Criminal law - Application for leave to appeal against sentence - Manifest excess - Parity - Turns on own facts

Sentencing Act 1995 (WA), s 32

1 McLURE P: This is an application for an extension of time and leave to appeal against sentence.

2 The appellant was convicted on her fast-track plea of guilty of two counts of aggravated burglary contrary to s 401(2) of the Criminal Code (WA). These offences were committed in company with her co-offender, Kyle Garlett.

3 On 18 July 2013 the appellant was sentenced by Fenbury DCJ to a term of imprisonment of 18 months on count 1 and 12 months on count 2. The sentences were ordered to be served cumulatively, resulting in a total sentence of 2 years 6 months.

4 The appellant had also pleaded guilty to 15 charges on a notice under s 32 of the Sentencing Act 1995 (WA), 10 of which were for stealing and one for breach of a bail undertaking. Fenbury DCJ imposed a term of imprisonment of 6 months for one of the stealing offences and 3 months for breaching the bail undertaking. He ordered the sentence of 6 months to be served cumulatively, resulting in a total effective sentence of 3 years' imprisonment.

5 On the same day, Fenbury DCJ sentenced Garlett to a term of imprisonment of 15 months on count 1 and 9 months on count 2. The sentences were also ordered to be served cumulatively, resulting in a total sentence of 2 years.

6 The appellant's grounds of appeal are that the sentences of imprisonment for the individual offences are manifestly excessive and that the total sentence breaches the parity principle.

7 The appellant commenced this appeal in April 2014, approximately seven months out of time. Although the appellant's case was prepared by someone with legal training, the appellant was unrepresented at the hearing of the application for leave to appeal.

8 Neither ground of appeal has any arguable prospect of succeeding. Accordingly an extension of time must be refused and the appeal dismissed.

9 The facts of the indictable offences are as follows. At the relevant time the co-offenders were in a relationship and the appellant was about four months' pregnant. As to count 1, between 1.25 pm and 1.40 pm on 27 November 2012, the victim, an 83-year-old female pensioner, was in her home cleaning when, sensing the presence of another person, she turned to find the appellant standing behind her. The appellant distracted the victim while Garlett entered and searched the master bedroom. When the victim went to get the telephone, the co-offenders left the house. They had stolen the victim's jewellery, the total value of which was $62,380. None of the property was recovered. Garlett's fingerprints were located in the master bedroom.

10 In relation to count 2, at about 6.00 am on 4 December 2012 the victim, a 70-year-old male pensioner, was at home alone. The appellant knocked on the front door of the victim's home. He opened the door and saw the appellant. Garlett was standing near the front door but out of the victim's view. The appellant asked to use the toilet. The victim refused the request and threatened to call police. The appellant brushed past the victim into the house causing him to lose his balance and stumble into a nearby door. The victim followed the appellant upstairs and caught her on the landing grabbing her by the hood of her jumper. The appellant kept moving through the house. She eventually made her way downstairs and left by the front door. While the appellant was upstairs with the victim, Garlett entered the house through the front door and made his way into the victim's bedroom. Garlett stole the victim's wallet which contained all his cards and approximately $500 in cash. Garlett went upstairs and located and stole the victim's money jar. None of the property was recovered.

11 On 18 December 2012 both offenders were arrested. Garlett made a full confession. The appellant denied any involvement in count 2.

12 The appellant's offending the subject of the s 32 notice included stealing a 14 foot boat and a ring from a jewellery store in Belmont valued at $8,000.

13 The appellant was aged 24 at the time of sentencing. She has a form of schizophrenia which is exacerbated by extensive drug use. The appellant also has a lengthy record of prior offending of a similar nature. The sentencing judge said to the appellant:

[Y]our criminal behaviour is so extensive that you seem unable to stop offending when you're at liberty, and every time you do somebody has to suffer. You can't stop (ts 32).

14 The evidence established that the appellant was at high risk of reoffending and had a history of failing to comply with mental health treatment when in the community.

15 The claim of manifest excess is without merit. The trial judge found that the appellant and her co-offender deliberately targeted vulnerable elderly people and devised a system involving distraction and sneaking theft of their property (ts 31). The motivation for the criminal conduct was to obtain money for drugs.

16 Garlett was aged 20 at the time of sentencing and had what the sentencing judge described as 'a significantly less criminal history' (ts 32). It is clear that the sentencing judge concluded that the need for personal deterrence weighed more heavily with the appellant than with Garlett, who was still a youth. The appellant's level of culpability in relation to the indictable offences is at least equal to that of Garlett. The disparity in the sentences for the indictable offences was appropriate.