Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA

Criminal law - Application for leave to appeal against sentence - Multiple burglary offences - Totality principle - Whether total effective sentence of 7 years disproportionate to the total criminality

Cockie v The State of Western Australia [2006] WASCA 66

Dunks v The State of Western Australia [2009] WASCA 82

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

Michael v The Queen [2004] WASCA 4

Morris v The State of Western Australia [2011] WASCA 47

Otway v The State of Western Australia [2008] WASCA 165

Roffey v The State of Western Australia [2007] WASCA 246

Slater v The State of Western Australia [2006] WASCA 206

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

2 HALL J: This is an application for an extension of time to apply for leave to appeal against sentence.

3 On 7 September 2012 the appellant pleaded guilty to two counts on an indictment and a further 24 pending charges on a notice under s 32 of the Sentencing Act 1995 (WA). The charges on the indictment were of aggravated burglary and burglary. The charges on the s 32 notice included five offences of aggravated burglary, one attempted aggravated burglary, one burglary offence, two offences of stealing motor vehicles, two offences of driving under suspension, eight offences of stealing, two offences of possessing stolen property, one offence of possessing a controlled weapon, one offence of possessing a prohibited drug and one offence of possession of a utensil used for smoking a prohibited drug. The total effective sentence was one of 7 years' imprisonment.

4 The sentences imposed are set out in the following table:

Aggravated burglary and commit offence in dwelling Criminal Code (WA) s 401(2)(a)

Burglary and commit offence in dwelling Criminal Code (WA) s 401(2)(b)

No authority to drive disqualified/suspended (other than fines suspension) under s 49(3)(c) RTA 1974 s 49(1)(a) & 3(c)

For a second or subsequent offence, a fine of not less than 20 PU or more than 18 PU and imprisonment for not more than 18 months

Steal motor vehicle (as defined in s 371A Criminal Code) Criminal Code (WA) s 378

No authority to drive disqualified/suspended (other than fines suspension) under s 49(3)(c)

For a second or subsequent offence, a fine of not less than 20 PU or more than 18 PU and imprisonment for not more than 18 months

Possessed a controlled weapon Weapons Act 1999 s 7(1)

Possess a smoking utensil used for smoking prohibited drug MDA (WA) 1981 s 5(1)(d)(i)

Possess of prohibited drug (Methylamphetamine) MDA (WA) 1981 s 6(2)

Possessing stolen or unlawfully obtained property Criminal Code (WA) s 428(1)

Aggravated burglary and commit offence in place Criminal Code (WA) s 401(2)(a)

Burglary and commit offence in dwelling Criminal Code (WA) s 401(2)(b)

Possessing stolen or unlawfully obtained property Criminal Code (WA) s 428(1)

Aggravated burglary and commit offence in dwelling Criminal Code (WA) s 401(2)(a)

Aggravated burglary and commit offence in dwelling Criminal Code (WA) s 401(2)(a)

Steal Motor Vehicle (as defined in s 371A Criminal Code) Criminal Code (WA) s 378

Aggravated burglary and commit offence in place Criminal Code (WA) s 401(2)(a)

Attempted aggravated burglary and commit offence in dwelling Criminal Code (WA) s 401(2)(a) and s 552

Aggravated burglary and commit offence in dwelling Criminal Code (WA) s 401(2)(a)

5 The appellant did not file his appeal notice until 21 May 2013. That was more than seven months out of time and an extension is required. The appellant has filed an affidavit in which he states that he was aware that there was a time limit in relation to commencing an appeal but did not initially think that he had a basis for appealing his sentence. He subsequently changed his mind after speaking to other prisoners. This is not an adequate reason for granting an extension of time. However, an extension can be granted if not to do so would result in a miscarriage of justice. For this reason it is necessary to give consideration to the proposed ground of appeal.

6 There is a single proposed ground of appeal. It is that the total sentence imposed was disproportionate to the total criminality having regard to all the circumstances of the case, the appellant's pleas of guilty and the personal circumstances of the appellant. It is not contested that the sentence imposed for any individual offence was manifestly excessive.

7 The facts in relation to count 1 of the indictment are as follows. On the afternoon of Wednesday, 28 December 2011 the appellant went to a house in Carramar. He was in company with another man. He entered the backyard of the property intending to gain entry into the house to steal property. He smashed the glass panel of a sliding door using a rock. Once inside he rummaged through rooms and stole various items. He attempted to break into a floor safe in a walk-in wardrobe using a screwdriver. Being unsuccessful in this attempt he then continued to open draws and boxes, emptying the contents onto the floor. He and the co-offender placed a large amount of jewellery and other items into two drawers which they then took with them. The total value of the property stolen was $17,666 and none of it was recovered.

8 The appellant was arrested and interviewed by the police on 27 January 2012. He initially claimed to be unable to recall the burglary, however he subsequently said he could remember it but could not remember what property was stolen. He identified the co-offender only by a first name. He said that he was using amphetamines at the time and that the burglary was committed because he owed money for a drug debt. He said he was forced to commit the offences by those to whom he owed the money. He did not wish to disclose the names of those people because he said he feared for the safety of his family.

9 In respect of count 2, on the afternoon of Wednesday, 14 March 2012 the appellant forced entry into a house in Joondalup. He did so by removing a flyscreen from a dining room window and forcing open the window with an unknown object. Once inside the appellant searched the bedroom and living areas and located items of jewellery, electronic equipment and personal items. He left by the rear door, stealing property to the value of $11,568.90.

10 A camera stolen from the house was located a short time later and fingerprints of the appellant were found on it. A pair of socks was also found in the house which were believed to have been worn by the appellant in an attempt to prevent his fingerprints being left. A forensic examination of the socks positively identified a trace of DNA as being likely to be that of the appellant.

11 In respect of the s 32 notice charges the facts were as follows. On Monday, 28 November 2011 the appellant drove a Holden Commodore utility on Joondalup Drive. He was stopped by the police and it was established that he was not authorised to drive that class of vehicle. His probationary licence had been suspended at the Joondalup Magistrates Court on 31 May 2010 and his suspension was not due to expire until 16 May 2012. He was charged with driving without authority (charge 2049/12).

12 Sometime between 1 December 2011 and 24 January 2012 the appellant attended a house in Gnangara. He removed and stole the front licence plate from a white Holden Rodeo vehicle that was parked at the front of the house. He was subsequently interviewed and admitted to stealing the number plate (charge 9453/12).

13 On the morning of Monday, 15 December 2011 an unknown person stole a car that was parked in the driveway of a house in Greenwood. The keys had been left in the ignition. Inside the vehicle at the time it was stolen were a number of items of personal property including a diamond engagement ring, a leather jacket, a gold bracelet, an Apple iPad and a laptop computer. That afternoon police observed the appellant driving the vehicle. When police approached the appellant drove away at high speed. That evening police executed a search warrant at a house in Wanneroo and located some of the items stolen from the vehicle. The appellant was later interviewed and admitted stealing the car. He said that he found the vehicle hidden under trees with the keys in the ignition. He said that he drove the vehicle to the house in Wanneroo and took the items that were in the car. He denied that there was any jewellery in the car when he found it. He was charged with stealing the motor vehicle (charge 2481/12), stealing the property that was in the vehicle at the time it was stolen (charge 2482/12) and driving without authority (charge 2483/12).

14 Sometime between 27 and 30 December 2011 the appellant attended a house in Dianella. He was in company with another person. He approached the front door of the house and rolled up a wooden doormat which he used to smash a window panel. He then climbed through the broken window and entered the house. Once inside he ransacked every room and stole items. As he was searching the rooms a burglar alarm was activated. He then left the property with his co-offender. The occupants were on holiday at the time and reported the burglary on their return. A forensic examination located blood at the point of entry. When examined, this blood was found to be that of the appellant. The value of the unrecovered property and the cost of damage totalled $5,400. The appellant subsequently admitted this offence when interviewed and was charged with aggravated burglary and stealing (charges 9454/12 and 9455/12).

15 On 21 January 2012 the appellant attended a house in Tapping with two other men. He smashed a window adjacent to the front door to gain entry with the intention of stealing. He entered the house whilst his co-offenders remained outside in the car. He stole property and left the premises with the co-offenders. Later that day the appellant returned to the same house and stole a white Hilux utility and a firearm. He was charged with aggravated burglary, stealing and stealing a motor vehicle (charges 9458/12, 9459/12 and 9460/12).

16 On 23 January 2012 the appellant attended at a house in Ballajura. He was accompanied by another man who remained outside as a lookout. The appellant used an unknown object to smash the front lounge room window. This caused a burglar alarm to be activated. Venetian blinds and a window frame were also damaged. The appellant entered the house and rummaged through the lounge room, main bedroom and office areas. He stole items before leaving with the co-offender. The occupants were not at home at the time of the burglary. The appellant subsequently admitted breaking into the house. The value of unrecovered property and damage was estimated at $1,000. The appellant was charged with aggravated burglary and stealing (charges 9461/12 and 9462/12).

17 On 24 January 2012 the appellant attended at a house in Willetton in company with another man. He approached the front door and rang the doorbell twice while the other man acted as a lookout. An occupant was inside the house at the time. The appellant then used a hammer which he had brought with him to smash a glass window at the front of the house with the intention of gaining entry and stealing property. At the sound of smashing glass the occupant came to the front window and saw the appellant running away towards a white Toyota Hilux with a hammer in his hand. The appellant jumped into the passenger side of the vehicle which then drove away. The appellant subsequently admitted this offence. The cost of the damage to the window was estimated to be $600. The appellant was charged with aggravated burglary but this was later amended to attempted aggravated burglary (charge 9463/12).

18 On 24 January 2012 the appellant attended at a house in Shoalwater in company with another man. The appellant approached a bedroom window at the front of the house and threw a rock, smashing the window. He then entered the house through the broken window and ransacked all of the rooms, discarding some items on the floor and stealing others. He located keys to the front door and let himself out, carrying a number of stolen items. He and the co-offender then left the area in the white Toyota Hilux. The value of unrecovered stolen property and the cost of damage was estimated to total $3,000. The appellant admitted this conduct and was charged with aggravated burglary and stealing (charges 9464/12, 9465/12).

19 On the morning of Friday, 27 January 2012 the appellant was arrested at a house in Sinagra in respect of the aggravated burglary offence the subject of count 1 of the indictment. The house was searched and police found a set of homemade nunchaku in the garage area. These consisted of two lengths of 30 cm timber joined together by a length of chain. The appellant admitted that the nunchaku belonged to him and that he used them for protection. He was charged with possessing a controlled weapon (charge 3641/12). During the same search police officers located a plastic drink bottle that had been modified so that it could be used to smoke cannabis. The appellant admitted that it belonged to him (charge 3642/12). Also located during the same search was a small clip seal bag on a bedside cabinet containing approximately 0.1 gms of methylamphetamine. When questioned, the appellant admitted that the drug belonged to him (charge 3643/12). Also during this search police officers located a Nokia mobile telephone. The police confirmed that the telephone was stolen from a burglary that occurred in Port Kennedy between 19 and 20 July 2012. The appellant was charged with possessing stolen or unlawfully obtained property (charge 3644/12).

20 During the search a silver and black Apple iPod Touch was also located in the appellant's bedroom. Enquiries established that the iPod Touch had been stolen during a burglary that occurred in Innaloo on 29 September 2011. When interviewed the appellant said that he could not remember breaking into the Innaloo premises but could not offer an explanation as to how he came into possession of the iPod Touch. He was charged with possessing stolen or unlawfully obtained property in respect of the iPod (charge 9452/12).

21 After being arrested and charged with the preceding offences the appellant was released on bail. Whilst on bail he committed the offence the subject of count 2 of the indictment as well as the following further offences.

22 Sometime on Friday, 9 March 2012 the appellant broke into a house in Kinross by using a sharpened metal rod to smash the bedroom window. Once inside he rummaged through the bedside tables, wardrobe and ensuite areas, tipping drawers and emptying boxed onto the floor looking for items to steal. He did the same thing in the kitchen area and other bedrooms. He stole numerous personal items including an iPod Touch, cufflinks, cash, a bracelet, handbag, purse, mobile phone, silver necklace and costume jewellery to a total value of $1,970. An examination of the premises located blood on a pillow inside the house. A DNA test revealed this to be the appellant's blood. He was charged with burglary and stealing (charge 4975/12 and 4976/12).

23 On the evening of Sunday, 11 March 2012 the appellant, whilst in company with another man, gained entry to the Wanneroo Markets in Wangarra. Once inside he cut a tin sheet and entered the premises of the Wonderland Gift Shop. He rummaged through display cabinets and placed items into a sack. He used a crowbar to force open a display cabinet and took items from that cabinet. The appellant and the co-offender stole a total of ten replica firearms, two Samari swords, three machetes and costume jewellery to the value of $5,606. The incident was captured on CCTV. As a result the appellant was identified as one of the persons involved. He was later charged with aggravated burglary and stealing (charges 4363/12 and 4364/12).

24 The appellant was 35 years old at the time of sentencing. He had been exposed to substance abuse and domestic violence as a child. He did not do well at school and left in Year 9. He worked for some years as a concreter before being imprisoned at the age of 23 for driving related offences. On release he began selling drugs to fund his own substance abuse.

25 The appellant had been in a relationship with his current partner for 10 years. His partner was also a significant substance abuser when they first met. They have two children, a six-year-old daughter and a son who was born after the appellant was remanded in custody for these offences.

26 The appellant attributed the offences to his amphetamine use. He reported that he did not recall the details of the offences due to being under the influence of amphetamines at the time. He said that the offences were committed in order to obtain property to pay off a drug debt that he and his partner had accumulated. He said he had been 'stood over' and felt he had no option other than to commit the offences.

27 The pre-sentence report noted that substance use had been a major contributing factor to the appellant's prior offending and that should he again relapse into drug use upon his release from prison he was considered to be at a high risk of re-offending. Whilst the appellant was said to be remorseful and to be motivated to addressing his substance use, he had entrenched use and his relationship with his partner was a catalyst for that use.

28 The appellant has an extensive criminal history. Most of his prior convictions have been for drug and traffic offences. However, on 9 April 2010 he was convicted of five burglary offences and two stealing offences for which he was sentenced to a term of imprisonment. He was convicted of a further burglary offence on 9 June 2010 and a further stealing offence on 11 June 2010, for both of which he also received terms of imprisonment that were made concurrent on the sentences imposed on 9 April 2010.

29 The appellant was arrested and charged with the first count on the indictment and a number of the charges on the s 32 notice on 27 January 2012. He was released on bail at that time and attended at Cyrenian House with the intention of participating in a residential programme when a bed became available. However, he then committed further offences in March for which he was arrested, charged and remanded in custody. He pleaded guilty to all of the charges at an early opportunity.

30 It was conceded on behalf of the appellant by his counsel in the District Court that the only appropriate outcome was a sentence of immediate imprisonment. His Honour stated, and both defence and prosecution counsel agreed, that the essential issue was one of totality.

31 His Honour referred to the facts of the offences, the appellant's personal circumstances and, in particular, the appellant's long time drug use. He noted that whilst there may have been some element of coercion, this did not provide any excuse for the offences.

32 His Honour noted the prevalence of offences of this nature and the effect that they have on home owners. He referred to the need for general deterrence.

33 His Honour noted that the offences all occurred within a period from September 2011 until mid March 2012. He noted that it was an aggravating feature that some of the offences were committed whilst the appellant was on bail. He said that the range and extent of the offending could only be described as a crime spree. He accepted that the appellant had pleaded guilty at the earliest opportunity and that this reflected acceptance of responsibility. There had also been expressions of regret and remorse.

34 After imposing sentences for each of the offences his Honour turned to the question of totality. In this regard he stated:

I have described your conduct over this period of time as being a crime spree. It is serious offending, being against a large number of people causing considerable loss and no doubt considerable distress to them.

It seems to me that an appropriate sentence would be to make the sentences on counts 1 and 2 on the indictment and offences 4363 and 4954 all cumulative upon each other, and all other terms of imprisonment to be served concurrently. That would result in a term of imprisonment of 7 years. In my view, this adequately reflects the total criminality of your behaviour (ts 47).

35 His Honour ordered that the appellant be eligible for parole and backdated the sentence to 11 March 2012 to reflect the time spent in custody.

36 The appellant submits that in light of his pleas of guilty on the fast track system, the total sentence of 7 years' imprisonment was disproportionate to the total criminality involved in his case having regard to the circumstances of the offending and sentencing standards as reflected in other cases.

37 The totality principle was described in Roffey v The State of Western Australia [2007] WASCA 246. It comprises two limbs. The first limb provides that the total effective sentence must bear a proper relationship to the overall criminality involved in all of the offences, viewed in their entirety and having regard to the circumstances of the case, including those referable to the offender personally. The second limb requires that the total effective sentence not be crushing. The appellant relies only upon the first limb.

38 The appellant referred in his written submissions to a number of cases which were said to be relevant because similar groups of offences to that in this case resulted in lower total sentences. The cases referred to are Michael v The Queen [2004] WASCA 4; Cockie v The State of Western Australia [2006] WASCA 66 and Slater v The State of Western Australia [2006] WASCA 206.

39 Comparisons with sentences imposed in other cases is necessary where it is claimed that the sentence for an offence is manifestly excessive. In such a case the comparison is undertaken because one of the factors that is relevant is whether the sentences are consistent with those commonly imposed for offences of that type. Where, however, it is only claimed that there has been a breach of the totality principle and no challenge is made to the individual sentences the utility in comparing the total effective sentence with total sentences in other cases is more limited. This is because the total effective sentence is not one imposed for a single offence. It is often difficult enough to compare sentences imposed in different cases with different factual circumstances and different personal circumstances where the offences relates only to a single offence. The fact that different offenders may have received different total effective sentences in respect of different groupings of sentences adds a level of complexity that makes comparisons difficult. Nonetheless it is important to ensure that there is broad consistency in sentences. See also Howorth v The State of Western Australia [2007] WASCA 78 [30]; Spry v The State of Western Australia [2013] WASCA 68 [39].

40 The cases referred to by the appellant represent only a small sample of cases of this type.

41 In Michael the appellant pleaded guilty to nine counts of aggravated burglary, seven counts of burglary and one count of stealing a motor vehicle. She had a tragic personal history including the death of one of her children, which had driven her to using drugs. An appeal against the total effective sentence of 8 years and 2 months was allowed and effectively reduced by one-half. The re-sentencing of the appellant was particularly influenced by the significant personal factors. The sentence in this case was imposed when a different regime regarding the calculation of non-parole periods applied.

42 In Cockie the appellant pleaded guilty to five counts of aggravated burglary, one count of burglary, two counts of attempted aggravated burglary, one count of stealing a motor vehicle and one count of aggravated robbery. The appellant had a deprived background. He also had an extensive criminal history and the offences had been committed whilst on parole. A total effective sentence of 5 years and 4 months was not disturbed on appeal.

43 In Slater the appellant pleaded guilty to seven counts of aggravated burglary and two counts of stealing motor vehicles. The appellant had a lengthy prior criminal history and was serving a sentence of 2 years' imprisonment when he came to be sentenced. A total effective sentence of 4 years' imprisonment, cumulative on the 2 year sentence being served, was not disturbed on appeal.

44 There are many other cases involving multiple aggravated burglary and stealing offences. Examples include Morris v The State of Western Australia [2011] WASCA 47 (5 years 6 months), Dunks v The State of Western Australia [2009] WASCA 82 (8 years) and Otway v The State of Western Australia [2008] WASCA 165 (5 years 4½ months). There are many more where the mix of offences includes burglary and other types of offences.

45 In this case it is not suggested that any of the individual sentences was manifestly excessive. Rather, it is submitted that the total effective sentence was one that was disproportionate to the total offending. The implication is that in ordering that some of the sentences be served cumulatively an error was made.

46 The offences in this case represented a number of discrete and separate events. They involved different victims at different locations on different days. In such circumstances cumulative sentences would be expected. If cumulative sentences were imposed for every offence it may well be that the total effective sentence would then become disproportionate to the total offending. Where that point is reached is a matter for judgment having regard to the seriousness of the conduct looked at as a whole.

47 The sentencing judge was correct to describe the appellant's course of offending as a crime spree. It involved a number of serious burglary offences on residential premises. The offending was aggravated in a number of respects. The offences were clearly planned. The appellant had targeted homes at times that he expected the occupants to be absent. On most occasions he was in company. He forcibly entered the homes, often by smashing a window. He ransacked the homes and stole significant property. The emotional effect was apparent from a number of victim impact statements. The appellant's persistence and disregard for the law is evident from the fact that he continued his offending whilst on bail. This underscored the need for personal deterrence.

48 There is little that could be put in mitigation. The appellant had pleaded guilty at an early stage. However, he had a history of similar offending and the previous sentence of imprisonment had not been an effective deterrent. Whilst he claimed to have committed the offences under coercion he continued his offending after being arrested and released on bail.

49 The total effective sentence of 7 years was an appropriate reflection of the total offending conduct having regard to all of the circumstances including those personal to the appellant and the fact that he entered early pleas of guilty. Considerations of personal and general deterrence and the need to protect the community loomed large. The proposed ground of appeal has no reasonable prospect of succeeding and the application for an extension of time to apply for leave to appeal should be refused.

(1) Extension of time to apply for leave to appeal refused.