Anderson v The State of Western Australia
[2014] WASCA 167
•9 SEPTEMBER 2014
ANDERSON -v- THE STATE OF WESTERN AUSTRALIA [2014] WASCA 167
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2014] WASCA 167 | |
| THE COURT OF APPEAL (WA) | |||
| Case No: | CACR:92/2014 | 4 AUGUST 2014 | |
| Coram: | MAZZA JA HALL J | 9/09/14 | |
| 12 | Judgment Part: | 1 of 1 | |
| Result: | Extension of time refused Appeal dismissed | ||
| B | |||
| PDF Version |
| Parties: | JODIE MADELINE ANDERSON THE STATE OF WESTERN AUSTRALIA |
Catchwords: | Criminal law Appeal against sentence Multiple counts of aggravated burglary Youthful offender Whether totality principle infringed |
Legislation: | Nil |
Case References: | Ainsworth v D (a child) (1992) 7 WAR 102; (1992) MVR 69 Ashworth v The State of Western Australia [2006] WASCA 36 Brady v The State of Western Australia [2013] WASCA 253 Butler v The State of Western Australia [2012] WASCA 249 Conley v The State of Western Australia [2013] WASCA 95 Drake v The State of Western Australia [2006] WASCA 209 Fullgrabe v The State of Western Australia [2013] WASCA 130 Moody-Jackamarra v The State of Western Australia [2007] WASCA 7 Munmurrie v The State of Western Australia [2013] WASCA 167 Nguyen v The State of Western Australia [2007] WASCA 114 Nolan v The State of Western Australia [2013] WASCA 235 Otway v The State of Western Australia [2008] WASCA 165 Pennetta v The State of Western Australia [2013] WASCA 234 Ridley v The State of Western Australia [2013] WASCA 45 Sartori v The State of Western Australia [2014] WASCA 98 Spry v The State of Western Australia [2013] WASCA 68 The State of Western Australia v Bropho [2013] WASCA 44 Ugle v The State of Western Australia [2012] WASCA 104 Whitby v The State of Western Australia [2014] WASCA 99 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : ANDERSON -v- THE STATE OF WESTERN AUSTRALIA [2014] WASCA 167 CORAM : MAZZA JA
- HALL J
- Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram : CURTHOYS DCJ
File No : IND 675 of 2013
Catchwords:
Criminal law - Appeal against sentence - Multiple counts of aggravated burglary - Youthful offender - Whether totality principle infringed
Legislation:
Nil
Result:
Extension of time refused
Appeal dismissed
Category: B
Representation:
Counsel:
Appellant : In person
Respondent : No appearance
Solicitors:
Appellant : In person
Respondent : Director of Public Prosecutions (WA)
Case(s) referred to in judgment(s):
Ainsworth v D (a child) (1992) 7 WAR 102; (1992) MVR 69
Ashworth v The State of Western Australia [2006] WASCA 36
Brady v The State of Western Australia [2013] WASCA 253
Butler v The State of Western Australia [2012] WASCA 249
Conley v The State of Western Australia [2013] WASCA 95
Drake v The State of Western Australia [2006] WASCA 209
Fullgrabe v The State of Western Australia [2013] WASCA 130
Moody-Jackamarra v The State of Western Australia [2007] WASCA 7
Munmurrie v The State of Western Australia [2013] WASCA 167
Nguyen v The State of Western Australia [2007] WASCA 114
Nolan v The State of Western Australia [2013] WASCA 235
Otway v The State of Western Australia [2008] WASCA 165
Pennetta v The State of Western Australia [2013] WASCA 234
Ridley v The State of Western Australia [2013] WASCA 45
Sartori v The State of Western Australia [2014] WASCA 98
Spry v The State of Western Australia [2013] WASCA 68
The State of Western Australia v Bropho [2013] WASCA 44
Ugle v The State of Western Australia [2012] WASCA 104
Whitby v The State of Western Australia [2014] WASCA 99
1 MAZZA JA: I agree with Hall J.
2 HALL J: This is an application for leave to appeal against sentence.
3 On 3 September 2013 the appellant was sentenced to a total effective sentence of 4 years' imprisonment following her pleas of guilty to two charges on an indictment and a further eight charges on a list of pending charges under s 32 of the Sentencing Act 1995 (WA). The charges on the indictment were one count of aggravated burglary contrary to s 401(2) of the Criminal Code (WA) and one count of stealing contrary to s 378 of the Code. The charges on the s 32 list were three charges of aggravated burglary, three charges of stealing, one charge of stealing a motor vehicle and one charge of driving without authority contrary to s 49(1)(a) of the Road Traffic Act 1974 (WA). The circumstance of aggravation in each of the burglaries was that the appellant was in company.
4 An appeal notice was not filed until 15 May 2014. That is more than seven months out of time and an extension is required. The appellant is unrepresented on the appeal. She has filed an affidavit in support of her application for an extension. She states that after sentencing she was still struggling with a drug addiction and it took her some time to be in a fit state to think rationally about her sentence and what it meant. She sought assistance from Legal Aid in January 2014. There were then some delays in obtaining the file from her previous solicitors and in obtaining a transcript for the sentencing proceedings. Whilst I doubt that the delay is sufficiently explained, an extension can also be granted if refusal would result in a substantial miscarriage of justice. This requires consideration of the merits of the appeal.
5 The ground of appeal is that the total effective sentence of 4 years' imprisonment infringes the totality principle. It is apparent from the appellant's written submissions that this is a reference to the first limb of the totality principle. That is, it is submitted that the sentence is disproportionate to the total criminality having regard to all the circumstances of the case, including those referable to the appellant personally. The appellant particularly relies upon her youth at the time of sentencing.
The facts
6 At about 1.25 am on Friday 12 April 2013 the appellant was in company with another person in Jindalee. Both the appellant and the other person were riding bicycles. They rode to the Jindalee shopping centre and into the drive-through area of a Hungry Jack's restaurant, which was closed at the time. The appellant approached a closed sliding glass window and unsuccessfully attempted to force it open with her hands. She was then successful in forcing open a second sliding glass window. The appellant's associate held open the window while the appellant leant through and removed a till tray from the cash register. They then rode away taking the till tray with them. The tray was empty of money at the time it was stolen. Police attended and found the appellant's fingerprints on the sliding glass window. The events were also captured by a CCTV security camera. This conduct relates to charges of aggravated burglary and stealing numbered 3317 and 3318 on the s 32 notice.
7 Sometime between 8.00 pm on Thursday 18 April 2013 and 3.00 pm on Friday 19 April 2013 the appellant went to a house in Hope Valley with two others. The appellant smashed two bedroom windows and one of her co-offenders smashed a glass sliding door. Having gained entry the appellant and her co-offenders rummaged through the house before stealing a Logitech sound system, an Apple iPod touch and various cosmetic items with a total value of $600. The cost of the damage was $1,000. A subsequent forensic examination of the scene by the police resulted in the finding of blood which matched that of the appellant. She later participated in an interview with police and made full admissions. This conduct relates to charges of aggravated burglary and stealing numbered 3091 and 3092 of 2013 on the s 32 notice.
8 Between 3.45 am and 4.30 am on Friday 19 April 2013 the appellant was at a house in Baldivis with two other people. She forced open a rear laundry door before rummaging through the house and stealing a Samsung television, laptop computers, an Apple iPod, a digital camera, jewellery, commemorative coins, ornaments, clothing and toiletries to the value of $3,000. The cost of damage to the door was $200. When later interviewed by police the appellant made full admissions to this offence. This conduct constitutes charges of aggravated burglary and stealing being numbers 3093 and 3094 of 2013 on the s 32 notice.
9 Between about 8.10 am and 9.20 am on Sunday 21 April 2013 the appellant went to a house in Rockingham Road in Spearwood in company with another person. The appellant and the co-offender forced open the front door using a hammer and other tools. Once inside they stole a safe containing cash and jewellery. The safe was valued at $800 and the contents were jewellery to a value of $40,000 and cash totalling $535,650. This property was subsequently recovered by the police. This conduct was the subject of the aggravated burglary and stealing charges contained on the indictment.
10 Between 3.45 pm and 4.40 pm on 18 April 2013 a Ford Territory motor vehicle was stolen from the Fremantle Leisure Centre. At about 9.00 am on 21 April 2013, after the appellant left the scene of the burglary in Spearwood, she drove the stolen motor vehicle, knowing it to be stolen, from Spearwood to Munster. She was observed driving by a witness who reported the matter to the police. The witness saw the appellant driving the vehicle with the front passenger door open. The appellant has never held a driver's licence. That conduct constitutes the charges of stealing a motor vehicle and driving without authority, being charge numbers 3771 and 3772 of 2013 on the s 32 notice.
11 At about 9.20 am on 21 April 2013 police located the stolen motor vehicle and the appellant at a house in Munster. The safe and the cash and jewellery contained within it were recovered. The appellant was arrested and interviewed. She made no comment in relation to the Spearwood burglary or driving the stolen car.
Personal circumstances
12 The appellant was born on 21 November 1994. She was therefore aged 18 years and 5 months at the time of the offences.
13 The appellant is the second youngest of seven siblings. Her father died when she was around 3 or 4 years of age. Her mother had two further children in another relationship. She has a good relationship with her mother and was residing with her in Kwinana at the time of the offences.
14 The appellant was exposed to domestic violence from an early age. Her family life was unsettled, with welfare agencies having significant involvement with the family. The appellant spent much of her teenage years in juvenile detention and records from that time refer to depression and self-harming behaviour.
15 The appellant reported that during the period that the offences were committed she was using between 1 g and 1.5 g of amphetamines per day. The offences were committed in order to obtain funds to feed that addiction.
16 A psychological report stated that the appellant's offending appeared to be a direct result of her poor socialisation. While she has an awareness of what is right and wrong, she fails to appreciate the reasons for the laws and moral rules which govern social behaviour. This means that she is easily tempted to commit offences by the promise of reward or due to intimidation by others. Her depression causes her to have a lack of concern about her future and also influences her substance abuse. Whilst no definite risk assessment could be made, the psychologist stated that it was reasonable to assume that the appellant would become involved in further property offending in the future. Both the psychologist's report and a pre-sentence report were forced to rely upon limited information because the appellant was uncooperative.
Sentences
17 The sentences imposed by the sentencing judge were as follows:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
18 The appellant was made eligible for parole and compensation orders were made in respect of charges 3091, 3093 and 3317.
Sentencing remarks
19 His Honour referred to the offending conduct as being a 'spree over nine days'. That spree only stopped when the appellant was apprehended by police. He noted that the front door of the house the subject of the Spearwood burglary was significantly damaged in order to gain entry and that a hammer and other tools had been used. There was a risk of harm to the occupants of houses when such implements were used in the commission of offences like this. He also noted that all of the offences were committed in company. Whilst the indictable offences involved a very large sum of money, his Honour accepted that the appellant had been unaware of the contents of the safe.
20 His Honour accepted that the appellant had entered pleas at the earliest reasonable opportunity and allowed a discount of 25% pursuant to s 9AA of the Sentencing Act. He also noted that those pleas were consistent with remorse, notwithstanding that remorse had not been expressed to the authors of the pre-sentence report and the psychological report.
21 His Honour noted the appellant's youth, personal history, substance abuse and history of depression. He said that general and personal deterrence were very significant considerations and that past efforts at rehabilitation had been unsuccessful. He said that the dominant factors in the appellant's favour were her plea of guilty and her youth. However, the offending was very serious and in light of previous offending it was difficult to be optimistic about any rehabilitation.
Merits of the appeal
22 The totality principle has two limbs. The first limb is relied upon here. It requires that the total effective sentence imposed on an offender who has committed multiple offences must bear a proper relationship to the overall criminality involved in all of the offences, having regard to all relevant circumstances, including those referable to the appellant personally.
23 The most significant offences here are the four offences of aggravated burglary. The maximum penalty for an offence of aggravated burglary is 20 years' imprisonment: s 401(2)(a) Code. In this case the circumstance of aggravation in each case was that the offence was committed in company. Three of the offences were also on dwellings.
24 This was obviously a serious course of offending. The appellant persisted in her offending because she wanted to obtain property to feed her own drug habit. The offending became more serious as it progressed moving from a commercial premises to homes and with increasing use of force. The appellant was surprised when told of the amount of cash and jewellery contained in the safe the subject of the Spearwood burglary. Whilst it was accepted that she was unaware of the contents of the safe, she should not have been surprised that it contained something of value, that is after all in the nature of a safe.
25 The appellant's youth was an important mitigating factor. The interests of the community are often best served by determined efforts to rehabilitate a youthful offender. A very young adult may be impressionable, impulsive and less conscious of the seriousness of offending conduct. A lengthy term of imprisonment may be a heavier burden on a very young adult. However a substantial custodial sentence may be required, despite the offender's youth, due to the seriousness of an offence, the need to protect the public and the importance of personal and general deterrence: Ainsworth v D (a child) (1992) 7 WAR 102; (1992) MVR 69, 117; Ugle v The State of Western Australia [2012] WASCA 104 [71]; The State of Western Australia v Bropho [2013] WASCA 44 [45]; Munmurrie v The State of Western Australia [2013] WASCA 167 [62].
26 It is unnecessary, and indeed inappropriate, to have regard to the appellant's juvenile record: s 189(2) of the Young Offenders Act 1994 (WA) but that does not mean that the contents of the pre-sentence report and the guarded views as to future rehabilitation should be ignored. Having regard to the appellant's personal circumstances and the nature of the offending conduct, the present offences could not be seen as a mere youthful aberration.
27 At the appeal hearing the appellant suggested that she had been forced to commit the offences by her older cousin. She was given permission to file an affidavit in support of that submission. Her affidavit of 22 August 2014 states that she does not claim that she participated in the offences under a level of duress that would constitute a defence to the charges. However, she does state that she felt intimidated by her cousin and would not have committed the offences but for his influence.
28 The appellant annexes several letters to her affidavit. The first letter is one from herself expressing remorse for the offences and an intention to change herself for the better. The second letter is also from the appellant and is addressed to the victim of the Spearwood burglary and is an apology for that offence. The third letter is said to be a letter from the appellant's cousin. It is disjointed and difficult to understand. There is a reference to the appellant not knowing about the cash and gold, which is presumably a reference to the Spearwood burglary.
29 At the hearing before the sentencing judge reference was made to the appellant's male cousin as being the co-offender in the first and last burglaries, that is those at Jindalee and Spearwood. Counsel for the appellant noted that the cousin was aged 35 at the time and that there had been a reference in the psychological report to the negative peer influence of family members as being a factor attributing to the appellant's offending.
30 The material provided by the appellant in her affidavit does not appear to be fresh in any material sense. Nor does it add in any significant way to the information that was available at the time of sentencing. Whilst it is possible that the appellant was influenced by her older cousin, none of the material supports a conclusion that she was an unwilling participant. Indeed, the only reasonable conclusion is that she participated in these offences in order to support her own drug habit.
31 The appellant's written submissions refer to a number of other cases in support of an argument that the total effective sentence in this case was not appropriate. The circumstances of burglary offences can vary widely and attract a wide range of sentences. Home burglaries are viewed as being particularly serious: Moody-Jackamarra v The State of Western Australia [2007] WASCA 7. Such offences are generally seen as requiring substantial penalties in order to recognise considerations of personal and general deterrence and reflect the prevalence of the offence: Drake v The State of Western Australia [2006] WASCA 209 [60] and Butler v The State of Western Australia [2012] WASCA 249 [40]. Sentences imposed in other cases can be useful in ensuring broad consistency. However they do not act to set the limits of sentencing discretion.
32 The cases referred to by the appellant are as follows. In Sartori v The State of Western Australia [2014] WASCA 98 the offender was convicted of aggravated burglary and attempted aggravated armed robbery arising out of the same incident. He was sentenced to 3 years and 3 months' imprisonment for the aggravated burglary and 18 months' imprisonment concurrent for the attempted armed robbery. The offender in that case was aged 20 at the time the offences were committed, had no significant criminal record and a history of stable employment. He was living in a supportive family environment and was well regarded within the community. He entered pleas of guilty at the earliest opportunity and was remorseful. He was assessed as being a low risk of reoffending. On the other hand his offence had been premeditated, was committed with others and involved assaulting the occupants of a home.
33 Whilst it is clear that the appellant's aggravated burglary offences were each less serious than that in Sartori, her personal circumstances were less favourable. It is also inappropriate to only compare the offence in Sartori with the appellant's Spearwood burglary for which she received a sentence of 3 years. That sentence needs to be seen in the context of her total offending. The fact is the appellant did not commit a single burglary, she committed a series of four burglaries that were separate and distinct and could well each have attracted cumulative sentences. Even if the sentence for the Spearwood burglary viewed in isolation might be seen as being high, it would be difficult to justify another sentence being imposed having regard to the sentences imposed for the other offences (particularly those that were made wholly concurrent).
34 In Whitby v The State of Western Australia [2014] WASCA 99 the offender was convicted of two counts of aggravated burglary and two counts of stealing and was sentenced to a total effective sentence of 4 years and 6 months' imprisonment. The offender in that case forcibly entered dwellings at night time whilst the occupants were asleep. The offender pleaded guilty at the first reasonable opportunity, had a long history of substance abuse and suffered depression for which he was being medicated. The offending in Whitby was comparable to that of the appellant but resulted in a higher total sentence. Furthermore, any comparison needs to take into account that the appellant committed four offences as compared to two in Whitby. That case does not assist the appellant.
35 In Otway v The State of Western Australia [2008] WASCA 165 the offender pleaded guilty to four counts of aggravated burglary, one count of aggravated armed robbery, one count of stealing and one count of stealing a motor vehicle. He was sentenced to a total effective sentence of 5 years and 6 months' imprisonment. The offender was 19 years old with a poor education and 'unsettled' employment record. He had experienced a traumatic childhood and suffered from ADHD. The total offending in Otway was more serious than the appellant's, but it attracted a higher total effective sentence. It does not afford a useful comparison.
36 These are not the only relevant cases. The standards of sentencing customarily imposed for aggravated burglary offences have been reviewed in Ashworth v The State of Western Australia [2006] WASCA 36, Drake v The State of Western Australia and Nguyen v The State of Western Australia [2007] WASCA 114. See also Butler v The State of Western Australia, Ridley v The State of Western Australia [2013] WASCA 45, Spry v The State of Western Australia [2013] WASCA 68, Conley v The State of Western Australia [2013] WASCA 95, Fullgrabe v The State of Western Australia [2013] WASCA 130, Pennetta v The State of Western Australia [2013] WASCA 234, Nolan v The State of Western Australia [2013] WASCA 235, Brady v The State of Western Australia [2013] WASCA 253 and the cases cited in those decisions.
37 The sentences imposed on the appellant are consistent with those imposed in other cases. Whilst the appellant's youth was an important sentencing consideration, it was open to the sentencing judge to come to the conclusion that, notwithstanding her youth, sentences of the length imposed were appropriate.
Conclusion
38 It is not reasonably arguable that the total effective sentence was disproportionate to the total offending taking into account all relevant circumstances including those personal to the appellant. In those circumstances I would make the following orders:
1. extension of time to appeal refused; and
2. appeal dismissed.
6
17
1