Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA

Criminal law and procedure - Appeal - Application for leave to appeal against sentence - Aggravated burglary - Various grounds - Whether inappropriate emphasis placed on personal deterrence given offender's mental illness - Whether inappropriate emphasis placed on offender's criminal history - Whether sentencing process miscarried by Judge expressing personal experience as a victim of burglary - Whether sentence manifestly excessive in all the circumstances - Whether reasonable prospects of success

Criminal Appeals Act 2004 (WA), s 41(2)

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

Moro v The Queen [2001] WASCA 44

R v Marsden [2003] QCA 473

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

R v Chan (1989) 38 A Crim R 337

R v Grein [1989] WAR 178

R v Pezzino (1997) 92 A Crim R 135

R v Tait (1979) 46 FLR 386

Veen v The Queen (No 2) [1988] HCA 14; (1988) 164 CLR 465

1 ROBERTS-SMITH JA: This is an application for extension of time within which to file an application for leave to appeal, together with the application for leave to appeal against sentence. The extension of time is not great, being some three weeks and one day.

2 The appellant was convicted in the District Court at Perth on 2 May 2005 and sentenced on 31 May by Nisbet DCJ on a number of counts on an indictment. He was convicted of one count of aggravated burglary for which he was sentenced to 3 years 4 months' imprisonment with eligibility for parole backdated to 27 April 2005. He was convicted of one offence of robbery and six offences of fraud on each of which he was sentenced to 3 months' imprisonment, together with a conviction for stealing a motor vehicle on which he received 18 months' imprisonment, and receiving for which he received 18 months' imprisonment. Those were all concurrent so that the total term of imprisonment was 3 years and 4 months which was ordered to commence on 27 April 2005.

3 The grounds of appeal are four. They are as follows:

"1. The Learned Sentencing Judge erred in law by placing inappropriate emphasis on deterrence in sentencing the Appellant in relation to the offence of aggravated burglary because the Appellant has a mental illness.

(i) The Appellant has schizophrenia.

(ii) The Learned Sentencing Judge emphasized the need for strong general deterrence and specific deterrence in sentencing the Appellant.

(iii) An offender with a mental illness is not an appropriate vehicle for general deterrence.

2. The Learned Sentencing Judge erred in law by placing undue emphasis on the record of the Appellant resulting in the imposition of a penalty disproportionate to the offence of aggravated burglary.

(i) The Appellant was being sentenced for his first offence of aggravated burglary.

(ii) The Learned Sentencing Judge characterised the record of the Appellant as a 'bad record'.

3. The Learned Sentencing Judge erred in law by expressing his personal experience of being a victim of burglary as this may have led to a perception of distortion in the sentencing process.

4. The Learned Sentencing Judge erred in law by imposing a sentence for the offence of aggravated burglary which was manifestly excessive considering sentencing standards for that offence the place of this offence in the scale of seriousness for offences of that type, the Appellant's plea of guilty and the personal circumstances of the Appellant."

4 In relation to ground 1, it is submitted that the learned sentencing Judge was in error in taking into account, in the way in which he did, the requirement for general deterrence. That is said to be because the appellant suffers from a mental illness and an offender with mental illness is not an appropriate vehicle for general deterrence. The appellant relies on Lauritsen v The Queen [2000] WASCA 203; (2000) 22 WAR 442 at 456 - 459.

5 The circumstances of the aggravated burglary in brief were that on Friday, 11 February 2005 between 6 and 7 am the complainant, his wife and a small child were asleep in their home in Fremantle. The appellant entered the premises by means of an unlocked rear door and stole property before leaving the premises by the same door. Once outside, he used stolen keys to steal a Toyota Hilux utility which had been parked in the driveway.

6 I am referred to the remarks of the sentencing Judge at t/s 52 where his Honour says:

"There is a need for a strong general deterrence in sentencing for drug-induced crimes and in particular for aggravated burglary."

7 It is perhaps apposite at this point to refer to some of the other remarks made by his Honour in relation to the offences generally (t/s 50):

"The six charges of obtaining a benefit by fraud related to the stolen credit cards which you used to obtain assorted goods and services. The two receiving charges were for quite separate offences. The first of them ... was for receiving a stolen credit card, and the last ... was of receiving two surfboards valued at $2400 ..."

"All of these offences were carried out in a premeditated way, although it could be said that the robbery was undertaken on the spur of the moment and hence I think could be fairly described as an opportunistic crime. The burglary, however, and the assorted fraud and stealing charges are all serious. They were clearly premeditated and display a complete disregard for the rights of others. Whilst there was no violence perpetrated on any of the victims of these offences, having been the victim of three burglaries myself I can attest to the degree of concern that your victims must have felt."

8 I shall return to that last comment shortly. At t/s 51 his Honour dealt at some length with the appellant's personal circumstances. It is not necessary for me to set that out in full. He had before him a pre-sentence report. He noted the appellant was still a relatively young man and had some psychological problems in addition to, or perhaps as a consequence, of his schizophrenia, which had been diagnosed late in his life when he was around 27 or 28 years of age.

9 His Honour pertinently noted that whilst the appellant's schizophrenia can be controlled by appropriately prescribed medication, it was exacerbated and his behaviour thrown into complete disarray by the use of illicit drugs to which it appears he had been addicted at times.

10 His Honour went on to note the appellant had a bad record, which commenced in the District Court in July 1999 when he was convicted of nine counts of receiving. Following some further traffic offences in 2000, he was again convicted of stealing in December of that year and sentenced to an intensive supervision order for 12 months. He then ceased his offending behaviour until March 2004, when he was convicted of one count of common assault, one count of attempt to pervert the course of justice, two of breach of bail, one of giving false details to the police, one of possession of a weapon with intent to cause fear, one of resisting arrest, one of stealing and some associated driving charges.

11 Also pertinently, his Honour went on to note that the appellant had been sentenced to an intensive supervision order for 2 years and on 16 July 2004 was convicted of two counts of assaulting a public officer and eight counts of breaching an intensive supervision order, in respect of which he was then re-sentenced for some of the earlier offences. He was made eligible for parole and was released to parole on 29 November 2004 with 7 months' parole to serve. Following his arrest on 12 February 2005 in respect of the matters before his Honour, the appellant's parole was suspended on 17 February.

12 His Honour then went on to consider other features relevant to sentencing. He noted, at t/s 52, that there is a prevalence of drug-induced crime in the community which his Honour described as "truly astounding" and which he said called for a strong general deterrence in sentencing for drug-induced crimes and in particular, for aggravated burglary. His Honour referred to Perth being the burglary capital of Australia and that the community is concerned to see the courts give proper effect to the element of general deterrence in sentencing and that the Court of Criminal Appeal had said in recent times that sentences for aggravated burglary needed to be firmed up.

13 Then his Honour specifically observed that there was a need for specific deterrence for the appellant, having regard to his poor record and the need to punish him for these crimes.

14 His Honour saw there being a need to protect the community from the appellant and people like him. He said the appellant was developing into something of a menace although there were aspects of his presentation which suggested that if he were to stay off drugs and take appropriate medication for his schizophrenia he could return to full-time employment and become a valuable member of the community once again, although he went on to say that presently, as far as his Honour was concerned on the information before him, the prospects of that looked slight.

15 He then imposed the sentences to which I have referred.

16 His Honour's observations appear to be quite correct. A perusal of the submissions put in mitigation reveal it was never advanced to his Honour that the offences were the product of the appellant's schizophrenia, nor were they such that personal deterrence was inappropriate. Indeed, to the contrary, at t/s 22 of the hearing before his Honour, counsel for the appellant, Mr Bougher, suggested to his Honour that amphetamines had become the appellant's latest problem, that he had used heroin in earlier times but that had disappeared and the use of amphetamines led to the crime sprees which he had been mentioning to the sentencing Judge. Mr Bougher then went on to say:

"That just seems to be a complete lack of control, or loss of control, once he reaches a certain point and when that point is reached, the drug usage combined with his psychiatric difficulties, when that point is reached he is unable to control his offending behaviour. That has been proven in the past and has been the case this time round as well. In February this year in particular."

17 At t/s 23 he referred to the psychological report as indicating that the appellant was really his own worst enemy:

"He just gets himself into difficulties when he makes his decisions to use drugs again."

"So he can be controlled. I'm sure he can be controlled. He thinks himself he can be controlled, provided he doesn't revert to his old problems and those problems are associated with using drugs. Alcohol is not a real problem for him. There doesn't seem to be a big alcohol difficulty involved with him. It's merely mixing speed, so it seems, with his other prescription medication that lead to these periods of time in his life which you could almost refer to as a blackout really."

19 Counsel went on to submit that the appellant was doing these things because of the level of drugs that he had been using.

20 In the circumstances of this case it seems to me that it cannot be said his Honour placed inappropriate emphasis on deterrence, having regard to the appellant's mental illness.

21 The material put to his Honour by counsel clearly indicated that the appellant needed personally to be deterred from using drugs and were he so deterred, then it was unlikely that he would be committing the offences which he had in the past. In the context of all of the material before his Honour it seems to me, looked at that way, this ground has no reasonable prospect of success.

22 In relation to ground 2, which alleges undue emphasis on the appellant's record, reference is made to his Honour's observation that the appellant had a bad record and then that there was a need for specific deterrence for him having regard to that.

23 The statement that the appellant had a bad record was in fact correct. While it is true to say that he had no previous conviction for burglary, in the circumstances, that was hardly mitigating. The offences to which this application relates were committed whilst the appellant was on parole. To conclude, from the appellant's record and the fact that he committed these offences on parole, that a specific deterrent was needed in respect of the appellant was a conclusion which an Appeal Court could not readily be seen to consider as not open to his Honour. It did not involve punishing the appellant twice for his previous offences. Again it seems to me in the circumstances of this case and the material before his Honour, this ground has no reasonable prospect of success.

24 Ground 3 concerns the comment made by his Honour to which I have already referred about having been broken into himself on three occasions. The appellant relies on R v Marsden [2003] QCA 473 for the proposition that the sentencing process should be as dispassionate as possible and personal attitudes should not be expressed in a way that may lead to a perception that it has been distorted by them. That proposition must surely be accepted.

25 The point in Marsden, however, did turn upon the particular circumstances of that case. There, the sentencing Judge expressed herself in a way which demonstrated that she impermissibly employed a general personal policy of always recording a conviction in cases of domestic violence, adopting a "particularly tough attitude" to it and holding a view that certain sectors of society sanitise domestic violence and do not view it with seriousness.

26 That was the sort of observation which the members of the Court on that occasion thought infringed the dispassionate requirement of the sentencing process. As Wilson J explained it, her Honour regrettably expressed a level of concern about domestic violence in terms of her own personal view on the issue rather than the view taken by the law as applied by the Courts, it being the latter which is relevant to the sentencing discretion.

27 Whilst it would have been better had his Honour not made the remark he did in this case, the issue is whether it distorted the sentencing process or could reasonably give rise to a perception that it had. I do not think it might be found reasonably to have done so, nor that it could give rise to that perception.

28 This case is clearly distinguishable from Marsden. There the Judge, as I have said, specifically indicated that she was recording a conviction because of a personal policy. Here, his Honour's remark did not indicate any view about any particular sentencing outcome but was referable only to an understanding of the impact on victims of aggravated burglary. Again, in my view, this ground has no reasonable prospect of success.

29 Ground 4 complains that the sentence was manifestly excessive. It is essentially directed to the aggravated burglary sentence. Counsel refers to Moro v The Queen [2001] WASCA 44 in which 2 years' imprisonment was imposed for an aggravated burglary where the circumstances of aggravation were that the householders were asleep in the residence at the time. It is submitted that the circumstances are essentially the same as this case.

30 On appeal to the Court of Criminal Appeal, the sentence was said to be low but did not warrant interference because it was a Crown appeal. Appeal Courts have said on a number of occasions that very little is to be gained from comparisons of individual sentences in individual cases. I need not here elaborate upon the reasons for that. They are well understood.

31 There is, I think, an argument that 3 years 4 months' imprisonment was manifestly excessive for that offence here. I do not say it would succeed, but were it looked at in isolation it would have a reasonable prospect of success. However, it is not to be looked at in isolation. There were nine offences. They represented a very serious and deliberate course of criminal conduct.

32 All other sentences were made concurrent with the 3 years 4 months' imprisonment on the aggravated burglary. That was because the Judge considered the aggregate was proportionate to the appellant's overall criminal culpability. If the sentence on the aggravated burglary were to be set aside, that would necessitate reconsideration of the question of cumulation of sentences: s 41(2) of the Criminal Appeals Act 2004 (WA).

33 The Court of Appeal would be required to make orders as to cumulation and concurrency that would appropriately reflect the whole of the appellant's criminal conduct. It could well be anticipated that the end result would be a longer aggregate sentence than the appellant already has. For example, were a sentence of two years to be substituted on the aggravated burglary as contended for by counsel, it might well be made cumulative on at least one of the 18 month sentences imposed by his Honour. That would produce an aggregate of 3 years 6 months' imprisonment. Of course, if any of the other sentences were also made cumulative, as they possibly could be, the aggregate would be longer. These matters, however, are for the appellant to consider as to whether he intends to pursue his appeal on this ground.

34 For the reasons indicated, I would grant leave in respect of ground 4. That being so, and in light of the reasons given for the delay and the relevantly short period of it, I would also extend time in which to apply for leave to appeal.