Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA

Criminal law - Application for leave to appeal against sentence - Aggravated burglary - Stealing - Whether total effective sentence of 6 years' imprisonment infringed the first limb of the totality principle - Whether any individual sentence was manifestly excessive

Casbolt v The State of Western Australia [2005] WASCA 41

Dunks v The State of Western Australia [2009] WASCA 82; (2009) 195 A Crim R 130

Howorth v The State of Western Australia [2007] WASCA 78

Main v The State of Western Australia [2010] WASCA 28

Newport v The State of Western Australia [2015] WASCA 224

Redfern v The State of Western Australia [2014] WASCA 199

Ridley v The State of Western Australia [2013] WASCA 45

Spry v The State of Western Australia [2013] WASCA 68

1 JUDGMENT OF THE COURT: This is an application for an extension of time and for leave to appeal against sentence. The appeal was filed approximately six weeks out of time. Although the affidavit of the appellant's counsel explaining why the appeal notice was filed late does not satisfactorily account for all of the delay, we would grant the extension of time.

2 The appellant pleaded guilty at the first reasonable opportunity to seven offences contained in an indictment filed in the District Court on 30 March 2017 alleging four counts of aggravated burglary and three counts of stealing. On 26 May 2017, he was sentenced to a total effective sentence of 6 years' imprisonment with eligibility for parole backdated to commence on 29 August 2016. The details of the sentences that were imposed are as follows:

3 The appellant's sole ground of appeal alleges that the total effective sentence of 6 years' imprisonment infringed the first limb of the totality principle. However, in the course of oral submissions the appellant's counsel appeared to challenge the individual sentences that were imposed for the aggravated burglary offences by alleging that they were manifestly excessive.

4 For the reasons which follow, we have concluded that it is not reasonably arguable that the individual sentences are manifestly excessive or that the total effective sentence infringed the first limb of the totality principle.

5 The appellant does not dispute the sentencing judge's findings as to the facts of the offences, which may be summarised in this way. The appellant and his partner, Kate Elise Lynette Morrison, came to Western Australia from Victoria with the object of leaving behind the drug culture in which they had been immersed. Unfortunately, they were unable to rid themselves of their drug habit. In order to fund that habit and the financial difficulties which flowed from it, they planned and executed burglaries upon various Bunnings stores in the Perth metropolitan area.

6 In his police interview, the appellant admitted that prior to committing the burglaries he and Ms Morrison went to a number of Bunnings stores looking to see if the safes that were used were secured by padlocks. All of the burglaries involved Bunnings stores with safes secured by padlocks. These safes were vulnerable to being opened using tools which, on each occasion, were taken to each store.

7 At about 3.30 am on 11 June 2016, the appellant and Ms Morrison went to the Bunnings store in Inglewood. After disguising themselves, they forced entry into the store and approached the service counter carrying various tools. Using those tools, they gained entry to a Changemaster machine and removed approximately $5,000 in cash (counts 1 and 2).

8 At 2.30 am on 6 August 2016, the appellant, in company with two unidentified co-offenders, attended the Bunnings store in Morley. After disguising themselves, the offenders forced entry into the store with a variety of tools which were used to break into the Changemaster machine and removed $17,732 in cash (counts 3 and 4).

9 At 3.50 am on 15 August 2016, the appellant, in company with two unidentified co-offenders, attended the Bunnings store in Cannington. After disguising themselves, they forced entry into the store and, using tools which they had brought with them, broke into a Changemaster machine, stealing $20,701 in cash (counts 5 and 6).

10 At about 3.40 am on 29 August 2016, the appellant and Ms Morrison went to the Bunnings store in Subiaco with another unidentified co-offender. Once again, they disguised themselves and forced entry into the store carrying an assortment of hand tools. As they were attempting to break into the Changemaster machine they were interrupted by security guards. The appellant and his co-offenders fled. In doing so they smashed the glass out of an external door and climbed through it. Eventually, the appellant and Ms Morrison were apprehended by police. The appellant participated in an interview with police in which he made full admissions to all of the offences.

11 At the time he was sentenced, the appellant was 44 years of age. He has six children from two previous relationships and a young child from his relationship with Ms Morrison.

12 The appellant left school at 16 and worked consistently in various labouring positions until he was 36. Since then he has not worked as a consequence of his serious illicit drug addiction.

13 As we have said, the appellant and Ms Morrison came to Western Australia to get away from the drug culture in Victoria. Not long after arriving in Western Australia the appellant resumed using illicit substances which led to the financial difficulty that was behind the offending.

14 Although the appellant has no convictions in Western Australia, he has an extensive prior criminal history in Victoria, including prior offences of burglary.

15 The pre-sentence report provided to the sentencing judge identifies a number of risk factors and no discernible protective factors.

16 As the appellant does not allege that the sentencing judge made any express error, it is unnecessary to summarise the sentencing remarks in detail.

17 The only mitigating factor of substance was the appellant's pleas of guilty for which his Honour gave a discount of 25% pursuant to s 9AA of the Sentencing Act 1995 (WA).

18 An important aggravating factor identified by his Honour was the planning and premeditation involved in the execution of the four aggravated burglaries. His Honour noted that the appellant did not have the benefit of prior good character.

19 His Honour expressly had regard to the totality principle and the parity principle.

20 An allegation of manifest excess or a breach of the totality principle asserts an implied or inferred error based on the sentencing outcome. Before this court can intervene, the appellant must demonstrate that the sentence was unreasonable or plainly unjust. This court is not entitled to intervene merely because, had it been sentencing the appellant at first instance, it would have arrived at a different outcome.

21 The orthodox approach to an allegation that an individual sentence is manifestly excessive is to examine it having regard to the maximum sentence prescribed by law for the offence (here, 20 years' imprisonment), the standards of sentencing customarily observed with respect to that offence, the place which the criminal conduct occupies in the scale of seriousness of offences of the kind, and the personal circumstances of the offender.

22 The totality principle comprises two limbs. The first limb, which is relied upon by the appellant in this case, requires that the total effective sentence must bear a proper relationship to the overall criminality in all the offences, viewed in their entirety and having regard to the circumstances of the case, including the offender's personal circumstances.

23 There is no merit to the allegation that the individual sentences imposed for the aggravated burglary offences (counts 1, 3, 5 and 7) are manifestly excessive.

24 As we have already observed, the maximum penalty for aggravated burglary is 20 years' imprisonment.

25 There is no tariff for aggravated burglary, given the wide variety of circumstances in which the offence may be committed and of the personal circumstances of offenders. The primary sentencing considerations with respect to the burglary of commercial premises are general and personal deterrence. Ordinarily a substantial penalty is imposed for the offence: Ridley v The State of Western Australia[1] and Redfern v The State of Western Australia.[2] In Main v The State of Western Australia[3], Wheeler JA referred to a number of cases involving aggravated burglary on commercial premises and observed that such offences can attract a range of sentences between 8 months and at least 4 years.[4] See also Newport v The State of Western Australia [2015] WASCA 224 [38].[5]

26 The appellant submitted that comparative cases established a broad sentencing range for offences of aggravated burglary of between 2 years and 3 years before mitigating factors are taken into account. Having regard to the cases we have referred to, that submission cannot be accepted.

27 Bearing in mind the unchallenged facts as found by the sentencing judge, each of the aggravated burglaries committed by the appellant was self-evidently a serious instance of aggravated burglary on commercial premises. The appellant's personal circumstances were unfavourable. There was little, apart from the plea of guilty, to be said in mitigation.

28 The appellant sought to demonstrate manifest excess by reference to the 'starting point' for each offence. That is, by reference to the sentence that his Honour would have notionally imposed without mitigating factors. This approach is misconceived. As Roberts-Smith JA explained in Casbolt v The State of Western Australia,[6] the 'starting point' is not a sentence and is not the sentence the court is required to assess by s 31 of the Criminal Appeals Act 2004 (WA).

29 We now turn to the claim that the total effective sentence infringed the first limb of the totality principle.

30 The appellant made two main submissions in support of this proposition. First, the appellant claims that the individual sentences were manifestly excessive. For the reasons just expressed, that submission must be rejected. The second submission was that the total effective sentence was inconsistent with the outcomes in three cases: Casbolt v The State of Western Australia;[7] Howorth v The State of Western Australia[8] and Spry v The State of Western Australia.[9] There is no merit in this submission.

31 It is unnecesary to examine in detail the facts and circumstances of Casbolt, Howorth and Spry. Three cases do not establish a customary range of sentencing. Further, as was pointed out in Howorth[10] and in the case of Dunks v The State of Western Australia,[11] there are no hard and fast rules in relation to sentencing for multiple counts of burglary having regard to the very great variations and the number of possible offences and the possible combination of offences.

32 The seriousness of the appellant's overall offending is patent from the findings of fact made by his Honour. The aggravated burglaries were well planned. The appellant targeted Bunnings stores which had safes containing cash that he regarded as vulnerable. He assembled co-offenders and obtained the tools necessary to break open the Changemaster machines. Each burglary occurred at night and was executed with skill. The first three aggravated burglaries netted the offenders a substantial sum of money.

33 As we have already observed, the appellant's personal circumstances were unfavourable. They underscored the need to impose a total effective sentence that specifically deterred the appellant. Of course, general deterrence was also a matter of importance. We are far from persuaded that the total effective sentence imposed upon the appellant infringed the first limb of the totality principle. In our view, 6 years' imprisonment was a proper reflection of the appellant's total criminality, bearing in mind the facts and circumstances of all of the offences as well as the appellant's personal circumstances.

34 The proposed ground of appeal has no reasonable prospect of succeeding. Leave to appeal should be refused and the appeal dismissed.

1. The extension of time is granted.
2. Leave to appeal is refused.
3. The appeal is dismissed.

[1] Ridley v The State of Western Australia [2013] WASCA 45 [13].

[2] Redfern v The State of Western Australia [2014] WASCA 199 [19].

[3] Main v The State of Western Australia [2010] WASCA 28.

[4] Main v The State of Western Australia [36].

[5] Newport v The State of Western Australia [2015] WASCA 224 [38].

[6] Casbolt v The State of Western Australia [2005] WASCA 41 [3] - [7].

[7] Casbolt v The State of Western Australia.

[8] Howorth v The State of Western Australia [2007] WASCA 78.

[9] Spry v The State of Western Australia [2013] WASCA 68.

[10] Howorth v The State of Western Australia [30].

[11] Dunks v The State of Western Australia [2009] WASCA 82; (2009) 195 A Crim R 130 [30] - [40].