R v Ward [1999] WASCA 157

1 MALCOLM CJ: This is a Crown appeal. The principles applicable to Crown appeals are set out in R v Grein [1989] WAR 178 at 179-180 per Malcolm CJ. They do not need to be repeated.

2 On 19 May 1999 the respondent was convicted on his plea of guilty to two counts of aggravated burglary, the subject of counts on two separate indictments. Count 1 concerned an offence which was committed on 28 June 1997 at Kewdale where in the place of Kathleen Naomi Clinton, without her consent, the applicant committed the offence of assault on one Nathan Skedgwell, and at the time he was in company with others, did bodily harm to Ms Clinton, and did bodily harm to Simon Taylor and Daniel Clinton, contrary to s 401(2)(a) of the Criminal Code. The maximum penalty for that offence is imprisonment for 20 years.

3 The second offence of which the respondent was convicted was that on 4 May 1998 at Kewdale, being in the place of Radmilla Markovich without her consent, being a place ordinarily used for human habitation, he committed the offence of stealing and was in company with others. That was likewise an offence under s 401(2)(a).

4 The plea of guilty was made on the day on which the respondent's trial was to commence in respect of these offences. In each case the offender was liable to a minimum term of at least 12 months' imprisonment by reason of his prior convictions for aggravated burglary. The learned Judge was informed that the applicant had a substantial prior record of offences covering some eight pages, six pages of which were juvenile offences, but there were two previous burglaries on dwellings as an adult. This brought him within the so-called "three strikes" provision in the Criminal Code.

5 The courts in this State have taken the view for some considerable period that the offence of burglary is a serious offence, the prevalence of which has been the subject of considerable community concern. In a number of cases the Court has held that the range of sentences imposed for burglary offences when they are committed on people's homes, particularly when persons are present at the time when the offences are committed, should be firmed up: Pezzino v R (1997) 92 A Crim R 135 per Franklyn J at 138; and per White J at 148; Nguyen v R; Tran v R [1999] WASCA 54 per Kennedy J at [11]; and Heferen v R [1999] WASCA 81 at [35] per Anderson J.

6 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 R v Peterson [1984] WAR 329 per Burt CJ at 334.

7 In this case it is apparent that the imposition of sentences of imprisonment for 12 months for these two offences was extremely lenient, having regard to the circumstances under which they were committed as outlined by the learned sentencing Judge.

8 A home invasion which is committed with intent to intimidate the occupants by threatening them is more serious than a burglary which simply involves an intent to steal. To break into a dwelling house during the night-time for the purpose of inflicting a savage beating upon an occupant is a form of burglary which is at the upper end of the scale of seriousness. These two offences were serious offences of their kind.

9 The respondent is extremely fortunate to have been given such light sentences for these offences. Both of them were of an aggravated kind. They were, however, committed almost a year apart. While it is appropriate to order that a number of offences arise out of the same transaction may justify concurrent sentences, where the offences occur on quite separate occasions and involve quite separate transactions, then unless the totality principle would require some other approach the sentences should be imposed cumulatively; Ruane v R (1979) 1 A Crim R 284 per Wallace J at 286; Shaw v R (1989) 39 A Crim R 343, at 347 per Brinsden J; and Van Thong Dao v R, unreported; CCA SCt of WA; Library No 990015; 22 January 1999 per Murray J at 15-16.

10 This was not a case in which there was any room for the application of the totality principle. It was a case in which sentencing principles demanded that the sentences imposed be made cumulative upon each other. In my view the Crown appeal should be allowed and the sentences imposed by the learned sentencing Judge varied by directing that the two sentences, each of 12 months, should be served cumulatively upon each other.

11 IPP J: I agree with everything that has fallen from his Honour the Chief Justice. I should say that there were two grounds of appeal. One was that the sentences imposed failed to adequately reflect the seriousness of the offences. The other was that the sentences should not have been ordered to be served concurrently with each other.

12 At first sight both sentences are disconcertingly low. They are extremely lenient. On my reading of the transcript there is very little that supported sentences that were so light. However, the Crown has only persisted with the ground relating to the concurrency of the sentences. In the light of that fact the Court is required to uphold the appeal, only on the ground argued.

13 WHITE J: I agree, with respect, with both his Honour the Chief Justice and Ipp J.