Criminal law - Appeal against sentence - Burglary in place ordinarily used for human habitation - Totality principle

Downey v The State of Western Australia [2012] WASCA 55

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

Nguyen v The State of Western Australia [2007] WASCA 114

Papertalk v The State of Western Australia [2011] WASCA 229

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

Spry v The State of Western Australia [2013] WASCA 69

Thompson v The State of Western Australia [2013] WASCA 1

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

3 MAZZA JA: This is an appeal against sentence.

4 The appellant was convicted after trial of two counts of burglary as follows.

1. On a date unknown between 21 May 1999 and 24 May 1999 at Wembley Downs STEPHEN JOHN SPRY being in the place of MICHELLE ANNE ZIMMEL, without her consent, being a place ordinarily used for human habitation, committed the offence of stealing.
2. AND FURTHER that on 21 June 1999 at Woodlands STEPHEN JOHN SPRY being in the place of PATRICIA PRATT, without her consent, being a place ordinarily used for human habitation, committed the offence of stealing.

At trial Ms Pratt was known as Ms Burnett. I will refer to her by that name.

5 The maximum penalty for each offence is 18 years' imprisonment: s 401(1)(b) of the Criminal Code (WA).

6 The appellant sought leave to appeal against those convictions. That application has been refused: Spry v The State of Western Australia [2013] WASCA 69

7 On 15 March 2012, the appellant was sentenced by Stevenson DCJ to 3 years' imprisonment on count 1 and 2 years' imprisonment on count 2, to be served cumulatively. Thus, the total effective sentence to be imposed on the appellant was 5 years' imprisonment. He was made eligible for parole and the sentences were backdated to commence on 13 September 2011.

8 The original grounds of appeal were drafted by the appellant himself. In essence, they alleged that the total effective sentence infringed the first limb of the totality principle. On that understanding, leave to appeal was granted on 14 October 2012. There is no challenge to the individual sentences.

9 The appellant was employed by a small business called Solarvac, which installed household electronic security systems and safes. The appellant's effective employer was Mr Didier Delbost. The appellant's duties included commissioning the security systems and safes that Solarvac installed in customers' houses. In respect of each complainant, that is what he did.

10 The control panel for each security system had a keypad. The householder would, in order to arm or disarm the system, enter on the keypad a personal identification number (PIN) which was supposed to be known only to the householder. Part of the appellant's duties when commissioning a security system was to instruct the householder how to set and enter their PIN. The appellant, contrary to procedure, either entered the PIN selected by the complainant into the alarm system or was present when the PIN was selected and entered. Moreover, each alarm system had a security code that was set by Solarvac that enabled the code holder to fully access the system. The appellant knew the security code.

11 With respect to the safes, Ms Zimmel had a safe which could be opened by a mechanical combination. Contrary to procedure, the appellant set the combination to that safe. In relation to Ms Burnett, her safe could be opened via a code keyed into an electronic keypad. The appellant again, contrary to procedure, set the entry code to the safe.

12 After Ms Burnett's alarm system and safe were commissioned, each required further work. The work required in respect of the alarm system was carried out by the appellant, but he was not involved in the later repair work done to the safe. As a result of work to the safe, Ms Burnett changed the entry code. The PIN for the alarm system was unchanged.

13 At the time the offences were committed, the appellant had left his employment at Solarvac. However, he either knew the PIN or the security code for the security system in each house and could, after gaining entry, arm and disarm it. He also knew (or thought he knew) the combination or code necessary to access each safe.

14 On 22 May 1999, Ms Zimmel left her house for an overnight fishing trip. Before leaving, she locked the premises and armed the alarm system. The safe was locked. Some time on the evening of 22 May, or in the early hours of 23 May 1999, the appellant gained entry to the house, disarmed the alarm, opened Ms Zimmel's safe and stole a quantity of cash in excess of $5,000.

15 In relation to Ms Burnett's house, on the morning of 21 June 1999 she left home to go to work. She locked the house and armed the security system. Some time during the day, the appellant gained entry to the house by cutting a hole through the ceiling and disarmed the alarm. He attempted to open the safe but, because the combination had been changed, he was unsuccessful. He then proceeded to steal a television, a video-cassette recorder, a laptop computer, a camera and some coins. Subsequently, the television and VCR were pawned. Inquiries by the police revealed that the property had been pawned in the appellant's name and that his passport had been used in that process.

16 On 22 February 2001, the appellant was interviewed by the police. He denied committing the offences. He was subsequently charged. On 8 August 2001, he failed to appear in the District Court and a bench warrant was issued. In fact, the appellant had left the State. He did not return until 2011. On or about 13 September 2011, the bench warrant was executed and the appellant remained in custody up to his trial and sentencing.

17 At the time the appellant committed the offences he was 31 years of age and at the time of sentence he was 44. He had a consistent history of employment in various fields.

18 In the 1980s, the appellant was convicted of a number of traffic offences and some minor drug offences. He was imprisoned for 5 months on 26 August 1987 for assaulting a police officer and he received 1 month's imprisonment for 21 counts of receiving. His convictions were less frequent in the 1990s, although on 11 November 1993 he was fined $1,000 for an offence of receiving. After his departure from Western Australia in 2001, he was convicted in 2003 in South Australia of criminal trespass, possession of house-breaking equipment at night and carrying an article of disguise, and placed on a good behaviour bond.

19 According to the appellant's counsel, the appellant became addicted to heroin in 1995, and he has had difficulties with his health.

20 His Honour noted that there was a similar modus operandi in the commission of each offence; being that the appellant entered both premises near the alarm control panel and, after gaining entry to each house, disarmed the alarm before it had time to activate. This was, as his Honour noted, particularly evident in respect of count 2, where entry was gained through the ceiling of the premises into a bedroom that was located very close to the alarm control panel.

21 His Honour regarded the offences as serious examples of their type because they were planned and premeditated and involved knowledge of each of the premises gained in his employment with Solarvac. He regarded the appellant's conduct as breaching the trust reposed in him by both his employer and the victims. In addition, he breached the terms and conditions of the security installer's licence that he held.

22 His Honour found that the appellant was not remorseful for his offending. He noted the delay between the charges being laid and the trial but observed that the delay had been caused purely by the appellant's flight from the jurisdiction. Nevertheless, he noted that the appellant had not offended since 2003 and, as a result, he was satisfied that the appellant posed a 'minimal risk to the community at this stage in his life' (ts 9).

23 His Honour considered that cumulation of the sentences was appropriate, having regard to the fact that they were committed separately, approximately one month apart, and involved separate planning and premeditation.

24 He considered that the appropriate sentence in respect of each offence was 3 years' imprisonment. However, in order to accommodate the first limb of the totality principle, he reduced the sentence on count 2 from 3 years to 2 years.

25 The general principles applicable to appeals against sentence are well known and were succinctly and accurately described by McLure P and Owen JA in Wilson v The State of Western Australia [2010] WASCA 82 [2]. They do not require repetition here.

26 The totality principle has been described in many cases, for example Roffey v The State of Western Australia [2007] WASCA 246. The totality principle comprises two limbs. The first limb is that the total effective sentence must bear a proper relationship to the overall criminality involved in all the offences viewed in their entirety and having regard to the circumstances of the case, including the offender's personal circumstances. The second limb is that the court should not impose a 'crushing' sentence. The word 'crushing' in this context connotes the destruction of any reasonable expectation of a useful life after release.

27 The appellant alleges an infringement of the first limb of the totality principle only.

28 Because an alleged breach of the totality principle is an allegation of implied error, before this court can interfere, the appellant must establish that the total effective sentence was plainly unjust or unreasonable.

29 The appellant submitted that, as serious as the offences were, the total effective sentence did not bear a proper relationship to the overall criminality involved in the offences. The appellant's counsel pointed out that the total sentence equated to a sentence of 7 1/2 years' imprisonment in pre-transitional terms and submitted that 5 years' imprisonment was more than what was fairly required to achieve the sentencing objectives including punishment, retribution and deterrence. In respect of personal deterrence, counsel drew attention to the sentencing judge's finding that the appellant posed a minimal risk to the community.

30 On the other hand, the respondent submitted that each offence was towards the upper end of the scale of seriousness for non-aggravated home burglary offences. The respondent emphasised that the offences were premeditated and carefully planned and breached the trust reposed in the appellant by his employer and the complainants. The respondent submitted that there was a real need for general deterrence. It was submitted that the overall sentence of 5 years' imprisonment was a just and appropriate penalty, having regard to all of the circumstances of the case.

31 I recognise that the appellant was not convicted of the more serious offence of aggravated burglary, which carries a maximum sentence of 20 years' imprisonment. Nevertheless, a home burglary not committed in circumstances of aggravation is a serious offence. The offences committed by the appellant were serious offences of their type. As his Honour correctly observed, they were premeditated and planned. The appellant used the inside knowledge he gained through his employment to execute the burglaries. He knew where the control pads were and he was able to disarm them, either by using the householder's PIN or the master code. His intention was to steal the contents of the safes he commissioned. He was successful in the case of Ms Zimmel, but when he was unable to open Ms Burnett's safe because she had changed the code, he stole other valuable property from her. It cannot be overlooked that the appellant entered Ms Burnett's house through a hole that he cut in the ceiling. That measure highlights the planned and determined nature of the offence.

32 Security systems are a common feature in homes and business premises. The whole point of these systems is to prevent unauthorised intrusion and protect premises from theft. They are often complicated and in many cases can only be installed or maintained by persons with expertise in this area. Those who install and maintain these systems are trusted not to use their knowledge of the system and the place in which it is installed to the detriment of the people they have undertaken to protect. Offences of the type committed by the appellant have the potential to undermine the integrity of the security industry and public confidence in it. For all these reasons, the sentences passed in this case had to convey a strong message of general deterrence. His Honour was correct to give prominence to this factor.

33 The mitigating factors in the case were few. The appellant did not plead guilty. This is not an aggravating factor, but he was unable to call on this to mitigate the sentences to be imposed. The appellant showed no remorse.

34 The delay between the commission of the offence and his sentencing was long but the appellant was entirely responsible for it, having chosen to flee the jurisdiction. Delay was not pressed as a matter of mitigation, except in the sense that, as a consequence of the appellant committing no offences since 2003, he posed a low risk of reoffending.

35 Defence counsel at first instance made vague and imprecise observations about the appellant's health, but nothing was put before the primary court which would have enabled his Honour to mitigate the sentence because of this factor.

36 Before this court, the parties referred to a number of sentencing cases with respect to the offences of burglary and aggravated burglary. The plain statement of sentencing principle in those cases is that specific and general deterrence are the dominant sentencing considerations. See Thompson v The State of Western Australia [2013] WASCA 1 [37] (Buss JA). It is equally as plain that there is no tariff for burglary offences. This is because it is an offence committed in very diverse circumstances by offenders whose personal circumstances may widely differ. It is evident that sentences for home burglary have firmed up over time. See Nguyen v The State of Western Australia [2007] WASCA 114 [12] - [14] (Steytler P).

37 In deciding whether the first limb of the totality principle has been infringed, it is appropriate to examine other cases decided by this court to ensure broad consistency. Having said this, the range of sentences imposed in these cases does not represent the limits beyond which no sentence must go, either upwards or downwards. Nor does it follow that a sentence within that range cannot be set aside for implied error. In the end, each case must be decided on its own particular facts and circumstances.

38 There is no need to canvass the sentences imposed in cases involving single offences of burglary or aggravated burglary such as Papertalk v The State of Western Australia [2011] WASCA 229; and Downey v The State of Western Australia [2012] WASCA 55. This is because the individual sentences in this case are not challenged.

39 The cases involving multiple counts of burglary and aggravated burglary differ markedly. None are factually comparable to the present case. As the court in Howorth v The State of Western Australia [2007] WASCA 78 pointed out after examining a number of cases involving multiple counts of burglary and aggravated burglary:

There are no hard and fast rules in relation to sentencing for multiple offending of this kind. Having regard to the very great variations in the number of possible offences and in the possible combination of offences, comparison is difficult [30].

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

41 I will not repeat what I have said about the seriousness of the offences and the need for general deterrence. Although personal deterrence was not a relevant factor, substantial terms of imprisonment were required. There was little to be said of importance by way of mitigation. The offences were committed approximately one month apart and involved separate planning and execution. Accordingly, his Honour was correct to accumulate the sentences he imposed. His Honour took into account the totality principle and reduced the sentence he would have otherwise imposed for count 2 by 1 year.

42 The total effective sentence of 5 years' imprisonment is, doubtless, a substantial sentence. However, in my opinion, it has not been demonstrated that it is disproportionate to all of the circumstances including those personal to the appellant. I would dismiss the appeal.