Dao v The Queen, unreported; CCA SCt of WA; Library No 990015; 22 January 1999

Jarvis v The Queen (1993) 20 WAR 201

Lowndes v The Queen [1999] HCA 29; (1999) 195 CLR 665

R v Leucus (1995) 78 A Crim R 40

Ward v The Queen [1999] WASCA 157; (1999) 109 A Crim R 159

Woods v R (1994) 14 WAR 341

1 TEMPLEMAN J: This is an application for leave to appeal against a sentence totalling four years' imprisonment which was imposed on the applicant by a District Court judge on 24 April this year.

2 The offences to which the applicant pleaded guilty and in respect of which he was convicted were one offence of aggravated burglary, one of robbery, one of escaping legal custody, three breaches of a violence restraining order and two offences of assaulting a public officer.

3 There is a background to this matter, and that is the de facto relationship between the applicant and a Ms Amanda Penberthy, which resulted in the birth of a son to Ms Penberthy on 29 March 2001. The problem that arose from the applicant's point of view was that Ms Penberthy denied him access to his son and he was very anxious to see his son and to be closely involved in the upbringing of his son. The applicant was formerly a heroin addict and his de facto Ms Penberthy was also a user of drugs and that was a matter which caused him very considerable concern.

4 The first offence, the aggravated burglary, was committed on 19 August 2001, when the applicant went to Ms Penberthy's mother's house, where Ms Penberthy was living. He did so for the purpose of seeing his son, but he was not permitted access. He therefore kicked in the front door and entered the house. He left when the police were called.

5 The robbery occurred two days later, on 21 August, in the vicinity of the Whitford train station. On that occasion the applicant assaulted Ms Penberthy. There was some dispute as to precisely what happened, but the learned sentencing judge, rightly in my view, said that the detail was not a matter of great significance and it was not necessary for him to decide whose version of that particular event was correct. It was admitted by the applicant that he bit Ms Penberthy on the ear and that he obtained $50 from her.

6 There was a dispute, it seems, as to the circumstances in which the $50 was obtained. The crown case was that the applicant was simply after money and that he used violence to get it and that when he got it, he left. The applicant's version was quite different. He said that he wanted the money in order to prevent Ms Penberthy from using it to buy drugs, and that would have been detrimental to his son because Ms Penberthy was breastfeeding the child at the time.

7 It is important to note, in my view, that the meeting between the applicant and Ms Penberthy at the Whitford train station was by arrangement, Ms Penberthy having spoken to the applicant on the telephone to arrange that meeting.

8 The learned sentencing judge, in dealing with the aggravated burglary and the robbery offence, said he accepted that these were substantially due to the relationship problems between the applicant and Ms Penberthy. As his Honour said, and I quote, "And your" - that is, the applicant's - "reaction to various events that had occurred, so those offences breached the violence restraining orders that had been on you."

9 I should say, of course, that the violence restraining orders had been issued on the application of Ms Penberthy at an earlier date. The point being that Ms Penberthy, despite having obtained the violence restraining orders, nevertheless was in contact with the applicant and certainly on that occasion encouraged him to meet for the purpose of apparently seeing the son. In relation to the aggravated burglary offence, it was the applicant's contention that he had visited the house in the expectation encouraged by Ms Penberthy, that he would be able to see his son and that on his arrival she changed her mind.

10 Although the learned sentencing judge accepted that the offences were substantially due to relationship problems, his Honour nevertheless imposed sentences of imprisonment which were cumulative upon each other for those offences. His Honour informed the applicant that he would normally have been sentenced to two years' imprisonment in respect of the aggravated burglary, but that his Honour reduced that to 18 months' imprisonment because of the plea of guilty on the fast track system.

11 Similarly, in respect of the count of robbery which his Honour thought was a more serious mater, his Honour said that he would have sentenced to three years and would have reduced that down to two years. In considering the charge of escaping legal custody - to which I will refer in a moment - his Honour reduced that sentence again to 18 months' imprisonment. Having regard to the totality principle, his Honour went on to say in relation to the aggravated burglary and the robbery:

"Those offences are entirely separate from each other and the sentences should be cumulative upon each other so that with respect to the aggravated burglary and the robbery you are sentenced to a total of three years' imprisonment."

12 On my view, with respect to the learned sentencing judge, he fell into error having found or accepted, rightly in my view, that the offences were substantially due to the relationship problems and then going on to impose sentences which were cumulative. In my view the appropriate course would have been to impose concurrent sentences for those offences in those circumstances.

13 I accept the submission on the part of the crown that the offences were discrete in the sense that they were different offences and that they had a different character in the sense that one was a burglary - breaking into a property and the other was stealing money - but I do not accept that the underlying motive for the two offences was different. There was, in my view, a sufficiently similar substratum of facts; namely the applicant's concern for and desire to protect his son, that the offences should be classified in that way resulting, as I have said, in concurrent sentences being imposed.

14 The other sentences which were imposed on the applicant arose out of an appearance at Joondalup courthouse when he was refused bail and sought to leave the courthouse in order to attend his son's birthday. He simply, without any forethought and stupidly because, as he said, he felt very emotional, walked out of the dock in an entirely hopeless attempt to leave the court. The security officers sought to restrain him and there was apparently a brief scuffle, during which the applicant assaulted two officers, causing different degrees of harm.

15 In relation to those offences the learned sentencing judge imposed three months' imprisonment for escaping legal custody, six months' imprisonment for the assault on one officer and 12 months' imprisonment for the more serious assault on the other officer. All of those offences, as his Honour said, occurred at the same time and were really part of the same course of action, so that the sentences were made concurrent with each other; namely a total of 12 months' imprisonment, but they were to be served cumulatively upon the other sentence, hence the total of four years' imprisonment.

16 I can see no error on the part of the learned sentencing judge either in the sentences which he imposed for these offences, or in making the three concurrent sentences cumulative on the sentences for the two previous offences. They were quite different offences. The offences of the assaults on the officers were serious and the sentences which his Honour imposed were not in any way excessive in my view. They were well within the sentencing discretion which was open to his Honour.

17 The applicant has told us today that he was himself the victim of some assault, being stabbed with a pen during the struggle which ensued when he attempted to resist being taken again into custody. The applicant has told us that his counsel persuaded him, or declined to show to the learned sentencing judge photographs showing the applicant's injury. That was not therefore a matter which was referred to the learned sentencing judge.

18 In my view, accepting without deciding that in the heat of the struggle the applicant was subject to some assault, as he claims, that is not a matter which would have made any difference as far as the learned sentencing judge is concerned. It certainly makes no difference to my consideration of the matter because it seems to me, on any view, for the reasons I have given those sentences were entirely appropriate.

19 I would therefore myself grant leave to appeal, and I would allow the appeal to the extent of making the two 18-month sentences concurrent, thereby reducing the total sentence of imprisonment from four years to two and a half years.

20 MCKECHNIE J: The principles as to when sentences should be made cumulative or concurrent have been recently restated in this court in Pieri v The Queen [2002] WASCA 288 and in R v White [2002] WASCA 112. Accepting that it is a matter of judgment in each case I nevertheless consider the learned judge fell into error in this case in making the sentences for aggravated burglary and robbery cumulative, for the reasons that have just been expressed by Templeman J and I would agree with those reasons and with the orders he proposes.

21 ROLFE AJ: I agree with the reasons of Templeman J and McKechnie J, and with the orders Templeman J proposes.