Court of Appeal (WA)|2003-05-09|Before: McKechnie J, Anderson J, Parker J

Fraser v The Queen [2003] WASCA 99 (9 May 2003)

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

CITATION : FRASER -v- THE QUEEN [2003] WASCA 99

Criminal law - Sentence - Young offender - Series of offences - Whether totality principle offended by accumulation of some sentences

Lowndes v The Queen [1999] HCA 29; (1999) 195 CLR 665

Postiglione v The Queen [1997] HCA 26; [1997] 189 CLR 295

Sikaloski v The Queen [2000] WASCA 387

Vlek v The Queen, unreported; CCA SCt of WA; Library No 990153; 29 March 1999

1 ANDERSON J: I have read the judgment of McKechnie J and agree that leave to appeal should be granted, but that the appeal should be dismissed. In my opinion, each individual sentence and the overall sentence reflected a sound exercise of sentencing discretion. Having regard to the number and seriousness of the offences for which sentence had to be passed, the applicant could not really expect to be treated any more leniently than he was.

2 As to the complaint that the Judge dwelt too much upon and appeared to give too much weight to the potential for harm arising from the breaking into the Western Power Corporation substations and switching off the circuit-breakers, cutting off electricity to wide areas of the suburbs, in my opinion there was nothing at all inappropriate in the comments which his Honour made about these offences. He was doing no more than stating the reasons why the particular conduct had to be viewed very seriously. The potential for enormous harm which was involved in such conduct is the main reason why the conduct is deserving of punishment - not so much for the damage actually done, but in order to deter the applicant and others of a like mind from doing the same thing.

3 PARKER J: I agree with McKechnie J for the reasons he gives that leave to appeal be granted, but the appeal be dismissed.

4 MCKECHNIE J: On 11 June 2002 the applicant appeared before Groves DCJ and pleaded guilty, by way of fast-track plea, to six counts of aggravated burglary, two counts of burglary and one count of stealing.

5 At the same time the applicant acknowledged a breach of an intensive supervision order for three counts of burglary and a breach of community based order for four counts of receiving. Pursuant to the Sentencing Act s 32 he pleaded guilty to four further counts of receiving.

6 The facts were admitted and were summarised by the State Prosecutor as follows:

"Those facts are as follows. Beginning with the 9-count indictment and with respect to counts 1 and 2, at about 8.50 pm on 18 November 2001, the offender went to the complainant's automotive shop situated on the corner of Howe Street and

O'Malley Street Osborne Park in company with two other (sic) with the intent of breaking in and stealing property.

The offender and others smashed a front window with an iron bar to gain entry into the premises. Upon entering the store the alarm has been activated and they have taken two HDT car seats from the front display and left the store with the seats via the front window, the value of the seats being $2400. On 18 December 2001 police attended at the offender's work address and located his vehicle out the front with the two seats in it. The offender was spoken to and taken to the Warwick detectives office where he participated in a video interview but refused to answer any questions. The car seats were recovered and returned to the complainant.

With respect to counts 3 and 4 on the nine-count indictment, at about 3 am on Tuesday, 11 December 2001, the offender went to the Western Power substation situated behind Audiocom Joondalup on Clark Crescent in Joondalup. There he forced the door and turned the power off causing all the shops in the immediate vicinity to lose power. The offender has then broken into Audiocom Joondalup by removing a shop-front window and crawling between the security grille. The offender took three kicker speakers and two Sony amplifiers from the shop display and left via the point of entry.

With respect to count 5 on the 9-count indictment, at approximately 8 pm on Tuesday, 18 December 2001, the offender in company with two other 18-year-old males who have also been charged drove to the Western Power substation situation (sic) at the corner of Romeo and Wanneroo Roads, Carabooda. They intended to break into the premises and switch off the power to the surrounding suburbs. Using bolt cutters and a tyre lever that the offender had in his possession, the offender has forced the lock to the front gate and smashed open two doors leading to a toilet and the control room itself.

Once inside the control room the offender forced a key cabinet, stole a number of keys and then set about turning off the circuit-breakers for various power feeders and tripped all the switches cutting power to the entire suburbs of Yanchep, Two Rocks and the northern Wanneroo area. This caused the transformers within the compound to spark.

With respect to count 6 on the 9-count indictment the offender and his associates have then driven to the substation situated next to the Edgewater train station, Joondalup Drive Edgewater arriving at approximately 8.20 pm with the intention of breaking in and cutting power to the surrounding suburbs. They parked nearby and the offender and one of his associates walked to the substation. The offender cut open the gate to the substation yard with bolt cutters and then jemmied a door into the main control room.

The offender then switched off all the circuit-breakers, cutting power to all the northern suburbs from Whitfords Avenue to Quinns Rock. The blackout cut power supply to trains and traffic control lights in all areas for 15 minutes. The offender then went back to the car and drove to the Caltex service station in Joondalup.

With respect to count 7 on the nine-count indictment, at the Caltex service station in Joondalup the offender and his associate met up with a number of other youths and the offender bragged about what they had done. A short time later the offender suggested that the group follow them to commit a similar offence. The offender and his associates, followed by two other car loads of youths, drove to the substation compound situated at Winton Road in Joondalup and arrived there sometime between 9 and 10 pm. There the offender and his associates took bolt cutters and a tyre lever and used them to force open the door to the control room. Once inside, the offender turned off all the switches, cutting power to the Joondalup industrial area, and the group then subsequently left.

With respect to count 8 on the nine-count indictment, the offender and his associates have then driven immediately to another substation control room on Clark Crescent, Joondalup, where he and a co-offender approached the control room and the offender has used a tyre lever or bolt cutters to force open the door and then tripped all the circuit-breakers, cutting power to the area.

With respect to the final count on the nine-count indictment, at approximately 9.50 pm the group then drove to a car park at Emerald Park just off Joondalup Drive, Edgewater. There the offender, along with a co-offender from the previous offences and two 17-year-old males, walked to the same substation they'd broken into earlier in the evening next to the Edgewater train station.

The compound had been re-secured and the group used bolt cutters and a tyre lever to re-enter the property in the same manner as previous by forcing the gate and forcing a door to the compound. Once inside, they all started switching off the circuit-breakers and again cut power to the northern suburbs north of Whitfords Avenue."

The facts in relation to the breach of intensive supervision order

7 The facts were read out as follows: In relation to count 1 on the three-count indictment, on 24 August 2001, the offender went to the Church of the Nazarene in Mary Street, Pearsall. Here the offender broke into the church, a house and a shed on the property, removed a large quantity of property and placed it in the shed on the property and then left, leaving the property stored in that shed.

8 In relation to this offence, defence counsel pointed out that the applicant did not in fact break into the Church of the Nazarene. It was a co-offender who broke into the church and took property from the church, put it in a shed on the property and went and got the applicant the next day and the applicant was then involved in going to the shed and taking the property from it.

9 In relation to count 2, the next night, on 25 August 2001, the co-offender was at his residence in East Road, Pearsall, when he received a visit from someone. The applicant told the person he knew the alarm code to the complainant's workshop and they then decided to go to the workshop and break into it.

10 The co-offender drove the applicant to the complainant's workshop situated at Attwell Street, Landsdale. Both of them used a large set of bolt cutters to cut the padlock off the front door. The applicant went inside and used the alarm pin code to disarm the alarm and, once inside, the two removed a large quantity of workshop equipment, power tools and hand tools from the workshop. They drove back to the applicant's house where he took a red tool-box containing tools and a number of power tools, and the co-offender left with the remainder of the property. The applicant sold the tool-box to another person a few days later.

11 With respect to the final count on the three-count indictment, on 26 August 2001, the applicant, and another co-offender who resided with the applicant at the time, decided to go to the suburb of Wangara and break into a deli. The co-offender drove the applicant to the Attwell Lunch Bar in Attwell Street, Landsdale, and there the co-offender used a crowbar to force open a rear door to the shop.

12 The two went inside and they piled up next to a roller door two microwaves, a fax telephone machine and a large quantity of soft drinks and food products. The applicant unlocked the garage door and placed the stolen property into the rear of the car and drove back to the applicant's house. Here both the applicant and co-offender unloaded the property and placed the electrical items and soft drink in the rear storeroom, and the food products into the fridge.

The facts in relation to Community Based Orders

13 The facts relating to the four counts of receiving the subject of a community based order imposed on 9 November 2001 are:

(a) Charge number 009444, between 1 July 2001 and 31 August 2001 at Pearsall the applicant received a quantity of electrical goods, tools, a heater, assorted compact discs and power tools the property of a person or persons unknown which had lately been stolen and which the applicant knew to be stolen.

(b) Charge number 009445 between 25 July 2001 and 26 July 2001 at Wangara the applicant received a car trailer, registration number 7TU-028, the property of Anthony Rocks-Hiscox which had lately been stolen and which the applicant knew to be stolen.

(c) Charge number 009446 between 17 August 2001 and 20 August 2001 at Wangara, the applicant received a cheque book in the name of Strata Administration Services, the property of Strata Administration Services, which had lately been stolen and which the applicant knew had been stolen.

(d) Between 18 August 2001 and 19 August 2001 at Wangara the applicant received assorted stationery, door fixings, a Panasonic microwave oven, Xerox facsimile machine, photocopy, toner, assorted keys and mobile phone accessories, the property of Total Home Frames Pty Ltd which had lately been stolen and which the applicant knew to be so stolen.

Section 32 Notice matters

14 The facts as to the matters to which the applicant pleaded guilty before Groves DCJ are:

(a) Between 28 May and 2 June 2001 the applicant was at his residence in East Road, Pearsall. At this location during the late afternoon a juvenile known to the applicant attended at his house and asked the applicant if he could leave a stolen Panasonic compact disc player at his house as the police were about to search his own house regarding another matter. The applicant agreed to this and put the CD player in his bedroom. The juvenile did not return to collect the property.

(b) On 21 July 2001 the applicant was at his residence and at this location a male co-offender told the applicant that he had put a stolen Ford Laser into a shed on the applicant's property. The applicant permitted the co-offender to store that car in his shed and over the next six days the co-offender and other individuals stripped the car. The chassis was towed away on a trailer and dumped and the stripped parts were stored in the applicant's shed.

(c) On 27 July 2001 the applicant was at his home and on this occasion the same co-offender this time placed a stolen Holden Commodore into the same shed on the applicant's property. The co-offender told the applicant what he had done and the applicant permitted the co-offender to keep the car in the shed whilst he stripped it and stored the parts in the shed.

(d) Between 24 and 29 August 2001 the applicant was at his home. A co-offender came over with a Sony stereo system, an Oki page laser printer and six keyboards that had previously been stolen from the City Beach High School. The co-offender placed the keyboards and a printer into a rear storage room which contained other stolen property. The Sony stereo system was connected up to the Panasonic television and the applicant used and permitted the stolen property to remain at his residence knowing that it was stolen.

15 Ground 1 asserts that the totality of the sentence imposed on the offender was manifestly excessive having regard to four enumerated particulars. Ms Braddock, who appeared for the applicant on appeal, acknowledged in her submissions that the offences were serious. She said that the individual terms were beyond criticism. The Judge, she accepted, had correctly identified matters of mitigation and aggravation.

16 The thrust of Ms Braddock's submissions were directed to ground 2. Nevertheless, ground 1 was not formally abandoned and I shall deal with the ground by discussing each particular put forward in support of it.

17 The Judge well recognised the applicant's young age and made mention of it on several occasions, saying at one point:

"... I must proceed to sentence on the basis that you are a first offender as an adult person. It is a very grave step to send a young person to prison. ..."

18 Furthermore, the Judge reduced what he regarded as otherwise appropriate sentences having regard to mitigating factors, including youth. He expressly took into account the totality principle to set a sentence which would not result in a crushing sentence.

19 In my opinion this particular cannot be sustained.

(b) The applicant's impulsivity as set out in the psychiatric report

20 The Judge referred several times to the applicant's impulsivity, but noted that the applicant had returned a normal awake EEG. The Judge had read the pre-sentence report and the psychiatric report. The sentencing remarks indicate that he did give appropriate consideration to the applicant's impulsivity.

(c) The lack of counselling given to the applicant following his sentencing on 8 and 9 November 2001

21 The applicant re-offended 10 days after the imposition of the ISO and nine days after the imposition of the CBO. The imposition of the ISO was accompanied by a very strong admonition from the Judge as to the probable consequences should it be breached. In the circumstances, it is unlikely that, even had counselling been available in the short space of time, it would have had any effect.

(d) The actual damage occasioned by the applicant's conduct in relation to the offending against Western Power

"The offences involving the turning off of power in suburbs had the potential to cause untold consequences. It was not just a silly thing to do, it was a criminal act, which could have had, although we don't know, might - could have or it had the potential to cause serious accidents, injuries or other events to occur. Traffic lights were turned out, power to the hospital turned off, who knows, and power to homes, etcetera, was turned off. Who knows what might have happened. Necessarily, I must impose a sentence in respect to each of the offences in the indictment and then I must have regard to the totality of those sentences and then consider matters of cumulation and concurrence."

23 It is important not to elevate sentencing remarks to the standard of a judgment. Sentencing remarks may often contain elements of homily, warning or deprecation, particularly addressed to an offender. Although the motivation behind them is understandable, their effect may be questionable. Nevertheless, caution should be exercised in reading too much into such comments.

24 The Judge's comments, to an extent, mirrored the applicant's counsel's comments in the course of mitigation:

"It hasn't been highlighted here but one of the things I am aware of is that in regard to turning off the power next to the train station that the train was affected for a short time but they have an overriding power as I'm told but there was also a number of street lights were out of action for about 10 minutes which, of course, had the possibility of a large number of motor vehicle accidents, even possibly a death as a result of that and there could have well been a problem if a train had been moving at the time the power was cut off if it wasn't able to stop in time and I appreciate that there are dead men and other safety precautions on the trains but these were a large number of repercussions and implications that Mr Fraser hadn't even considered at all."

25 The actual sentence imposed does not indicate that the Judge gave particular weight to the ramifications of what may have happened.

26 None of the matters specified in the ground lead to the conclusion that the total sentence imposed was manifestly excessive. Deterrence is an important principle for burglaries.

27 In Pezzino (1997) 92 A Crim R 135, Franklyn J held at 138:

"... The more recent experience of burglaries is that to a large extent they are committed by young offenders and it is to them, as much as to the more mature offenders, that deterrence must be directed, always bearing in mind that they are young offenders and that imprisonment is a sentence of last resort. ..."

28 Although Franklyn J was there referring to home invasion burglaries, the principle enunciated has equal application in respect of burglaries on commercial premises.

29 Since the hearing of this appeal, the Court of Criminal Appeal has re-affirmed the principle in Herbert v The Queen [2003] WASCA 61.

"2. The learned sentencing judge erred in failing separately to consider the 'totality principle' in relation to the accumulation of the term he imposed on Indictment number 707 of 2002 upon the term imposed for the offences previously dealt with by way of intensive supervision and community based orders in November 2001."

30 The Judge first sentenced the applicant in respect of the breach of the ISO and CBO and the s 32 matters because these offences occurred before the counts on the indictment. The length and structure of those sentences is immaterial. The result is an effective sentence of 18 months' imprisonment. He then proceeded to sentence for the indictment matters:

"I should say that having considered all of the options available to me under the Sentencing Act and having regard to the seriousness of the offences, only a term of imprisonment to be immediately served is appropriate. The total of those sentences is 17 years and again, having regard to the totality principle, that would be a crushing sentence on a young person. Considering the seriousness and the totality of those offences, I consider that a sentence of 6 years imprisonment would be an appropriate starting point for this whole course of offending behaviour.

Having regard principally to your age but not disregarding the other factors and also taking into account the sentences imposed upon you in respect of the other offences, I propose to sentence you to a term of 4 years' imprisonment on these charges on the indictment. To accommodate that, count 3, sentence of 2 years, will be made cumulative on count 1, which was a sentence of 2 years. All the other sentences will be concurrent with count 1 and with each other.

These offences are separate and unrelated to those which were the subject of the intensive supervision order and the community based order and were committed whilst you were the subject of those orders. Accordingly, these sentences will be cumulative on the head sentence of 18 months imposed earlier. Thus, the total effective term, dealing with all matters, is 5 years and 6 months, to commence on 20 December 2001. You will be made eligible for parole on all of the sentences."

31 Ms Braddock's submissions, in summary, are that the Judge did not appear to have considered the totality principle in relation to the terms imposed for the two groups of offences in relation to which he applied it separately.

32 It is argued that the Judge, having applied the totality principle to the indictment, erred in failing to give separate consideration to it when considering the accumulation of those sentences on the other sentences.

33 It is argued that the totality principle should again have been applied in considering the overall term to be served by the applicant: Mill v The Queen (1998) 166 CLR 59. So much may be accepted: Jarvis v The Queen (1993) 20 WAR 201.

34 However, in my opinion the Judge did give separate consideration to the sentence. I have formed this opinion for two reasons. First, the Judge expressly said he was setting a total sentence for the indictment taking into account the sentences imposed in respect of the other offences.

35 Ms Braddock argues that the reduction from 6 years to 4 years does not reflect the stated intention. However, the Judge reduced the proposed sentence from 17 years to 6 years because of the totality principle and then further reduced the 6 years to 4 years for factors he outlined.

36 Secondly, it is obvious from the Judge's thorough remarks that he had given careful thought to the sentence. It is inconceivable in the circumstances of this case that he did not give consideration to the total sentence when structuring the sentences imposed for the various offences.

37 Ms Braddock further described the sentence as severe having regard to the applicant's age.

38 Notwithstanding the relevant mitigating matters, especially the factor of age as the applicant was 18 at the time of offending and 19 at the time of sentence, it must be said that the offending behaviour was extensive. It warranted a condign sentence. The applicant was a first offender as an adult and, as his Honour expressly noted, it is a grave step to send a young person to prison.

39 However, after taking all matters into account, it cannot be concluded, in my view, that the sentence was disproportionate to the overall criminality.

40 I would grant leave to appeal but dismiss the appeal.

Fraser v The Queen [2003] WASCA 99

At a glance

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Judgment (69 paragraphs)

Fraser v The Queen [2003] WASCA 99 (9 May 2003)

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Cases Cited (3)