Court of Appeal (WA)|2010-02-26|Before: Owen JA

KRIJESTORAC -v- THE STATE OF WESTERN AUSTRALIA [2010] WASCA 35 (26 February 2010)

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

CITATION : KRIJESTORAC -v- THE STATE OF WESTERN AUSTRALIA [2010] WASCA 35

Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA

Criminal law - Burglary - Psychological condition and sentencing - Prevalence of burglary and deterrence

Hayward v The Queen [2000] WASCA 237

Herbert v The Queen [2003] WASCA 61; (2003) 27 WAR 330

Lauritsen v The Queen [2000] WASCA 203; (2000) 22 WAR 442

R v Peterson [1984] WAR 329

R v Vletter [2004] WASCA 96

2 WHEELER JA: This is an appeal against sentence. On 24 July 2009 the appellant was convicted, following a fast-track guilty plea, on an indictment alleging one count of burglary, and of eight offences contained on a s 32 notice. He was sentenced to a total of 3 years' imprisonment, with parole eligibility. On 5 October 2009, he was granted leave to appeal on the sole ground contained within the appellant's case. Although the ground of appeal alleges manifest excess, at the hearing of the appeal the appellant's counsel advised that the real complaint was that the total sentence was disproportionate to the totality of the offending.

3 At around 2.40 am on Friday, 11 July 2008, the appellant parked his vehicle at the corner of Scarborough Beach Road and Fairfield Street in Mount Hawthorn. He took a screwdriver, a pair of socks, and three garbage bags from the vehicle, and walked to a women's clothing shop on Scarborough Beach Road. He put the socks over his hands and smashed the lower glass pane of the front door with the screwdriver. He reached through the opening this made and unlocked and opened the door. The appellant entered the store and took clothing from the racks which he put in the garbage bags.

4 The shop's alarm was activated. A vehicle containing three witnesses pulled up outside the store and the occupants questioned the appellant. The appellant dropped the clothing. He returned to his vehicle, but was unable to leave the scene, having lost his keys. He returned to the shop to look for them, but failed to find them and then sat on the footpath outside the shop. Police arrived and the appellant was arrested. The value of the clothing removed from the shop was $23,353. For this offence, the appellant was sentenced to 2 years' imprisonment.

5 The offences on the s 32 notice were (1) driving with an expired licence; (2) trespass; (3) possession of morphine; (4) and (5) two counts of stealing; (6) one count of attempted burglary (of an optometrist's office); and (7) and (8) two counts of possession of housebreaking implements to commit an offence at night-time.

6 The circumstances of the s 32 notice offences, and the penalties imposed, are as follows:

(1) Related to driving to the shop the subject of the indictment ($1,000 fine and 9 months' motor driver's licence disqualification).

(2) In the driveway of a house, looking into parked vehicle. Departed when owner spoke to him ($100 fine).

(3) About half an hour after (2), police located the appellant at a train station and searched him. A small amount of liquid, which he said was a crushed morphine tablet and water, was found in a clipseal bag ($100 fine).

(8) During the search in (3), a large screwdriver was also found ($400 fine).

(4) Stealing car stereo from unlocked vehicle in driveway of a home ($100 fine).

(5) Stealing a vacuum cleaner from a shop. The appellant was found hiding nearby soon afterwards (6 months' imprisonment, concurrent).

(6) & (7) Late at night on 26 March 2009, police heard shouts for help and, following them, found the appellant sitting in a pool of his own blood. He volunteered that he had injured himself trying to commit a burglary (at an optometrist's) nearby. He required urgent medical attention. He had, it was later found, severed a tendon. He had in his possession a claw hammer, three screwdrivers, and a pair of gloves. He was on bail at the time of these offences (12 months' imprisonment, cumulative; and $300 fine).

7 The sentencing judge was provided with a psychiatric report, a pre-sentence report and a written reference prepared by the appellant's brother. His Honour noted that the appellant admitted to having committed the burglary in order to fund his drug habit, which dated back to his teenage years. His Honour also noted that the appellant suffered a significant head injury in 2001, but that his use of drugs (heroin, marijuana and amphetamines) and other offending pre-dated that injury. The appellant's failure to comply with previous community-based orders was also noted.

8 The appellant appeals on one ground, which reads:

The learned sentencing Judge erred in the exercise of his sentencing discretion by imposing a sentence that was manifestly excessive in all the circumstances, including the offending conduct viewed as a whole, with insufficient regard to matters personal to the Appellant.

Particulars

1.1 The Appellant is 31 years old and had no similar charges on his record for over 10 years.

1.2 The Appellant had suffered from significant head trauma in a car accident in 2001 resulting in permanent mental disability and limited comprehension skills.

1.3 The offending was amateurish and lacking in forethought, demonstrative of the Appellant's limited mental capacity.

1.4 The offending was not aggravated by way of either being committed on dwelling houses or in company.

1.5 The Appellant entered fast-track pleas of guilty.

1.6 Sentencing authorities suggest that the sentence imposed by the learned sentencing Judge was above the range commonly seen for like offending.

9 Turning to the matters raised by the ground of appeal, and using the same numbering:

1.1 - no similar offences in preceding 10 years

10 The appellant has a significant history of offending, comprising 10 pages and dating back to his teens. While it is true that the present offence is the first burglary offence the appellant has been convicted of in over 10 years, he has in that time been convicted of one robbery offence and 18 stealing offences. There does not seem to be anything mitigating in the appellant's criminal history.

1.2 and 1.3 - appellant's mental disability, "amateurish" offending

11 There was a degree of premeditation and planning in both the attempted burglary and the burglary. In relation to the attempt, the appellant had with him a number of implements adapted to gaining entry to premises. In relation to the burglary, he had brought with him the screwdriver and had the foresight to bring socks to put over his hands so as not to leave fingerprints, and garbage bags with which to carry away the clothing.

12 Despite that degree of planning, it must be accepted that the offences were far from sophisticated and well executed ones. In relation to the attempted burglary, despite having that number of implements, the appellant still managed to inflict very serious injury upon himself in the attempt to break the window. So far as the burglary was concerned, although the clothing stolen was of considerable value in total (around $23,000), it seems unlikely that a large amount of money would be received for such clothing upon its resale (whether to a person whose occupation is disposing of stolen goods, or at a market of some kind) and the circumstance of its having been transported stuffed into garbage bags is hardly likely to have enhanced its resale value. Further, the fact that the appellant failed to make sensible provision for an escape has been noted already. Reference to the other offences committed by the appellant reinforces the impression that he is an offender whose offending is likely to be easily detected and easily deterred, and that his foresight does not extend to making sensible plans for escape after the event.

13 An offender does not receive a sentencing discount merely because his offences are poorly executed, however. Even badly executed offences have the potential to cause serious distress to the victims, or potential victims, of them. In the present case, one must set against the appellant's incompetence in carrying out his offending, the frequency with which he apparently attempts to offend. The real relevance of the amateurish nature of the offending in the present case is, as I think the appellant's counsel accepted, that it reinforces the impression gained from the pre-sentence and psychiatric reports concerning the appellant's mental capacity.

14 The appellant began using alcohol, cannabis and morphine, and experimented with other drugs, at the age of 13. By 15, he was injecting amphetamines and other drugs, a habit which has continued to the present day. He has an extensive history of offending pre-dating 2001.

15 However, in 2001, when he was 23 years of age, an event occurred which had serious implications for the appellant's ability to rehabilitate himself after that date. He was a passenger in a motor vehicle involved in an accident and sustained very serious injuries. The severity of his injuries can be illustrated by the fact that the damages awarded were just under $2 million, which sum is currently managed by the Public Trustee. He was diagnosed with an acquired brain injury. The psychiatric report makes clear that there is a causal link between head injury of the type sustained by the appellant and poor impulse control. Further, his cognitive functioning and emotional behaviour generally have been affected.

16 It is the experience of the courts that, as they move into their mid-20s, many offenders and drug users gradually "grow out of" their antisocial activity. Further, as the consequences of such behaviour become increasingly severe, offenders may often attempt treatment for substance abuse issues. Because of the appellant's head injury, it appears that he now lacks the ability to engage with such treatment in any sensible way. It is unlikely that he will ever grow out of his pattern of antisocial behaviour.

17 So far as the effect of mental or psychological problems falling short of insanity is concerned, the relevant principles have been enunciated in this court on a number of occasions, including Lauritsen v The Queen [2000] WASCA 203; (2000) 22 WAR 442; and Thompson v The Queen [2005] WASCA 223; (2005) 157 A Crim R 385. Counsel for the appellant also drew the court's attention to the Victorian case of R v Verdins [2007] VSCA 102; (2007) 16 VR 269. That case contains a useful survey of decisions from a number of Australian jurisdictions. In Verdins, the court accepted that the principles identified in R v Tsiaras [1996] VicRp 26; [1996] 1 VR 398 and applied in a number of Australian jurisdictions since that date continue to apply. They are that a mental or psychological condition falling short of insanity may be relevant to sentencing in a number of ways:

First, it may reduce the moral culpability of the offence, as distinct from the prisoner's legal responsibility. Where that is so, it affects the punishment that is just in all the circumstances and denunciation of the type of conduct in which the offender engaged is less likely to be a relevant sentencing objective. Second, the prisoner's illness may have a bearing on the kind of sentence that is imposed and the conditions in which it should be served. Third, a prisoner suffering from serious psychiatric illness is not an appropriate vehicle for general deterrence, whether or not the illness played a part in the commission of the offence. The illness may have supervened since that time. Fourth, specific deterrence may be more difficult to achieve and is often not worth pursuing as such. [Fifthly], psychiatric illness may mean that a given sentence will weigh more heavily on the prisoner than it would on a person in normal health. [Verdins at [1], quoting Tsiaras)

18 Verdins is useful, however, for its consideration of two aspects of Tsiaras principles. First, it makes it clear that, as has in my view been previously understood in this State, the principles enunciated are not confined to "serious psychiatric illness", but are applicable in any case where the offender is shown to have been suffering at the time of the offence, or is suffering at the time of sentencing, from a mental disorder, abnormality or impairment of mental function, whether or not the condition can be properly labelled a serious mental illness (at [5]). Second, the court listed the various ways in which impaired mental functioning has been held to be capable of reducing moral culpability. The court said impaired mental functioning at the time of offending may reduce the offender's moral culpability if it had the effect of (at [26]):

(a) impairing the offender's ability to exercise appropriate judgment;

(b) impairing the offender's ability to make calm and rational choices, or to think clearly;

(c) making the offender disinhibited;

(d) impairing the offender's ability to appreciate the wrongfulness of the conduct;

(e) obscuring the intent to commit the offence; or

(f) contributing (causally) to the commission of the offence.

19 The court in Verdins noted that the list was not exhaustive. For myself, I would have considered that pars (a) through to (e) are all examples of the way in which a mental disability may contribute causally to the commission of the offence and, in my view, that is how the concept of causal contribution has usually been understood in this State.

20 The learned sentencing judge accepted that the appellant's injury had exacerbated his difficulties in dealing with his problems of drug dependence. He expressed "some sympathy" for the appellant's plight, but considered that the appellant did not lack the ability to abstain from both reoffending and substance abuse if he chose to do so. His Honour considered, in my view correctly, that the appellant's entrenched history of drug abuse, in combination with the head injury and its consequences, made it less likely that he would succeed in any efforts at rehabilitation, and to that extent there would be a continuing need for protection of the community.

21 His Honour did not directly address the question of reduced moral culpability. It appears to me that the appellant's head injury has, to a degree, reduced his moral culpability for the offending, and does, to a degree, make him a less appropriate vehicle for general deterrence. However, in the present case, I would consider that those factors should result in only a limited amelioration of the otherwise appropriate sentence. That is because the appellant is not in the position of someone who, through no fault of his own, has sustained an injury which has caused or contributed to his offending. Rather, he presents as a person with an entrenched history of offending, and a substance abuse problem of his own making. Supervening events beyond his control have made it more difficult for him to recover from those self-inflicted difficulties, but have not caused them.

22 Finally under this heading, I note that the appellant's counsel complained of the way in which the learned sentencing judge dealt with a conflict between the assertions in the pre-sentence and the psychiatric reports that the appellant had said that he would not engage with treatment for his drug abuse problems, or that such treatment would not work, because he enjoyed his drug use too much, and the appellant's instructions to his counsel that he had not made those remarks and would engage with such treatment. It would have been desirable for his Honour to have made a finding one way or the other. However, his failure to do so does not seem to me to be significant in this case. That is because the comments attributed to the appellant by the psychiatrist and the author of the pre-sentence report are far more plausible than his instructions to his counsel, having regard to his offending and drug use history. It may well be that the appellant's instructions to his counsel were genuinely held views at the time at which the appellant gave those instructions. Certainly, when his Honour came to consider questions of parole, he took the view that there was some possibility that the appellant would co-operate with treatment and might therefore be able to be released to parole in the future. However, the appellant's history, and the continuing effects of the head injury, are such that his Honour was right to have serious reservations about the likelihood of the appellant's rehabilitation.

23 The fact that the offence was not an aggravated one was reflected in the penalty available to his Honour. It does not seem to me that there is any reason to conclude that his Honour regarded the offences as aggravated.

24 It is desirable to mention briefly the fact that the offences were committed in relation to business premises rather than dwelling houses. I accept that, as the State has suggested, business proprietors too require protection of their interests. However, burglary of residential premises gives rise to a greater risk of confrontation with the occupants, in circumstances where the occupants will be ill-prepared for such an event. The invasion of a person's home is, moreover, likely to give rise to an even greater sense of outrage and of insecurity than the invasion of their business premises, even where the business is a small business. Further, the legislature has recognised these factors by providing an increased penalty where the burglary is otherwise not aggravated, but relates to residential premises: s 401(1)(b), (2)(b) of the Criminal Code (WA). While much will depend upon the circumstances of the case, a burglary of residential premises is, other things being equal, more serious than of other premises (see Hayward v The Queen [2000] WASCA 237 at [10]; R v Ward [1999] WASCA 157 at [6]). It does not appear to me, however, that the learned sentencing judge overlooked these matters.

25 His Honour acknowledged as mitigating the entry of the plea of guilty, as he was obliged to do. During the course of his sentencing remarks, he said that the appellant "eventually" entered a plea of guilty in relation to the indictable offence, although the prosecutor's statement of material facts recorded that it was an expedited committal for sentence. There seems to have been an earlier charge of stealing which was discontinued, but there does not appear to have been any delay attributable to the appellant. However, it is not suggested by the appellant that his Honour misunderstood the true position and the word "eventually" may reflect no more than the length of time that the matter took to find its way before him.

26 Neither the appellant nor the respondent was able to point to a number of cases which would clearly establish an appropriate "range". That, no doubt, is because, as I have already noted, the circumstances of burglaries vary significantly. However, even on the limited authorities referred to by the respondent, it appears that the sentences imposed by the learned sentencing judge in relation to the burglary and attempted burglary were severe.

27 In Hayward, there was an aggravated burglary of commercial premises (the circumstance of aggravation being that the appellant was in company). It was a relatively unsophisticated offence involving the smashing of a large window in order to gain entry to a tavern and steal numerous bottles of spirits. The appellant in that case had entered a late plea of guilty, was 26 years of age with a criminal record which was described as "extensive", and which apparently commenced when the appellant was but 9 years of age. A term of 3 years' imprisonment, prior to the transitional provisions, was described as "at the high end of the scale", but not being so severe as to require the court to intervene. Compared to that offence, the indictable offence committed by this appellant was less serious, not being an aggravated burglary and therefore attracting a lesser sentence. This appellant was entitled to greater credit for his plea of guilty as it was a fast-track plea and this appellant had some mitigation available to him by reason of his head injury and its consequences. However, as the State has noted, the quantity of property involved in this offence was more significant than in Hayward. When one takes all of those factors together, it seems to me that the sentence of 2 years imposed by the learned sentencing judge on this appellant was very severe. Taken in conjunction with the cumulative term of 1 year imposed in relation to the attempted burglary, it appears to me that the overall sentence was, indeed, so severe as to be disproportionate to the totality of the appellant's criminality.

28 The issue of prevalence was not raised by the appellant. However, in its submissions in response to the appeal, the respondent placed particular emphasis on the need for deterrence, relying on this proposition:

The penalty for the offence of burglary reflects the seriousness with which the community and the legislature view such offences, and a sentence for such an offence 'must provide for general deterrence in view of the prevalence of offences of burglary on commercial premises' (emphasis in original)

29 The authority cited for that proposition is R v Vletter [2004] WASCA 96. I note that that was a decision in which I formed a member of the coram, and that I agreed with the reasons of McKechnie J to which the respondent refers.

30 However, a review of the reasons in Vletter and, in particular [72] of those reasons, gives rise to doubts concerning the proposition that the prevalence, or increased prevalence, of burglary of commercial premises is a particular reason for emphasising the principle of deterrence in matters of that kind. Indeed, a review of the authorities concerning burglary generally, when viewed against the statistical information available, suggests that any "firming up" of sentences in relation to perceived increases in prevalence may have been misguided. In any event, there is certainly no apparent need for sentences to be any "firmer" than they already are.

31 Before I turn to the relevant facts as I understand them, it is as well to remember both the limitations upon the concept of deterrence, and the fairly marginal relationship, if any, which is likely to exist between prevalence and any particular sentencing practice. In R v Peterson [1984] WAR 329, at 332, in a passage which has very often been cited since, but which bears repeating, Burt CJ said:

[I]t must be accepted that the prevalence of a particular offence in a particular locality or generally at the time of the commission of the offence to be dealt with must play some part in the sentencing process, particularly in emphasising the importance of general deterrence. But this cannot be taken too far. The position, I think, was well put by Bray CJ speaking for the Court of Criminal Appeal in South Australia in a shop-lifting case - Giles v Barnes [1967] SASR 174 - as follows:-

'There is no doubt that the prevalence of a particular offence in a particular locality may justify courts in raising the normal standard of penalty for such an offence in that locality. . . . This, however, is only one of the factors to be considered in imposing punishment on a particular offender for a particular offence, and can seldom, if ever, be the dominant one. The circumstances peculiar to the particular offender and the particular offence must always be taken into account, as well as the general nature of the crime. Anything in the nature of a rule of thumb is to be deprecated and must be avoided. . . . To say therefore that the norm of punishment is being raised because of the prevalence of the particular offence can never be to enunciate a determinant principle capable of deciding in itself the particular penalty to be imposed on the particular defendant.'

That is not to say that deterrence, both general and particular, does not remain a most important purpose to be achieved in the determination of a just sentence. And the prevalence of a particular offence in a particular locality or in the community generally as at the date of the commission of the offence for which a sentence is to be imposed should be reflected in the sentence by giving a greater relative weight to the achievement of that purpose. That is not done by imposing an 'exemplary' sentence, so-called, which is more severe than the nature of the offence and the circumstances of its commission in justice calls for, but by giving less weight to - which is not to ignore - mitigating factors which may be found within the antecedents of the prisoner. That results in a 'firming up' of the sentence for such an offence and results in a sentence which more closely fits the crime and a sentence which, if the offender thinks about it in advance, is in reason predictable and certain, each of those qualities being central to the idea of deterrence.

It seems to be assumed, although I have considerable reservations about the assumption, that when an offence becomes prevalent the public demand retribution and they see increased punishment as being the sure way of reducing the number of such offences and even of persuading persons not to commit them at all. If that be the case then I would say, and say with great respect, that the expectation exceeds the capacity of the criminal law as an instrument controlling human behaviour. That is not to say that the idea of deterrence is to be abandoned. It is and it remains an important, and some may say the most important, idea reflected in punishment particularly for offences such as robbery. But it is to say that criminal behaviour is very much the product of factors, and many factors, both personal and social, which are beyond the reach of any court and which have operated and which will continue to operate to produce anti-social behaviour. The need for punishment must be accepted, but it must be accepted with a full appreciation of its limitations.

32 Even a very short experience in the criminal courts makes clear the "limitations" to which Burt CJ referred. A very significant number of offenders do not appear to think about possible consequences at all when they offend. Their offending is impulsive, opportunistic, and aims to meet what is perceived by them as some immediate need or desire. The present appellant would appear to be a person who probably falls into that category. Of those who do think about the consequences, most confidently expect that they will not be caught. Of those who do consider the possibility of being caught, and advert to possible punishment, it is unlikely that any but a small number of recidivists would be able to predict with any degree of accuracy the length of custodial term which is likely to be imposed. That is not to say that deterrence is not a relevant factor. It remains an important sentencing principle, but its limitations must always be kept in mind.

33 In the particular case of burglary, the lack of a deterrent effect from any specific term of imprisonment seems reasonably clear. The desirability of "firming up" sentences for burglary of a dwelling, which was perceived as being "virtually epidemic" at that time, was first alluded to in 1997 in Pezzino (1997) 92 A Crim R 135 (per Franklyn J at 138, White J at 148). That did not happen. By 2003, Anderson J, with whom Malcolm CJ agreed, was able to observe that the range of sentences in burglary cases "do not reveal in fact any significant firming up" (Herbert v The Queen [2003] WASCA 61; (2003) 27 WAR 330 at 363, 334). That case was decided in February 2003, and one can perhaps assume that a relatively gradual process of "firming up" occurred thereafter.

34 As I have noted, both Pezzino and Herbert were concerned with burglary of a dwelling. Although sentences had not "firmed up" for that category of offence until 2003 or some time thereafter, statistics produced by the Crime Research Centre of Western Australia for 1997-2006 show the peak year for burglary of a dwelling was 1998. In summary, the Crime Research Centre concludes that Western Australian burglary rates (both completed and attempted) rose by a quarter between 1993 and 1995, and then declined by between 44% and 47% between 1995 and 2005. Rates of offending fell long before sentences "firmed". Further, other States also experienced burglary reductions between 1993 and 2005, making it unlikely that any particular local sentencing trends were relevant. Discussing possible reasons for that decline, the Crime Research Centre report noted the increasing use of household security measures, and, in more recent years, initiatives such as the "Burglary Reduction Task Force" established in 2002 (see generally, "I on Crime", No 1 March 2007, Crime Research Centre, University of Western Australia).

35 So far as non-dwelling burglary was concerned, McKechnie J noted in Vletter that the figures which he quoted showed an increase in burglaries of dwellings of approximately 12% between 1998 and 2002. It should be noted that even on the figures to which his Honour referred, the trend was by no means all one way. The 2002 figures were not very different from the numbers of non-dwelling burglaries in 1993, 10 years earlier, despite the increase in population over that time. Figures for 2003 (when the appeal in Vletter was initiated) and 2004 (when it was decided) show that the number of such burglaries had, by 2003, dipped below the level of 1993 and by 2004 was lower than in any of the years to which McKechnie J referred. His Honour, of course, was not able to refer to the 2003 and 2004 figures, since these statistics take some time to collate and they were unavailable at the time. The 2005 and 2006 figures show a further decline in the numbers of burglaries of non-residential premises.

36 Unlike some other offences, burglary rates appear still to be higher in Western Australia (at least in 2005) than in other States and Territories, save for the Northern Territory ((2005) Australian Bureau of Statistics Crime and Safety Report, 4509.0 April). However, so far as prevalence trends are concerned, the news appears to be unequivocally good, at least on the figures available at the present time showing a long-term and continuing decline.

37 The figures referred to above illustrate a further difficulty with increasing the severity of sentences in response to what is perceived as increased prevalence of an offence. Data is almost invariably out of date, because of difficulties in collation and interpretation; it may not be a reliable indicator of prevalence because of changes in reporting rates, or changes in offence definition; and increased prevalence over one or two years may be no more than an aberration in what hindsight shows to have been a very different trend.

38 So far as this particular offence is concerned, I do not necessarily suggest that current sentencing levels are excessive, or should be reduced because of the apparently decreasing prevalence of offences of burglary of

premises of all types. No submissions have been made or invited, relating to that question. However, it would appear at the present time that, contrary to the suggestions made in some earlier authorities, there is no need for any increased firmness in sentencing for offences of burglary in order to deal with an increase in prevalence.

39 Although, as I have noted, the sentence imposed in relation to the indictable offence was very severe, I would, nevertheless, not interfere with it. It seems to me that a just result would be arrived at by quashing the order for cumulation in relation to the attempted burglary (offence PE 22923/09) and in lieu thereof ordering that that term be served concurrently with the other sentences.

Hayward v The Queen

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Judgment (70 paragraphs)

KRIJESTORAC -v- THE STATE OF WESTERN AUSTRALIA [2010] WASCA 35 (26 February 2010)

Parties

Cases Cited (3)