SERUKAI -v- THE STATE OF WESTERN AUSTRALIA [2020] WASCA 159 (29 September 2020)

(2) the appellants were in company with each other;

(3) immediately before the commission of the offence, the appellants knew or ought to have known there was another person in the place; and

(4) the place was ordinarily used for human habitation.

1. The appellants were each sentenced to a term of 2 years 6 months' immediate imprisonment. They now appeal against their sentences on three grounds. Ground 1 contends that the sentences are manifestly excessive as to type. Ground 2 contends that the length of the terms of imprisonment is manifestly excessive. Ground 3 contends that the sentencing judge failed to consider, adequately or at all, the imposition of a partly suspended term of imprisonment. Leave to appeal has been granted on ground 2. The applications for leave to appeal on grounds 1 and 3 have been referred to the hearing of the appeals.
2. In our view, there is no merit in ground 3. However, ground 2 is established, and this court should resentence the appellants. It is unnecessary to determine ground 1 in those circumstances. Taking into account the 3 months already spent in custody, we would resentence each appellant to 15 months' imprisonment partly suspended for 12 months after the appellants have served a further 3 months in custody commencing on 21 September 2020.

1. The sentencing judge made the following factual findings as to the circumstances of the offence, either by incorporating the prosecutor's statement of facts into her sentencing remarks,[1] or expressly or inferentially accepting submissions the appellants' counsel advanced.
2. At about 3.30 pm on 25 October 2018, the home of the appellants' sister-in-law was broken into while she was feeding her 4-month-old child. A mobile phone, cash, sunglasses and bank cards were stolen. The sister-in-law tracked the location of her mobile phone using an app and drove to a group of units in Como. The app did not indicate that the phone was located at any particular unit.[2]
3. At one of the units, the sister-in-law observed three men and a woman standing and drinking on a balcony. The sister-in-law told the group what had happened and that she had tracked the mobile phone to that location. The dismissive nature of the group's response led the sister‑in-law to suspect the group may have had something to do with the burglary of her house.[3]
4. The appellants' sister-in-law went to the Kensington Police Station, which she found to be unattended. She left a report on the intercom.[4]
5. Later, at the request of their brother, the appellants went to their sister-in-law's house to wait with her for police to attend in response to her report. After becoming frustrated at the delay in the police response, the appellants decided to attend the location of the mobile phone themselves. Searching in an area of bushes behind the set of units, the appellants located their sister-in-law's phone and one of her bank cards. They formed the view that the occupants of one of the units in the complex knew about the burglary. That unit was occupied by the male victim and the female victim, who were in their early 20's and who both suffered from mild intellectual and physical impairments.[5]
6. The appellants then decided to enter the victims' unit to look for stolen property and obtain information about the burglary. They returned to their car and Clive Serukai removed a wooden baseball bat (which was in the car for sporting purposes). The appellants thought they might need the baseball bat to protect themselves from four people reported to be on a balcony of the unit complex who they suspected to be lawbreakers.[6]
7. At about 7.30 pm on 25 October 2018, the appellants walked upstairs and knocked on the door of the victims' unit. As the male victim opened the door, the appellants pushed past him and entered the unit without consent.[7]
8. The appellants closed the door behind them and then began questioning the victims about their involvement in the burglary. The victims told the appellants that they did not know anything about it. Paul Serukai went from room to room looking around the unit while Clive Serukai remained with the victims. A short time later, after a search of the unit, the appellants left the victims' unit. Before leaving, Clive Serukai told the victims that, if he found out that they were involved in the burglary, the appellants would be back. The appellants left the address and drove away.[8]
9. The appellants and the victims gave different accounts of what Clive Serukai did with the baseball bat while in the unit. The appellants contended that the bat remained under his arm. The victims reported Clive Serukai raising the bat at one point. The sentencing judge did not resolve this conflict, but found that the fact that the bat was visible to the victims in itself would have been frightening.[9]
10. The appellants were found a short time later by police. They were arrested and taken to the Kensington Police Station. The appellants both participated in recorded interviews and both made full admissions of the offending.[10]

1. The sentencing judge made the following findings about the appellants' personal circumstances.

1. Clive Serukai was 40 years old at the date of sentence. He was born in Fiji, and is the eldest of four children in his family. He had a good childhood, and moved with the family to Australia when he was about 7 years old. Clive Serukai moved to Perth in 2008 with his wife and their children. His wife had two children from a prior relationship (aged about 18 and 20 years at the date of sentencing) and the couple had three children together (aged 13, 11 and 7 years at the date of sentencing).[11]
2. Clive Serukai finished schooling at the end of year 11, and worked in the electrical industry. He has worked as an electrician since completing a mature age electrical apprenticeship. Prior to being sentenced, he was employed in a position where he was responsible for a team of about 10 people working on various infrastructure projects around Perth. He was also involved in a rugby league club in various capacities.[12]
3. Clive Serukai had only a minor traffic record, which the sentencing judge did not regard as relevant for present purposes.[13]

1. Paul Serukai was 31 years old at the date of sentencing, and had the same good upbringing as his brother. He was single at the time of sentencing, and was paying off his own home.[14]
2. Paul Serukai finished school at the end of year 12 in 2006, and spent some time working as a labourer. In 2009, he moved to New Zealand to play rugby, where he injured his back. As a result of using Voltaren for pain relief, rather than seeking proper treatment, Paul Serukai suffered kidney failure which resulted in a kidney transplant in 2018. He was otherwise in good health.[15]
3. Since returning to Perth from New Zealand, Paul Serukai has studied surveying and was working for a large mining company at the date of sentence.[16]
4. Paul Serukai does not have a prior criminal record.

1. Both appellants tendered a number of references, which attested to their prior good character.

1. The sentencing judge observed that, although the appellants did not gain entry to the victims' home by force and did not physically harm the victims, the experience would have been terrifying for the young vulnerable victims. She noted that the appellants had no idea whether the victims were actually involved in the burglary of their sister-in-law's house. The appellants' actions could have led to a 'confrontation that could have ended much more badly than it did', which was a risk the appellants took when they went into the home with a baseball bat. Her Honour noted the need to deter vigilantism of this kind.[17]
2. The sentencing judge regarded the appellants' offending as 'somewhere in the middle of the range' by reason of the kind of behaviour and the appellants' motivation for that behaviour. The offending was also aggravated by the fact that the appellants were in company with each other and the vulnerabilities of the victims due to their intellectual and physical impairments.[18]
3. The sentencing judge also noted the following mitigating factors applicable to both appellants:[19]

(1) The appellants entered pleas of guilty at an early stage, for which the judge allowed a discount of 20% under s 9AA of the Sentencing Act 1995 (WA).

(2) The appellants were genuinely remorseful for the offending, and understood its impact on the victims.

(3) The appellants cooperated with police and made full admissions.

(4) The appellants were generally of good character, and the offending was an aberration from their normal behaviour.

(5) The appellants are unlikely to reoffend in the future, so that personal deterrence was of less significance as a sentencing consideration.

1. The sentencing judge referred to the need for punishment and general deterrence, and that the significance of general deterrence for this kind of offending means that personal factors carry less weight. Her Honour concluded that the seriousness of the offending was such that no sentence less than imprisonment would be appropriate.[20] The judge said that:[21]

And having regard to all of the mitigation, it's my view that the sentence can be moderated so that a term of two-and-a-half years' imprisonment is the appropriate sentence to be imposed.

1. The sentencing judge then dealt with the issue of whether the sentences of 2 years 6 months' imprisonment should be suspended or conditionally suspended, in the following terms:[22]

Now, that leaves me able to consider whether the sentence should be suspended, either conditionally or without conditions. And in considering whether or not to suspend a term of imprisonment, the court considers again all of the things that it referred to in deciding that a term of imprisonment was the appropriate sentence to be imposed in the first place.

Your situation was quite a difficult - because of the situation, I found it quite difficult to decide what the appropriate thing to do was. And I consider this matter to be quite finely balanced. It's clear that both of you have good - prior good character, good prospects, good work histories, contributing well in other ways to the community, and have strong family support. And those things favour suspension.

But when I think about the seriousness of the offending, and how terrible the offending was for the victims, and why it is that I think it's a serious thing that you did, I'm positively satisfied that it would be inappropriate to suspend the term of imprisonment and I'll order that it be served immediately.

1. The sentencing judge made both appellants eligible for parole. As neither had spent any time in custody on remand, the sentences commenced on 25 June 2020, the date that they were imposed.[23]

1. Ground 3 contends that the sentencing judge erred in failing to consider, adequately or at all, the imposition of a partly suspended term of imprisonment. The appellant submits that the sentencing judge confined herself to considering whether a wholly suspended term of imprisonment was an appropriate or inappropriate sentencing option.
2. There is no merit in that submission.
3. Under s 39(2)(f) - (h) and s 39(3) of the Sentencing Act, a court must not impose a term of imprisonment under pt 13 unless satisfied that it is not appropriate to impose suspended imprisonment and order the release of the offender under pt 11 or impose conditionally suspended imprisonment and order the release of the offender under pt 12 of the Act. Further, a court must not impose conditionally suspended imprisonment and order the release of the offender under pt 12 unless satisfied that it is not appropriate to impose suspended imprisonment and order the release of the offender under pt 11 of the Act.
4. By s 4(4) of the Sentencing Act, the reference to the suspension of a term of imprisonment is a reference to a suspension of the whole of the term or part of the term. Where part of the term is suspended, the sentence remains a sentence that is imposed under pt 11 of the Sentencing Act. In SBJ v The State of Western Australia,[24] this court rejected the view that the imposition of a partly suspended sentence involves the adoption of two sentencing options: one portion to be served immediately pursuant to pt 13; and the suspended portion pursuant to pt 11 of the Act.
5. In considering whether the court is satisfied that it is not appropriate to impose suspended imprisonment and order the release of the offender under pt 11 of the Act, the court will properly have regard to the capacity to partly suspend a term of imprisonment. However, where a court is positively satisfied that suspended imprisonment under pt 11 of the Sentencing Act is not an appropriate sentencing option, it is not required to separately refer to the suspension of the whole and suspension of only part of the term. What must be apparent from the sentencing remarks is that the court is satisfied that a suspended sentence under pt 11 of the Act, in any of its possible permutations, is not an appropriate sentencing option. Commonly, sentencing judges do this by expressing the view that, for a specified reason or reasons, the court is satisfied that a suspended sentence is not an appropriate sentencing option.
6. The appellants rely on the following obiter observation of Fiannaca J in Billington v Depetro:[25]

There can be no doubt, in my opinion, that a partially suspended sentence should be regarded as falling between a conditionally suspended sentence and immediate imprisonment in terms of the hierarchy in s 39(2) of the Sentencing Act, as any sentence that removes the offender's liberty would be regarded to be harsher than a suspended sentence.

The appellant contends that this position was confirmed in SBJ.

1. In our view, the observation in Billington is inconsistent with the structure of s 39 of the Sentencing Act referred to at [32] above. A sentencing court must satisfy itself that suspended imprisonment is an inappropriate sentencing option before it can impose either conditionally suspended or immediate imprisonment. It does not consider whether a partly suspended term would be appropriate after concluding that a conditionally suspended imprisonment is an inappropriate sentencing option. Billington was, of course, decided before SBJ. Far from adopting the approach suggested in Billington, the analysis of this court in SBJ is inconsistent with that approach.
2. In the passage quoted at [28] above, the sentencing judge considered whether the imposition of a suspended sentence under pt 11 of the Sentencing Act was an inappropriate sentencing option in this case. Her Honour was positively satisfied that suspended imprisonment was an inappropriate sentencing option. Inherent in that conclusion was satisfaction that the suspension of part of the term of imprisonment was inappropriate. There is no basis for apprehending that, in reaching that conclusion, the sentencing judge failed to appreciate that the court could suspend part of a term of imprisonment under pt 11 of the Act. Contrary to the appellant's submissions, the fact that the sentencing judge regarded the question of suspension as 'finely balanced' does not provide a proper basis for inferring that her Honour ignored the option of partial suspension in concluding that suspended imprisonment was not an appropriate sentencing option in this case.
3. There was no submission advanced to the sentencing judge by the appellant's counsel to the effect that a partly suspended sentence of imprisonment was appropriate. There can be no complaint that the sentencing judge failed to deal with, or explain her reasons for rejecting, a specific submission that any term of imprisonment should be partly suspended.
4. We would refuse leave to appeal on ground 3.

Ground 2: Length of term of imprisonment manifestly excessive

1. The principles relevant to allegations of implied error are well established, and were summarised in Kabambi v The State of Western Australia.[26] It is unnecessary to repeat those principles here. The issue is ultimately whether error is to be inferred from a sentence which is unreasonable or plainly unjust.
2. The maximum penalty for an offence of aggravated home burglary is imprisonment for 20 years. There is no minimum penalty applicable to this case.
3. The customary sentencing standards for burglary offences are referred to in recent decisions of this court in Eldridge v The State of Western Australia,[27] and Brindley v The State of Western Australia.[28] In Brindley, the court observed:[29]

The circumstances of burglary offences can vary widely and attract a wide range of sentences. Home burglaries are viewed as being particularly serious offences, and are generally seen as requiring substantial penalties in order to recognise considerations of personal and general deterrence, and reflect the prevalence of the offence. Home invasions, which involve forcible entry into residential premises known or suspected to be occupied at the time, accompanied by threatened or actual violence, are generally significantly more serious than home burglaries which lack those characteristics. A home invasion which is committed with intent to intimidate the occupants is generally more serious than a burglary which involves simply an intention to steal.

1. The court in Brindley referred to a number of earlier decisions which reviewed the range of sentences commonly imposed for burglary offences, which the sentence in the present case falls under or well within.[30] In Eldridge, the court observed:[31]

The cases illustrate that there is no tariff for home burglary, whether aggravated or non-aggravated. This is hardly surprising given the vast variation of circumstances in which offences of home burglary are committed and the personal circumstances of those who commit them.

What is clear is that home burglaries are serious offences which are prevalent and which are ordinarily met with terms of imprisonment. There has long been a recognition that sentences for home burglary need to be firmed up. Whether this has in fact happened is debatable.

1. The need to firm up sentences for aggravated home burglary offences has been emphasised by recent decisions of this court in The State of Western Australia v Richards,[32] The State of Western Australia v Wilkins,[33] Robson v The State of Western Australia,[34] and Panicciari v The State of Western Australia.[35]
2. In the cases cited in the previous paragraph, sentences in the range of 2 years 3 months to 4 years 6 months were imposed or upheld by this court. In upholding the sentences of 2 years 3 months' and 2 years 6 months' immediate imprisonment in Robson and Panicciari respectively, the court described the sentences as 'lenient'. However, the nature of the offending in the cases cited in the previous paragraph was much more serious than the present case:

(1) In Richards, the court resentenced the offender to 4 years 6 months' immediate imprisonment for a home burglary, where the offender was convicted after trial of forcing entry into an occupied home in the early hours of the morning to recover a gambling debt. The offender was in company with two others, and armed with a tomahawk axe which was held to a victim's throat. The offender had an extensive prior record and was on bail for other offences at the time of committing the aggravated home burglary.

(2) In Wilkins, the court resentenced the offender to 3 years 3 months' immediate imprisonment, where the offender pleaded guilty to walking into the victims' house, demanding property and threatening a 61-year-old victim by swinging a tomahawk axe at him.

(3) In Robson, the court upheld a sentence of 2 years 3 months' immediate imprisonment for an offender who pleaded guilty to forcing his way into a house occupied by a 74-year-old woman in the early hours of the morning, to steal items of financial and sentimental value to her.

(4) In Panicciari, the court upheld a sentence of 2 years 6 months' immediate imprisonment for an offender who was convicted after trial of a home invasion burglary involving a sustained assault on the victim.

1. In considering the appropriate sentence for a home burglary offence, it is important to bear in mind the wide variety of conduct that may constitute the offence. Further, the classification of conduct in the passage quoted at [42] above is general in nature, and in a particular case must give way to an assessment of what the offender has actually done. As this court noted[36]n Wilkins,36 the seriousness of an offender's offending is to be evaluated having regard to the offender's criminal acts and the circumstances in which those acts were done, rather than whether a label such as 'home invader' should or should not be applied to the offender.
2. In the present case, the offenders did not, on the sentencing judge's findings, inflict or expressly threaten any actual physical harm to the victims. Nor was any property taken or damaged. The conduct comprising the offence constituted entering the home without consent once the male victim answered the door, asking questions and walking through the premises (without ransacking the premises or moving items) looking for stolen property or other people.[37] The threat made just prior to the appellants' departure was general in nature. While the experience was doubtlessly distressing for the victims, and the possession of the baseball bat was significantly aggravating, the offending in this case lacked the more egregious features of the offending in the other cases noted above. There were also the significant mitigating factors referred to above. The judge was sentencing two persons of prior good character, who were unlikely to reoffend, for aberrant behaviour. The offending was unplanned, although not entirely spontaneous as there was opportunity for pause and reflection between the appellants finding the mobile phone and entering the apartment with a baseball bat.
3. We agree with the sentencing judge's view that the seriousness of the offending was such that imprisonment was the only appropriate sentencing option. However, the length of the term to be imposed needed to reflect the nature of the conduct and the substantial mitigating factors. In our view, the length of the sentence imposed was more than merely 'firm', as the State described it in its submissions. The length of the sentence was longer than was required having regard to all relevant sentencing principles and considerations and all the circumstances of the case. The length was not commensurate with the seriousness of the offence.
4. The sentencing judge emphasised the significance of general deterrence as a sentencing consideration for offences involving vigilante conduct. This court made that point in Evans v The State of Western Australia[38] in a passage cited in Brindley:[39]

The vigilante character of the attack also increases the significance of general deterrence as a sentencing consideration. Vigilante conduct of this kind is appropriately denounced by the courts. The rule of law requires that offenders be tried and, if convicted, punished by the courts in the manner provided for by the law. Members of the community must resolve their differences by lawful means rather than by purportedly taking the law into their own hands by physically harming perceived wrongdoers. The sentences that the courts impose on those who act contrary to the rule of law by taking personal vengeance need to be such as to deter not only the offenders from committing similar offences in the future but also to deter others from taking the law into their own hands. (citations omitted)

1. The appellants' conduct in the present case differed in character from that considered in Evans and Brindley. In the latter cases, the offending involved meting out physical punishment on a victim in response to an apprehended breach of the law by the victim. In the present case, the appellants were not seeking to punish the victims, but were seeking to obtain information about an offence and locate stolen property. While still to be deprecated, the aggravating nature of the motivation is less than in a case where an offender takes the law into his or her own hands by physically harming perceived wrongdoers.
2. Having regard to all relevant sentencing principles and considerations, and all the circumstances of this case, in our view, the length of the sentence imposed on the appellants was unreasonable or plainly unjust. Recognising the maximum penalty of 20 years' imprisonment, and the stated need to firm up sentences for aggravated home burglaries, the nature of the offending in the present case could not, having regard to the substantial mitigating factors, justify a sentence of 2 years 6 months' imprisonment. In our view, ground 2 is established.

Ground 1: Type of sentence manifestly excessive

1. Given the conclusion that the length of the appellants' sentences of imprisonment was manifestly excessive, it falls to this court to resentence the appellants afresh and for itself. In doing so, this court will make its own determination as to the appropriate type of sentence. It is therefore unnecessary for this court to determine whether it was open to the sentencing judge to regard suspended or conditionally suspended imprisonment as inappropriate sentencing options.

1. Like the sentencing judge, we would allow a discount of 20% under s 9AA of the Sentencing Act in respect of the appellants' early pleas of guilty. Having regard to the matters referred to above, in our view, a sentence of 18 months' imprisonment is commensurate with the seriousness of the offence.
2. Counsel did not identify any significant new facts relating to the appellants' rehabilitation, for the purposes of this court's resentencing. Counsel indicated that the appellants have jobs waiting for them in the event that they were to be released.
3. We are not satisfied that a suspended term of imprisonment is an inappropriate sentencing option at this time. While the offending was serious, and personal factors are given less weight in light of the significance of general deterrence as a sentencing consideration for home burglary offences, there are a combination of significant mitigating features in this case. The offending represents out-of-character unplanned conduct by two men who are productive members of the community and who are at little risk of reoffending. When those mitigating factors are combined with the limited nature of the offending conduct (albeit carrying the risk of a much worse outcome if the occupants of the unit had retaliated) and the fact that the appellants have now served about three months in custody, in our view, this is an exceptional case where a suspended sentence is commensurate with the seriousness of an aggravated home burglary offence. The appellants do not have any supervision or treatment need that makes suspension without conditions inappropriate.
4. Taking into account the 3 months already served in custody, we sentenced each appellant to 15 months' imprisonment, partly suspended for 12 months upon the appellants serving a further 3 months in custody from 21 September 2020.

1. For the above reasons, we made the following orders in each appeal at the conclusion of the hearing of the appeals:

(4) The sentencing decision of the primary judge is set aside.

(5) The appellant is resentenced to a partly suspended term of 15 months' imprisonment on the count in indictment IND 320 of 2020.

(6) The new sentence of 15 months' imprisonment is:

(b) to be suspended for a period of 12 months, pursuant to s 76 of the Sentencing Act 1995 (WA), upon the appellant having served 3 months in custody commencing on 21 September 2020.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.

[24] SBJ v The State of Western Australia [2019] WASCA 32; (2019) 54 WAR 310 [130] - [136].

[25] Billington v Depetro [2018] WASC 171 [151].

[26] Kabambi v The State of Western Australia [2019] WASCA 44 [21].

[27] Eldridge v The State of Western Australia [2020] WASCA 66.

[28] Brindley v The State of Western Australia [2019] WASCA 153.

[30] Brindley [43] - [46], citing Wragg v The State of Western Australia [2013] WASCA 198; (2013) 234 A Crim R 380, Herbert v The Queen [2003] WASCA 61; (2003) 27 WAR 330 and Winmar v The State of Western Australia [2018] WASCA 155.

[32] The State of Western Australia v Richards [2020] WASCA 129 [28] - [29].

[33] The State of Western Australia v Wilkins [2020] WASCA 149 [67], [76].

[34] Robson v The State of Western Australia [2020] WASCA 153 [20] - [22].

[35] Panicciari v The State of Western Australia [2020] WASCA 154 [42] - [44].

[38] Evans v The State of Western Australia [2019] WASCA 73 [97].