Criminal law - Application for leave to appeal against sentence - Appellant convicted on plea of guilty of one count of aggravated burglary and sentenced to 18 months' immediate imprisonment - Whether type of sentence was manifestly excessive - Turns on own facts

Sentencing Act 1995 (WA), s 9AA, s 39

Joslin v The State of Western Australia [2012] WASCA 177

Krijestorac v The State of Western Australia [2010] WASCA 35

Main v The State of Western Australia [2010] WASCA 28

Ridley v The State of Western Australia [2013] WASCA 45

The Queen v Vletter [2004] WASCA 96

2 MAZZA JA: This is an application for leave to appeal against a sentence of 18 months' imprisonment imposed upon the appellant on 15 July 2014 for an offence of aggravated burglary, contrary to s 401(2)(a) of the Criminal Code (WA). The sole ground of appeal is that the sentence is manifestly excessive.

3 The facts of the offending may be briefly stated. At about 1.40 am on 12 November 2013, the appellant was in company with a 39-year-old man named Dobson at the Armadale Shopping Centre. Dobson smashed a glass panel near the entry doors of the shopping centre. Together, Dobson and the appellant then proceeded to the Shiels Jewellery store. There, Dobson used a screwdriver to force open the front door to the store. Once inside, Dobson broke open a glass display cabinet. He and the appellant then grabbed a quantity of neck chains valued at approximately $12,730.45 and placed them in a bag. Their activities activated various alarms and they were apprehended by police inside the store. The incident was captured on closed-circuit television. The appellant was conveyed to the Armadale police station but declined to comment during an electronically recorded interview. It was accepted that Dobson was more culpable than the appellant. Dobson was sentenced by another judge for the offence to 3 years 6 months' imprisonment.

4 By the time she was sentenced, the appellant had turned 28. The learned sentencing judge had before him a pre-sentence report and the psychological report of Ms Joanne Collyer. As the reports detail, she has, since her childhood, led a chaotic, transient and dysfunctional life. From a young age she was exposed to substance abuse, criminal activity, sexual abuse and violence. She began using cannabis at the age of 10 and was introduced to heroin at the age of 12. She has a long-term history of alcohol and illicit drug abuse. Unsurprisingly, she has symptoms consistent with post-traumatic stress disorder, particularly symptoms of depression, anxiety and hypervigilism. She has poor consequential thinking and decision-making skills. The appellant has three young children, all under the age of 10. She has some history of post-natal depression. At the time she was sentenced, her eldest child was in her care. She aims for the return of her other children.

5 Ms Collyer observed the link between the appellant's alcohol and drug use and her offending. She said that the appellant remained adamant that she did not wish to cease using alcohol, 'just reduce it'.

6 Despite the appellant being in need of rehabilitative programs, she has a history of resistance to such programs and an inability to complete them. The author of the pre-sentence report assessed the appellant as being 'an unsuitable candidate to undertake a further supervised order'.

7 The appellant has, as an adult, been convicted of numerous road traffic offences. In addition, she was convicted in 2005 of assault occasioning bodily harm and in 2013 of common assault. She has not been convicted of burglary as an adult. She had not previously been sentenced to a term of imprisonment.

8 Defence counsel submitted that the appellant was motivated to accept treatment. She said that the appellant's goal was to have care of all three of her children and that this had caused her to stop using methylamphetamine since early 2014 and was 'a big protective factor for her in relation to maintaining her abstinence from drugs'. She submitted that the appropriate disposition was a conditional suspended imprisonment order.

9 His Honour recognised the appellant's early plea of guilty and gave a discount of 25% pursuant to s 9AA of the Sentencing Act 1995 (WA) (the Act). He took into account the appellant's traumatic background and acknowledged her desire to reside with her children and remain drug free.

10 Against this, the learned sentencing judge weighed the seriousness of the offence and the need to provide proper punishment and deterrence, with the aim of protecting business owners from this sort of offending.

11 His Honour expressly recognised the principle that imprisonment is the sentence of last resort and that immediate imprisonment could only be imposed if a suspended sentence was inappropriate.

12 His Honour said that a period of immediate imprisonment was required because of the seriousness of the offence and the need to provide deterrence. He said that a suspended sentence would be 'wholly inappropriate' because it would not 'adequately reflect the needs of deterrence' and would not properly reflect the serious nature of the offence.

13 The appellant submits that the sentence that was imposed upon her was manifestly excessive because the wrong kind of sentence was imposed. She submitted that, having regard to the circumstances of the offence, her personal circumstances, her desire to reform and the steps she had taken to achieve that end, the stage had not been reached where the only appropriate penalty was a term of immediate imprisonment.

14 This court can only intervene if it is shown that his Honour erred in the exercise of his sentencing discretion. The appellant alleges an implied error by his Honour.

15 To determine whether a sentence is manifestly excessive, regard is had to the maximum sentence for the offence, the standards of sentencing customarily observed with respect to the offence, the place which the criminal conduct occupies in the scale of seriousness of offences of that type and the personal circumstances of the offender.

16 Section 39(2) of the Act sets out the various sentencing options which apply to natural persons. The ultimate option is a term of immediate imprisonment and the two options preceding it are conditional suspended imprisonment and suspended imprisonment, respectively. Section 39(3) of the Act provides that a court must not use a sentencing option in subsection (2) unless satisfied that it is not appropriate to use any of the options listed before that option. It is clear from his Honour's reasons that he approached the exercise of the sentencing discretion in accordance with these principles.

17 The maximum penalty for an offence of aggravated burglary is 20 years' imprisonment.

18 As the learned sentencing judge pointed out, this was a serious offence. While the appellant was not as culpable as Dobson, she was willingly and actively involved in an offence which was executed with considerable determination involving, as it did, the forced entry of a shopping centre, then a shop, and finally a display cabinet. Property of substantial value was stolen. The motive for the offence, at least from the appellant's perspective, was to steal property to sell in order to buy drugs. Such a motive is not mitigating.

19 The primary considerations in relation to burglary of commercial premises are general and personal deterrence: Ridley v The State of Western Australia [2013] WASCA 45 [13]. Although there is no tariff for burglary, ordinarily an substantial penalty is imposed. The sentence imposed upon the appellant is broadly consistent with sentences imposed in other cases. See, for example, Ridley, Joslin v The State of Western Australia [2012] WASCA 177, Main v The State of Western Australia [2010] WASCA 28, Krijestorac v The State of Western Australia [2010] WASCA 35 and The Queen v Vletter [2004] WASCA 96.

20 Although the appellant's personal circumstances are tragic and she has expressed a wish to rehabilitate herself, her resistance to counselling and her alcohol use do not, unfortunately, augur well for the future.

21 In my opinion, it cannot be reasonably argued that the learned sentencing judge erred in the exercise of his sentencing discretion by imposing the sentence he did. Implied error has not been demonstrated. Leave to appeal should be refused and the appeal dismissed.