NGUYEN -v- THE STATE OF WESTERN AUSTRALIA [2007] WASCA 114 (29 May 2007)

Court of Appeal (WA)|2007-05-29|Before: Steytler P

1 STEYTLER P: The appellant appeals, by leave, against the sentences imposed upon him in respect of his convictions on one count of aggravated home burglary, 19 counts of home burglary and one count of stealing a motor vehicle. He was sentenced to a term of 18 months' imprisonment on the first count of burglary (count 1), to a term of 6 months' imprisonment in respect of the count of stealing a motor vehicle (count 2), to terms of 2 years and 6 months' imprisonment in respect of each of 17 other counts of burglary, to a term of 2 years and 8 months' imprisonment in respect of the remaining count of burglary (count 32 on the indictment) and to a term of 2 years and 6 months' imprisonment in respect of the aggravated burglary. The reason for the imposition of the longer term in respect of count 32 was that, in that case only, the occupier of the dwelling was at home at the time.

2 The terms imposed in respect of counts 1 and 2 were ordered to be served concurrently with each other but cumulatively upon the term imposed in respect of count 32. The sentences imposed in respect of two of the remaining counts of burglary and the count of aggravated burglary were ordered to be served cumulatively upon each other and also upon the sentences imposed in respect of counts 1 and 32. This gave rise to a total term of 11 years and 8 months' imprisonment. Each of the burglary offences committed by the appellant carried a maximum term of 18 years' imprisonment. The offence of aggravated burglary carried a maximum term of 20 years' imprisonment. The offence of stealing a motor vehicle carried a maximum term of 7 years' imprisonment.

3 The sentencing Judge accepted, for the purposes of sentencing, that the appellant had pleaded guilty at the earliest possible opportunity. The sentences imposed on each of counts 1 and 2 had consequently been discounted by 25 per cent, that imposed on count 32 had been discounted by 20 per cent, and those imposed on the remaining counts had been discounted by approximately 16 per cent. Each of the sentences imposed also reflected the discount of one third required by the transitional provisions in the Sentencing Legislation Amendment and Repeal Act 2003 (WA) ("transitional provisions").

4 There are two grounds of appeal. It is necessary to deal with these grounds only to the extent that they rely upon a failure to give proper effect to the totality principle, that having been the only contention that was ultimately pursued. So far as it is relevant to the appellant's contentions, that principle requires that the aggregate sentence imposed upon an offender bear a proper relationship to the overall criminality of the offending behaviour when the offences are viewed in their entirety and having regard to all the circumstances of the case, including circumstances personal to the offender: Postiglione v The Queen [1997] HCA 26; (1997) 189 CLR 295 at 307 - 308 per McHugh J and Woods v The Queen (1994) 14 WAR 341 at 352 per Anderson J. Counsel for the appellant contends, in this respect, that the aggregate sentence imposed was disproportionate, having regard for the early pleas of guilty, customary sentencing standards in respect of offences of this kind and the appellant's antecedents.

5 When dealing with an appeal against sentence, the Court may not substitute its own opinion for that of a sentencing Judge merely because it would have exercised its discretion differently. It will only interfere where the appellant has demonstrated that the sentencing Judge failed properly to exercise his or her discretion: Lowndes v The Queen [1999] HCA 29; (1999) 195 CLR 665 at 671 - 672. Error might be inferred in a case in which the result is unjust or unreasonable because it is manifestly excessive: Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321.

6 In this case the offending behaviour occurred over a period of about six months between 6 March 2004 and 17 September 2004. The appellant had collected the addresses and telephone numbers of a number of Asian families throughout the metropolitan area. Using a mobile telephone he would ring one of the telephone numbers on his list. If the call was unanswered, he would burgle the premises, disarming any alarms before doing so. He did so by climbing onto the roof of the house to be burgled, entering the roof space and cutting the wires to the alarms. He would then climb down from the roof and force entry into the premises by one means or another.

7 I have said that, in the case of the burglary charged in count 32 on the indictment, it turned out that the occupier of the premises was at home. The appellant had not expected to find him there. Hearing noises, the occupier armed himself with a baseball bat and struck the appellant after he had entered the dwelling.

8 In only one case, count 51, was the appellant aided by an accomplice. After committing the offence charged in that count, the appellant and his accomplice drove down the Kwinana Freeway. Their car was stopped and searched by police. The appellant had in his possession a screwdriver, three small torches, a pair of wire-cutting pliers and a mobile telephone. Inquiries subsequently revealed that the telephone had been used to telephone the homes that had been burgled. The police also found three hand-written lists that documented homes to be targeted in three suburbs. The lists comprised some 118 addresses.

9 The offending behaviour was serious. It involved careful planning over a sustained period of time. The total value of the property stolen was in the vicinity of $165,000. The only mitigation of any substance was provided by the appellant's pleas of guilty which, as I have said, were accepted to have been made at the earliest possible opportunity.

10 The appellant's antecedents are generally poor. At the time of the offending he was about 33 years old. He has a substantial record of previous convictions. These encompass three convictions for burglary in Western Australia and two for receiving stolen property in this State. Those offences were committed between 1993 and 2003. The appellant has also been convicted, in the Brisbane District Court, of a number of offences. On 13 February 2002 he was convicted on 13 charges of entering a dwelling to commit an indictable offence. Those offences were committed between March 1998 and November 1999. He was sentenced to a term of 4 years' imprisonment, suspended for 4 years once he had served 18 months' imprisonment. On 5 August 2002 he was again dealt with by the District Court at Brisbane, this time for a further 76 counts of entering or being in a dwelling house in circumstances of aggravation (those offences were committed between August 1998 and January 1999), nine counts of entering a dwelling house with intent to commit an indictable offence in circumstances of aggravation (committed during 1998) and one count of attempting to enter a dwelling with intent to commit an indictable offence in circumstances of aggravation (committed on 26 September 1998). He was also dealt with for an offence of stealing on 12 November 1998. The sentence imposed on 5 August 2002 was one of 12 months' imprisonment, cumulative upon the sentence imposed on 13 February 2002, suspended for a period of 4 years once the appellant had served 3 months of the later sentence.

11 As a child, the appellant (who is Vietnamese by birth) found his way to Australia as a refugee. He travelled first to Cambodia and from there by a small boat to Thailand. In Thailand he was interned in a refugee camp. After having discovered that his father had travelled to Australia, he made his way to this country when he was about 16. He fell into bad company and became addicted to heroin. This led to his sustained period of offending. However, since being imprisoned on 17 September 2004 the appellant has made significant efforts to rehabilitate himself. He has improved his literary skills and has completed a hospitality catering course. He claims to have overcome his drug addiction.

12 The cases decided in this jurisdiction reveal that, until 1997, the offence of breaking and entering with intent, involving the theft of property to a value of less than $10,000, generally attracted sentences of imprisonment for a term of between 12 and 18 months. Longer terms of imprisonment were imposed in the case of more serious burglaries. Then, in Pezzino v The Queen (1997) 92 A Crim R 135, the Court of Criminal Appeal held that the time had come to "firm up" sentences for burglary of a dwelling. However, by the time of the decision of the Court of Criminal Appeal in Herbert v The Queen [2003] WASCA 61; (2003) 27 WAR 330 there had been no significant firming up. Anderson J, in that case, provided a number of examples (at [131] and [132]). In Rose v The Queen [2000] WASCA 238 a term of 18 months' imprisonment had been imposed in respect of a single burglary. In Fisher v The Queen [1999] WASCA 122 a term of 2 years' imprisonment was imposed in respect of a single, but relatively serious, burglary (there had been a fast track plea of guilty). In Moro v The Queen [2001] WASCA 44 two cumulative terms of 2 years' imprisonment were imposed in respect of two counts of aggravated burglary. In Scott v The Queen, unreported; SCt of WA; Library No 990004; 15 January 1999 a term of 3 years and 6 months' imprisonment was imposed in respect of an aggravated burglary in a case in which the offenders did violence to the occupant. These are only some of the examples that might be found.

13 In Herbert, Malcolm CJ (with whom Miller J agreed) regarded it as being a matter of some significance that in 1996 the Parliament had increased the maximum sentence for burglary from 14 years' to 18 years' imprisonment as a consequence of the increasing prevalence of the offence. Like Anderson J, he considered that there had not, since Pezzino, been any significant degree of firming up of sentences for burglary. He said (at [5]) that, in light of the increased penalties provided by Parliament, it was necessary for the courts to give effect to the clear intention of the legislature by increasing the sentences imposed for burglary because of the prevalence of that offence and the increased level of community concern as a result. The Court found that sentences of 5 years' imprisonment imposed in respect of each of four charges of burglary were not manifestly excessive. Those terms formed part of a total term of 15 years' imprisonment imposed in respect of the four burglaries, two armed robberies (one of them in company) and various other offences. The appellant had pleaded guilty to all of the offences.

14 Since Herbert (which was decided prior to the coming into effect of the transitional provisions), the sentences imposed in cases of burglary have varied. In Woods v Cecchele [2004] WASCA 163, a term of 3 years' imprisonment in respect of a relatively minor burglary, by a regular offender who had made an early plea of guilty, was held to be manifestly excessive. A sentence of 18 months' imprisonment (after application of the transitional provisions) was imposed. In Tomasovich v Stjepic [2005] WASCA 7, a sentence of 18 months' imprisonment, after application of the transitional provisions, was imposed in respect of a home burglary of a relatively minor kind that had been committed by a regular offender who had pleaded guilty at an early stage. The sentence were imposed cumulatively upon two other sentences of 12 months' imprisonment imposed in respect of separate burglary charges. In Ashworth v The State of Western Australia [2006] WASCA 36, the appellant was sentenced to terms of 2 years and 8 months' imprisonment (after allowing for the transitional provisions) in respect of each of two counts of burglary involving substantial property. He was sentenced to 2 years' imprisonment on a third count of burglary. The appellant had pleaded guilty. The sentences were ordered to be served concurrently with each other but cumulatively upon sentences imposed in respect of other offences, giving rise, in total, to a term of 6 years' imprisonment. The sentence of 2 years and 8 months' imprisonment imposed in respect of each of the burglary offences was described by Roberts-Smith JA as having been "clearly within the range of sentences which could properly have been imposed" (at [92]). Mc Lure JA (at [135]) considered that the sentences for the burglary offences were not manifestly excessive.

15 In the light of these cases, it seems to me to be difficult to suggest that any of the sentences imposed in respect of the burglary offences was manifestly excessive, even allowing for the early pleas of guilty (in respect of which, for reasons that were not explained, a lower than usual and somewhat variable discount was allowed). I am consequently satisfied that counsel for the appellant was right in his decision not to pursue that aspect of the grounds of appeal. The offences were, as I have said, carefully planned and, while each may not have involved a particularly large amount of property, the value of the property stolen was not insignificant. As I have also said, there was little in the appellant's antecedents that provided any real mitigation, given his extensive record of similar offending. There is no suggestion that the sentence imposed in respect of the theft of the motor vehicle was excessive.

16 That brings me to the issue of totality. A total sentence of 11 years and 8 months' imprisonment in respect of a series of offences of this kind, only one of which involved a circumstance of aggravation (not involving any violence on the part of the appellant), is extraordinarily severe. It equates to a term of 17 years and 6 months' imprisonment prior to the operation of the transitional provisions. That is well outside the range of sentences that might previously have been expected in cases of this kind

of offending, or even in cases of more serious offending. So, for example, in Herbert (which, as I have said, was decided prior to the operation of the transitional provisions), the appellant was sentenced in respect of 33 offences. I have mentioned that there were two counts of armed robbery (one of these being armed robbery in company) and four charges of burglary of a habitation. In addition, there were five counts of fraud, two of attempted fraud, four of stealing, two counts of threat to injure and a number of counts charging lesser offences. The total term of imprisonment was, as I have said, one of 15 years' imprisonment (equivalent to a term of 10 years' imprisonment after the operation of the transitional provisions). When regard is had to the sentences imposed in that case, and in the others to which I have referred, and accepting that home burglaries must be regarded by the courts as serious and that the perpetrators must be dealt with severely, it seems to me, with respect, that a just and appropriate measure of the total criminality involved in this case could not justify an aggregate sentence so severe as that imposed in this case.

17 I would consequently allow the appeal and set aside the aggregate sentence imposed by the sentencing Judge. While I would not interfere with the individual sentences imposed, it seems to me that the application of the totality principle supports the imposition of an aggregate sentence, in this case, of 7 years and 8 months' imprisonment. I would achieve that result by ordering that each of the sentences imposed should be served concurrently with the other sentences imposed, save for that imposed in respect of count 51 (the aggravated burglary) and that imposed in respect of count 32. Each of those sentences should be served cumulatively upon the other sentences imposed and also cumulatively upon each other, making up the total period of imprisonment of 7 years and 8 months (equivalent to 11 years' and 3 months' imprisonment prior to the operation of the transitional provisions). The sentences would still be taken to have commenced on the date upon which the appellant was taken into custody, being 17 September 2004. He will remain eligible for parole. Consequently, the earliest date upon which he could be released on parole would be 5 years and 8 months after 17 September 2004.

19 MILLER AJA: I have had the advantage of reading in draft the reasons for decision of Steytler P. I agree with those reasons and have nothing to add.

Sentencing Legislation Amendment and Repeal Act 2003(WA)

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