Criminal law - Appeal against sentence - One count of aggravated burglary, one count of kidnapping, one count of failing to protect child from harm - Whether total effective sentence of 4 years 6 months' imprisonment infringes first limb of totality principle - Manifest excess

Children and Community Services Act 2004 (WA), s 101(1)(b)

CYD v The State of Western Australia [2018] WASCA 66

Drake v The State of Western Australia [2006] WASCA 209

Fullgrabe v The State of Western Australia [2013] WASCA 130

Harrison v The State of Western Australia [2009] WASCA 58

Henderson v The State of Western Australia [2007] WASCA 198

McIntyre v The State of Western Australia [2016] WASCA 150

Miller v The State of Western Australia [2013] WASCA 84

Prempeh v The State of Western Australia [2013] WASCA 150

R v Faithfull [2004] WASCA 39

Ryder v The State of Western Australia [2014] WASCA 187

Salkilld v The State of Western Australia [2017] WASCA 168

SV v The State of Western Australia [2014] WASCA 123

THG v The State of Western Australia [2012] WASCA 139

Topic v The State of Western Australia [2013] WASCA 157

Wragg v The State of Western Australia [2013] WASCA 198

1. This is an application for leave to appeal against sentence.
2. The appellant, along with Benjamin George Fleay and Thor Micheal Dewar, stood trial together in the District Court before Levy DCJ and a jury on three counts contained in an indictment dated 12 July 2017, as follows:

(1) On 1 December 2015 at Burswood Dawn Marie Page, Benjamin George Fleay and Thor Micheal Dewar, while in the place of [JCS] without his consent, committed the offence of stealing

And that Dawn Marie Page and Thor Micheal Dewar were armed with an offensive weapon, namely a knife

And that Dawn Marie Page, Benjamin George Fleay and Thor Micheal Dewar were in company with each other

And that Dawn Marie Page, Benjamin George Fleay and Thor Micheal Dewar did bodily harm to [JCS]

And that immediately before the commission of the offence Dawn Marie Page, Benjamin George Fleay and Thor Micheal Dewar knew or ought to have known that there was another person in the place

And that the place was ordinarily used for human habitation.

(2) On 1 December 2015 at Burswood and elsewhere Dawn Marie Page and Benjamin George Fleay detained [JCS] with intent to gain a benefit for Dawn Marie Page, Benjamin George Fleay and others by a demand.

(3) On the same date and at the same place as in Count (1) Dawn Marie Page, being a person having the care and control of a child, namely [V], engaged in conduct reckless as to whether such conduct may result in [V] suffering harm as a result of emotional or psychological abuse.

1. Count 1 is contrary to s 401(2)(a) of the Criminal Code (the Code) and carries a maximum penalty of 20 years' imprisonment. Count 2 is contrary to s 332(2)(a) of the Code and carries a maximum penalty of 20 years' imprisonment. Count 3 is contrary to s 101(1)(b) of the Children and Community Services Act 2004 (WA) and carries a maximum penalty of 10 years' imprisonment.
2. On 16 August 2017, the appellant was convicted as charged, save that on count 1 she was found not guilty of the circumstance of aggravation that she was armed with a knife. Mr Fleay was found not guilty of the charges relating to him. Mr Dewar was found guilty of count 1, save for the circumstance that he was armed with an offensive weapon, namely a knife.[1]
3. On 11 October 2017, the appellant was sentenced to 3 years and 10 months' immediate imprisonment on count 1, 18 months' immediate imprisonment on count 2 and 8 months' immediate imprisonment (reduced from 12 months for totality) on count 3. His Honour ordered that the sentences on counts 1 and 3 be served cumulatively and that the sentence on count 2 be served concurrently with the sentence on count 1. Thus, the total effective sentence imposed upon the appellant was 4 years 6 months' immediate imprisonment with eligibility for parole. The sentence was backdated to commence on 24 June 2017.[2] It is unnecessary to detail the sentence imposed upon Mr Dewar.
4. The ground of appeal relied upon by the appellant alleges, in substance, that the individual sentences that were imposed were manifestly excessive and that the total effective sentence infringes the first limb of the totality principle.
5. We have concluded that the ground of appeal has no reasonable prospect of succeeding. Accordingly, the appeal must be dismissed. Our reasons for these conclusions are as follows.

1. At the time of the offending, the appellant was 37 years of age. At that time she had the care and custody of her two sons, B and V. On the night in question, V, who was aged 9 years, was with her, but B was elsewhere.
2. The victim, JCS, was, at the relevant time, 62 years of age and a businessman. He and the appellant met in about November 2013 and formed a relationship which involved each spending time at the other's home on a number of occasions. The appellant and the victim were users of methylamphetamine and the victim bought the drug from the appellant from time to time.
3. The appellant and Mr Dewar were in a relationship and shared an apartment.[3] As we have already said, the appellant was a user of methylamphetamine. So too was Mr Fleay.[4]
4. The appellant was experiencing some financial stress. As the sentencing judge put it, the appellant had 'run up some debts associated with [her] methylamphetamine usage'.[5] She also needed money to move premises due to threats which had been made against her.[6]
5. In the early hours of 1 December 2015, the appellant, Mr Dewar, their co-accused at trial, Mr Fleay, and the appellant's son, V, were at the apartment occupied by the appellant and Mr Dewar.[7] The appellant and Mr Dewar formulated 'a loose plan' to go to the victim's house for the purpose of obtaining money from him.[8] All of the four people we have mentioned left the apartment together to travel to the victim's house. On the way, they picked up another man, Dean Holt (who was known to V as 'the Frogman').[9] At some point in the journey to the victim's house, Mr Dewar made a comment that Mr Holt was to be part of the plan for the purposes of kicking in the victim's door.[10] His Honour found that each of the appellant and Mr Dewar contemplated that violence might be used in the execution of their plan to obtain money from the victim.[11] While his Honour was not satisfied beyond reasonable doubt that the appellant was 'the driving force behind the plan', he was satisfied that she was 'a willing, enthusiastic, and active participant in the events that occurred that day'.[12]
6. The victim was not expecting the appellant (or anyone associated with the appellant) to attend at his house on the night in question.[13]
7. After Mr Holt had kicked in the front door, the appellant entered the victim's house, along with Mr Fleay, Mr Dewar and V. Upon seeing the victim, the appellant yelled that he had raped her and her son. She did this in order to inflame her male associates.[14]
8. Mr Holt punched the victim twice to the face, causing him to fall hard against his elbow, injuring it. This injury constituted the bodily harm alleged in count 1.
9. Once inside the house, the appellant and Mr Fleay searched for the victim's bag. When it was found, the appellant removed the victim's mobile telephone, keys and $75 from his wallet. She then demanded more money from him (count 1).[15]
10. The appellant procured the commission of count 2 by directing Mr Fleay to drive the victim to an ATM for the purpose of the victim obtaining money for the appellant and others.[16] It was made clear to the victim that he was not free to leave and that he was to do what he was told. When the victim and Mr Fleay returned from the ATM, the money was given to the appellant. The victim's detention continued until he found an opportunity to escape while the appellant, Mr Fleay, Mr Holt and Mr Dewar were preoccupied by consuming methylamphetamine. In all, the victim was detained for approximately two hours.[17]
11. While the victim was being detained, Mr Holt gratuitously poured boiling water over the victim's head and face. The sentencing judge said that the appellant would not be punished for Mr Holt's act or for any injury that the victim suffered from that act. However, once the appellant became aware of it, she did not provide any aid to the victim. His Honour remarked that the appellant's response to Mr Holt's actions put in context her attitude on the night (count 2).[18]
12. With respect to count 3, the appellant took her child, V, to the victim's house in the early hours of 1 December 2015 and allowed him to wander around the premises and to see some of what occurred.
13. V gave evidence at the trial.[19] V said, in effect, he saw 'the Frogman' kick down the victim's door.[20] He saw the victim's arm was bleeding.[21] Although he did not see Mr Holt pour hot water on the victim's face, he heard 'a big yell' and then saw the victim run out.[22] V said that while in the house he decided to destroy a teddy bear 'because [he] didn't like the teddy bear' and 'everyone was raiding the house'.[23] V got tea, coffee, sugar, ham, polony and M&M's from the victim's kitchen and put them on the teddy. He ripped holes in the teddy with a pocketknife.[24]
14. The sentencing judge said that the appellant exposed V 'to the worst side of human behaviour' and that her actions and omissions were the very opposite of those of a protective and caring mother.[25]

1. Prior to being sentenced, his Honour received a pre-sentence report and letters from three medical practitioners who had treated the appellant: Dr John Nash, dated 26 August 2016; Dr Mike Marashi, dated 23 February 2017; and Dr Edward Pleydell-Bouverie, dated 2 August 2017 and 3 October 2017. In addition to these, his Honour received letters from psychologists and counsellors: Binaifer Parabia, dated 23 September 2017; Ms Ockenfels at Holyoake, dated 6 September 2017; and Mauz Kay at Sodexo, dated 18 September 2017. His Honour also received a letter from the appellant and letters from a number of family and friends.
2. It is clear that his Honour took all of this material into account. It is unnecessary to describe the material in detail in these reasons.
3. At the time of sentencing, the appellant was 39 years of age.[26] She had 'a very good family upbringing'.[27] The appellant completed year 12 and completed a TAFE course in IT.[28] She recently disclosed certain events at school for which she recently sought psychological counselling.[29] The appellant has two children from her marriage which lasted nine years. His Honour described the marriage as one marked by long-standing violence.
4. The appellant has a number of significant health problems. She has had two bowel operations, 'trauma' to her right hip and ongoing problems from a broken nose.[30] The appellant suffers from post-traumatic stress disorder, anxiety and depressive symptoms. She has received medication, psychotherapy and counselling for these conditions. It is thought that her psychological problems relate to the domestic abuse she suffered, rejection and abandonment from her family, and a sense of failure as a result of losing custody of her two children.[31]
5. While in custody she has been described by a senior officer at Melaleuca as a model prisoner.[32]
6. Those who know her speak of the appellant as being 'a caring, considerate and dedicated person concerned about the wellbeing of others'.[33] She was also described as 'a loving and caring mother'.[34]
7. His Honour noted that the appellant has a history of illicit drug use.[35]
8. The appellant has no criminal history. She has a short and insignificant record of traffic offences for which she was fined.

1. His Honour found that the appellant was 'a willing, enthusiastic, and active participant in the events that occurred that day'.[36]
2. While he accepted that, generally speaking, the appellant was a loving, caring and considerate person, devoted to others, she had the ability 'to turn all of that off' and carry out acts such as those committed. His Honour described her as having two sides and that she was, 'in a sense, a Jekyll and Hyde'.[37] He noted that the sentencing materials that he had been provided with speak in complete contrast to the person who participated in the offences that night. His Honour rejected the appellant's evidence at trial as to her lack of involvement in the events in question.[38] His Honour gave the appellant no credit for remorse.[39]
3. His Honour accepted that, at the time of the offences, the appellant had run up debts associated with her illicit drug use and that she had been told that there were threats against her and that she had to leave her premises.[40] He also accepted that the offences were committed with 'some degree of premeditation'.[41]
4. In terms of mitigation, his Honour found that the appellant's long history of domestic violence probably led her to illicit drug use and ultimately to the commission of the offences. He also accepted that the appellant had some mental health issues.[42] His Honour took into account that the appellant had been on home detention for 'a very lengthy period of time' prior to her imprisonment.[43]
5. His Honour rejected a submission put on behalf of the appellant that he should suspend any terms of imprisonment he imposed.[44] It is not now argued that the appellant should have been given a suspended term of imprisonment.
6. His Honour expressly had regard to the totality principle.[45] As we have mentioned, his Honour reduced the sentence on count 3 from 12 months to 8 months' immediate imprisonment for reasons of totality.[46]

Appeals against sentence: general principles

1. The general principles applicable to this appeal are well established. What follows is taken from Salkilld v The State of Western Australia:[47]

(1) Sentencing is a discretionary exercise. An appellate court can intervene only if the appellant demonstrates either an express or implied material error. Express error involves acting on a wrong principle, for example by mistaking the law or facts or taking into account an irrelevant matter. Implied error arises where the end result is so unreasonable or unjust that the court must conclude that a substantial wrong has occurred. Thus, an appellate court cannot substitute its own opinion for that of the sentencing court merely because the appellate court would have exercised a sentencing discretion differently.

(2) In order to determine whether a sentence for an individual offence is manifestly excessive, the offence should be viewed in light of the maximum sentence prescribed by law for the crime, the standards of sentencing customarily imposed with respect to it, the place that the criminal conduct occupies in the scale of seriousness of crimes of that type, and the offender's personal circumstances.

(3) The first limb of the totality principle requires that the total effective sentence imposed on an offender who has committed multiple offences bears a proper relationship to the overall criminality involved in all of the offences (including those, if any, in respect of which the offender is still serving or is yet to serve a term of imprisonment), viewed in their entirety, having regard to all relevant facts and circumstances including those referable to the offender personally (and including, for example, the desirability of accommodating any wish to rehabilitate), all relevant sentencing factors and the total effective sentences imposed in comparable cases.

(4) The range of sentences customarily imposed for a crime does not establish the range of a sound exercise of the sentencing discretion. Sentences customarily imposed in comparable cases provide a yardstick or reference point for ensuring broad consistency in sentencing, bearing in mind the scope for significant variations in relevant sentencing factors, and that there is no single correct sentence. What is important is the unifying principles which sentences imposed in comparable cases reveal and reflect.

(5) When this court dismisses an appeal against sentence and when it resentences on a successful appeal, its decision does not fix the upper or lower limit of the range.

(6) Where there is a challenge on totality grounds, the severity of a sentence imposed on an individual count generally falls to be assessed in light of the sentences imposed in respect of the other counts and its contribution to the total effective sentence. A heavy individual sentence (which is not manifestly excessive) may be softened by an order that it be served concurrently with sentences imposed in relation to the other counts. A relatively light sentence (which is not manifestly inadequate) may, as a practical matter, have increased severity if it is ordered to be served cumulatively. The real question is whether the total effective sentence is outside the available sentencing range.

1. While not abandoning her claim that the individual sentences were manifestly excessive, the focus of the appellant's written and oral submissions was on the length of the total effective sentence. In that regard, the appellant submitted that in light of her favourable antecedents and having regard to the following comparable cases: Drake v The State of Western Australia;[48] Henderson v The State of Western Australia;[49] Harrison v The State of Western Australia;[50] Ryder v The State of Western Australia[51] and McIntyre v The State of Western Australia,[52] the total effective sentence infringed the first limb of the totality principle.

1. We will deal first with the individual sentences. In our opinion, none of them were manifestly excessive.
2. We have already set out the maximum penalties for each of the offences committed by the appellant.
3. With respect to the aggravated burglary offence, such offences can vary widely in their circumstances and attract a wide range of sentences. The sentencing decisions of this court, particularly those in recent times, have reaffirmed that home burglaries are viewed as being particularly serious offences and are generally seen as requiring substantial penalties in order to recognise considerations of personal and general deterrence and reflect the prevalence of the offence. Offences such as the one committed by the appellant which involve forcible entry into residential premises thought to be occupied at the time and accompanied by threatened or actual violence are, generally as a matter of fact, significantly more serious than home burglaries which lack those characteristics. A home invasion which is committed with intent to intimidate the occupants (as the present case was) is more serious than a burglary which involves simply an intention to steal.[53]
4. In Wragg v The State of Western Australia,[54] the appellant was convicted after trial of one count of aggravated burglary contrary to s 401(2) of the Code. The appellant and others forced their way into a house occupied by a mother and her two sons. The mother was assaulted and windows in the house were broken. The motive for the offence was retribution and the intention was to confront and intimidate the occupants of the house. The appellant was 26 years of age at the time he was sentenced and had a record of violent offending. He was sentenced to 4 years 6 months' immediate imprisonment. The appellant's challenge to this sentence on the ground of manifest excess was dismissed.
5. Hall J (with whom McLure P and Buss JA agreed) undertook an analysis of decisions of this court and its predecessor in relation to sentences imposed for aggravated burglary, most of which involved violence and threats of violence.[55] His Honour highlighted a number of the more recent cases, including Fullgrabe v The State of Western Australia;[56] Topic v The State of Western Australia;[57] Prempeh v The State of Western Australia;[58] and Miller v The State of Western Australia.[59]
6. Hall J described the sentence of 4 years 6 months' immediate imprisonment as towards the higher end of the range for home invasion accompanied by an assault, but found that the sentence could not be said to be outside the range customarily imposed.[60]
7. Having regard to Hall J's analysis of the cases and the outcome in Wragg v The State of Western Australia, it cannot be said that the individual sentence imposed in the present case of 3 years 10 months' immediate imprisonment fell outside the range customarily imposed, but, of course, this is only one factor to take into account.
8. In our opinion, the aggravated burglary committed by the appellant was a serious offence of its kind and must be deterred. The appellant was a key figure in its commission. There were multiple offenders. The victim was outnumbered. The intention of the appellant was to obtain money from the victim by threats, intimidation and violence. It is clear that violence was contemplated and likely to occur. The offence was, in effect, a surprise attack on the victim's house in the early hours of the morning. The front door was kicked in, in order to gain entry. The victim was assaulted and then made to hand over a sum of money. A further demand for money was made, which led to the commission of count 2.
9. Although the sentencing judge had difficulty reconciling the favourable picture of the appellant drawn by the sentencing materials with the very serious nature of the offending, he gave the appellant credit for her prior good character, her physical and mental state of health and, it would appear, her support within the community.
10. It cannot be overlooked that the appellant did not have the benefit of such mitigating factors as youth, a plea of guilty or remorse. The absence of these factors is not, in any sense, aggravating, but it is important to appreciate that these mitigating factors were not in play in this case.
11. Having considered all of the relevant circumstances of the case, we have not been persuaded that the individual sentence imposed for count 1 of 3 years 10 months' immediate imprisonment was manifestly excessive. It was not unreasonable or plainly unjust.
12. We now turn to the individual sentence that was imposed on count 2 which was ordered to be served concurrently with count 1. There is no merit to the claim that the sentence of 18 months' immediate imprisonment was manifestly excessive. It was the appellant who procured the commission of this offence by arranging for Mr Fleay to take the victim against his will to an ATM to obtain more money for her benefit and that of her co-offenders. The money which was withdrawn from the ATM was given to her upon their return.
13. The victim's detention continued until he was able to escape. The period of detention was approximately two hours. In that time, Mr Holt poured boiling water over the victim's head, although, the appellant was unaware of Mr Holt's intention to commit such an act. Nevertheless, she did not do anything to aid the victim after this attack.
14. No comparable cases were cited by the appellant in support of her claim that the sentence on ground 2 was manifestly excessive. See, however, the decisions referred to in CYD v The State of Western Australia[61] (except THG v The State of Western Australia[62]) in the context of offending carrying a maximum penalty of only 10 years' imprisonment.
15. We will not repeat what we have already written about the appellant's personal circumstances and the mitigating factors. Having regard to all relevant circumstances, it cannot be said that a sentence of 18 months' imprisonment imposed after trial was manifestly excessive. It was not unreasonable or plainly unjust.
16. Finally, there is the sentence that was imposed on count 3. With respect to this offence, the appellant submitted that the sentence was manifestly excessive having regard to 'the relatively short time period involved' in the commission of the offence.[63]
17. In our opinion, the appellant's conduct in taking her 9-year-old son, in what was virtually the middle of the night, to a burglary in which violence was contemplated and, in fact, occurred, is serious criminal conduct. The child was allowed to, in effect, roam free and witness much of what happened in the house. The appellant was apparently oblivious to his presence. The sentencing judge's characterisation of the appellant's conduct in taking V to the premises as 'reprehensible, at best', was fair.
18. V was interviewed some days after the events he witnessed. His Honour viewed the recording of that interview and noted that the account and the manner in which V told it demonstrated that he had been adversely affected by what had occurred in the house.[64]
19. Apart from SV v The State of Western Australia,[65] the appellant did not refer to any sentencing decisions of this court which have dealt with offences contrary to s 101(1)(a) or (b) of the Children and Community Services Act. The appellant pointed to the outcome in SV in support of her claim of manifest excess. It is unnecessary to analyse this case. It is sufficient to say that the facts and circumstances of that case were very different from the present case and provide no assistance. Further, the outcome in one or even a few cases is insufficient to constitute a range of sentences customarily imposed.
20. Having regard to all the circumstances with respect to the commission of count 3, including the appellant's personal circumstances, we are far from persuaded that the sentence of 8 months' immediate imprisonment was manifestly excessive. It was not unreasonable or plainly unjust.
21. We now turn to the total effective sentence. The facts and circumstances involved in all three offences, when looked at in their entirety, and which do not need to be repeated, were, self-evidently, very serious.
22. The appellant has submitted that all of the sentences should have been ordered to be served concurrently. The basis of this argument appears to be the so-called one transaction rule. The so-called rule has been examined in many cases decided by this court, but it is only necessary to refer to the frequently cited case of R v Faithfull.[66] The one transaction rule is not a rule at all. At best, it is a general rule of thumb or guideline. A sentencing judge must, in each case, consider whether the application of that general rule would result in an appropriate measure of the total criminality involved in the conduct. If not, the appropriate result may be achieved by the imposition of cumulative or partly cumulative sentences.
23. In our opinion, in the present case the imposition of wholly concurrent sentences would not have properly reflected the appellant's overall criminality. Count 3 involved criminality in addition to that of counts 1 and 2. The victim in that case was the appellant's child. The appellant's actions did not involve a single invasion of the same legally protected interest, being the rationale for the so-called one transaction rule.
24. Having regard to all of the relevant circumstances of the case, it is not reasonably arguable that the total effective sentence that was imposed of 4 years 6 months' immediate imprisonment infringed the first limb of the totality principle.

1. The proposed ground of appeal has no reasonable prospect of succeeding. Leave to appeal must be refused and the appeal dismissed. The orders we would make are:
   1. Leave to appeal is refused.
   2. The appeal is dismissed.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.

[47] Salkilld v The State of Western Australia [2017] WASCA 168 [48].

[48] Drake v The State of Western Australia [2006] WASCA 209.

[49] Henderson v The State of Western Australia [2007] WASCA 198.

[50] Harrison v The State of Western Australia [2009] WASCA 58.

[51] Ryder v The State of Western Australia [2014] WASCA 187.

[52] McIntyre v The State of Western Australia [2016] WASCA 150.

[53] McIntyre v The State of Western Australia [15].

[54] Wragg v The State of Western Australia [2013] WASCA 198.

[55] Wragg v The State of Western Australia [45] - [61].

[56] Fullgrabe v The State of Western Australia [2013] WASCA 130.

[57] Topic v The State of Western Australia [2013] WASCA 157.

[58] Prempeh v The State of Western Australia [2013] WASCA 150.

[59] Miller v The State of Western Australia [2013] WASCA 84.

[60] Wragg v The State of Western Australia [62].

[61] CYD v The State of Western Australia [2018] WASCA 66 [80].

[62] THG v The State of Western Australia [2012] WASCA 139.

[65] SV v The State of Western Australia [2014] WASCA 123.

[66] R v Faithfull [2004] WASCA 39 [25] - [28].