Kerr v Cowie [2006] WASC 193

Sentencing Act 1995 (WA), s 8

Sentence imposed in relation to aggravated burglary quashed and substituted with a sentence of 9 months' imprisonment

Sentence imposed in relation to driving under disqualification quashed and substituted with a sentence of 6 months' imprisonment to be served cumulatively with the other sentence

The substituted cumulative sentences to take effect as if imposed by the Magistrate with eligibility for parole

Continuation of disqualification for holding a motor vehicle licence

Anderson v Heath and Anor [2005] WASC 253

Mason v Morrison [2004] WASCA 181

Cardile v The Queen [2003] WASCA 72

Dickman v Turton & Anor [2000] WASCA 1

"H" v The State of Western Australia [2006] WASCA 53

Hamon v Iriks (1991) 13 MVR 388

Lowe v The Queen [1984] HCA 46; (1984) 154 CLR 606

Lowndes v The Queen [1999] HCA 29; (1999) 195 CLR 665

Postiglione v The Queen [1997] HCA 26; (1997) 189 CLR 295

Radebe v The Queen [2001] WASCA 254

Williams v Franzinelli [2001] WASCA 241

1 MARTIN CJ: There are two appeals before the Court, each with leave, against sentences imposed by the Magistrate in Bunbury, the first being a sentence imposed in respect of the offence of aggravated burglary and the second being a sentence imposed in respect of the offence of driving without a motor driving licence and indeed whilst that licence was under suspension by reason of a court order.

2 Dealing firstly with the offence of aggravated burglary, I will take the circumstances of that offence from the findings of fact made by the learned Magistrate. The offence occurred in the early hours of Friday, 11 June 2004 when the appellant was in company with another in Burt Street, Bunbury. Together they were out and about on the streets, substantially affected by amphetamines which they had both consumed and as a result of which they were unable to sleep. The appellant's co-offender was looking through waste disposal bins at various business premises from which she would customarily take items, usually with the consent of the business proprietors, which could be recycled by incorporating the items in craft work that was undertaken by the co-offender.

3 In the course of this exercise, they came upon the premises of St Vincent De Paul in Burt Street, Bunbury. Entry to those premises was gained when the appellant was apparently able to manipulate a latch which secured the door of the premises. The appellant's co-offender entered the premises. It seems that the appellant remained outside.

4 At approximately 5.50 am, police were patrolling the vicinity of Burt Street and had cause to stop a vehicle then being driven by the co-offender. That resulted in the apprehension of the appellant and his co-offender. Because of the interruption of the appellant and the co-offender in the course of the commission of the offence, no substantial amount of property appears to have been removed. The appellant's co-offender was found with a bag of buttons on her person. It also does not seem that any damage was done to the building in the course of gaining entry to the building.

5 In respect of that offence, the Magistrate imposed an immediate term of imprisonment of 14 months. He imposed a similar term of imprisonment upon the appellant's co-offender whose appeal to this court has already been dealt with by Murray J. Murray J came to the view that the Magistrate's sentence was vitiated by a number of errors (Drake v Cowie, unpublished; SCt of WA (Murray J); 31 March 2005). The errors found by Murray J that are, in my view, equally applicable to the sentence imposed by the Magistrate on this appellant are the failure to give any credit at all for the plea of guilty that was entered by the appellant and the failure to find that the circumstances of the offence, which I have just related, should have placed the case in the lower end of the range of this type of offence.

6 The State concedes that those two errors vitiate the sentence imposed by the Magistrate. That concession is of course not the end of the matter because it is necessary for the Court to form its own view as to whether or not the sentencing process miscarried in a way which gives this Court jurisdiction to intervene and impose its own sentence. However, I am satisfied that for the reasons I have given, and for the reasons more fully enunciated by Murray J in the earlier case, the sentencing process did miscarry in a way which gives this Court jurisdiction to quash the sentence and instead impose its own sentence. I will come back to the sentence to be imposed after I deal with the driving offence.

7 The offence of driving without a motor driver's licence and whilst under suspension was committed on a different occasion, being 14 May 2004. Again, I take the circumstances of that offence from the findings made by the Magistrate. It is said that the appellant received a call from a friend who was in difficult circumstances and required his assistance and that he elected to give that assistance to him by driving him to other premises. It is not put that this was a life and death situation or emergency situation and, as the Magistrate found, it seems clear that there were other ways in which that situation might have been addressed, particularly given that the appellant has five previous convictions for driving without a motor driver's licence and indeed while under court imposed disqualification.

8 In respect of that offence, the Magistrate imposed a term of imprisonment of seven months cumulative upon the term of 14 months' imprisonment that he had imposed in respect of the offence of aggravated burglary. The State does not concede that the sentencing process undertaken by the Magistrate in relation to the driving offence miscarried. The State's submission is that the sentence was within the range of sentences reasonably open to the Magistrate and therefore no error of the kind necessary to ground this Court's jurisdiction to intervene has been identified.

9 On the other hand, the appellant submits that s 8 of the Sentencing Act 1995 (WA) ("the Act") requires a Court imposing sentence to state circumstances that have been taken into account in mitigation and in particular requires that a Court taking into account a plea of guilty as a mitigatory factor must state that fact.

10 In relation to the sentence the Magistrate was imposing in respect of the offence of driving without a motor driver's licence, it is clear that he did not state that he was taking into account the fact of the plea of guilty as a mitigating factor and therefore contravened s 8 of the Act.

11 Having regard to the Magistrate's failure to specify the fact that he was taking that factor into account and having regard to his earlier express assertion that he was not giving any credit for a plea of guilty in relation to the burglary offence, it seems to me that the inference clearly available on the materials before me is that the Magistrate has failed to give any recognition to the mitigatory effect of the plea of guilty in relation to the driving offence.

12 It is not clear from the materials before me precisely when that plea of guilty was entered. It seems that it was probably entered at some point between the first mention of the matter and the day upon which the appellant appeared before the Magistrate but, as I say, it is not clear precisely when, in that rather protracted process, the plea of guilty was entered.

13 Nevertheless, it seems to me that the failure of the Magistrate to take into account the plea of guilty as a factor mitigating the sentence which he would otherwise have imposed, is an error which vitiates the exercise of his power to sentence and therefore requires this Court to resentence the appellant.

14 I turn therefore to the sentences which should be imposed in lieu of those imposed by the Magistrate. In relation to the burglary offence, I take account of the sentence imposed by Murray J in relation to the appellant's female co-offender following the success of her appeal (Drake v Cowie (supra)). That sentence was a sentence of imprisonment for a period of 9 months, but suspended for a period of 9 months.

15 In arriving at that sentencing conclusion, however, his Honour was strongly influenced by the personal circumstances of that offender and the relative lack of a criminal record, at least in the period immediately prior to the commission of the offence, and her personal circumstances including in particular her obligations with respect to her children and other family circumstances.

16 As his Honour observed, those circumstances are not pertinent to the appellant whose case is before me. His circumstances are quite different. He has quite an extensive and continuous criminal record including offences of a kind which are similar to those of the offence of aggravated burglary.

17 So it does not seem to me that any principle of parity would require me to impose the same sentence as that imposed by Murray J and in any event, it is conceded by counsel for the appellant that if it is accepted that a sentence of immediate imprisonment was the appropriate disposition of the driving offence, neither the Magistrate nor indeed this Court acting in place of the Magistrate would have power to suspend a term of imprisonment in respect of the aggravated burglary.

18 Turning then to the sentence that could appropriately be imposed in respect of that offence, the maximum penalty available in the court of summary jurisdiction was the period of three years. As a consequence of the transitional provisions of the sentencing legislation passed in 2003, the effective maximum is therefore reduced to a period of 2 years.

19 Accepting, as I do, Murray J's characterisation of the circumstances of this offence as being at the lower end of the range of offences of this kind, it would seem to me to result in an appropriate sentence of 12 months' imprisonment, but then allowance must be made for the plea of guilty which was a late plea and made in circumstances in which conviction, although not inevitable, was a very real possibility.

20 It is customary to talk in terms of percentage discounts for pleas of guilty, but of course if one talks only in terms of percentages when one starts with a sentence at the lower end of the range of sentences of imprisonment, the imposition of a modest percentage discount will produce an almost trivial reduction in the penalty and not a reduction of the kind that the legislature intended. Such discounts should be given to recognise firstly, the remorse that might be evident in a plea of guilty and secondly, the public interest in encouraging pleas of guilty.

21 Taking those two factors into account, it seems to me that a discount from the sentence that would otherwise have been imposed in the order of 3 months for the plea of guilty is appropriate, thus reducing the penalty that should be imposed in respect of the aggravated burglary to a period of 9 months' imprisonment, taking effect from the time the sentence was imposed by the learned Magistrate.

22 Turning then to the driving offence, the offender's history in relation to such matters is deplorable although not of the worst kind as it seems from the cases that have been produced by counsel. In the case of Mason v Morrison [2004] WASCA 181, which is a relatively recent decision of this Court involving a tenth offence of driving under the influence of liquor and the twelfth offence of driving whilst under suspension, on appeal, Miller J imposed concurrent sentences of 9 months' imprisonment in respect of those offences.

23 I take into account also the sentencing range indicated by the decision of Le Miere J in the case of Anderson v Heath and Anor [2005] WASC 253. I also take account of the various cases identified by counsel for the appellant which suggest that in cases of this kind a range of between two to six months is the usual range imposed, although it is plain from Mason v Morrison (supra) that that range can be exceeded when the circumstances of the offence justify it.

24 The maximum penalty available to the Magistrate in respect of the driving offence was a term of imprisonment of 18 months. When account is taken of the transitional sentencing provisions, that becomes an effective maximum penalty available of 12 months. When regard is had to the effect of the plea of guilty, again it would seem to me that the maximum reserved for the worst possible case of this kind after a plea of guilty would have been in the vicinity of 9 months' imprisonment. Having regard to the circumstances of this particular offence, in my view the appropriate sentence to impose is a period of 6 months' imprisonment.

25 The result then is that in lieu of the sentences imposed by the Magistrate, I would in place of the sentence imposed in respect of the offence of aggravated burglary, firstly, quash the sentence imposed by the Magistrate and instead substitute a sentence of imprisonment of 9 months. In the case of the sentence imposed by the Magistrate in respect of the offence of driving without a motor driver's licence, I would quash the sentence imposed by the Magistrate and impose a sentence of 6 months' imprisonment cumulative upon the sentence imposed in respect of the offence of aggravated burglary; both sentences, as it were, taking effect as if imposed by the Magistrate when the matters came before him. Because the combined sentence which comes about as a consequence of those two sentences exceeds 12 months, I would, as the Magistrate did, make an order for eligibility for parole.

2. In relation to Complaint No. BU 2134/04 - aggravated burglary, the sentence imposed is quashed and substituted with a sentence of 9 months' imprisonment.

3. In relation to Complaint No. BU 1748/04 - driving under disqualification, the sentence imposed is quashed and substituted with a sentence of 6 months' imprisonment to be served cumulatively with the substituted sentence of 9 months' imprisonment imposed in order 2 above.

4. The substituted sentences of 9 and 6 months' (cumulative) imprisonment imposed in orders 2 and 3 above are to take effect as if imposed by the Magistrate and with eligibility for parole.

5. Continuation of the disqualification for holding a motor vehicle licence for a period of 9 months as imposed by the Magistrate.