occurred must have been a terrifying experience for the victim. His Honour noted the late plea of guilty, discounting the sentence he would otherwise have imposed by 5%, pursuant to s 9AA of the Sentencing Act 1995 (WA). He noted the appellant's positive antecedents and the absence of any history of violent behaviour and any significant risk factors for further acts of domestic violence.

24 His Honour referred, at some length, to the reports which were before him, noting that the appellant lacked insight into his behaviour and externalised blame to the victim.

25 His Honour gave particular emphasis to general deterrence. He had regard to comparative cases and concluded that the appropriate term of imprisonment was 2 years. He then proceeded to determine whether or not that sentence should be suspended, having regard to what was said by the High Court in Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321. He said, having revisited all the factors relevant to the imposition of the sentence of imprisonment, he was 'positively satisfied' that the sentence should not be suspended.

26 In his oral submissions, the appellant's counsel focused on proposed grounds 1 and 2. His principal submission was that his Honour erred by failing, on 28 February 2013, to order a pre-sentence report in relation to the appellant's compliance with the program requirement of the community based order or, alternatively, the absence of that pre-sentence report led to a miscarriage of justice.

General principles applicable to appeals against sentence

27 The general principles applicable to appeals against sentence are uncontroversial. They were explained by McLure P and Owen JA in Wilson v The State of Western Australia [2010] WASCA 82 [2]. There is no need to repeat them here.

28 Section 20(1) of the Sentencing Act provides that a court may order a pre-sentence report if the court considers it will assist in the sentencing of an offender.

29 It is a rare case in which a miscarriage of justice could be demonstrated by the failure of a judge to obtain a pre-sentence report on an offender who is represented by counsel, and the failure by itself could never constitute a ground of appeal: Gavin v The Queen (1992) 6 WAR 195, 211 (Seaman J; Malcolm CJ agreeing) and Fowler v The Queen [2002] WASCA 296 [9] (Steytler J; Templeman J & Sheppard AUJ agreeing).

30 In my opinion, the learned sentencing judge did not make the alleged error. Whether, on 28 February 2013, his Honour ordered a further pre-sentence report and adjourned the proceedings were matters of discretion. The discretion to be exercised had to take into account a range of factors.

31 In the proceedings on 17 January 2013, defence counsel sought the opportunity to put information before his Honour as to the appellant's 'change of attitude' and his performance in the men's violence program, a program that he had not at that stage commenced. His Honour acceded to this request. Defence counsel, contrary to the assurance that he had given the learned sentencing judge, did not immediately seek the additional information. When he did, shortly prior to 28 February 2013, he was confronted with the refusal of Community Justice Services to provide the information to him.

32 On 28 February 2013, defence counsel did not, as I have already observed, seek a further adjournment of the proceedings. He was content to leave this question, to use defence counsel's expression, in his Honour's hands. The learned sentencing judge decided to proceed to sentence the appellant. The appellant had, at this point, been given an opportunity to put additional information before the court, but, apart from obtaining Professor Skerrit's report, had failed to do so. Further, the proceedings had already been considerably delayed. I do not think that it could be reasonably argued that his Honour's decision to proceed to sentence, in the absence of the additional information, was unjust and unreasonable: House v The Queen [1936] HCA 40; (1936) 55 CLR 499, 505 (Dixon, Evatt & McTiernan JJ).

33 Further, it is not reasonably arguable that the decision to pass sentence on 28 February 2013 led to a miscarriage of justice. As the appellant's counsel acknowledged in oral argument before this court, it is unlikely that the appellant could have made any material progress in the program, given the short period of time he had been in it. Moreover, the evidence before the court in the form of the psychological report dated 10 January 2013 (one week before the scheduled sentencing on 17 January 2013) revealed that the appellant had no insight into his offending and still saw himself as the victim. The reports did not show any improvement in the appellant's attitude towards his wife, which would have been a necessary step towards his rehabilitation. Any professed change of attitude by the appellant would have been tentative at best, particularly having regard to the fact that after the commission of the offence the appellant again breached the violence restraining order. Finally, as I will expand upon shortly, the offending was so serious that despite the mitigating factors, which his Honour clearly had regard to, and even assuming a change of attitude, a term of immediate imprisonment was the only appropriate disposition in the circumstances of the case. Put another way, even if it was established that his Honour erred in failing to adjourn the proceeding and obtain the additional report, the ground could not reasonably succeed because no different sentence should have been imposed: s 31(4)(a) of the Criminal Appeal Act 2004 (WA).

34 For these reasons, grounds 1 and 2 have no reasonable prospect of success.

35 I now turn to proposed ground 3. The submission in support of this ground is that a discount of 5% for the plea of guilty was insufficient. Section 9AA of the Sentencing Act provides;

Plea of guilty, sentence may be reduced in case of

(1) In this section -

fixed term has the meaning given in section 85(1);

head sentence, for an offence, means the sentence that a court would have imposed for the offence if -

(a) the offender had been found guilty after a plea of not guilty; and

(b) there were no mitigating factors;

victim has the meaning given in section 13.

(2) If a person pleads guilty to a charge for an offence, the court may reduce the head sentence for the offence in order to recognise the benefits to the State, and to any victim of or witness to the offence, resulting from the plea.

(3) The earlier in the proceedings the plea is made, the greater the reduction in the sentence may be.

(4) If the head sentence for an offence is or includes a fixed term, the court must not reduce the fixed term under subsection (2) -

(a) by more than 25%; or

(b) by 25%, unless the offender pleaded guilty, or indicated that he or she would plead guilty, at the first reasonable opportunity.

(5) If a court reduces the head sentence for an offence under subsection (2), the court must state that fact and the extent of the reduction in open court.

(6) This section does not prevent the court from reducing the head sentence for an offence because of any mitigating factor other than a plea of guilty.

36 The maximum discount to be given for a plea of guilty is 25% from the head sentence. A discount of 25% may only be given if the offender pleads guilty at the first reasonable opportunity. As s 9AA(3) makes clear, the earlier in the proceedings the plea is made, the greater the reduction in the sentence by reason of the plea of guilty. In the present case, the appellant pleaded guilty very late, on the first scheduled day of his trial. The case against him was strong. No doubt the victim would have been proofed and would have suffered the anxiety associated with the anticipation of giving evidence. The victim gave evidence at the trial of issues, but, it must be acknowledged, the appellant succeeded on the issue that was tried. The plea was not indicative of remorse or an acceptance of responsibility, but it did to some extent facilitate the course of justice. In these circumstances, a small discount for the plea of guilty was justified. I do not think that it could be reasonably argued that his Honour erred in discounting the head sentence by 5%.

37 This takes me to ground 4. The appellant does not submit that a term of 2 years' imprisonment was inappropriate. The appellant's argument is that the sentence should have been suspended. The relevant principles with respect to the imposition of suspended imprisonment were explained by McLure P in Cartwright v The State of Western Australia [2010] WASCA 4 [8] as follows:

Section 39(2) of the Sentencing Act 1995 (WA) (the Act) sets out the various sentencing options. The ultimate option is a term of immediate imprisonment and the two preceding it are conditional suspended imprisonment and suspended imprisonment respectively. Under s 39(3) of the Act a court must not use a sentencing option in subs (2) unless satisfied that it is not appropriate to use any of the options listed before that option. The same considerations that are relevant to the imposition of a term of imprisonment must be revisited in determining whether to suspend the term; the power to suspend is not confined by reference wholly, mainly or specially to the effect that suspension would have on the rehabilitation of a particular offender: Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321 [18], [26], [84], [85].

38 As was noted in Collins v The State of Western Australia [2007] WASCA 108 [17], the sentencing discretion is not to be exercised in a vacuum. A sentencing judge must impose a type of sentence that falls within a sound discretionary range.

39 In the present case, the offence committed by the appellant was very serious. Contrary to a violence restraining order, the appellant, in a planned and deliberate way, entered the victim's house without consent and lay in wait for her. He attacked her when she was least expecting it. The attack was sustained and, although he did not carry the knife, he seized the opportunity to use it to terrorise the victim and deprive her of her liberty. The deprivation of liberty was to some extent seen by his children.

40 The appellant is not remorseful and regards himself as the victim. It is no justification for the appellant's conduct that he was upset and bewildered by the breakdown of his marriage. The fact that he committed the offence in defiance of a court order and inflicted violence upon his estranged wife are aggravating factors. General deterrence and the protection of vulnerable victims are important sentencing factors in cases involving domestic violence. The appellant did not plead guilty at the first opportunity. Although this is not an aggravating factor, he could not, in the circumstances that I have explained, receive anything other than a modest reduction for this factor.

41 Having regard to all of the circumstances of the case, including the appellant's positive antecedents, the only appropriate disposition was an immediate term of imprisonment. Any professed change in attitude was dubious and, in any event, too little too late. The sentence imposed by the learned sentencing judge was within the range of a sound sentencing discretion. Ground 4 has no reasonable prospect of succeeding.

42 None of the proposed grounds of appeal have a reasonable prospect of succeeding. Accordingly, the appeal must be taken to be dismissed. The orders that I would make are:

1. Leave to appeal is refused on all grounds.
2. The appeal is dismissed.