GODDARD -v- THE STATE OF WESTERN AUSTRALIA [2023] WASCA 164 (28 November 2023)

1. The prosecutor's statement of material facts was incorporated into the sentencing judge's remarks. In relation to the appellant, there was no challenge to the facts as stated, which may be briefly summarised as follows.

1. Between midnight and 1.00 am on 8 June 2022, the appellant and Mr Dowsett attended the victim's residence in West Perth. They entered the victim's Mazda2 sedan, which was parked on the road outside his home, and drove off in it. The victim had left some of his personal belongings in the vehicle overnight. The vehicle was recovered on 12 June 2022 in a condition that meant that it was written off. The value of the vehicle was approximately $5,000.[1]

Counts 2 and 3 - aggravated home burglary and stealing

1. At approximately 1.40 am on 8 June 2022, the appellant, alone, attended a house in Claremont, where the victim and his wife were asleep. The appellant gained access to the house through an unlocked laundry door. Once inside, he entered the kitchen area and stole a leather briefcase containing a laptop computer, valued at $1,500, and the victim's wallet. He then left the home the same way he came in.[2]

Counts 4 and 5 - aggravated home burglary and stealing

1. Between 2.50 am and 3.50 am on 8 June 2022, the appellant and Mr Dowsett entered a home in Swanbourne through an unlocked door. The victim and her family were asleep in their bedrooms. The appellant and Mr Dowsett stole items valued at approximately $3,600, including a laptop computer, an iPad, a Marc Jacobs handbag, a school blazer, a drill, and some alcohol. CCTV footage captured the appellant and Mr Dowsett entering the residence and leaving with the stolen property.[3]

1. Between 2.50 am and 3.50 am, again on 8 June 2022, the appellant, alone, attended another residence in Swanbourne with the intention of stealing property. The appellant entered the rear garden through an unlocked gate and approached a pair of large wooden French doors. He tried to force them open, intending to steal a bag on the floor inside the house. However, the noise he made woke the occupant, who turned on the outside lights. The appellant fled the property on foot.[4]

1. Her Honour's sentencing remarks included the following.
2. The appellant was 33 years old at the time of the offending and 34 years old at the time of sentencing. He was born in Perth. He has a sister, and had a positive upbringing. His parents and sister are supportive of him.[5]
3. The appellant has had two significant relationships. He has a daughter from his first relationship, who was 8 years old at the time of his sentencing.
4. The appellant completed school at year 10. He found school difficult, due to his ADHD and dyslexia. Although he was unemployed at the time of the offending, he had worked for eight years as a ceiling fixer.
5. The appellant has a long‑standing addiction to methylamphetamine. He began using the drug at around the age of 15. He has completed some counselling to address his substance misuse and has expressed a desire to engage in further intervention.[6]
6. The sentencing judge referred to the appellant's lengthy criminal record. As an adult, the appellant has committed numerous offences, all of which have been dealt with in the Magistrates Court. He has been convicted on many occasions of driving without a licence, and has multiple convictions for stealing a motor vehicle and other dishonesty offences. The appellant was convicted of burglary in 2018 and aggravated burglary in 2021. On each occasion, he was sentenced to a term of immediate imprisonment. Her Honour found that the appellant's record reveals a 'constant disregard for the law and other people's property, safety and security'.[7] This finding is unchallenged.
7. While her Honour did not go so far as to make a finding that the appellant was remorseful, her Honour accepted the statement by the author of the pre‑sentence report that the appellant had expressed a level of victim empathy.[8]
8. The most significant mitigating factor identified by her Honour was the appellant's pleas of guilty, as to which she gave the appellant a 25% discount pursuant to s 9AA of the Sentencing Act 1995 (WA).[9]
9. Her Honour made some comments about the appellant's prospect of re‑offending. She noted the factors that contributed to the appellant's offending were his substance misuse, negative peer association, poor decision‑making, and a lack of stable employment. However, her Honour observed that while the appellant had been on parole, he had engaged in substance use counselling and had abstained from using illicit substances for a period. Her Honour said that this demonstrated to her that the appellant was capable of refraining from using drugs, but he required long‑term intensive programs to address this and other issues. Her Honour made no specific finding as to the appellant's prospects of rehabilitation.
10. In sentencing the appellant, her Honour expressly had regard to the totality principle. Her Honour said that she reduced the sentence on count 1 from 12 months to 6 months' imprisonment, on count 2 from 3 years to 18 months' imprisonment, and on count 6 from 2 years to 12 months' imprisonment, for reasons of totality.[10]

1. The first limb of the totality principle provides that the total effective sentence imposed must bear a proper relationship to the overall criminality involved in all of the offences, viewed in their entirety and having regard to the circumstances of the case, including those referable to the offender personally. An alleged infringement of the first limb of the totality principle alleges an implied material error. An appellate court can only intervene if such an error is established. An appellate court cannot substitute its own opinion for that of the sentencing judge merely because it would have exercised the sentencing discretion differently.[11]

1. In the written and oral submissions made on behalf of the appellant, it was submitted that the total effective sentence of 6 years' imprisonment infringed the first limb of the totality principle, having regard to:

(a) In the case of the completed offences of aggravated burglary, the homes were unlocked, the appellant inflicted no damage to the properties, and the amount of property that was stolen was of a relatively modest value.

(b) All of the offences occurred over a 'very short time period'.

(c) Although the appellant had a relevant prior criminal record, he was not a 'third striker'.

(d) The appellant demonstrated remorse and accepted responsibility for his offending.

(e) The appellant's personal circumstances.

(f) The sentences customarily imposed for like offending.

1. It was accepted that some accumulation of the sentences was appropriate, although not to the extent ordered by her Honour.

1. The appellant's offending, most notably with respect to counts 1, 2, 4 and 6, was, without doubt, serious. In respect of count 1, the appellant stole the victim's vehicle and damaged it to the point where it had to be written off and replaced.
2. The appellant then committed the offences the subject of counts 2, 4 and 6. These offences were committed in the early hours of the morning, when the victims were at home and asleep. While it is true that the appellant did not damage the houses or actually confront the victims, these circumstances are not mitigating. The appellant's actions gave rise to the risk of confrontation, which is inherent in the conduct he engaged in. Offences such as those committed by the appellant engender in victims senses of fear, insecurity and vulnerability, which are heightened when the offences are committed at night while they are asleep. An offender who enters a person's home, especially at night, being a place where a person is entitled to feel safe from the predations of the outside world, commits a serious offence for which Parliament has set substantial maximum penalties that must be given due regard by sentencing courts.
3. There is no tariff for home burglary, whether aggravated or non‑aggravated. This is hardly surprising given the significant variation of circumstances in which offences of this kind are committed and the personal circumstances of those who commit them. The standards of sentencing customarily imposed for offences of home burglary have been analysed in a large number of cases, including Miller v The State of Western Australia;[12] The State of Western Australia v Quartermaine;[13] Eldridge v The State of Western Australia[14] and Brindley v The State of Western Australia.[15] Offences of home burglary are prevalent. It is well recognised that sentences for home burglary need to be firmed up.[16]
4. As we have already observed, the appellant does not challenge the individual sentences that were imposed upon him. The outcomes in cases such as Hume v The State of Western Australia,[17] and the cases cited therein, and Ugle v The State of Western Australia,[18] show that sentences of between 18 months and 3 years' imprisonment have been imposed for aggravated home burglaries where there is no violence or threat of violence to persons in the residence or significant damage to property after a substantial discount for an early plea of guilty.[19]
5. Apart from the pleas of guilty, there was very little mitigation available to the appellant in this case. The appellant was not a youthful offender, nor did he have the advantage of a prior good record. His criminal history underscored the need to impose a total effective sentence that gave due regard to public protection and personal deterrence. It is not mitigating that the appellant was not a repeat offender (colloquially known as a 'third striker') liable to a mandatory minimum sentence of at least 2 years' immediate imprisonment for an offence of aggravated home burglary, pursuant to s 401(4)(b) and s 401(5) of the Criminal Code (WA). Contrary to the appellant's submission, there was no finding that he was remorseful. Although it is to be hoped that the appellant will address the factors that are causative of his offending, such as his illicit drug use, so far little concrete progress appears to have been made.
6. While all of the offences were committed within hours on the morning of 8 June 2022 and could be considered a 'spree', the appellant's counsel accepted some accumulation was necessary in order to properly reflect the appellant's overall criminality. In our opinion, having regard to all relevant circumstances and sentencing factors, a total effective sentence of 6 years' imprisonment was a proper reflection of the appellant's overall criminality. It was not unreasonable or plainly unjust. Implied error has not been demonstrated.
7. The ground of appeal has no reasonable prospect of succeeding. Leave to appeal should be refused and the appeal dismissed.
8. The orders that we would make are as follows:
   1. An extension of time to appeal is granted.
   2. Leave to appeal is refused.
   3. The appeal is dismissed.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.

[11] Roffey v The State of Western Australia [2007] WASCA 246 [23] ‑ [24]; Kabambi v The State of Western Australia [2019] WASCA 44 [21].

[12] Miller v The State of Western Australia [2022] WASCA 50.

[13] The State of Western Australia v Quartermaine [2021] WASCA 145.

[14] Eldridge v The State of Western Australia [2020] WASCA 66.

[15] Brindley v The State of Western Australia [2019] WASCA 153.

[17] Hume v The State of Western Australia [2017] WASCA 205.

[18] Ugle v The State of Western Australia [2018] WASCA 97.

[19] Nannup v The State of Western Australia [2021] WASCA 140 [64].