Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA

Criminal law and procedure - Appeal against sentence - Two counts of aggravated burglary - Enforcer or vigilante­type offending - Fast­track guilty pleas - Whether terms of imprisonment should have been suspended - Immediate terms of 2 years' imprisonment not disturbed

1 OWEN JA: This is an appeal against sentences imposed on the appellants in the District Court for two counts of aggravated burglary. On 26 September 2008 Wheeler JA ordered that the application for leave to appeal and the appeal be heard together.

2 The appellants Harrison (H) and Bale (B) were known to one another. On the afternoon of 18 February 2008 they had been drinking at their local hotel. In the period leading up to the offences H's house had been broken into and damaged on a number of occasions, most recently on 15 February 2008. While they were at the hotel H's partner telephoned him and passed on information as to the identity and possible whereabouts of men alleged to have been responsible for the break-ins. There was a discussion between H, B and two other men about the break-ins and they decided to seek retribution against the person or persons they believed were responsible.

3 The four men left the hotel and drove to a house in Swan View. They gained entry by kicking in the front door. A woman and three small young children were at home but the alleged offenders were not. One or more members of the invading group smashed windows, damaged furniture and abused the woman before leaving the house. They then drove to a house in Koongamia (a short distance from Swan View) and gained entry by kicking in the front door. Again, a woman and young children were at home. On hearing the smashing of glass they fled through the back door and took shelter in a nearby residence. Members of the group smashed windows and damaged furniture at the Koongamia house. H was injured when a wall unit fell on his head. The alleged offenders were not at the residence and the group left.

4 H was arrested on 20 February 2008. He underwent a video interview in which he first denied involvement but later made some admissions. B was arrested and interviewed in April 2008. He admitted his involvement. Neither H nor B has indentified the other two persons involved in the attacks.

5 They were charged with two counts of aggravated burglary - one relating to the Swan View incident and the other to the Koongamia episode. The circumstances of aggravation alleged in the indictment were that:

(a) they were in company with one another and others;

(b) they knew or ought to have known that there was another person in the place they entered; and

(c) the place was ordinarily used for human habitation.

6 Both entered fast-track pleas of guilty and were sentenced on 26 August 2008. They each received 2-year terms of imprisonment to be served immediately.

7 In relation to each appellant there is a single ground of appeal; namely, that the sentencing judge's discretion miscarried when he determined to impose a term of immediate imprisonment rather than suspended imprisonment such that the sentence was manifestly excessive in all the circumstances. Particulars are then given. Both H and B call in aid the factual background to the offending, the fast-track pleas of guilty and the fact that the occupants of the dwellings were not physically assaulted.

8 Both appellants also draw attention to their antecedents. B goes on to refer to his age (21 years at the time the offences were committed), lack of prior convictions for similar offences and his expressions of remorse. B also says that he played a relatively minor role and was intoxicated at the time.

9 In this appeal, therefore, the only question is whether the sentencing judge erred in failing to suspend the terms of imprisonment he had decided to impose. At the hearing of the appeal counsel for the appellants conceded that, despite their different backgrounds, there would have been no justification for treating H and B differently. In other words, there is no argument that the term should have been suspended for, say, B but not for H.

10 It is apparent that during sentencing submissions the question whether to suspend any terms of imprisonment was a live issue. In fact, counsel for the State said that the sentencing judge 'may well be justified in suspending the terms of imprisonment should [he] conclude that imprisonment [was] the appropriate disposition'. His Honour then referred to three decisions indicating that general deterrence was an overriding consideration and that 'only a custodial sentence to be served is appropriate'. The cases he mentioned are Drake v The State of Western Australia [2006] WASCA 209, R v Ward [1999] WASCA 157 and The State of Western Australia v Sabek [2005] WASCA 207. His Honour invited counsel for the appellants to make comments on those observations. Both counsel took up the invitation and, while conceding that the offences were serious, reiterated the submission that there were grounds to suspend the terms.

11 There was another exchange during sentencing submissions that I should mention. In the course of drawing attention to the three authorities I have mentioned, the sentencing judge said that 'to break into a dwelling house for the purpose of inflicting a beating on the occupant is a form of home invasion which must lie at the upper end of the scale of seriousness'. In outlining the facts, counsel for the State told the sentencing judge that the appellants had formed a common intention to seek retribution against the persons they believed were responsible for the burglaries. I presume that this is a faithful reflection of what was contained in the statement of material facts. In responding to his Honour's invitation, counsel for B said that although there had been a breaking into a dwelling 'I don't think in this case there is any intention necessarily to cause any injury to anyone'.

12 This caused the sentencing judge to refer to the statement of material facts. Counsel then said: 'Certainly there was a common purpose to go there and scare them and probably to send a message, and I agree with what your Honour has said ... '. There is, in that exchange, no express challenge to the statement of material facts. I will return to the significance of this issue a little later. Counsel for B went on to make submissions why the sentencing discretion should be exercised in favour of a suspended sentence. Counsel for H took much the same approach, although there was no reference to the purpose or intent of the visit to either premises.

13 His Honour then proceeded to sentence the appellants. The sentencing remarks are relatively long and, with respect, seem carefully considered. He commenced by noting the innate seriousness of the offence of aggravated burglary. He then turned to the facts and remarked that B had admitted the statement of material facts and that H had done so inferentially. His Honour said that the four individuals formed a common intention to seek retribution against the persons whom H believed were responsible for burglaries at his residence and damage to his property.

14 The sentencing judge appears to have been unimpressed by a submission apparently made that neither H nor B had actually done any damage to the properties that they entered. It is not clear whether his Honour rejected that proposition or whether he regarded it as immaterial to an assessment of the seriousness of the incident. I think that for the purposes of this appeal it does not matter a great deal how it is viewed. Both men were inside the house during the incident. Even if they did not themselves inflict damage, there is nothing to suggest that they were unaware of that aspect of the mischief or that they took steps to prevent it from happening. His Honour also noted, as a matter of concern, that in each instance a woman and young children were in the residences during, or immediately before, the attacks.

15 The sentencing judge then turned to the personal circumstances of each of the appellants. In relation to B he noted, in particular, his relative youth (21 years of age), good employment history, lack of a relevant prior record, cooperation with police and plea of guilty. He also noted that B had expressed remorse for his actions, including for the effect the offences may have had on the victims. He remarked on character references that described B as a gentle, good spirited, well mannered and polite man who 'had never been any problem'. His Honour spent some time on the topic of alcohol, both in relation to these offences and to B's past history, but said it was clear B had participated voluntarily in the escapade.

16 H was 41 years of age at the time of sentencing. His Honour seemed to accept that the background to the offences was H's frustration that the police were not doing enough to deter lawlessness in the neighbourhood. But his Honour remarked 'drunken vigilantes taking the law into their own hands is simply no way to solve the problems in the community'. He warned against 'taking the law into our own hands when things aren't going our way or how we might expect them to do so'. This, his Honour said, was the conduct that epitomised the seriousness of the offending, quite apart from the damage to property and the terrorising of the victims (including children).

17 The sentencing judge considered H's record of past offences but said he would disregard them for the purpose of sentencing. He noted the guilty plea. But he also noted that H had initially been uncooperative and had denied knowledge of the offences. He later 'changed his tune'. His Honour's ultimate conclusion was that H should have some credit for the admissions he made, albeit against a background of initial dishonesty. His Honour went on to consider H's employment record and personal circumstances and references submitted on his behalf, all of which were positive. He acknowledged that in sentencing offenders there is almost inevitable 'collateral damage' to family members.

18 His Honour then turned to the sentences to be imposed. He cited dicta from each of Ward, Drake and Sabek which, he said, gave an indication as to how the courts in this State have dealt with these types of cases in the past. His Honour then said:

There are certain features of this offending which clearly put this case in the serious category: the pre-meditated nature of the offending, the fact that there were discussions at the hotel and that you went off and committed the offences. Clearly, there was time for passions to cool, to come to your senses and realise what might be the consequences of your offending in the way that was proposed. But that was not to be. ... You went there, as I have indicated from the statement of material facts, with a common intention as between you and two unknown co-offenders, to seek retribution against the persons whom [H] believed were responsible for offences committed against [H's] property.

19 The sentencing judge then described the impugned conduct as being of 'the enforcer-type' and said that the appellants had behaved 'like vigilantes', affected by alcohol, rage and anger. He characterised the offending (home invasion for the purpose of exacting retribution) as being of a high level of seriousness. In this regard he had remarked on these additional features of the offences:

(b) a hammer and perhaps a hatchet-type small axe was used;

(c) the front door was kicked in, windows were broken and significant damage was done to the residences;

(d) demands were made of the complainants at the Swan View house for the whereabouts of the alleged offenders;

(e) it was a traumatic and frightening experience for the occupants (including children);

(f) the offences occurred at night, although it was not known whether darkness had fallen.

20 His Honour expressed the view that general deterrence was a significant factor in the sentencing process because it was necessary to remind the community that vigilante behaviour would not be tolerated. He accepted that it was unlikely that the appellants would offend in this way again and, in the circumstances, personal deterrence was of lesser significance. He indicated that a sentence of imprisonment was appropriate for the offences the appellants had committed. Having said this, his Honour turned directly to the question of suspension of the term.

In considering whether or not to suspend, I must have regard again to all of those factors which I have mentioned. The mitigating factors; in your case, [B], your age, your fast track plea of guilty, your cooperation with the police, the remorse that you've expressed and your empathy towards the victims, the circumstances of your offending.

You were swept up in the occasion and fuelled by alcohol, went along with it, and weigh that against the seriousness of the offending and all of the factors that I've touched upon. Similarly, in your case, [H], I have to have regard again to the mitigating factors, your plea of guilty, your eventual cooperation with the police, your family circumstances, financial circumstances, the references which have been received by me, and consider whether or not all of those matters, when weighed up, I should suspend the sentence of imprisonment.

Rehabilitation of offenders is another factor to be taken into account. Not the main factor, but just another one of those factors to be taken into account. When I do that, when I have regard to all of the matters that have been put before me, when I have regard to the circumstances of the offending, the purpose for which the offending was committed, the fact of the terrifying experience for each of the women at the homes, and the children, I have come to the conclusion that it would not be appropriate in these circumstances to suspend for any period the sentences to be imposed.

21 Having decided that the impugned conduct was neither at the lower, nor higher end of the range (by which I assume he meant it fell somewhere in between), his Honour fixed a starting point of 4 years and 6 months. He reduced it to 3 years for the plea of guilty and then reduced it further as required by the transitional provisions to arrive at a head sentence of 2 years' imprisonment for each of the appellants. Each was made eligible for parole.

A suspended sentence - the relevant factors

22 There is no challenge to the pronouncement of a term of imprisonment of 2 years. The sole question is whether his Honour erred in declining to suspend the term.

23 The principles on which a court proceeds in deciding whether or not to suspend a term of imprisonment are well known: Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321; Collins v The State of Western Australia [2007] WASCA 108 [9] - [18]. In Skipworth v The State of Western Australia [2008] WASCA 64 [8] McLure JA conveniently set out the relevant principles to be applied when considering the sentencing option of suspended imprisonment. Her Honour said:

The legal principles relevant to the sentencing options of suspended imprisonment and conditional suspended imprisonment under s 39(2) of the Sentencing Act 1995 (WA) are set out in Dinsdale. I refer to them in detail in Collins v The State of Western Australia [2007] WASCA 108 [12] - [18]. I do not propose to repeat all the principles here. It is sufficient for present purposes to note that the court cannot impose a sentence of immediate imprisonment unless satisfied that it is not appropriate to use the option of suspended imprisonment (conditional or otherwise) or other lesser sentence. The same considerations that are relevant to the imposition of a term of imprisonment must be revisited in determining whether to suspend the term: Dinsdale [85].

24 It seems clear to me that, having decided whether a term of imprisonment was the appropriate sentence, the sentencing judge re-examined the relevant factors in determining whether or not to suspend the term. With one possible exception there is no suggestion that his Honour misapprehended or overlooked any of those factors.

25 The exception is the purpose for which the appellants went to the residences. Reading of the sentencing remarks and the preceding submissions in their entirety it is clear that his Honour believed the appellants intended to seek retribution against persons believed to have been involved in the earlier burglaries and property damage.

26 The plain meaning of the phrase 'retribution against persons' does not fit easily with the way it was put by B's counsel; namely, that they went to the residences without 'any intention necessarily to cause injury to anyone ... [but to] scare them'. Nor does it fit easily with the objective facts. Fuelled by alcohol, the intrepid quartet went first to the Swan View premises. Someone had a hammer and perhaps a hatchet-like small axe. They kicked the door down, smashed windows and damaged furniture. They terrorised the occupants and demanded information about the whereabouts of their targets. Not having achieved their purpose, they got back into their cars, drove to a different suburb and repeated the process, save for the demand for information. It seems highly unlikely that what they had in mind was to present themselves at either (or both) houses, knock at the front door and politely (if firmly) enquire as to the whereabouts of named individuals for whom they were looking and to whom they wished to have a quiet (although perhaps firm) chat about antisocial behaviour.

27 Against those objective facts and in a situation where the statement of material facts was not put clearly in issue, the sentencing judge was entitled to rely on it and to regard the submissions of a more benign purpose as slightly disingenuous.

28 His Honour regarded the appellants' conduct as serious examples of offences of this nature, although not at the higher ender of the scale. In my view he was entitled to take that position. The appellants and the co-offenders went to the premises taking with them an implement or implements of a menacing nature. They gained entry to the premises by the use of considerable force. Once inside they embarked on an escapade of gratuitous damage to property and they terrorised a woman and young children. Importantly, after the Swan View incident they got back into a motor vehicle, drove some distance to another suburb and embarked on a similar misadventure. There had been time for tempers to cool and for good sense to return. That did not happen. On the second occasion the occupants fled from the house before the intruders could confront them. But it is not difficult to imagine how frightening such an experience would have been for those concerned.

29 Bearing all of this in mind, this was a serious example of enforcer-type or vigilante home invasion. In the circumstances of this case I do not think it matters much which of those phrases is used. In my view his Honour was right to conclude that the offences called for a solid sentence that would send a message to others in the community who might be minded to engage in similar behaviour. These were factors that (along with all other aggravating, personal and mitigating circumstances) his Honour was entitled to take into account in his assessment of whether the term of imprisonment should be suspended.

30 All other matters brought forward in the particulars to the ground of appeal were expressly referred to and considered in some detail. I am not persuaded that the sentencing judge misapprehended or overlooked any relevant matter. The appellants do not contend that his Honour failed to appreciate that it was open to him to suspend the sentence. He clearly had this in mind. The challenge is as to the exercise of the discretion but I cannot discern error.

31 In the written submissions counsel for the appellants referred to a number of previous decisions to support the contention that this sentence (due to the fact that it was to be served immediately) was excessive.

32 Nguyen v R [1999] WASCA 54: three co-offenders (two appealing sentence) forced entry to the house of a person owing money to one of the offenders. A window was broken and property to the value of $5,000 removed. No-one was at home at the time of the offence. Both offenders were in their mid to late 20s. One appellant who was sentenced to 2 1/2 years suspended for a period of 2 years cooperated with police, made a fast-track guilty plea, and showed remorse and acceptance of the crime. She had acted as a lookout and had not entered the premises. She had a single prior recorded conviction for possession of heroin and traffic offences. The offender had her suspended term set aside on appeal and replaced with a Community Based Order. The other appellant had his sentence of 2 years and 6 months' immediate imprisonment confirmed. This is not a comparable case.

33 Moody-Jackamarra v The State of Western Australia [2007] WASCA 7: co-offenders entered the home of the 59 and 73-year-old victims under pretence of using the telephone, stole a purse and left the house. The appellant was convicted of three counts of aggravated burglary after pleading guilty and sentenced to 12 months' imprisonment on each count. The appellant was a 31-year-old drug user with a prior record of dishonesty offences. He had not received a custodial sentence but had been on two Community Based Orders with extremely poor compliance shown, with evidence of a deprived and abused background. The appeal was dismissed. There was no suggestion of aggression or violence towards the occupants. This, too, is not a comparable case.

34 Henderson v The State of Western Australia [2007] WASCA 198: the appellant entered the house and assaulted the complainant. He was 27 years old at the time of the offences with no prior record, excellent employment record and with stable family relationships. He was convicted of aggravated burglary, unlawful detention, assault and stealing, pleaded not guilty and was sentenced to 48 months' imprisonment to be served immediately. So far as I am aware there was no ground of appeal that called in question the decision to order a term of imprisonment to be served immediately. This case is of no assistance.

35 Newburn v The Queen [2004] WASCA 108: the appellant drove a vehicle to a house in company with another car and nine other people and stole from the commercial premises with accompanying acts of gratuitous vandalism. He was sentenced to 2 months' imprisonment. On appeal, the term was suspended for 18 months. But the most significant aspect on appeal was that the sentence offended the parity principle as a co-offender had received a community based order. Again, this case is not helpful in the present context.

36 Hibbs v The Queen [2002] WASCA 204: the appellant pleaded guilty to one charge of aggravated burglary and one charge of assault occasioning bodily harm and was sentenced to a total of three 3 years' imprisonment, to be served immediately. On appeal the sentence was reduced to 2 years, to be served immediately. The ground of appeal concerning the failure to suspend the term was expressly rejected by the court: Hibbs [18]. I am not sure what significance counsel saw in this decision. It has few elements in common with the appellants' circumstances.

37 None of these cases is comparable and, in any event, they do not establish any relevant principle or trend.

38 Counsel for the appellant submitted that the sentencing judge relied on Drake, Ward and Sabek in determining the appropriate sentence and deciding to impose a term of immediate imprisonment. No reliance should have been placed on these decisions because in each of those cases the level of criminality was more severe. In my view, this mistakes the purpose for which his Honour cited those decisions. The passages cited from Ward (a case decided in 1999) referred to the prevalence of burglaries and the need to 'firm up' sentences. The dicta cited from Drake and Sabek emphasised the importance of general deterrence as a sentencing criteria in burglary offences. His Honour also referred to those cases as support for the proposition that a range of 4 to 7 years' imprisonment was frequently imposed for offences of this type. I do not read anything his Honour said about those cases as binding him to impose a term of immediate imprisonment.

39 In my view, the appellants can take no comfort from any on the previous decisions cited by counsel. They do not establish the proposition that, by reference to comparable cases, the failure of the sentencing judge to suspend the term of imprisonment was an error.

40 The sentencing judge, correctly in my view, characterised the circumstances of these offences as serious and decided that a term of imprisonment was the appropriate option. He then considered (or reconsidered) all aggravating and mitigating factors and decided that the terms of imprisonment should be served immediately. In my view the

process he followed was in accord with well established principle and I can discern no error in the conclusion to which he came.

41 In relation to each appellant I would refuse leave to appeal.