R v Vletter [2004] WASCA 96

Court of Appeal (WA)|2004-05-14|Before: Malcolm CJ

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

CITATION : R -v- VLETTER [2004] WASCA 96

Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA

Criminal law - Sentencing - Aggravated burglary on commercial premises - Need for general deterrence - Suspension of sentence - Breach of previous order for suspension of sentence

1 MALCOLM CJ: This is a Crown appeal against sentence. The facts have been outlined in the reasons to be published by McKechnie J. The principles applicable to such an appeal under 688(2)(d) of the Criminal Code are well-settled. In R v Petersen [1984] WAR 329 at 330, they were said by Burt CJ to be identical to those stated by Brennan, Deane and Gallop JJ in R v Tait (1979) 46 FLR 386 at 387 - 388. After referring to Harris v The Queen [1954] HCA 51; (1954) 90 CLR 652; Kovac v The Queen (1977) 15 ALR 637 and Cranssen v The King [1936] HCA 42; (1936) 55 CLR 509 at 519 - 520 per Dixon, Evatt and McTiernan JJ and stating the general principles upon which an appellate court will interfere with a sentence imposed, their Honours said in relation to a Crown appeal specifically:

"Although an error affecting the sentence must appear before the appellate court will intervene in an appeal either by the Crown or by a defendant, a Crown appeal raises considerations which are not present in an appeal by a defendant seeking a reduction in his sentence. Crown appeals have been described as cutting across 'time-honoured concepts of criminal administration' (per Barwick CJ, Peel v The Queen [1971] HCA 59; (1971) 125 CLR 447 at 452). A Crown appeal puts in jeopardy 'the vested interests that a man has to the freedom which is his, subject to the sentence of the primary tribunal' (per Isaacs J, Whittaker v The King at 248). The freedom beyond the sentence imposed is, for the second time, in jeopardy on a Crown appeal against sentence. It was first in jeopardy before the sentencing Court."

2 As McKechnie J has detailed in his reasons, the respondent pleaded guilty in the District Court in respect of three offences on an indictment namely, an offence of burglary at the premises of Multigroup Distribution Services Pty Ltd when in company; stealing a motor vehicle, namely an Isuzu truck, registration number 705 171, the property of P J & S D Morgan Transport Pty Ltd trading as Morgan Transport; and on 14 November 2001, at Maida Vale, receiving a refrigerator and a microwave oven the property of Midland Electrical Pty Ltd trading as Harvey Norman Midland which had then lately been stolen when he well knew the same to have been so stolen.

3 In addition, the applicant admitted that on 6 October 2000 in the Midland Court of Petty Sessions he had been convicted of a breach of an intensive supervision order imposed on 24 August 1999. On the same date he was sentenced to a term of imprisonment for 6 months which was suspended for a period of 2 years commencing on 6 October 2000. He admitted that he had been convicted on 15 September 2003 on his own confessions of aggravated burglary, stealing a motor vehicle and receiving. As a consequence he had admitted a breach of the suspended imprisonment order to which I have referred. It was clarified that there was a breach of an intensive supervision order, as well as a breach of a suspended sentence. In relation to the first matter the Court required that there be a sentence of imprisonment for 6 months suspended for 2 years and the Magistrate appears to have ordered that the other suspended sentence continue. That raised another matter with which the learned Judge would have to deal.

4 The trial of the respondent and his co-offenders was originally listed on 20 March 2003 for 7 days commencing on 23 September 2003 on an indictment dated 4 September 2002. In late August 2003 counsel for the respondent indicated that, if the Crown was willing to accept the three counts on the indictment dated 11 September 2003 in full satisfaction of the matters on the original indictment, the respondent would plead guilty. This offer was accepted.

5 The facts have been adequately summarised in the reasons for decision to be published by McKechnie J. His Honour has detailed the value of the property stolen and the damage caused by the activities. On 14 November 2001 the respondent was arrested by police and taken to Cannington police station where he participated in a videotaped record of interview. He refused to answer any questions or to assist police in the recovery of any of the outstanding property. The total value of the property recovered from the burglary was approximately $110,000 leaving some $51,000 worth of property unrecovered.

6 In relation to count 3 on the indictment, on 11 September 2001 a burglary occurred at a set of factory units in Elmsfield Road in the suburb of Midvale. The two rear units were used as an off-site warehouse for Harvey Norman. The burglars cut the telephone wire at the front of the units and smashed the external siren to the alarm in order to steal property from the premises without alerting security. Approximately $112,278 worth of property was stolen during the burglary, consisting predominantly of television sets, video recorders, stoves, dishwashers, microwave ovens and stereos.

7 On 14 November 2001 police from the Central Metropolitan Burglary Investigation Group executed a search warrant at the respondent's home in Maida Vale. They located a Fisher & Paykel stainless steel refrigerator and an LG microwave oven which were stolen during the burglary of the Harvey Norman premises. The serial numbers and other forms of identification from those items had been removed.

8 So far as the suspended sentence was concerned, the first charge was one of stealing a motor vehicle and the second one of stealing. At about 7.30 am on Wednesday 24 February 1999 the complainant parked his Holden Commodore sedan in the carpark of the Fremantle TAFE situated in Grosvenor Street, Beaconsfield. At about 2 pm on that day the respondent, in company with another male person, drove his Ford Telstar sedan, registration number 1AFL-452, to that location. The co-offender gained entry to the vehicle by forcing the door lock, while the respondent waited in his vehicle nearby. Once inside the vehicle the accomplice forced the ignition and started the vehicle. The co-offender then drove the Commodore to a carpark on the corner of South Street and Stockdale Road, while the respondent followed in his vehicle.

9 The respondent's counsel informed the learned trial Judge that he did not become involved in the matter until some time after it had been set down for trial. By a letter dated 7 August 2003 the respondent's solicitor informed the Director that he was prepared to indicate which statements of witnesses would not be required. When he was contacted he indicated that the respondent would be prepared to plead to two of the stealing counts on the indictment together with one count of receiving. These charges were then incorporated in the indictment to which he pleaded guilty.

10 After the plea had been taken and the plea in mitigation made, the proceedings were adjourned to 10 October 2003. On that date the matter was further adjourned to 31 October 2003. At that time the respondent pleaded guilty to two further offences pursuant to a notice under s 32 of the Sentencing Act 1995, namely, one count of being on premises without lawful excuse and one count unlawful possession. These two offences were committed on 9 and 14 November 2001. The first of these offences related to unlawful entry of the premises of Morgan Transport for the purpose of cutting through a fence so as to gain entry into the premises of Star Track Express. The second offence was a count of unlawful possession related to the respondent being found in possession of a number of items forming part of the proceeds of the burglary at the premises of Harvey Norman.

11 The learned Judge was of the view that the respondent was "probably" the instigator of the offences outlined in counts 1 and 2 on the indictment and described the aggravated burglary as a "well-organised and premeditated offence" involving property of considerable value being taken, a considerable quantity of which was unrecovered. His Honour also noted that there was a disparity of ages between the respondent and his co-offenders all of whom were considerably younger. His Honour went on to say:

"You have an extensive record, but the offences have been getting less serious and it should be remembered that the offences that I am dealing with now occurred in 2001, namely those on the indictment, and the original offence leading to the intensive supervision order was an offence in October 2000. The pre-sentence report is reasonably significant and to use the same word, it says, 'That there have been significant shifts in your attitude in recent times and there has been an acceptance by you that you need to address a number of things which were leading up to your offending.'

As I have said, since these offences took place, there have been some offences in recent times but they relate mainly to traffic matters and a breach of bail, etcetera, so there has been quite a dramatic change in the history, if I can use that expression. The Crown called for an actual and significant term of imprisonment and though whilst a prison term is apparently conceded as highly likely by your counsel, he has asked that this be suspended. An overall view of your history shows that the last several years has seen a vast improvement in your pattern of offending and what can probably be described as valiant attempts on your part to get assistance and deal with your problems. You have an ongoing family situation, with a relatively stable situation with your wife and children and you have had some employment. I have decided that whilst a gaol term should be imposed, you should be given one last chance and to continue your rehabilitation and I propose to suspend that term. It is the last chance. If you commit any offence from now on, you will be brought back and with your history and record, etcetera, you will certainly serve that term.

Now, the position is that on the indictment, on count 1, you would have been sentenced to a period of 3 years' imprisonment. That will be reduced to 2 years. On count 2, there is a term of 1 year's imprisonment and that is concurrent with count 1. On count 3, there is 2 years' imprisonment and that is concurrent with count 1. The term of imprisonment therefore on the indictment is 2 years' imprisonment and on each of the other two counts you are sentenced to 3 months' imprisonment. That is the matters on the s 32 notice and they are concurrent with each other and concurrent with the other terms.

The suspended term is to be activated but that is to be served concurrently with the terms of 2 years. Therefore, there is a term of 2 years' imprisonment, you are eligible for parole, the minimum term to be served is 12 months, and that term is suspended for 2 years."

12 It was contended on behalf of the Crown that the sentences so imposed were manifestly inadequate. The particulars in support of that contention were that:

"(a) The sentence failed to adequately reflect the seriousness of the offence and the circumstances in which it was committed; including:

(i) the fact that the respondent was the instigator of the aggravated burglary;

(ii) the fact that the aggravated burglary was premeditated and well-organised;

(iii) the fact that the value of property stolen in the aggravated burglary was considerable.

(b) The learned sentencing Judge gave too much weight to the improvement in the respondent's recent pattern of offending.

(c) The sentence imposed suggests that the learned sentencing Judge failed to have sufficient regard to the maximum penalty available for the offence."

13 It was contended on behalf of the Crown that the respondent was the instigator of the most serious offence, namely, the aggravated burglary. The offence was described as "well-planned" and involved the respondent instructing others how to cut telephone wires to facilitate the burglary without being caught, leaving the premises to maintain a watch to see if the cutting of the wires had any consequence; stealing a truck to go and load up a great number of expensive items; and then returning with a person stationed outside keeping a look-out and in mobile telephone contact with the co-offenders inside the premises.

14 It was submitted on behalf of the Crown to the learned sentencing Judge that the respondent was older than the others and that:

"He was taking the role of somewhat of a Fagin role, the Crown says in teaching the younger co-offenders what to do and in terms of the record they are in very different categories."

15 In particular, it was pointed out that the co-offender Cook was aged 18 at the time. He had pleaded guilty before Kennedy DCJ (as she then was) to three counts including the unlawful entry and the stealing from Star Track Express. He had pleaded guilty at a relatively early opportunity and was sentenced on 5 March 2002. He had no prior record and was sentenced to an intensive supervision order for 2 years with a requirement of 240 hours of community service together with supervision and program requirements.

16 A second and subsidiary offender, one Levi James Luke, who was 20 years of age, was sentenced following his plea of guilty to an intensive supervision order for 2 years with a requirement to undertake 240 hours of community service work together with a program and supervision requirement as well as psychological counselling. A third co-offender, Brendan Ernest Maddison, who was 18 years of age, was sentenced on 28 March 2002 following his plea of guilty to an intensive supervision order for 2 years with a requirement to undertake 240 hours of community service work. Finally, the fourth co-offender, Leigh Bennett, who was aged 21, was sentenced to a community based order for 18 months and ordered to undertake 50 hours of community service work for receiving.

17 Upon the resumption of the proceedings on 10 October 2003 it was noted that counsel for the respondent had written to the Court, with a copy to the prosecution, indicating the facts which were accepted by the respondent. The principal variations from the prosecution case concerned the involvement of others and, in particular, Mr Cook. At the same time counsel for the respondent indicated that he was reluctant to have a trial of the issues. As McKechnie J has pointed out in his reasons, counsel for the respondent has accepted that the respondent was the eldest of those involved and a willing participant, but disputed that he was the instigator.

18 The learned Judge was not provided with details regarding the specific offences which had been committed by Cook. In my opinion, there is some doubt whether the materials in possession of counsel for the prosecution justified the submission that the respondent had adopted a "Fagin role" in teaching the younger co-offenders what to do. This was particularly so in the case of the co-offender Cook.

19 Cook was sentenced by Kennedy DCJ. It was submitted by counsel for the prosecution to Kennedy DCJ that:

"In relation to Cook, aside from the [respondent], Cook's involvement here was clearly more than the other offenders by virtue of the fact that he was involved in the commission of all three aggravated burglaries, each occurring on separate days in different months. As I have said, they were serious examples of aggravated burglaries, especially given that they were Mr Cook's first ever offences."

20 In the case of Cook, the prosecution had conceded that there were reasons why the Judge might give serious consideration to a suspended term of imprisonment because he had approached the police and admitted his involvement when he was not a suspect. He also provided information about the involvement of others, was found to be a remorseful young man with no prior criminal history, who was prepared to give evidence against the respondent In sentencing Cook, Kennedy DCJ noted that on 11 September 2001 Cook had burgled Harvey Norman at Midland when property worth $112,000 had disappeared and only one refrigerator and one microwave oven had been recovered. On 7 October 2001 at Rockingham he was also involved in the burglary of Perth Power Tools when property valued at $67,275 was stolen, only some of which was recovered.

21 In my opinion, it is of some significance that the burglaries committed by Cook involved a similar course of conduct to the offences in which the respondent was involved. The two burglaries with which Cook was separately convicted both involved the cutting of telephone wires and the disabling of an external alarm by smashing it.

22 In the circumstances, had the learned Judge who sentenced the respondent been fully apprised of Cook's role and background it may well have been extremely difficult to differentiate between the respondent and Cook. It is clear, however, that it would not have been open to the learned Judge to find that the respondent's role was that of a "Fagin". At best, there may have been a basis for finding that Cook and the respondent were equal participants. For those reasons particular (a)(i) of the ground of appeal has not been made out.

23 Insofar as it was contended that the sentence failed to reflect the fact that the aggravated burglary was premeditated and well-organised is concerned, the learned Judge specifically found that:

"The aggravated burglary was well-organised and a premeditated offence, considerable value of property was taken, considerable sums left unrecovered and there was a disparity of ages between you and the other people involved in the matter."

24 In my opinion, the question remains whether the sentence was manifestly inadequate in all of the circumstances. In my opinion, that question leads one to the contention in the ground of appeal that the value of the property stolen in the aggravated burglary was also considerable. So much may be accepted.

25 The respondent was a willing participant in the offence, as his counsel conceded in his submissions on sentence. It was contended by the Crown that the respondent was the instigator of the offence. While at one stage counsel for the respondent raised the possibility of a trial of the issue on that point, he informed the learned Judge that the respondent did not seek that matter to be the subject of the trial of an issue.

26 While the respondent played a leading role, I do not consider that it was necessarily accurate to refer his role as a "Fagin role", instructing and directing the younger co-offenders. Cook in particular, was apparently already familiar with cutting the wires of an alarm system. It is also apparent, however, that the respondent played a leading role. He directed two of the co-offenders to cut the alarm system wires on the night of the burglary; directed co-offenders to load the stolen truck while he acted as a look-out, telephoned a co-offender to inform him that someone was at the front of the premises; instructed the co-offenders to dispose of the gloves used in the offence by dropping them out of the car window at 20-metre intervals and followed the stolen, loaded truck to an address in Gosnells.

27 It was also submitted that the respondent was substantially older than the other offenders and, as the "instigator and controlling mind of the offence", he had a corrupting influence over his younger co-offenders. In this connection it was submitted that the respondent, at age 27, had an extensive criminal record, including a number of offences of dishonesty. By comparison, it was pointed out that Cook was aged 18 years and had no prior criminal record. There was, however, material to suggest that Cook was not a novice burglar, although he had not yet acquired convictions. The co-offender Luke had some convictions in the Children's Court for aggravated burglary although, at the time of the commission of the subject offence, he had no prior convictions for burglary as an adult, or any prior record for dishonesty offences since 1997.

28 The co-offender Maddison, who was aged 18, had some prior convictions relating to drug offences, but no prior convictions of offences involving dishonesty. Numerous other people were found to be in possession of some of the stolen property and these persons were also charged. Counsel for the respondent accepted that the respondent was the oldest person in the group.

29 The learned sentencing Judge concluded that the principal offence was serious; found that the respondent was probably the instigator; the offence was premeditated; property of considerable value was taken, much of which was unrecovered; and that there was a disparity in age between the respondent and the other co-offenders.

30 The maximum penalty for the offence of aggravated burglary under s 401(2)(a) is imprisonment for 20 years. The fact that the respondent was in company with others is a circumstance of aggravation. The maximum penalty for the stealing of the motor vehicle in contravention of s 371A as provided in s 378 is imprisonment for 8 years. The maximum penalty for receiving which was the subject of count 3 on the indictment is imprisonment for 14 years.

31 As the statistics show, burglaries of premises other than dwellings in Western Australia have fluctuated in the 10 years to 31 December 2002 from a low of 16,642 in 1997 to a high of 22,111 in 2001, falling back somewhat to 20,783 in 2002. The prevalence of the offences is such that the courts are bound to emphasise the seriousness with which Parliament has regarded these offences by the specification of a maximum sentence of imprisonment of 20 years for a single offence. The present maximum penalty of imprisonment for 20 years was introduced by an amendment to the Criminal Code in 1996. Naturally, the maximum penalty is reserved for the most serious offences of this type.

32 The aggravated burglary of the premises of Star Track Express was a particularly serious offence given the degree of organisation and planning in which the respondent was involved, including the prior planning of the cutting of the telephone wires to neutralise the alarm, the provision of gloves, the stealing of the vehicle used to carry away the property stolen, the value of the subject property, the value of the property not recovered and the damage to the premises of Star Track Express. The material put before the learned Judge justified a finding that the respondent was the leader of the group who was largely responsible for the organisation and planning of the burglary of the premises. He was significantly older than his co-offenders who were aged between 18 and 20 years. He had an extensive criminal record, including a number of prior offences involving dishonesty. Cook, who was aged 18, had no prior criminal record. Luke, who was aged 20, had some convictions in the Children's Court for aggravated burglary, but none as an adult and no prior record for offences of dishonesty since 1997.

33 There were numerous other persons found in possession of items of the property which had been stolen who were also charged with receiving.

34 The learned Judge described the offence as serious; found that the respondent was "probably" the instigator; the offence was premeditated and well-planned; the value of the property stolen was very substantial; a considerable amount of the property stolen was not recovered; and that there was a considerable disparity in age between the respondent and his co-offenders.

35 McKechnie J has set out the details of all of the sentences imposed in respect of the offences with which the learned Judge had to deal, including details of the sentences imposed on the co-offenders Luke, Maddison and Bennett. The learned sentencing Judge was not, however, provided with details of the offences of which Cook was convicted including, in particular, the offences in which both the respondent and Cook were involved. As his Honour has pointed out, Kennedy DCJ regarded Cook's role as clearly more than the roles of the other co-offenders, apart from the respondent. This was primarily because he was involved in all three aggravated burglaries, although they were the first offences of which Cook was convicted, but the learned sentencing Judge had not been fully informed of Cook's background.

36 In my opinion, however, the evidence did not justify a conclusion beyond a reasonable doubt that the respondent was the mastermind or instigator of the aggravated burglaries. The evidence justified a finding that he was closely involved in the planning and organization of the burglaries with the assistance of Cook in particular. It follows that the contention that the respondent should have been sentenced on the basis that he was the instigator of the aggravated burglary cannot be sustained.

37 There was no doubt, however, that the aggravated burglary was premeditated and well-organised and that the value of the property stolen was considerable, a significant proportion of which was not recovered. I agree with McKechnie J that, having regard to the seriousness of these offences and, in particular, the aggravated burglary of the Star Track Express and the reasons his Honour has expressed in his judgment that an appropriate sentence for the aggravated burglary the subject of count 3 would be a sentence of imprisonment for 5 years.

38 So far as the sentence on count 2 is concerned, it was conceded by counsel for the Crown that the sentence imposed in respect of count 2 was appropriate and it was not argued that it should have been other than concurrent.

39 Count 3 involved an offence unrelated to those in counts 1 and 2. The appellant does not contend that the sentence of imprisonment for 3 years in respect of count 3 was inadequate. The contention was that it should have been cumulative rather than concurrent. I agree with McKechnie J that the Crown's contention that this sentence should have been made cumulative should be upheld.

40 Likewise, I agree with McKechnie J that each of the sentences imposed in respect of the offence of being on premises without lawful excuse and unlawful possession should have been made concurrent. The first of those sentences was part of the transaction which gave rise to counts 1 and 2 on the indictment. The second was directly related to count 3. There was no error identified in making these sentences concurrent. I am of the same opinion with respect to the concurrent sentence imposed in respect of the sentence of imprisonment for 6 months for breach of the Intensive Supervision Order. The concurrency of that sentence was justified by the application of the totality principle, although it was a distinct offence.

41 I also agree with McKechnie J that the appeal should be allowed to the extent that the sentence imposed by the learned Judge in respect of count 3 should be served cumulatively upon the sentences imposed in respect of counts 1 and 2. Those sentences related to a different transaction and making them cumulative would not result in a crushing sentence which would infringe the totality principle.

42 I agree with McKechnie J for the reasons his Honour has expressed that the Crown appeal against the suspension of the sentences should be allowed. Finally, I agree that the appeal should be allowed and the

sentences varied as proposed by his Honour so that the total sentence to be immediately served is one of imprisonment for 4 years with eligibility for parole in respect of each of the sentences imposed.

43 WHEELER J: I have had the advantage of reading the reasons for decision of the Hon Justice McKechnie with which I am in agreement.

44 On 15 September 2003 the respondent pleaded guilty on indictment charging him that:

"(1) On or about 9 November 2001 at Welshpool BRIAN VLETTER, while in the place of MULTIGROUP DISTRIBUTION SERVICES PTY LTD trading as STAR TRACK EXPRESS without its consent, committed the offence of stealing

AND THAT BRIAN VLETTER was in company with others.

(2) AND FURTHER that on or about 9 November 2001 at Welshpool BRIAN VLETTER stole a motor vehicle, namely an Isuzu truck, registration number 705 171, the property of PJ & SD MORGAN TRANSPORT PTY LTD trading as MORGAN TRANSPORT.

(3) AND FURTHER THAT on 14 November 2001 at Maida Vale BRIAN VLETTER received a Fisher and Paykel stainless steel refrigerator and a LG microwave oven the property of MIDLAND ELECTRICAL PTY LTD trading as HARVY NORMAN MIDLAND, which had then lately been stolen, then well knowing the same to have been so stolen."

45 The facts were comprehensively outlined by the State Prosecutor. In short, 2 days before the burglary in count 1, the respondent and one Cook went to a Telstra manhole near the Star Track Express warehouse in Railway Parade, Welshpool, and identified the wires which needed to be cut in order to disable the alarm. On 9 November 2001 the respondent, in company with Cook and two others, went back to the warehouse. The telephone lines were cut. Shortly after the offenders cut through fencing in a neighbouring premises of Morgan Transport to get into the premises

of Star Track Express. The external alarm siren of Star Track Express was smashed and the offenders forced opened a roller door. The offenders then drove to McDowell Street in Welshpool and stole an Isuzu truck causing several thousand dollars worth of damage to the truck before driving it back to Star Track Express. At the Star Track Express premises the truck was loaded with outboard motors, motorcycles, generators and power tools to the total value of approximately $161,000. The truck was driven to an address in Gosnells where the bulk of the stolen property was dropped off. The respondent was arrested 5 days later on 14 November 2001. The total value of the stolen property recovered, thanks to the efforts of the police, was approximately $110,000, leaving $51,000 worth of property unrecovered.

46 Some months earlier, on 11 September 2001, a burglary occurred at a set of factory units in Midvale used as an off-site warehouse for Harvey Norman. Again the burglars, including Cook, cut the telephone wires and smashed the external siren. Approximately $112,278 worth of property was stolen, some of which was located by police at the respondent's home on 14 November 2001. The serial numbers and other forms of identification had been removed. The respondent pleaded guilty to receiving some of the proceeds of this burglary.

47 In addition to pleading guilty to the indictment, the respondent pleaded guilty to breaching the conditions of a 6 month prison term, suspended for 2 years, which had been imposed on 6 October 2000. That 6 month term and suspension had in turn been imposed for breach of conditions of an ISO made on 24 August 1999 for an offence of stealing a motor vehicle whereby the respondent assisted a co-offender to steal a Holden Commodore from a car park.

48 After the prosecution's statement of facts was read and a plea in mitigation made, the proceedings were adjourned to 10 October 2003. Sentencing did not take place then, however, because a dispute had arisen as detailed later in these reasons. As a result the proceedings were further adjourned to 31 October 2003.

49 On that day the respondent pleaded guilty to two further offences pursuant to the Sentencing Act, s 32: one count of being on premises without lawful excuse and one count of unlawful possession. These two offences related to the events of the 9 and 14 November 2001. Morgan Transport occupied premises adjacent to Star Track Express and the respondent entered those premises to cut through the fence and gain entry into Star Track Express. The count of unlawful possession related to a number of items arising from a burglary at Harvey Norman.

50 In the course of his sentencing remarks, the Judge expressed his opinion that it was clear from the facts that the respondent was probably the instigator of the offences outlined in counts 1 and 2. He described the aggravated burglary as:

"... well organised and a premeditated offence, considerable value of property was taken, considerable sums left unrecovered and there was a disparity of ages between you and the other people involved in the matter."

51 The Judge received a pre-sentence report and noted that the offences with which he was dealing occurred in 2001. In his opinion, there was a dramatic change in the respondent's history which he described as a "vast improvement" in the pattern of offending and:

"... what can probably be described as valiant attempts on your part to get assistance and deal with your problems."

Each term was ordered to be served concurrently. The suspended sentence was activated but to be served concurrently with the term of 2 years. A parole eligibility order was made. Each term of imprisonment, as just detailed, was ordered to be suspended for a period of 2 years.

53 The prosecution appeals against the manifest inadequacy of the sentences and the order for suspension on grounds which are common as follows:

"1. The learned sentencing Judge erred in imposing sentences which were manifestly inadequate in all the circumstances of the offences.

PARTICULARS

(a) The sentence failed to adequately reflect the seriousness of the offence and the circumstances in which it was committed, including:

(i) the fact that the Respondent was the instigator of the aggravated burglary;

(ii) the fact that the aggravated burglary was premeditated and well organised;

(iii) the fact that the value of the property stolen in the aggravated burglary was considerable.

(b) The learned sentencing Judge gave too much weight to the improvement in the Respondent's recent pattern of offending.

(c) The sentence imposed suggests that the learned sentencing Judge failed to have sufficient regard to the maximum penalty available for the offence."

54 The particulars (ii) and (iii) of ground 1(a) are not contested but it is necessary to say something about ground (a)(i).

"(i) The fact that the respondent was the instigator of the aggravated burglary;"

55 This particular raises issues of fairness. In her submissions to the Judge the Prosecutor described the offence as follows:

"It was, the crown submits, well planned. It involved this offender instructing others how to cut telephone wires to facilitate the burglary without being caught, leaving the premises, watching the premises to see if the cutting of the wires caused any attention to come upon them, stealing a truck to go and load up a great number of expensive items and then returning and having somebody outside keeping a look-out and in mobile contact with co-offenders."

56 Later, after dealing with the co-offenders she said of the respondent:

"He is or was at the time older. He was taking the role of somewhat of a Fagin role, the crown says, in teaching the younger co-offenders what to do and in terms of the record they are in very different categories."

57 The Prosecutor described the antecedents of Cook as follows:

"The co-offender Kevin William Cook at the time was 18 years of age. He pleaded guilty before Judge Kennedy to three counts including the unlawful entry and stealing from Star Track Express. He was sentenced on 5 March 2002 so a plea at a relatively early opportunity. He had no prior record whatsoever and he received a 2-year ISO program with 240 hours' of community service ordered and supervision and program requirements. As I say, sir, he had no prior record and he was 18 years of age and he is in a very different category to this offender the crown submits."

58 The Prosecutor advised the Judge about the co-offenders. Levi James Luke was aged 20 years and was sentenced, following a plea of guilty, to a 2 year ISO with a 240 hours' community service work, and a program and supervision requirement, and psychological counselling.

59 Brendon Ernest Maddison was aged 18 years and was sentenced, on 28 March 2002, following a plea of guilty, to an ISO of 2 years and 240 hours' community service work. Leigh Bennett was aged 21 years and was dealt and received an 18 month CBO and 50 hours' community service work for receiving.

60 The issue as to whether the respondent was the instigator caused the delay in the sentencing process. At the first hearing, on 15 September 2003, counsel for the respondent made detailed submissions to the Judge.

61 When the matter returned to Court on 10 October 2003 it appears that counsel for the respondent had written to the Court, with a copy to the prosecution, indicating facts accepted by the respondent. These varied to a degree from those detailed by the prosecution. The principal variation concerned the involvement of others, especially Cook. Counsel for the respondent indicated that he was reluctant to have a trial of the issues. During the course of the proceedings the following interchange occurred:

"VIOL DCJ: The crown's position is that your client was in effect the instigator, the older person and the instigator. Now, that must make a difference in sentencing if that's, the case.

BOWDEN, MR: We accept the - elder person.

VIOL DCJ: But not the instigator.

BOWDEN, MR: We accept the willing participant, we don't accept the instigator."

62 The Judge was not given details about Cook's offences. He was arguably misled when the prosecution submitted that the respondent was taking a Fagin role in teaching the young co-offenders what to do.

63 We have been supplied with the transcript of Cook's sentencing hearing before Kennedy DCJ. During the course of the sentencing hearing, the Prosecutor said:

"In relation to Cook, aside from [the respondent], Cook's involvement here was clearly more than the other offenders by virtue of the fact that he was involved in the commission of all three aggravated burglaries, each occurring on separate days in different months. As I have said, they were serious examples of aggravated burglaries, especially given that they were Mr Cook's first ever offences."

64 In the case of Cook, the prosecution advanced reasons why the Judge might give serious consideration to a suspended term of imprisonment because Cook had turned himself in when not a suspect, admitted his and others' involvement, was remorseful, young, had no prior criminal history and was to give evidence against the respondent.

"On count 1 that involves only you Mr Cook, and you have been convicted that on 11 September 2001 you burgled Harvey Norman in Midland and at last count $112,000 worth of property had disappeared and from that one fridge and one microwave oven had been recovered. You next, on 7 October 2001, at Rockingham burgled Perth Power Tools and from that $67,275 worth of property was stolen and some of it was recovered."

66 As outlined earlier, it appears that the burglaries committed by Cook were committed in similar circumstances to the present offences in that telephone wires were cut and an external alarm was smashed. The amount of goods stolen by Cook demonstrates that he was well-versed in committing burglaries on a large scale.

67 In the circumstances, I would not uphold this particular ground of the appeal. Had the Judge been properly apprised of Cook's background, the Judge would have concluded that he was unable to tell who was the instigator. There is no basis for a finding that the respondent was a Fagin. However, it would have been appropriate for the Judge to have proceeded to sentence on the basis that whatever actual role the respondent played, he was at the least a willing participant in the events that occurred.

"(c) The sentence imposed suggests that the learned sentencing Judge failed to have sufficient regard to the maximum penalty available for the offence."

68 The maximum penalty provided for the offence of aggravated burglary is 20 years' imprisonment. Deterrence is an important principle in sentencing for burglaries of commercial premises: Fraser v The Queen [2003] WASCA 99 at [27], [28].

69 In Herbert v The Queen [2003] WASCA 61; [2003] 27 WAR 330 Malcolm CJ held at [5]:

"... in light of the increased penalties provided by Parliament, it is necessary for the courts to give effect to the clear intention of the legislature by increasing the sentences imposed for the offence by reason both of its prevalence and the increased level of community concern as a result."

"Burglary generally has been an offence for which sentences have been firmed up in recognition of the prevalence of the offence and the wide community concern about that prevalence...

...

'...Parliament recently singled out the offence for special treatment by increasing the maximum penalties for domestic burglaries in 1996. It is necessary that courts give effect to the reasons for these changes: see Peterson [1984] WAR 329; (1983) 11 A Crim R 164 per Burt CJ at 334; 169.'"

71 In this case, as in Herbert, the appellant was asked to provide statistical details to support its submission of prevalence of the crime of aggravated burglary.

72 In an extract from the "National Crime and Safety Survey" par 1.4 "Crimes Reported to Police in Western Australia-2002" Table IV shows "Trends in selected offences reported to police: 1993 - 2002". "Burglary on Other Premises" is as follows:

73 These figures indicate an increase in aggravated burglaries of premises, other than domestic premises, of approximately 12 per cent over the preceding 5 years to 2002.

74 As the sentencing Judge recognised, the burglary the subject of count 1 was premeditated and well-organised and the property stolen was of very considerable value. The Judge, applying the transitional provisions added as Sch 1 to the Sentencing Act 1995 by the Sentencing Act Amendment Act No 50 of 2003, would have imposed a sentence of 3 years' imprisonment on count 1 but for these amendments. Such a sentence pays no regard to the principles of general deterrence and the need for firmness in recognition of the prevalence of the offence. The sentence of 3 years, before adjustment, is manifestly inadequate unless there were personal factors which so outweighed the general principles as to justify a lenient sentence.

75 The respondent's antecedents do not predispose a substantial deduction to an otherwise appropriate sentence. Ignoring entirely any Children's Court offences, the respondent commenced offending as an adult in August 1992 and continued through to 1999 when he was convicted of stealing and placed on a 2 year adult ISO, that order being breached by a further conviction for stealing on 6 October 2000, and again by these convictions. Although I do not consider that the respondent's pattern of offending has shown a "vast improvement", as the Judge believed, this is a quibble because it was certainly open to find that the respondent's pattern of offending had improved.

76 The plea of guilty is a factor to be taken into account and credit should be given for it. It was made after negotiations with the prosecution resulting in a fresh indictment and it was not then a late plea which would justify only a small reduction in sentence.

77 To a degree, the recovery of a fair amount of the property is significant. However, some $50,000 worth of property is unrecovered.

78 Although some attempt was made by counsel on behalf of the respondent to argue the question of parity, such an argument is unsustainable. Kennedy DCJ, who sentenced the others, carefully distinguished the features in their particular case, chief of which was youth. As she said:

"I want to warn all three of you that you are not like ordinary young people that come before these courts and get community based or intensive supervision orders. You have got intensive supervision orders for offences for which you should have gone to gaol and had you been any older and had there not been these other circumstances where you have cooperated and as much property as could possibly be recovered has been recovered and another few matters that I will mention, you would be going to gaol..."

79 A sentence must provide for general deterrence in view of the prevalence of offences of burglary on commercial premises. Having regard to the circumstances of the offence disclosed in count 1, including its premeditation, execution, quantity of goods stolen, and the fact that it was committed in company, I would chose a starting figure of 7 years under the former sentencing regime which I would reduce to 5 years for the matters of mitigation I have outlined.

80 I would not reduce the sentence further on account of parity as I do not regard the personal circumstances are equal. Although Cook's involvement might be regarded as equal, he was 18 years of age, as against the respondent's 28 years, and without the same record. In addition, there were the other matters mentioned by Kennedy DCJ.

81 The grounds of appeal, subject to the comments in relation to ground 1(a)(i), have been generally made good. I specifically find that the sentence imposed was in error because of its failure to provide general deterrence for a sophisticated, well-planned, burglary of commercial premises.

82 The appellant concedes that the penalty imposed for count 2 is appropriate and that it was appropriate for the sentence to be made concurrent.

83 Count 3 was unrelated to counts 1 and 2. It is not part of the same transaction. The appellant does not complain about the length of the sentence but contends the Judge was in error in imposing a sentence to be served concurrently with the sentences imposed on counts 1 and 2 thereby substantially contributing to the overall inadequacy of the sentence.

84 In my opinion, these contentions have substance and, subject to the issue of totality, the sentence for count 3 should be ordered to be served cumulatively on any other sentence to be imposed.

85 I would not interfere with the sentences of 3 months imposed for being on premises without lawful excuse and unlawful possession. The offence of being unlawfully on the premises is part of the same transaction involving counts 1 and 2. The offence of unlawful possession is directly related to count 3.

86 Nor would I interfere with the sentence of 6 months imposed following the breach of the ISO. Although, logically, a distinct offence, for reasons relating both to totality and the time when the offence was committed, I would not interfere with the order for concurrency.

87 Although the grounds of appeal relating to count 1 have been generally made out, it does not follow that a different sentence should now be passed: Criminal Code s 689. The sentence I would have imposed, had I been the sentencing Judge, is a term of 5 years' imprisonment. When adjusted under Sch 1, the sentence becomes one of 3 years 4 months. However, the respondent has been serving a suspended sentence since October 2003. There is no evidence that he has breached the order for suspension so it can be taken that the improvement evinced between the time of offence and time of plea continues. Moreover, it is necessary to apply a degree of moderation in prosecution appeals to take account of a principle which the Courts recognise and refer to, somewhat inaptly, as double jeopardy.

88 For these reasons, although satisfied that the sentence in respect of count 1 was in error, I am not satisfied that a different sentence should now be passed.

89 To the extent to which this judgment may provide guidance for future sentences in cases of burglary of commercial premises, I should clearly state that guidance should be drawn from the reasons about the need for general deterrence and firming up of sentences to reflect the maximum penalty, not from the actual sentence imposed.

90 I would order that the sentence on count 3 be served cumulatively on the sentence for counts 1 and 2. The offences arose from quite different transactions and the total sentence does not exceed a sentence appropriate for the criminality disclosed in the indictment.

91 It is unnecessary to restate the principles which are set out in Dinsdale v The Queen (2002) CLR 321. The suspension of the sentence was in error. The respondent had shown himself incapable of complying with an ISO or with a suspended sentence. The nature and circumstances of the offence required a sentence of imprisonment to be served forthwith notwithstanding the respondent's efforts at rehabilitation. Those efforts and the need for rehabilitation can be appropriately recognised within the sentence by way of a parole eligibility order.

92 I would allow the appeal to set aside the order for suspension in each case and vary the orders of the sentencing Judge as follows:

• Sentences on counts 1 and 2 to be served concurrently. Sentence on count 3 to be served cumulatively on counts 1 and 2.

• Breach of ISO imposed on 24 August 1999 - 6 months to be served concurrently with count 1.

• Unlawfully on premises - 3 months to be served concurrently with count 1. (PE 47368/01, 9 November 2001).

• Unlawful possession - 3 months to be served cumulatively on counts 1 and 2 but concurrently with sentence on count 3. (PE 26508/02, 14 November 2001).

93 The total sentence is one of 4 years' imprisonment. I would confirm the Judge's order for parole eligibility in each case.

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Judgment (130 paragraphs)

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Cases Cited (5)