Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA

Criminal law - Application for leave to appeal against sentence - Burglary - Whether sentence imposed by trial judge manifestly excessive

Sentencing Act 1995 (WA), s 32, s 33A

Chan v The Queen (1989) 38 A Crim R 337

Krijestorac v The State of Western Australia [2010] WASCA 35

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

Wroblewski v The Queen (1999) 105 A Crim R 129

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

3 The appellant pleaded guilty to a burglary upon a construction site, contrary to s 401(2) of the Criminal Code (WA). The maximum penalty for the offence is 14 years' imprisonment: s 401(2)(c) of the Criminal Code. On 14 March 2012, Fenbury DCJ sentenced him to 18 months' immediate imprisonment with eligibility for parole, to commence on 4 October 2011.

4 The facts of the appellant's offending are as follows. Some time over the weekend of 9 - 11 April 2011, the appellant smashed his way into a multi-storey construction site located in Perth. He went to the basement area and stole tools that were in a locked room. He then accessed another lower area in the building and stole more tools. Following this, he accessed all 13 levels of the site, rummaging through the cupboards. In all, he collected a large amount of tools of one kind or another, worth approximately $11,000. He put those tools into the boot of his car. On 11 April 2011, the appellant's vehicle was stopped and searched by police. In the course of the search, the stolen tools were discovered and ultimately returned to their owner.

5 At the time of the offence, the appellant was 34 years of age. Since the age of 27, he has been using illicit substances on a regular basis. At the time of the offence, he was addicted to methylamphetamine.

6 After being charged and after a period of assessment, the appellant was accepted into the Drug Court program in order to facilitate and supervise his rehabilitation from illicit substances. Between 28 August 2011 and 13 October 2011, he resided at the Cyrenian House Drug Treatment and Rehabilitation Centre. After leaving Cyrenian House, he continued to engage in individual counselling.

7 On 8 November 2011, the appellant appeared before Fenbury DCJ and entered his plea. His Honour had before him various reports and a recommendation by the Drug Court magistrate that the appellant be afforded the opportunity to continue in the Drug Court program. Pursuant to s 33A of the Sentencing Act 1995 (WA), his Honour made a pre-sentence order for a term of 12 months on the condition that the appellant obey the directions of the Drug Court (the PSO). He ordered that the appellant return for a review of his progress on 14 March 2012.

8 During the proceedings on 8 November 2011, his Honour noted that the circumstances of the appellant's offending were 'quite serious' and that the appellant had a significant record of prior offending, including prior convictions for burglary: ts 2, 8/11/2011. The appellant's criminal history reveals that the appellant had four prior convictions for burglary, two of which were committed in 2007 and which resulted in terms of immediate imprisonment.

9 During the proceedings, his Honour and the appellant had the following exchange:

FENBURY DCJ: Do you understand what's going on here, Mr Joslin?

ACCUSED: Yes, your Honour.

FENBURY DCJ: Now, if you appear before me on that date [14 March 2012] and you've not re-offended in the interim and there's a good account of what's occurring, you can be confident I'll renew the order.

ACCUSED: Thank you.

FENBURY DCJ: If you've - if you've not succeeded so far, if you've failed somehow, offended or not cooperating [sic], well, then you can expect that you'll lose your liberty.

ACCUSED: Yes, your Honour: ts 15, 8/11/2011. (emphasis added)

10 The appellant complied with the requirements of the Drug Court program in that he attended all the required counselling, court appearances and supervision sessions. He was also subject to regular urine analyses, all of which showed that the appellant was clear of illicit substances.

11 However, the appellant committed further offences. On 2 February 2012, the appellant was seen by police officers to be riding a motorcycle through a shopping centre carpark during late-night trading. The police unsuccessfully attempted to stop the appellant for a routine traffic stop and a pursuit ensued. During the course of that pursuit, which last for approximately seven minutes, the appellant rode his motorcycle in a seriously reckless way. He did not have a driver's licence and he was subject to numerous disqualifications.

12 On 17 February 2012, the appellant pleaded guilty to failing to stop when called upon, reckless driving and driving whilst disqualified. As a result, the appellant's participation in the Drug Court program was terminated.

13 On 14 March 2012, the appellant appeared before Fenbury DCJ for the review of his pre-sentence order. As a result of the appellant's reoffending, Fenbury DCJ cancelled the PSO. He then proceeded to sentence the appellant for the burglary offence.

14 The appellant's sole ground of appeal is that the sentence imposed by Fenbury DCJ was manifestly excessive. The thrust of the appellant's submissions in support of this ground is that his Honour failed to give due weight to his positive performance on the Drug Court program and that, having regard to the cases of Krijestorac v The State of Western Australia [2010] WASCA 35 and Wroblewski v The Queen (1999) 105 A Crim R 129, the sentence was outside the range of sentences customarily imposed for the offence of burglary.

15 An allegation that a sentence is manifestly excessive is an allegation of implied error in the exercise of the sentencing discretion. What must be demonstrated is that the sentence was unreasonable or plainly unjust. The appeal court will not intervene simply because the members of the court, had they been sentencing the offender at the original hearing, might have imposed a different sentence: see Wilson v The State of Western Australia [2010] WASCA 82 [2].

16 In order to decide whether a sentence is manifestly excessive, it is necessary to view it from the perspective of the maximum sentence prescribed by law, the standards of sentencing customarily observed, the place which the criminal conduct occupies in the scale of seriousness of offences of that type and the personal circumstances of the offender: Chan v The Queen (1989) 38 A Crim R 337, 342.

17 I have already referred to the maximum penalty for the offence committed by the appellant.

18 There is no tariff for the offence of burglary because it is committed in a wide variety of circumstances. The authorities with respect to non-dwelling burglaries cited by the appellant do not assist him.

19 In Krijestorac, the appellant pleaded guilty to an indictment alleging one count of burglary on a clothing shop and eight offences contained in a notice under s 32 of the Sentencing Act. Among the offences in the s 32 notice was an attempted burglary on an optometrist's office. With respect to the burglary, the appellant smashed a glass pane in the front door of the shop. He then reached in and unlocked and opened the door. He entered the store and took clothing from the racks valued at $23,353. His actions activated the shop's alarm and three witnesses confronted the appellant outside the store, as a result of which the appellant dropped the stolen clothing. The appellant tried to leave the scene, but was unable to do so because he had lost his car keys. He then sat on the footpath outside the shop and waited for the police to arrive. For this offence, the appellant was sentenced to 2 years' imprisonment. In respect of the attempted burglary, the appellant cut himself badly when he unsuccessfully attempted to enter into an optometrist's office. He was found by police at the scene, sitting in a pool of his own blood. For this offence he was sentenced to a cumulative term of 12 months' imprisonment. Thus, the total effective sentence imposed upon the appellant was 3 years' imprisonment. Unlike the present case, the issue for the court to determine was whether there had been a breach of the first limb of the totality principle. Wheeler JA, with whom Owen and Newnes JJA agreed, allowed the appeal on this basis and quashed the order for cumulation in relation to the attempted burglary. Her Honour noted that although the sentence imposed for the indictable offence was 'very severe' [39], she would not interfere with it. Of course, the sentence in this case was less than the sentence imposed in Krijestorac for the completed burglary.

20 In Wroblewski, the appellant forced open the front door of a business premises and stole various items valued at about $5,750. The appellant was apprehended by police shortly after the offence, and all of the property, save for $30 in cash, was recovered. The appellant pleaded guilty to the burglary and some other offences and was placed on a two year community based order. He breached the order by reoffending and was subsequently sentenced to 3 years' imprisonment. Anderson J, with whom Malcolm CJ and Pidgeon J agreed, noted the appellant's comparatively young age and that he had not, at the time he committed the burglary, previously committed a serious offence, allowed the appeal and substituted a term of imprisonment of 18 months (12 months in transitional terms). In contrast, the appellant in the present case does not have the advantage of youth or a favourable criminal history.

21 With respect to the seriousness of the offence, his Honour characterised the offence as serious, although he recognised it was not the worst example of its type. The appellant broke into a building site on a weekend, no doubt expecting to find, as he did, a substantial number of valuable tools which were unattended. He combed the building from the bottom to the top for items to steal. His Honour observed in the course of the sentencing proceedings, given the number and the nature of the tools, the appellant would have had to have made multiple trips from the building to his car. The offence was executed with some determination and was, at least to some extent, premeditated.

22 The appellant is a mature man without good antecedents. Personal, as well as general, deterrence were very relevant sentencing considerations. While the appellant was entitled to some mitigation for his compliance with the Drug Court program, this was outweighed by the fact that the appellant had reoffended in a significant way while subject to the PSO.

23 In my opinion, the sentence of 18 months' immediate imprisonment was not unjust or plainly unreasonable. It reflected, in all the circumstances, a sound exercise of his Honour's sentencing discretion. I do not think that the proposed ground of appeal has a reasonable prospect of succeeding. Thus, leave to appeal is refused and the appeal must be dismissed.

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