Fisher v R [1999] WASCA 122

1 MALCOLM CJ: This is an application for leave to appeal against sentence of 2 years' imprisonment. On 19 February 1999 the applicant, following his plea of guilty, was convicted on three counts in an indictment, being one count of burglary contrary to s 4012(b) of the Criminal Code, and two counts of obtaining money by deceit with intent to defraud contrary to s 409(1) by endeavouring to sell property to Cash Converters which had been obtained in the burglary.

2 The facts were that on the morning of 23 July 1998 the applicant went to premises in James Street, Bassendean with the intention of breaking in and stealing whatever he could find. He kicked in the rear door to gain entry and once inside, located and stole a Sony video-recorder, a Panasonic CD player, a Sony playstation, clothing, jewellery and some compact discs. He loaded the property into a vehicle and drove away.

3 Later that day he attended at Cash Converters, Cannington with the intention of pawning or selling the stolen property. He pawned a pair of Sharp stereo speakers which he knew to be stolen saying that the property was his and signed a contract to that effect a consequence of which he received $60. That property was recovered by the police.

4 The next day he attended at Cash Converters in Gosnells with the intention of pawning or selling stolen property. He pawned a Panasonic stereo, a Kramer guitar tuner and jewellery which he knew to be stolen, signing a contract stating that the property was his and in consequence he was paid $228 in cash. Once again that property was recovered.

5 The learned Judge found that the offences were planned for profit and that the offender was a principal offender in all of them. As he put it:

"The whole responsibility for all of these crimes rests upon your shoulders and there was no-one else you can blame for their commission."

6 At the same time as he had been convicted of the three offences to which I have referred, the applicant was also convicted of a number of drug offences related to the importation of amphetamines, namely, one count of importing ecstasy, one count of importing amphetamine, one count of possession of amphetamine.

7 He was sentenced to a total term of imprisonment for 7 years for the Commonwealth offences. He was not made eligible for parole. He was sentenced to imprisonment for 2 years for the burglary offence and 6 months' imprisonment on each of the fraud counts to be served concurrently with the terms imposed in respect of the burglary. He was not made eligible for parole in respect of those sentences and the State sentences were made cumulative on the Commonwealth sentences. The total effective sentence was imprisonment for 9 years without eligibility for parole.

8 The applicant seeks leave to appeal against the sentences imposed in respect of the State sentences on the following grounds:

"The sentence of 2 years' imprisonment in relation to the offence of burglary was in all the circumstances manifestly excessive in that:

(a) the applicant had no previous convictions for burglary and had only two offences of receiving constituting any offences of dishonesty, the most recent of which was 1991;

(b) the applicant pleaded guilty on the fast-track in relation to this offence;

(c) the burglary although being a residential premises was not occupied at the time;

(d) the burglary was naive in all the circumstances in that the property was sold using the applicant's own ID;

(e) the offence was not in any way sophisticated and was opportunistic in nature;

(g) the offence was committed for minor gain and not extraordinarily destructive to the victim's property;

(h) all the property the subject of the burglary was recovered."

9 In passing sentence in relation to the State offences, the learned sentencing Judge said:

"It was submitted during the course of the State's address on these offences that they in effect paled into insignificance compared with your Federal offences. Certainly they are less significant than the Federal offences, but the problem when comparing two evils is that what is perceived to be the lesser of them fails to attract a proper appreciation of the degree of criminality involved in their commission.

These offences need to be placed in the context of your Federal offending. The planning of your Federal offences, as I have accepted from the evidence given in the matter of your accomplice Nolan, began shortly after your release from prison in respect of your previous drug offences. That planning culminated in the commission of the Federal offences between 3 May 1998 and 12 May 1998. These offences were committed on 23 and 24 July 1998 when you were still on parole.

House burglary is particularly prevalent in Western Australia at the moment, and in response to community concerns Parliament moved a little time ago to increase sentences to act as a general deterrent such as that now a burglary of a house unaccompanied by an act of aggravation attracts a maximum penalty of 18 years' imprisonment. The fraud offences are really the corollaries of, if you like, the end purpose of the burglaries and to that extent I think the fraud should be considered in the context of sentencing as part and parcel of the burglary.

These offences, however, are separate and discrete from the Commonwealth offences. This means that they should ordinarily attract cumulative sentences so that they do not effectively go unpunished. This is the principle I propose to apply here, but I am concerned at the overall effect of the sentences I am imposing upon you. The punishment cannot be seen as crushing, depriving you of all hope of ever returning to the community as a law-abiding citizen.

Further, I need to give effect to the principle separately that you have in relation to the commission of these offences pleaded guilty at the earliest opportunity. In all the circumstances, the starting point for these offences would have been 3 years' imprisonment to be served cumulatively upon the sentences imposed in respect of the Commonwealth offences.

I propose, however, to discount that by a third to take account of your early plea and the totality principle. Accordingly, I sentence you to a term of 2 years' imprisonment for the burglary, such term to be served cumulatively upon the sentences imposed in respect of the Commonwealth offences. With regard to counts 2 and 3 on the indictment, being the two counts of fraud, I sentence you to a term of imprisonment of 6 months on each count to be served concurrently with the term imposed in respect of the burglary, namely 2 years. With regard to parole eligibility for the State offences, for the reasons expressed in respect of the Commonwealth charges, I declare that you are not eligible for parole."

10 While the applicant had no previous convictions for burglary, he did have a significant record of offences. At first these mainly related to traffic convictions, but from 1989 there are a number of convictions relating to the use and possession of drugs, including a conviction on 9 February 1995 of a conspiracy to possess amphetamines and possession of amphetamine to sell or supply for which he was, together with sentences for related offences, sentenced to a total of 7 years 11 months' imprisonment with parole. The present offences were committed while he was on parole in respect of those sentences. There is therefore no substance in the point that the applicant has no prior convictions for burglary.

11 It is said that the applicant pleaded guilty on the fast-track in relation to this offence. That of course was fully taken into account by the learned Judge in coming from a starting point of 3 years down to 2 years for that reason.

12 So far as the burglary being in residential premises unoccupied and during the day-time is concerned, it has been recognised for a number of years that such offences cannot simply be regarded as property offences. Those whose homes are invaded, whether there are persons present or not, are left with a great sense of insecurity about the invasion of their premises and it has a dramatic impact upon the occupants when their houses are burgled. This has been recognised by the courts in recent years.

13 Notwithstanding the fact that the offence was committed during the day, it fell into the category of offences for which the maximum penalty was increased in 1996 by Parliament from 14 years to 18 years. This was the subject of comment by this Court in Little v R, unreported; CCA SCt of WA; Library No 970041; 3 February 1997, in my judgment in which I said at 6:

"It is now clear that the prevalence of the offence of burglary is very great, particularly in the case of burglaries which are being committed for the purpose of obtaining money to buy drugs. This may mean that the range of sentences commonly imposed, which was dealt with by this court in Cheshire v R, unreported; CCA SCt of WA; Library No 7924; 7 November 1989, may need to be reconsidered and sentences firmed up in the manner referred to by Burt CJ in the context of armed robbery and R v Peterson [1984] WAR 329 at 331-332.

14 In particular, in Heferen v R [1999] WASCA 81 at 13, Anderson J said:

"I do not consider it is open to the Courts now to regard home burglaries as anything but very serious offences. The Courts in this State have recognised for some time now that the offence has become prevalent and is causing considerable community concern. Quite apart from that, which would itself be a reason for the Courts to continue to firm up sentences in home burglary cases, Parliament has recently singled out the offence for special treatment. Prior to 1996 the maximum penalty for burglary was 14 years' imprisonment. In 1996 amendments were made which increased the maximum penalty for domestic burglaries by 28.5 per cent from 14 years to 18 years. It is of course the duty of the Courts to give effect to the policy behind this change: R v Peterson [1984] WAR 329 (Burt CJ) 334; and R v O'Neill, unreported; CCA SCt of WA; Library No 960172; 29 March 1996; Sentencing Act 1995, s 6(2)(a)."

15 Reference should also be made to Pezzino v R (1997) 92 A Crim R 135 at 136 per Franklyn J and at 148 per White J; Nguyen v R and Tran v R [1999] WASCA 54 at 55 per Kennedy J. The Courts have taken this view because of both the increased prevalence of the offence and the need to protect the community on the one hand, and the fact that Parliament has increased the penalties for the offence, on the other hand.

16 Although it may be said that the three offences were not sophisticated and were opportunistic in nature, that is one of the characteristics of house burglary offences. As to the ground that the offences were committed for minor gain and not extraordinarily destructive to the victim's property, together with the point that the property the subject of the burglary was recovered, that of course is a relevant consideration, but is of relatively minor impact in the present context.

17 It is said that applying the principles which were stated in Cheshire, supra, this case should have resulted in a sentence of the order of 12 to 18 months' imprisonment. The subject of this application is a sentence of 2 years' imprisonment. The difference is one which is readily accounted for by the two factors which I have mentioned; namely, the need to firm up the sentence in the light of the increased prevalence of the offence and, secondly, the impact of the increase by Parliament of the maximum penalty to one of 18 years' imprisonment.

18 The offence was accompanied by damage to the property, and in all the circumstances I am of the opinion that it has not been shown that there was any error in the exercise of sentencing discretion by the learned sentencing Judge in this case. The learned Judge also gave full consideration to the totality principle, having regard to the seriousness of the drug importation offences for which this applicant was sentenced at the same time.

19 I am quite unable to see that the total sentence of 9 years' imprisonment for all of these offences was in any way excessive. In my opinion, the application for leave to appeal against sentence should be refused.

20 IPP J: I agree with the learned Chief Justice and have nothing further to say.

21 OWEN J: I too agree and just would add one brief comment. Counsel for the applicant pressed on us the submission that the burglary offence could have been dealt with in the summary jurisdiction and that the maximum penalty in that jurisdiction would have been 3 years and that when an accused person elects to have matters dealt with in a higher court so as to have all outstanding offences dealt with, he or she should not be discouraged from so doing.

22 I agree that it would not be in the interests of the administration of justice for accused persons to be so discouraged because there are advantages in having all outstanding offences dealt with at the same time, so I acknowledge the force of the submission made, but the entire sentence has to be seen in its context.

23 There were serious drug offences and the sentencing Judge had to structure a sentence which took into account, among other things, the totality principle, and in structuring that sentence his Honour settled on a starting point of 3 years for the burglary offence which was reduced to 2 years to take into account the effect of the totality principle and the early plea of guilty.

24 The matter is further complicated by the fact that there is wrapped into that sentence concurrent sentences of 6 months for two fraud offences. When you take into account the entirety of the circumstances including all of the mitigating factors, and even acknowledging the force of the submission concerning the change from summary jurisdiction to a jurisdiction to be dealt with on an indictment, it might be said that the 2 year sentence for the burglary offence was a sentence in full measure, but for the reasons outlined by his Honour the Chief Justice I am not persuaded that it is outside the range of a sound exercise of the sentencing discretion, and for those reasons I too am of the view that the application should be dismissed.

25 MALCOLM CJ: I would like to say that I agree entirely with the additional comments which have been made by Owen J.