Criminal law - Leave to appeal against sentence - Whether total effective sentence breached the totality principle - Turns on own facts

Sentencing Act 1995 (WA)

Giglia v The State of Western Australia [2010] WASCA 9

Rowsell v The State of Western Australia [2015] WASCA 2

1 McLURE P: This is an application for leave to appeal against sentence. The appellant was convicted on his pleas of guilty of two counts of aggravated burglary contrary to s 401(2)(a) of the Criminal Code (WA). Both offences were committed on 18 July 2014. On 29 December 2015 Staude DCJ sentenced the appellant to 3 years imprisonment on count 1 on the indictment. On count 2, the appellant was sentenced to 1 year's imprisonment, which term was reduced to reflect totality considerations. The sentencing judge ordered that the sentences be served cumulatively, producing a total effective sentence of 4 years imprisonment.

2 The appellant's offending on 18 July 2014 breached an intensive supervision order imposed in the Perth Magistrates Court on 21 February 2014 for an aggravated burglary offence and a stealing offence. For the offences subject of the intensive supervision order, the sentencing judge imposed a total sentence of 12 months imprisonment which he ordered to be served concurrently with the other sentences.

3 The sole ground of appeal is that the total effective sentence breached the first limb of the totality principle. Manifest excess only applies to individual sentences.

4 The facts found by the sentencing judge are as follows. At about 11.05 pm on 18 July 2014 the appellant entered the home of the female complainant who was present with her two children. The appellant entered through a rear door and stole two handbags containing cash and a number of cards. The appellant was disturbed by the children and he left the premises.

5 The appellant then went to the home of another female complainant. At 11.20 pm he entered through the front door, which was unlocked, and stole a handbag and a purse containing cards as well as a mobile telephone, cash and jewellery.

6 The appellant pleaded guilty at the earliest reasonable opportunity for which he was given a discount of 25% pursuant to s 9AA of the Sentencing Act 1995 (WA).

7 The appellant was aged 22 at the time of sentencing. He attended school to year 11, worked in various jobs including with BHP Billiton, and at the same time had progressed his football career. He had been in a long term relationship which ended in 2013 and had a son from that relationship.

8 The pre-sentence report accurately summarises the appellant's situation as follows:

[The appellant] presents with an extensive criminal record and the majority of his offending is similar to his current offending. [The appellant] linked his current offending to his illicit substance use, limited support, negative peer associations, relationship, personal issues and lack of coping skills.

9 This court can only intervene if the sentencing judge made an express or implied material error of fact or law. A claim of breach of the totality principle relies on the implication of error. 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 those referable to the offender personally.

10 The standards of sentencing customarily imposed for offences of the type committed by the appellant were canvassed in Rowsell v The State of Western Australia [2015] WASCA 2 [37]. Having regard to all sentencing variables, the sentence on count 1 was within the customary range and the sentence on count 2 was well below the sentencing range, it having been reduced for totality reasons. See Giglia v The State of Western Australia [2010] WASCA 9.

11 In this case the total sentence of 4 years relates to three aggravated burglaries and a stealing offence. The seriousness of the offences committed on 18 July 2014 is aggravated by the fact that the appellant was on an intensive supervision order at the time. It is clear that the need for personal deterrence was uppermost in the sentencing judge's consideration, which reduced the mitigatory effect of the fact that he was still a relatively young offender.

12 The overwhelming impression from the appellant's offences for which he was being sentenced, in the context of his long history of similar offending, is that offending in this way has been normalised. In all the circumstances, it is not possible to conclude that the total sentence of 4 years imprisonment breaches the totality principle.

13 Accordingly, leave to appeal must be refused, in which event, the appeal is taken to have been dismissed.