THE STATE OF WESTERN AUSTRALIA -v- RICHARDS [2020] WASCA 129 (19 August 2020)

(s 6(1)(a) of the Misuse of Drugs Act 1981 (WA))

1. The individual sentences on indictment IND 1234 of 2019 were imposed following the respondent's conviction, after trial by judge alone, of those three offences. The individual sentence on indictment IND 986 of 2018 was imposed at the same time, on the respondent's plea of guilty. The respondent was made eligible for parole and his sentence was backdated to 23 December 2018 to take account of time spent in custody on remand.
2. The State appeals against these sentences on the sole ground that the sentence of 2 years' immediate imprisonment imposed for the aggravated home burglary offence is manifestly inadequate. Leave to appeal has been granted on that ground.
3. The aggravated home burglary offence involved the respondent and two other men forcing entry into the home occupied by the victim, her partner and their children at about 1.30 am on 20 December 2018, while the respondent was armed with a tomahawk axe. The respondent held the axe to the victim's throat, while the other men took a sum of money and a car key. The respondent left in the car owned by the victim's partner.[1]
4. The respondent was 38 years old when sentenced and had a not‑insignificant criminal record. He was on bail for the drug offence at the time of committing the aggravated home burglary. He had a good employment history, and had taken steps towards rehabilitation while on remand awaiting his trial. His motivation for the offending was a belief that the victim owed him money.[2]
5. In our view, the sentence of 2 years' immediate imprisonment imposed for the aggravated home burglary offence failed to recognise the serious criminality involved in the respondent's offending and is unreasonable and plainly unjust. The ground of manifest inadequacy was established, and it was appropriate for this court to resentence the respondent for all of the offences. We substituted a sentence of 4 years 6 months' immediate imprisonment on the home burglary offence, and substituted a total effective sentence of 5 years 10 months' imprisonment.

1. In her Honour's sentencing remarks, the trial judge said that the facts were articulated in her oral reasons for convicting the respondent of the above offences.[3] The factual findings made in those reasons were somewhat limited, but included the following facts which were expressly found or could be inferred from what was common ground on the victim's and respondent's evidence.
2. The three charges in IND 1234 of 2019 arose from a single series of events in the early hours of the morning on 20 December 2018. The respondent believed that the victim owed him $10,000 for a gambling debt.[4] He went to the home occupied by the victim, her partner and their children at about 1.30 am with two other men, who the respondent took with him to provide 'some muscle'.[5]
3. The respondent was armed with a tomahawk axe.[6] The men forced entry into the victim's house, evidenced by CCTV footage which shows one of the men stepping back, running towards the front door and executing a kicking motion, as well as evidence from the victim's partner that he heard a loud bang consistent with forced entry.[7] The trial judge accepted the victim's evidence that she did not invite the men in.[8] One of the other men took a sum of money and a car key while the respondent held the axe to the victim's throat.[9]
4. The respondent left in a car owned by the victim's partner. Neither she nor the victim gave consent to the respondent to take the car.[10]
5. As to count 3 on indictment IND 1234 of 2019, on 23 December 2018, the respondent sent a message to the victim. In the message, the respondent said, 'Have the money, cause if it's not with you. The car will get burnt'.[11]
6. As to the drugs charge, at about 8.55 am on 3 November 2017, the respondent was found by police sitting in the driver's seat of a parked car without registration plates in Midland. A search of the vehicle located a total of 13.06 g of methylamphetamine (78% purity) in three clip-seal bags in a zip-up case concealed beneath plastic panels next to the gear shift on the driver's side of the car. The respondent was arrested and granted bail in respect of this offence.[12]

1. The respondent was 38 years old when sentenced. The trial judge described him as having had an unremarkable childhood, although he was brought up by his brother following the separation of his parents.[13]
2. The respondent was in a long-term relationship of about 18 years, which broke down in about 2015.[14]
3. The respondent has a good work history, having been employed in various industries including mining and construction.[15]
4. The respondent has a substantial history of criminal offending, including weapons and drug-related offences, driving offences and breaches of violence restraining orders. Those previous matters had generally been dealt with by fines, and the respondent had not previously been sentenced to imprisonment. There was a period between 2003 and 2014 in which the respondent was not convicted of any offences.[16]

1. In relation to the drug offence, the trial judge noted the respondent's plea of guilty and allowed a discount of 5% under s 9AA of the Sentencing Act 1995 (WA). Her Honour indicated that she would also give the respondent credit for the fact that he was, to some extent, cooperative when arrested for that offence.[17] The trial judge said that that the respondent was a low-level user-dealer and that there was 'an element of commerciality to the commission of that offence', as the respondent admitted that he was selling small quantities of methylamphetamine to other people to fund his own habit.[18]
2. The trial judge made the following observations as to the offending charged in indictment IND 1234 of 2019:[19]

[Y]our offending was self-evidently very serious. The first thing to note is that you were on bail for the possession of methylamphetamine charge when you committed those offences.

The offending is best described as a home invasion. It was planned, it was premeditated and involved two other people that you took with you, I find, to provide you with some muscle.

The offending occurred in the early hours of the morning. There were children present in the house. You were armed with a weapon which had the capacity, if used, to cause serious injury. That weapon, as you know, was a tomahawk. I find that you held that weapon to [the victim's] throat.

After leaving [the victim's] home on the morning in question, you left in her car, which I find that you stole, and then you continued to threaten her over a number of days. So your offending was not a one-off offence. It was ongoing, it was persistent.

1. As to mitigating factors, the trial judge accepted that:[20]

(1) When the respondent went to the victim's house, he believed that he was owed money for a gambling debt. However, the trial judge observed there was limited mitigation to be derived from that - it was unacceptable for the respondent to have gone to the victim's house armed in the middle of the night and confront her as he did.

(2) It was likely that, at the time of the offending, the respondent's mental health had deteriorated, but the trial judge found that his offending behaviour was more likely attributable to his substance abuse.

(3) The respondent had insight into his offending and had engaged in programs that were available to him since he went to prison in December 2018.

(4) The respondent had an extensive employment history, and would have employment on his release from prison, which would be a protective factor.

1. The trial judge noted that there was no mitigation to be derived from the respondent's criminal record, and that he was not of prior good character. The trial judge observed that the respondent's previous offending highlighted the need for personal deterrence.[21]
2. After referring to the significance of general deterrence as a sentencing consideration, the trial judge imposed the sentences referred to above.[22]

1. The State's sole ground of appeal is that the sentence of 2 years' immediate imprisonment for the aggravated home burglary offence is manifestly inadequate.[23] The general principles governing appeals contending that a sentence is manifestly excessive or manifestly inadequate are well established:

(1) A ground of appeal which alleges that a sentence is manifestly excessive or inadequate asserts an implied error. It is necessary, in determining whether a sentence is manifestly excessive or inadequate, to examine it from the perspective of the maximum sentence prescribed by law for the relevant offence, the standards of sentencing customarily observed with respect to that offence, the place which the criminal conduct occupies on the scale of seriousness of offences of the kind in question, and the personal circumstances of the offender.

(2) The discretion conferred on sentencing judges is of fundamental importance and this court may not substitute its opinion as to sentencing for that of the sentencing judge merely because it would have exercised the discretion in a different manner. The appellant must demonstrate that the sentence imposed is unreasonable or plainly unjust.

(3) The guidance afforded by comparable cases is flexible rather than rigid. The mere fact that a sentence is within the range of other sentences imposed for similar offending does not necessarily establish that there was an appropriate exercise of the sentencing discretion in the particular case. Similarly, the mere fact that a sentence is outside the range does not necessarily establish that the exercise of the sentencing discretion in the particular case miscarried.

(4) A sentencing range for comparable offences is merely one of the factors to be taken into account in deciding whether an individual sentence is manifestly excessive or inadequate. A range of sentences customarily imposed is of significance for the purpose of ensuring broad consistency in the sentencing of offenders in broadly comparable cases. However, a sentencing range for comparable cases does not fix the range of a sound exercise of the sentencing discretion in a particular case.

(5) When an appellate court dismisses an appeal against sentence, and when it allows an appeal against sentence and resentences the offender, the court's decision on the sentencing outcome does not, of itself, fix the upper or lower limit of the range.

1. In our view, the sentence of 2 years' immediate imprisonment imposed for the aggravated home burglary offence is not capable of being regarded as commensurate with the seriousness of the offence, and is unreasonable and plainly unjust.
2. The maximum penalty for the offence of aggravated home burglary is 20 years' imprisonment. The sentence imposed on the respondent was only 10% of that maximum available penalty.
3. The customary sentencing standards for that offending are referred to in recent decisions of this court in Eldridge v The State of Western Australia,[24] and Brindley v The State of Western Australia.[25] In Brindley, the court observed:[26]

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 well below.[27] The respondent conceded this to be the case.[28] In Eldridge, the court observed:[29]

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 sentence of only 2 years' immediate imprisonment imposed in all of the circumstances of the present case is inconsistent with the range of sentences customarily imposed, and the recognition that sentences for home burglary need to be firmed up.
2. Of course, as noted above, a sentencing range for comparable offences is merely one of the factors to be taken into account in deciding whether an individual sentence is manifestly excessive or inadequate. However, not only did the sentence in the present case fall outside the range of sentences imposed in other cases, it failed to properly account for a number of significant aggravating features of the offending. The burglary was committed on what the respondent knew to be a residence at which people were present, when it was occupied by a family which included two children. Not only was the respondent armed with a dangerous weapon (which is a statutory circumstance of aggravation), but the weapon was an axe capable of inflicting very serious injury if used. Moreover, the respondent held the axe to the victim's throat in what must have been a terrifying ordeal for her. There was a premeditated, planned and intentional intimidation of the victim. The respondent was accompanied by two men who were there to provide 'muscle' and the men forced entry into the house in the very early hours of the morning. It was also a significant aggravating factor that the respondent was on bail for the drug offence when the burglary offence was committed.
3. There were limited mitigating circumstances. The respondent was not of prior good character, and was a mature offender. We do not regard the fact that the respondent believed the victim owed him money to be a mitigating circumstance. Deterioration of mental health due to the use of illicit drugs is not mitigatory, and was not said to be causative of the offending in this case. The only substantial mitigating factor was the respondent's prospects for rehabilitation, which were increased by his insight into his offending, his participation in available prison programs and his good employment history.
4. The respondent invites focus on the total effective sentence, rather than on the adequacy or otherwise of the sentence for the aggravated burglary offence.[30] The respondent submitted that the very low sentence could be explained on the basis that the trial judge reduced the sentence for the aggravated home burglary offence on grounds of totality.[31] On that basis, the respondent says that it cannot be inferred from the individual sentence imposed that the exercise of the sentencing discretion was infected by error. The respondent submits that the total effective sentence of 3 years 4 months' imprisonment is not unreasonable or plainly unjust, having regard to the criminality involved in all of the offending.[32]
5. In making that submission, the respondent conceded that, unless explained by the application of the totality principle, the individual sentence of 2 years' immediate imprisonment for the aggravated home burglary offence would be manifestly inadequate. Indeed, the respondent's counsel relies on the extent of the inadequacy to support the inference that the trial judge must have reduced the individual sentence for totality, as, in the respondent's submission, it was otherwise difficult to understand how the judge could have arrived at that result.[33]
6. The conventional means of applying the totality principle has been reiterated in a number of recent decisions of this court.[34] A judge sentencing an offender for multiple offences should first fix an appropriate sentence for each offence and then consider the application of the totality principle. In applying the totality principle, a judge may achieve an appropriate total effective sentence by ordering one or more of the sentences to be served wholly or partly concurrently with other sentences, or by reducing the otherwise appropriate length of the sentences. Where a judge applies the totality principle to achieve a total effective sentence by lowering one or more of the individual sentences that would otherwise be appropriate, the judge should expressly state that fact in his or her sentencing remarks. The sentencing remarks should indicate the extent to which the judge has reduced the individual sentences in the application of the totality principle.
7. As was noted in Francis:[35]

[W]here the State alleges that an individual sentence forming part of a longer total effective sentence is manifestly inadequate, the process of discerning, by inference, whether the sentencing judge has made an error must take account of the totality principle. The appellate court must consider whether the sentencing court may have applied the totality principle to reduce individual sentences as a means of arriving at a total effective sentence which reflects the overall criminality involved in all the offending. The proper application of the totality principle may provide an explanation for the imposition of what might otherwise be regarded as an unreasonably low sentence for an individual offence. The possibility that the sentencing court may have applied the totality principle in this manner may preclude the inference of error of principle being drawn from the result of the exercise of the sentencing discretion. In such a case, the apparent leniency of the individual sentence may be capable of explanation otherwise than on the basis that there has been a failure to properly apply sentencing principles.

There will be cases, of which [Tittums] is an example, where it can be concluded that the sentencing court has not applied the totality principle to reduce individual sentences. In deciding whether or not the totality principle may have been applied to reduce an individual sentence, the appellate court will consider what the sentencing court has done in the context of the established principles as to the manner in which individual sentences may be reduced for totality.

1. In our view, the sentencing remarks of the trial judge make it clear that her Honour adopted the conventional means of applying the totality principle summarised at [34] above, and in doing so did not reduce what she considered to be the otherwise appropriate sentence for the aggravated home burglary offence in the application of the totality principle.
2. The structure of the trial judge's remarks indicated that her Honour considered and dealt with the issues in this order: [36]

(1) concluding that sentences of imprisonment were the only appropriate sentencing option;

(2) considering the appropriate length of the sentences for the individual counts;

(3) considering whether or not the sentences of imprisonment should be suspended; and

(4) considering the degree to which there should be an accumulation of sentences.

1. The trial judge applied the totality principle at the fourth stage of this process, and expressly did so by providing for some of the individual sentences to be served concurrently with each other and the head sentence. That is inconsistent with the trial judge implicitly applying the totality principle at the second stage.
2. There are a number of other indicators that the trial judge applied the totality principle at only the fourth stage of the process of reasoning described above. In identifying the length of the sentence of imprisonment for the aggravated home burglary, her Honour said that 'the appropriate sentence is one of two years'.[37] The reference to the 'appropriate sentence' counts against an inference that the trial judge was reducing an otherwise appropriate sentence by reason of totality. This conclusion is reinforced by the fact that, in identifying the 'appropriate sentence' for the drug offence, her Honour referred to mitigating factors but not the totality principle. Further, the trial judge would not have been required to consider questions of accumulation and totality if she had decided to wholly suspend or conditionally suspend the sentences of imprisonment. In that event, questions of totality would have been dealt with by a judge resentencing on any breach of the suspended or conditionally suspended imprisonment order.[38] The fact that the trial judge indicated that she fixed the appropriate length of the individual sentences before considering suspension counts against the totality principle being applied at the point of determining sentence length.
3. Taken as a whole, in the context of the general principles summarised at [34] above, it is clear from the trial judge's sentencing remarks that her Honour adopted the conventional approach of considering issues of totality after determining the appropriate individual sentences. The low sentence for the aggravated home burglary offence is not explicable by the application of the totality principle.
4. We recognise that the court's assessment of the severity of an individual sentence, and therefore whether the individual sentence is manifestly excessive or inadequate, is to be undertaken in light of the sentences imposed in respect of the other counts and its contribution to the total effective sentence. A heavy individual sentence (that is not manifestly excessive) may be softened by an order that it be served concurrently with sentences imposed in relation to the other counts. A relatively light sentence (that is not manifestly inadequate) may, as a practical matter, have increased severity if it is ordered to be served cumulatively. Those matters may affect the court's assessment of whether the individual sentence is unreasonable or plainly unjust.[39]
5. In the present case, the sentence of 2 years' immediate imprisonment for the aggravated home burglary offence is so low as to be manifestly inadequate notwithstanding that it was ordered to be served wholly cumulatively with the sentence for the drug offence.
6. Having regard to all of the above matters, in our view, error in the exercise of the trial judge's sentencing discretion is to be inferred from a sentence which is unreasonable and plainly unjust. We are satisfied that a different sentence should be imposed for the aggravated home burglary offence. The State's ground of appeal is established.

1. Counsel for the respondent conceded that there was no basis for this court to exercise its residual discretion to dismiss the appeal notwithstanding that a ground is established, under s 31(4) of the Criminal Appeals Act 2004 (WA). The respondent does not, of course, bear an onus to establish that the residual discretion should be exercised in his favour. Rather, it is incumbent on the State to negate any reason why the residual discretion of this court not to interfere should be exercised.[40]
2. We agree that there is no basis in the present case for invoking the residual discretion. The sentence for the aggravated home burglary offence was substantially less than that which was open on a proper exercise of the sentencing discretion. Appealable error has been very clearly established. This court's intervention is necessary to ensure that proper sentencing standards are adopted and maintained for aggravated home burglary offences.

1. This court had the necessary material to resentence the respondent. In resentencing the respondent, we took into account the fact that he has continued to undertake programs directed to his rehabilitation in prison, as indicated by his counsel at the appeal hearing.[41]
2. In our view, having regard to the above matters including the mitigating factors we have identified, a sentence of 4 years 6 months' immediate imprisonment is commensurate with the seriousness of the respondent's offending constituted by the aggravated home burglary offence.
3. The individual sentences imposed by the trial judge on the other counts might be regarded as lenient in all the circumstances. However, we would not interfere with those individual sentences in circumstances where they were not challenged by the State.
4. It was then necessary for this court to consider the question of totality. In our view, a total effective sentence of 5 years 10 months' imprisonment properly reflects the overall criminality involved in all of the respondent's offending having regard to all of the circumstances (including those personal to the respondent). We gave effect to that conclusion by ordering the sentence for the drug offence to be served cumulatively upon the new sentence for the aggravated home burglary offence. The other sentences were ordered to be served concurrently with the sentence for the aggravated home burglary offence and with each other. We were of the view that the respondent should remain eligible for parole, and the sentence backdated to take account of time spent in custody on remand.

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

(2) The sentencing decision of the primary judge on indictment IND 1234 of 2019 is set aside, including:

(a) the sentences of immediate imprisonment imposed by her Honour for the counts in indictment IND 1234 of 2019;

(b) the orders for concurrency made by her Honour in respect of the counts in indictment IND 1234 of 2019; and

(c) the order for cumulacy made by her Honour in respect of count 1 in indictment IND 1234 of 2019 and the count in indictment IND 986 of 2018.

(3) The respondent is resentenced to terms of immediate imprisonment for the counts in indictment IND 1234 of 2019 as follows:

(4) The new sentence for count 1 is the head sentence. The sentence of 16 months' immediate imprisonment imposed by the sentencing judge for the count in indictment IND 986 of 2018 is to be served cumulatively upon the new sentence for count 1. The new sentences for counts 2 and 3 are to be served concurrently with each other and concurrently with the new sentence for count 1.

(5) The new total effective sentence is 5 years 10 months' imprisonment.

(6) The new sentences for counts 1, 2 and 3 and the new total effective sentence are to be taken to have taken effect on 23 December 2018.

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

[1] Primary ts 13/5/20, 294, 307; primary ts 11/06/20, 175, 176.

[4] Primary ts 13/5/20, 304; primary ts 11/6/20, 176 - 177.

[5] Primary ts 11/6/20, 176; primary ts 13/5/20, 294.

[6] Primary ts 13/5/20, 307; primary ts 11/6/20, 176.

[9] Primary ts 13/5/20, 307, 309; primary ts 11/6/20 176.

[11] Exhibit 1; primary ts 13/5/20, 312.

[12] Primary ts 11/6/20, 164 - 165, 175.

[16] Primary ts 11/6/20, 177; respondent's criminal record (sentence appeal book, p 87 - 90).

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

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

[27] 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.

[30] Respondent's submissions, par 7 - 10 (sentence appeal book, p 27 - 28).

[34] NI v The State of Western Australia [2020] WASCA 78 [79]; Francis v The State of Western Australia [2019] WASCA 43 [83]; The State of Western Australia v Tittums [2018] WASCA 23; (2018) 271 A Crim R 298 [43] - [45], [120], applying decisions of the High Court including Pearce v The Queen [1998] HCA 57; (1998) 194 CLR 610 [45] - [48] and Mill v The Queen [1988] HCA 70; (1988) 166 CLR 59, 62 - 63.

[38] Sections 80(5) and 84F(5), read with s 88, of the Sentencing Act: see Nguyen v The State of Western Australia [2019] WASCA 149 [41]; Dillon v The State of Western Australia [2020] WASCA 24 [45]. Cf Morgan v The State of Western Australia [No 2] [2019] WASCA 185 [319] in relation to partly suspended sentences.

[39] MHE v The State of Western Australia [2019] WASCA 133 [1], [58](6) and [59], applying Giglia v The State of Western Australia [2010] WASCA 9 [40].

[40] CMB v Attorney General (NSW) [2015] HCA 9; (2015) 256 CLR 346 [33] - [34], [66].