Hambridge v R [1999] WASCA 50

1 MALCOLM CJ: This is an application for leave to appeal against sentence. On 21 December 1998, following his conviction of the offences of aggravated burglary and deprivation of liberty, the applicant was sentenced by the learned sentencing Judge to imprisonment for 7 years in respect of the aggravated burglary and 3 years in respect of the deprivation of liberty to be served concurrently.

2 The applicant had been charged on an indictment which contained three counts. Count 1 alleged that on 19 May 1998, at Coolbellup, the applicant and one Mr Jarrett entered or were in the place of Jenny Anita Masterson without her consent, being a place ordinarily used for human habitation, with intent to commit an offence therein, and that immediately before the commission of the offence the applicant and Mr Jarrett were armed or pretended to be armed with a dangerous weapon, namely a pistol, and that immediately before the commission of the offence the applicant and Mr Jarrett were in company with each other and immediately before the commission of the offence the applicant and Mr Jarrett knew or ought to have known there was another person in the place. That offence is constituted by s 401(1) of the Criminal Code, commonly known as aggravated burglary or constituting a home invasion.

3 Count 2 alleged that on 19 May 1998, at Coolbellup, the applicant and Mr Jarrett unlawfully detained Jenny Anita Masterson, contrary to s 333 of the Criminal Code.

4 Count 3 was that on the same date and at the same place the applicant and Mr Jarrett stole from Ms Masterson and one Mr Willis, with actual violence and threats of actual violence, the sum of $50 in money and a packet of cigarettes, the property of Ms Masterson and Mr Willis and that the time Mr Hambridge and Mr Jarrett were armed or pretended to be armed with a dangerous weapon, namely a pistol, and at the time the applicant and Mr Jarrett were in company with each other and another.

5 The facts as they were found by the learned sentencing Judge, following the applicant's conviction in respect of the first two counts and his acquittal in respect of the third, were as follows: The applicant and two others, Mr Jarrett and a Mr Blum, went to the house in which the complainants lived. They had been told that cannabis plants were being grown at that place. Mr Jarrett knocked on the door, which was opened by Ms Masterson. She thought it was her neighbour. When she saw that it was not and there were three persons standing there, she tried to close the door but the applicant and his accomplices forced their way into the house, pushing her against the wall.

She became hysterical and screamed. Jarrett was wearing a replica pistol in his belt and the threat of it was clear. Jarrett was shouting at the complainant, demanding money and drugs, and you were there supporting him by your presence. Your behaviour was obviously very intimidating. When the other complainant, Mr Willis, appeared he too was threatened. He showed you a room containing some immature cannabis plants under lamps. These plants were too small to be of any use to you. After searching the garden and keeping Miss Masterson in the lounge of her house under guard by your accomplice Blum, the three of you eventually left the house and drove away, having terrified the complainants.

7 The learned sentencing Judge then went on to deal with the applicant's antecedents. His Honour then continued:

The Sentencing Act which applies requires that the sentence imposed on an offender is to be commensurate with the seriousness of the offence and that it is to be determined by taking into account the statutory penalty for the offence, the circumstances of the commission of the offence, any aggravating factors and any mitigating factors. A court is not to impose a sentence of imprisonment unless it decides that the seriousness of the offence is such that only imprisonment can be justified. In my opinion the offences of which you have been convicted are so serious that only imprisonment can be justified. Burglary is a particularly serious offence and one which is unfortunately widely prevalent in our community.

I turn now to consider the various matters to which I have referred. The statutory penalty for burglary, whereas in the present case there are aggravating circumstances, is imprisonment for 20 years. The statutory penalty for unlawful deprivation of liberty is imprisonment for 10 years. These statutory maxima govern the two offences of which you have been convicted.

It is apparent from those penalties that the offences are extremely serious. I have already outlined the circumstances as indicated by the Crown and by your counsel. The aggravating features are that at the time of the offence your accomplice was armed with a replica pistol; that you were in company; that the offence took place in the night; that personal violence was used to Miss Masterson; that before the commission of the offence you were aware that the house was occupied because Miss Masterson answered your knock on the door.

Of the seven circumstances of aggravation listed in s 400(1) at least five were present at the time of the offences being committed by you. That section, of course, is a section of the Criminal Code. There is little in the way of mitigation in your case. I have regard to the fact that you are still a comparatively young man. Because of that factor and because your attitude indicates there is some hope that you will be rehabilitated and become a useful member of the community in due time, I propose to direct that you be eligible for parole.

In assessing a sentence I take into account in accordance with the totality principle that you are presently serving a term of imprisonment. In relation to the offence of burglary, I consider that an appropriate sentence is a term of 7 years' imprisonment. In respect of the deprivation of liberty, I would assess a term of 3 years' imprisonment. It is not disputed by the Crown that those sentences should be concurrent with each other.

In the result I sentence you on count 1 to imprisonment for a term of 7 years and on count 2 to imprisonment for a term of 3 years. Those sentences are to be served concurrently with one another but cumulatively upon the sentence which you are currently serving. In respect of each of the sentences imposed upon you today I direct that you are to be eligible for parole.

8 The applicant seeks leave to appeal against the sentence so imposed on the ground that the sentence of 7 years for the aggravated burglary was excessive when compared with the sentence imposed upon the co-accused Mr Jarrett. Mr Jarrett was sentenced first and given credit for 2 weeks' time spent in custody and 2 years for a fast-track plea and sentenced to 4 years 11 months and 2 weeks for the aggravated burglary; 3 years for the unlawful detention and 4 years for the armed robbery. All of the sentences were made concurrent with each other and he was made eligible for parole.

9 The effective sentence imposed upon Mr Jarrett for the aggravated burglary, therefore, was a sentence of 5 years. It was contended on behalf of the applicant that the learned sentencing Judge in the exercise of his sentencing discretion failed to give sufficient weight to the fact that the appellant had been acquitted of the armed robbery charge which was included in the indictment and to which the accused Mr Jarrett had pleaded guilty. In support of that contention it was further contended that the fact that the appellant had been acquitted of the armed robbery charge was essential in determining any sentencing disposition, as his sentencing regime had as an upper limit 20 years' imprisonment as opposed to the co-accused whose sentencing regime had an upper limit; namely, life imprisonment.

10 In my opinion, there is no substance in those contentions. While armed robbery generically is a more serious offence under the Criminal Code, having regard to the maximum penalty of life imprisonment, as compared to the maximum penalty of imprisonment for 20 years for aggravated burglary, in this case the principal offence which was committed by the offenders was the aggravated burglary. In its nature and the circumstances under which it was committed, it was a considerably more serious offence than the armed robbery. That is reflected in the penalty which was imposed by the learned Judge for the armed robbery to which the co-accused Mr Jarrett pleaded guilty.

11 So far as the difference between the sentences imposed upon Mr Jarrett for the aggravated burglary are concerned, as has been many times stated by this Court, credit for a fast-track plea has varied from around about 20 per cent to as much as 35 per cent for a plea of guilty. It can be seen therefore that the disparity between the 7 years, on the one hand, and the 5 years, on the other, could be fully accounted for by the early plea of guilty in relation to that offence.

12 The second ground upon which leave to appeal against sentence is sought is that the learned sentencing Judge failed to give any sufficient weight, or any weight at all, to the fact that on the prosecution the appellant had played a subordinate role to the co-accused Mr Jarrett in the commission of the offences. In my opinion there is likewise no substance in that ground. This was a case in which there was clearly a common enterprise in respect of which each of the participants must bear equal responsibility for the offences which were committed. Home invasion is regrettably an offence of the nature of which is becoming increasingly prevalent. Those persons who are the victims of the offence are persons who are terrified in their own homes, as were the victims in this particular case.

13 Where three persons elect to go into a house together, knowing that one of them is armed and knowing that it may be necessary to intimidate those in the house in order to achieve their ends, which is to take whatever they can find of value, they must expect that the law will regard each and every one of them as equally culpable unless there are extraordinary and exceptional circumstances. In this case there is nothing to suggest that the applicant was any less culpable than his accomplice Mr Jarrett in relation to the offences which were committed.

14 It was also contended in ground 3 that the sentence imposed by the learned sentencing Judge was outside the range of sound sentencing discretion. There was really nothing which was put in support of that ground in addition to the submissions made in respect of the first two grounds.

15 It was contended that the head sentence imposed was manifestly excessive, giving rise to a justifiable sense of grievance. In my opinion no question of disparity arises because one cannot compare the sentences having regard to the substantial discount to which the co-accused Mr Jarrett was entitled on account of his early plea of guilty. In my opinion leave to appeal should be refused.