Appellant resentenced to 10 months' imprisonment, suspended for 12 months

Cheshire v The Queen, unreported; CCA SCt of WA; Library No 7924; 7 November 1989

Rankins v Beaman [2000] WASCA 269

1 SCOTT J: This appeal was heard on 12 December 2003 and on that day, after the hearing, the appeal was allowed, the sentence of 18 months' imprisonment with parole imposed by the Court of Petty Sessions at Perth was set aside, and a sentence of 10 months' imprisonment, suspended for 12 months, was imposed.

2 I indicated I would later give reasons for having reached that decision. These are those reasons.

3 The appellant was charged on complaint in the Court of Petty Sessions at Perth with one count of burglary. The complaint alleged that between 12 February 2003 and 13 February 2003 at St James the appellant, without consent, was in the dwelling of Brian Gliddon Langley and committed the offence of stealing contrary to s 401(2)(b) of the Criminal Code.

4 The appellant pleaded guilty to that offence and was sentenced, as I have indicated.

5 The prosecutor outlined the facts of the matter as: between the dates alleged in the complaint the appellant had forced a front entry window of the dwelling house, climbed through that window to gain entry and rummaged through most of the drawers in the house. He stole a wooden bowl containing $10 in Australian coins prior to leaving via the same window.

6 The appellant was identified from a fingerprint on the window that had been forced open. Damage to the window was assessed at $200.

7 Having read the transcript of the hearing in the Court of Petty Sessions, it is apparent that before the matter progressed very far the learned Magistrate had made up his mind to impose a term of immediate imprisonment. His Worship was of the view that the decision of the Court of Criminal Appeal in the matter of Herbert v The Queen [2003] WASCA 61 indicated that there was a need for the courts to "toughen up" on sentences in relation to home burglary. Having read the judgment of Malcolm CJ in that case, it is clear that his Honour was of the view that increased sentences were required. His Honour said:

"However, in light of the increased penalties provided by Parliament, it is necessary for the courts to give effect to the clear intention of the legislature by increasing the sentences imposed for the offence by reason both of its prevalence and the increased level of community concern as a result."

8 The learned Magistrate cited other judgments which expressed the same view.

9 His Worship seems to have approached the matter on the basis that a term of immediate imprisonment was the only appropriate penalty for this offence.

10 There were many important matters in mitigation on behalf of the appellant to which it appears his Worship gave only cursory consideration and little weight. This was the appellant's first conviction in an adult court; the appellant was 19 years of age and had never been sentenced to a term of imprisonment; the appellant had regular employment available to him; the appellant had a young child and the offence had occurred at a time when he was in bad company and under the influence of alcohol and drugs. He had taken steps to deal with his problems and had regular employment (to which I will later refer) which was assisting him in that regard.

11 It is not in dispute that the appellant had a bad record as a juvenile, particularly in relation to burglary. Some of those offences had occurred when he was only 15 years of age.

12 The appellant was represented by counsel and when seeking to put these matters before his Worship, his Worship said:

"Tell your clients from now on, 'If you commit a burglary on a home, you're going to gaol.' Tell them that so that they don't commit burglaries. What's happening too much is people are committing these burglaries and they're being told by their counsel and by their representatives, 'I'll get you a -- I'll get you a community based order' ... From now on, tell them 'You're not going to be able to get the community based order. From now on, if you commit a burglary, you go to gaol.' Tell them that."

13 It is clear, in my view, that his Worship considered that for the offence of home burglary a sentence of immediate imprisonment was the only appropriate disposition. Whilst it is true to say that the courts have properly expressed the view that there is a need to impose more severe sentences for the offence of home burglary, as I understand the judgment of the Chief Justice in Herbert v The Queen (supra), that is not to exclude the possibility of a non-custodial disposition in an appropriate case.

14 In my opinion, in this case, whilst a term of imprisonment was called for, it was an appropriate case for consideration of suspension of that term: R v GP (1997) 18 WAR 196 at 233; Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321 per Kirby J, at [85], where his Honour said:

"Moreover, the scheme of the legislation, and the two steps which s 76(1) and (2) of the Act requires, suggest, as a matter of construction, that the same considerations that are relevant for the imposition of the term of imprisonment must be revisited in determining whether to suspend that term. This means that it is necessary to look again at all the matters relevant to the circumstances of the offence as well as those personal to the offender. It would be surprising if the legislation were to warrant, at the second step, concentration of attention only on matters relevant to the offender, such as issues of the offender's rehabilitation and the court's mercy. On the contrary, the structure and language of s 76(2) of the Act support the view that what is required by a proposal that a term of imprisonment should be suspended is reconsideration of 'all the circumstances'. This necessitates the attribution of 'double weight' to all of the factors relevant both to the offence and to the offender - whether aggravating or mitigating - which may influence the decision whether to suspend the term of imprisonment."

15 It should also be mentioned that counsel for the Director of Public Prosecutions, acting for the respondent in this appeal, accepted that the appeal must be allowed and conceded ground 2(b) of the grounds of appeal which provides:

"2(b) The learned Magistrate erred by imposing a sentence which was manifestly excessive in all of the circumstances, particularly having regard to:

(i) Applicant's plea of guilty;

(ii) The circumstances of the offence;

(iii) Applicant's personal circumstances and antecedents."

16 Counsel for the respondent, however, contended that, whilst the sentence imposed was appealably wrong, a shorter term of immediate imprisonment was called for.

17 As I have said earlier, the appellant now has regular employment. He is employed as a timber operator for a sandalwood harvesting contractor at North East Beacon, an area located near the 126 mile peg close to the rabbit proof fence. His work, according to a reference from his employer, involves axing, loading and debarking sandalwood and then packing the wood into pallets for transporting to Perth. The appellant is said to be a reliable worker and a happy and pleasant person. That employment remains available to him. The work is in such a remote area that non-custodial dispositions other than a suspended term of imprisonment would be impracticable. In any event, in my view, in this case a suspended term of imprisonment was called for, to reflect the seriousness of the offence and the appellant's persistent offending. The issue, in my opinion, was whether suspension of that term was appropriate. As I have said, in all the circumstances, I concluded that the term should be suspended in the manner I have indicated.

18 The pre-sentence report concerning the appellant indicated that the appellant was prepared to engage in substance abuse counselling and that he was prepared to address his offending in a positive way.

19 In all of the circumstances, in my opinion, a suspended term of imprisonment was called for to give the appellant the opportunity of proving his resolve to live a law-abiding life. The consequences of any further offending were explained to the appellant when this appeal was allowed on 12 December 2003. It is to be hoped that the appellant, having served a brief period of imprisonment between the date of sentence and his release on bail on 1 October 2003, will not offend again.

20 For these reasons the appeal was allowed and the appellant was resentenced in the manner I have indicated.