Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA

Criminal law - Application for leave to appeal against sentence - Aggravated burglary on a dwelling - Stealing - Attempted fraud - Fraud - Assault - Giving false details - Totality principle

Criminal Code (WA), s 16(8), s 313(1)(b), s 378, s 401(1)(a), s 409(1)(c), s 552

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

Papertalk v The State of Western Australia [2011] WASCA 229

Roffey v The State of Western Australia [2007] WASCA 246

Wilson v The State of Western Australia [2010] WASCA 82

2 MAZZA JA: This is an application for leave to appeal against sentence. On 15 January 2013, the appellant pleaded guilty on the fast-track system to one count of aggravated home burglary contained in indictment 1190 of 2012 and five offences contained in a notice under s 32 of the Sentencing Act 1995 (WA), being one count each of stealing, attempted fraud, fraud, common assault and providing the police with false details. She was sentenced to a total effective sentence of 29 months' imprisonment with eligibility for parole. His Honour arrived at this sentence having given the appellant credit for the 5 months she had spent in custody on remand (ts 28). The details of the individual sentences that were imposed are as follows:

s 401(1)(a) of the Criminal Code (WA) - 20 years' imprisonment

s 378 of the Criminal Code- 7 years' imprisonment

s 409(1)(c) and s 552 of the Criminal Code - 3 years 6 months' imprisonment

s 409(1)(c) of the Criminal Code - 7 years' imprisonment

s 313(1)(b) of the Criminal Code - 18 months' imprisonment

s 16(8) of the Criminal Investigation (Identifying People) Act 2002 (WA) - 12 months' imprisonment

3 His Honour ordered that the sentences for the offences of aggravated burglary, fraud and assault be served cumulatively.

4 The appellant does not allege any express error on the part of the learned sentencing judge, nor does she take any issue with the individual sentences that were imposed. Her sole ground of appeal alleges that the total effective sentence of 29 months' imprisonment infringed the first limb of the totality principle.

5 For the reasons that follow, the ground of appeal has no reasonable prospect of succeeding. Accordingly, the appeal must be taken to be dismissed: s 27(2) and (3) of the Criminal Appeals Act.

The facts of the offences The aggravated burglary

6 In the very early hours of 10 August 2012, the appellant climbed over a side fence, crossed the victim's yard and forced open a closed bathroom window of his house before climbing through it. It appears that the appellant was intending to steal items from the house. The 71-year-old complainant heard the appellant entering his house. He got up and confronted the appellant in the kitchen. He then telephoned the police who attended promptly and located the appellant standing in front of the victim's house. She made no attempt to flee on becoming aware that the police had been called.

7 On 2 July 2012, at about 11.30 am, the complainant lost his wallet near the St John of God Hospital in Subiaco. Amongst the things inside the wallet were two credit cards. The appellant found the wallet and a short time later used one of the credit cards in an attempt to buy items from a supermarket to the value of $181.24. The transaction was declined by a staff member at the supermarket.

8 Undeterred by these events, the appellant went to another shop where she purchased $213 worth of items. This time the transaction was accepted and she left the premises with the items.

9 On 18 May 2012, the appellant went to a post office in Perth to obtain money via a Western Union transfer. The appellant was unable to produce any photographic identification and accordingly, the manager of the post office declined the payment. The appellant became aggressive and abusive. She was asked on several occasions to leave the premises, but refused to do so. She pushed the complainant and then a short time later struck the complainant in the face with her right arm. She then pushed the complainant with an open hand in the chest.

10 After she was arrested for the aggravated home burglary on 10 August 2012, she provided the police with false personal details.

11 At the time she was sentenced, the appellant was 40 years of age. She had a difficult upbringing. Her childhood was marred by domestic violence and sexual abuse. She left home at the age of 13. She has, since her teenage years, abused illicit substances such as cannabis, amphetamine and heroin. She has been unable to rid herself of her addictions. At the time of her offending, she was on the methadone program. Since her incarceration she has completed drug rehabilitation and other courses. There is some evidence that the appellant suffers from epilepsy, depression and bipolar disorder. She has a long and significant record of prior offending. She has been convicted of many dishonesty offences, including stealing and fraud, and of a number of burglary offences. She is a repeat offender in respect of the offence of home burglary. Accordingly, the learned sentencing judge was obliged to sentence her to at least 12 months' imprisonment for this offence: s 401(4)(a) of the Criminal Code. The appellant has also been convicted in the past of offences involving violence.

12 The appellant's former partner died in late 2011 and as a result of this and other matters personal to her, it was said that she reduced her methadone dosage and used illicit substances, which led to the offending for which she was sentenced.

13 It is unnecessary to canvass the sentencing remarks in detail because no criticism is made of them. It is clear that his Honour took into account as mitigating factors the appellant's fast-track pleas of guilty, her remorse, her circumstances at the time of the offences, her personal background, her health and the steps she had taken towards her rehabilitation.

14 With respect to the offences, his Honour noted that the victim of the aggravated home burglary was an elderly man and that the victim of the common assault was a post office worker who, as he put it, 'should never have to be required to confront that sort of treatment' (ts 32). He emphasised general and personal deterrence. He referred to the totality principle and expressed the view that a total term of 29 months' imprisonment appropriately reflected the appellant's overall criminality.

General principles applicable to appeals against sentence

15 The general legal principles applicable to appeals against sentence are well known and need not be repeated. They were accurately stated by McLure P and Owen JA in Wilson v The State of Western Australia [2010] WASCA 82 [2]. I gratefully adopt them.

16 The totality principle is described in Roffey v The State of Western Australia [2007] WASCA 246. It comprises two limbs. The first limb provides that the total effective sentence must bear a proper relationship to the overall criminality involved in all the offences, viewed in their entirety and having regard to the circumstances of the case, including those referable to the offender personally [24]. The second limb requires that the total effective sentence not be crushing. The appellant does not rely upon the second limb.

Did the total effective sentence infringe the totality principle?

17 Undoubtedly, the most serious of the offences committed by the appellant was the aggravated burglary. Although by no means the worst example of its type, it was nevertheless serious. The offence was committed in the early hours of the morning when it was highly likely that someone would be at home. The victim was an elderly man. The circumstances of the offence would have caused the victim fear and anxiety. Householders are entitled to feel confident that they and their property will be safe in their home. The type of offending engaged in by the appellant undermines this confidence. While there was no physical confrontation between the complainant and the appellant, the potential for such a confrontation and the possibility of unintended injury and damage to property as a result is ever present: Papertalk v The State of Western Australia [2011] WASCA 229 [29]. Sentences imposed for home burglary have increased to reflect the prevalence of the offence and to provide proper personal and general deterrence: Herbert v The Queen [2003] WASCA 61; (2003) 27 WAR 330. The individual sentence imposed by his Honour was well within the range of sentences customarily imposed.

18 The dishonesty offences were deliberate and persistent. The appellant took advantage of the complainant's misfortune in losing his wallet.

19 The appellant's behaviour in the post office was totally inexcusable and unreasonable. The complainant was simply doing her job and was assaulted because of it. Sentences for assaults in such situations should reflect the need to protect those serving the public from this kind of behaviour.

20 There were matters in the appellant's favour. I have already referred to them when summarising his Honour's sentencing remarks.

21 His Honour was right to give emphasis to personal deterrence. The appellant has a formidable criminal record of prior relevant offending. While recognising that a sentence must be proportionate to the gravity of the offence and that an offender's criminal record does not aggravate the offence, an offender's criminal record is relevant when considering matters of punishment, deterrence and the protection of society within the limits of a proportionate sentence: Papertalk [19].

22 The aggravated burglary offence, the dishonesty offences and the assault were committed separately and some accumulation of them was appropriate in order to properly reflect the totality of the appellant's offending. I do not accept the appellant's oral submission that all of the sentences should have been made concurrent.

23 In my opinion, the total effective sentence imposed did not breach the first limb of the totality principle. The proposed ground of appeal has no reasonable prospect of succeeding.

1. Leave to appeal is refused.
2. The appeal is dismissed.