Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA

Criminal law - Extension of time to apply for leave to appeal against sentence - Burglary - Stealing a motor vehicle - Whether sufficient credit given for time spent in custody - Whether credit given for pleas of guilty

Extension of time for leave to appeal against sentence refused

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

JKL v The State of Western Australia [2012] WASCA 215

Narkle v Hamilton [2008] WASCA 31

Ridley v The State of Western Australia [2013] WASCA 45

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

3 On 27 November 2012 the appellant pleaded guilty to an indictment containing one count of burglary. He also pleaded guilty to a charge of stealing a motor vehicle that was dealt with at the same time pursuant to s 32 of the Sentencing Act 1995 (WA). These convictions caused the breach of a conditional release order imposed on 13 March 2012 for minor drug offences.

4 The appellant was sentenced to 2 years' imprisonment in respect of the burglary offence, 6 months' imprisonment cumulative for stealing the motor vehicle and was fined for the offences for which the conditional release order had been imposed. The total effective sentence of 2 years and 6 months was backdated to 20 September 2012 and an order was made that the appellant be eligible for parole.

5 The appellant did not file a notice of appeal until 22 January 2013 and thus requires an extension of time. It is convenient to deal with the merits of the application for leave to appeal before considering the application for an extension.

7 Sometime between 8.00 am and 4.00 pm on Wednesday, 27 June 2012 the appellant went to the home of the complainant, Ms Hoai Nhung Nguyen, in Leederville. He had previously been in a domestic relationship with Ms Nguyen which had ended some months earlier.

8 The appellant entered the premises by forcing open a rear door. He then went to Ms Nguyen's bedroom and placed some of her personal effects into suitcases. Amongst these personal items were Ms Nguyen's passport, several pairs of shoes, several handbags, purses, personal papers, perfumes and sunglasses.

9 The appellant moved to other rooms of the house where he found two laptop computers. He then prepared a meal and ate it, leaving his dirty dishes in the laundry. He left taking two loaded suitcases and a large sack of stolen property with a total value of approximately $21,000. The property was recovered when police executed a search warrant at the

appellant's home the following day. The appellant was interviewed by police and made full admissions.

10 Whilst police were executing the search warrant they found the keys for a blue Hyundai Getz motor vehicle. Enquiries revealed that this car was reported stolen on 20 June 2012 by a car hire company. The appellant had entered into a rental agreement with the company to hire the car on 17 February 2012. He had failed to return the car at the end of the agreement period on 24 February 2012 and several attempts by the company to contact him had been unsuccessful. The appellant directed police to where the car was parked and it was seized and towed from the scene.

11 The appellant's motive for committing the burglary offence was that he was upset because Ms Nguyen had ended the relationship and told him that she was returning to Vietnam. He was also jealous because he believed that she may be involved with other men. He broke into her home to see if there was evidence of her seeing other men. He stole Ms Nguyen's property, including her passport, to prevent her returning to Vietnam.

12 The pre-sentence report author observed that the appellant's behaviour was marked by jealousy, relationship breakdown, poor emotional regulation skills and substance abuse. The appellant had a significant prior record in New South Wales including convictions for robbery, wounding and manslaughter, for which he had served terms of imprisonment.

13 The first proposed ground of appeal is that the sentencing judge erred by failing to correctly take into account the time that the appellant had served in custody prior to sentencing.

14 The appellant had served two periods of time in custody, from 29 June to 4 September 2012 and from 25 September 2012 until the date of sentencing, 27 November 2012. The first period occurred because the appellant was charged with the burglary and stealing offences and had been granted bail but could not meet the terms of that bail until 4 September 2012. The bail terms included a protective condition in respect of Ms Nguyen. After being released on bail the appellant was charged with breaching the protective bail conditions and breaching a violence restraining order. The appellant was refused bail in respect of the new charges.

15 In submissions to the sentencing judge the State prosecutor said that only the first period represented time spent in custody in respect of the burglary and stealing charges. This was a period of 68 days. The prosecutor submitted that any backdating of the sentence could only be for that period of time.

With respect to the offence of aggravated burglary I take into account your plea of guilty, by which you show remorse for what you've done and assist the administration of justice.

I will impose a sentence of 2 years' imprisonment backdated to commence on 20 September this year. That reflects 68 days which you spent in custody before being admitted to bail. I do not take into account in backdating the sentence the time that you spent in custody following the alleged commission of other offences in September this year. The Sentencing Act, by s 87, allows me to take into account only the time which you've spent on remand in relation to these matters, not the time spent in custody for any other reason.

With respect to the offence of stealing motor vehicle, which is the s 32 offence, I impose a sentence of 6 months' imprisonment to be served cumulatively on the first sentence. This term of 6 months reflects some reduction for totality and some reduction for time served by you to date but not taken into account in the backdating of the sentence (ts 5 - 6).

17 Section 87 of the Sentencing Act provides that a sentencing court may take into account time spent in custody in respect of the offence for which the offender is being sentenced. In order to be taken into account the time must have been spent in custody 'in respect of that offence and for no other reason (other than a warrant of commitment issued under the Fines Penalties and Infringement Notices Enforcement Act 1994)'. The court may take the time spent in custody into account by either reducing the term or by backdating it.

18 Whilst time spent in custody in respect of other offences cannot be taken into account pursuant to s 87, in some circumstances it may be appropriate to consider such time in custody as forming part of the overall background circumstances of an offender: Narkle v Hamilton [2008] WASCA 31. One reason this may be appropriate is where a person has been acquitted on other charges and there is no possibility of direct credit being given for time spent in custody on those other charges. If it is appropriate to take such other time into consideration it cannot be done by way of backdating under s 87. Rather, it is done in a more general way by taking that fact into account in determining the appropriate length of sentence for the offence that is before the court.

19 The sentencing judge's approach to the time spent in custody discloses no error. His Honour backdated the sentence to the extent permitted by s 87. He then took into account the second period of time spent in custody for other offences in determining the appropriate sentence on the stealing motor vehicle charge. Whether or not it was appropriate for the appellant to be given further credit may be open to argument, but the appellant has no basis for complaint in that regard.

20 This ground has no reasonable prospect of success and leave in respect could not be granted.

21 In his written submissions the appellant states that the sentencing judge should have indicated the reduction in sentence that was allowed on account of his plea of guilty. He submits that the length of the sentence imposed in the present case does not properly reflect his pleas of guilty.

22 The appellant was sentenced on 27 November 2012. As at that date s 8(2) of the Sentencing Act provided that a plea of guilty by an offender is a mitigating factor and the earlier in proceedings that it is made, or indication given that it will be made, the greater the mitigation.

23 On 20 December 2012 the Sentencing Amendment Act 2012 (WA) commenced. One of the effects of this Act was to delete s 8(2) and insert s 9AA of the Sentencing Act. Section 9AA(5) requires that where a court reduces a head sentence to recognise a plea of guilty the court must state that fact and the extent of the reduction in open court.

24 As is apparent from the extract referred to earlier in these reasons, his Honour acknowledged that the appellant had pleaded guilty to the charges. The way in which that acknowledgement is expressed is only consistent with the guilty pleas being treated as a mitigating factor that acted to reduce the sentences that would otherwise have been imposed. There was no requirement under the law as it then stood for the discount to be expressly quantified.

25 The argument that the sentences are inconsistent with any adequate discount for the pleas of guilty is without merit. The burglary offence, in particular, was a serious offence of its type. As the sentencing judge said, the appellant's actions in breaking into the home of Ms Nguyen were calculated to cause fear and distress. A burglary offence committed at a place ordinarily used for human habitation (where there are no circumstances of aggravation) attracts a maximum penalty of 18 years' imprisonment: s 401(2)(b) Criminal Code (WA). A sentence of 2 years' imprisonment for such an offence, even following an early plea of guilty, is entirely consistent with sentences customarily imposed for offences of this type. See Ridley v The State of Western Australia [2013] WASCA 45 and Fullgrabe v The State of Western Australia [2013] WASCA 130. The same is true of the sentence imposed for stealing the car. See JKL v The State of Western Australia [2012] WASCA 215.

26 This ground of appeal has no reasonable prospects of success and leave in respect of it could not be granted.

27 Where the court concludes that none of the proposed grounds of appeal has any reasonable prospect of success an appeal is deemed to be dismissed. In these circumstances an extension of time to apply for leave to appeal against the sentence should be refused. The orders that I make are as follows:

1. Extension of time to apply for leave to appeal against sentence refused.
2. Appeal dismissed.