Ashworth v The State of Western Australia
[2006] WASCA 36
•10 MARCH 2006
ASHWORTH -v- THE STATE OF WESTERN AUSTRALIA [2006] WASCA 36
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2006] WASCA 36 | |
| THE COURT OF APPEAL (WA) | |||
| Case No: | CCA:12/2005 | 9 NOVEMBER 2005 | |
| Coram: | ROBERTS-SMITH JA MCLURE JA | 10/03/06 | |
| 37 | Judgment Part: | 1 of 1 | |
| Result: | Leave to appeal granted Appeal allowed | ||
| D | |||
| PDF Version |
| Parties: | DARREN RONALD ASHWORTH THE STATE OF WESTERN AUSTRALIA |
Catchwords: | Appeal Criminal law and procedure Sentencing Multiplicity of offences Whether individual sentences manifestly excessive Burglary Assault public officer Totality Whether aggregate term of imprisonment disproportionate to overall offending Cooperation with police Weight to be accorded in mitigation |
Legislation: | Criminal Appeals Act 2004 (WA), s 31(4)(a) Sentencing Legislation Amendment and Repeal Act 2003 (WA) |
Case References: | Etheridge v The Queen [2004] WASCA 152 F v The Queen [2005] WASCA 135 Green v The Queen [1995] WASCA 139 Herbert v The Queen (2003) 27 WAR 330 Hill v Bodenham [2000] WASCA 37 Jarvis v The Queen (1993) 20 WAR 201 Kelly v The Queen, unreported; CCA SCt of WA; Library No 950245; 19 May 1995 Lowndes v The Queen (1995) 195 CLR 665 Mill v The Queen (1988) 166 CLR 59 Pearce v The Queen (1998) 194 CLR 610 Postiglione v The Queen (1997) 189 CLR 295 R v B [2004] WASCA 1 R v Holder and Johnston [1983] 3 NSWLR 245 R v Leucas, unreported; CCA SCt of WA; Library No 940130; 24 March 1995 R v Pezzino (1997) 92 A Crim R 135 R v Ward (1999) 109 A Crim R 159 Woods v The Queen (1994) 14 WAR 341 Markarian v The Queen (2005) 79 ALJR 1048 R v Faithfull (2004) 142 A Crim R 554 Rafferty v The Queen (2002) 135 A Crim R 282 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : ASHWORTH -v- THE STATE OF WESTERN AUSTRALIA [2006] WASCA 36 CORAM : ROBERTS-SMITH JA
- MCLURE JA
- Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram : WILLIAMS DCJ
File No : IND 267 of 2003
Catchwords:
Appeal - Criminal law and procedure - Sentencing - Multiplicity of offences - Whether individual sentences manifestly excessive - Burglary - Assault public officer - Totality - Whether aggregate term of imprisonment disproportionate to overall offending - Cooperation with police - Weight to be accorded in mitigation
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Legislation:
Criminal Appeals Act 2004 (WA), s 31(4)(a)
Sentencing Legislation Amendment and Repeal Act 2003 (WA)
Result:
Leave to appeal granted
Appeal allowed
Category: D
Representation:
Counsel:
Appellant : Mr H Sklarz
Respondent : Ms L D O'Connor
Solicitors:
Appellant : Henry Sklarz
Respondent : State Director of Public Prosecutions
Case(s) referred to in judgment(s):
Etheridge v The Queen [2004] WASCA 152
F v The Queen [2005] WASCA 135
Green v The Queen [1995] WASCA 139
Herbert v The Queen (2003) 27 WAR 330
Hill v Bodenham [2000] WASCA 37
Jarvis v The Queen (1993) 20 WAR 201
Kelly v The Queen, unreported; CCA SCt of WA; Library No 950245; 19 May 1995
Lowndes v The Queen (1995) 195 CLR 665
Mill v The Queen (1988) 166 CLR 59
Pearce v The Queen (1998) 194 CLR 610
Postiglione v The Queen (1997) 189 CLR 295
R v B [2004] WASCA 1
R v Holder and Johnston [1983] 3 NSWLR 245
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R v Leucas, unreported; CCA SCt of WA; Library No 940130; 24 March 1995
R v Pezzino (1997) 92 A Crim R 135
R v Ward (1999) 109 A Crim R 159
Woods v The Queen (1994) 14 WAR 341
Case(s) also cited:
Markarian v The Queen (2005) 79 ALJR 1048
R v Faithfull (2004) 142 A Crim R 554
Rafferty v The Queen (2002) 135 A Crim R 282
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1 ROBERTS-SMITH JA: This is an application for extension of time and for leave to appeal against sentence imposed upon the applicant by Williams DCJ in the District Court at Perth on 23 December 2004.
2 On 2 December 2004 the applicant pleaded guilty to 12 of 21 counts on an indictment dated 3 May 2005, together with 10 other offences by way of a notice under s 32 of the Sentencing Act 1995 (WA). In addition, his Honour was required to sentence the applicant in respect of one breach of a District Court community based order, one breach of the conditions of a suspended sentence and a breach of a Court of Petty Sessions community based order.
3 The offences to which he pleaded guilty on the indictment were 10 counts of receiving and two counts of burglary. On those, he was sentenced to 2 years' imprisonment on each of the receiving counts and 2 years 8 months on each of the burglary offences. The sentences for the offences proceeded with on the s 32 notice were (the numbering does not correlate with that on the s 32 notice):
1. Unlawful Possession 1 year
2. Breach of Bail 4 months
3. Burglary 2 years
4. Stealing 2 years
5. Unlicensed Vehicle $200
6. False Plates $400
7. No MDL $400
8. Stealing 2 years
9. Stealing 2 years
10. Stealing 2 years
11. Breach of District Court Suspended
Imprisonment Order
Threat to Injure (order imposed 28/07/03) 8 months
concurrent
12. Breach of District Court CBO
Assault Public Officer
(order imposed 28/7/03) 2 years concurrent
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- 13. Breach of CPS CBO
No MDL $200
- (order imposed 20/10/03)
- Stealing Motor Vehicle 2 years concurrent
5 The application for leave to appeal was filed on 9 February 2005. That was out of time. By application also filed 9 February 2005, the applicant seeks an extension of time. That is supported by his affidavit in which he states simply that he was not sentenced until 22 December 2004 (in fact it was the following day), that Government offices were closed over the Christmas holiday period and that he changed lawyers and his new lawyer, Mr Sklarz, was absent from the jurisdiction until 27 January 2005.
6 The delay is not substantial. It is satisfactorily explained and the respondent is not prejudiced. I would grant the extension of time.
7 The application for leave to appeal contained eight grounds. On 22 August 2005, leave to amend the grounds of appeal was granted. The grounds are:
"1. The Sentencing Judge imposed individual sentences in respect to the following, which, in all the circumstances, are manifestly excessive:-
(a) Two counts of burglary on Indictment - 4 years imprisonment reduced to 2 years 8 months each;
(b) Breach of District Court CBO of assaulting Public Officer - 3 years imprisonment reduced to 2 years;
(c) Breached Petty Sessions CBO of stealing motor vehicle - 3 years imprisonment reduced to 2 years.
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- 2. The Learned Sentencing Judge erred in not properly applying the totality principle of sentencing in imposing a head sentence of 6 years.
3. The Learned Sentencing Judge did not have before him, and so could not take into account, the substantial mitigating factor, of the offender's assistance he gave to the Police."
8 In its submissions the State made two concessions. The first (appeal t/s 21) was that some discount should have been given for what Ms O'Connor described as the "very limited assistance" given by the applicant to police, but that was not a concession that some different sentence should have been imposed (s 31(4)(a) Criminal Appeals Act 2004 (WA)). The second was that (appeal t/s 22) the sentences of 2 years' imprisonment "… on each of a multiplicity of counts including counts of stealing … at first sight appear beyond the exercise of a sound discretionary judgment". Asked to clarify that, Ms O'Connor said the concession related only to offences the subject of the s 32 notice, namely the three offences of stealing number plates and the stealing of a gas cylinder. I shall return to these concessions below.
9 Before turning to an examination of the grounds of appeal, it is necessary to outline the facts upon which his Honour was required to set his sentences. His Honour did not outline those himself, but said simply (AB 89):
"The facts are not in dispute and I incorporate the state [sic] prosecutor's recital of the material facts into these sentencing remarks."
10 There was some confusion at several points in the proceedings over what actual offence certain facts being recited related to. That made it difficult to work out, from the transcript and produced documents, precisely what his Honour had taken the facts to be for the purpose of sentencing. I take them to be as follows.
The facts
11 On 18 May 2003 a police patrol at Malaga observed a grey Nissan 4WD parked on Berringara Drive. The applicant was lying underneath the car. When asked, he told the police officers that the car belonged to him. The officers looked into the car and noticed it contained a large set of bolt cutters, a spotlight (which was plugged in), crow bars and other
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- tools. The applicant ran away from the police into nearby bushland and they were unable to find him. They went to his address at Beechboro on 24 May 2003 where they found a significant quantity of stolen property which had been taken in a number of burglary offences.
12 The applicant took part in a video record of interview. He denied committing any of the burglary offences. He told police that he had been selling drugs for about 10 years and that he acquired the property found by police, by swapping the property for quantities of amphetamines, which he supplied. On other occasions he paid cash for items of property. He told police that he had a fair idea that the property was stolen.
13 Three days later the police searched the applicant's house again. They found further items of property which had been stolen as the result of burglary offences. On that occasion the applicant refused to take part in a video record of interview. The State prosecutor was unable to inform his Honour why the police returned on the second occasion but the applicant's counsel said he thought it was for items they had "missed the first time around".
14 IND 267 of 2003 - Count 2 (Receiving - s 414 of the Code): On an unknown date between 1 and 13 January 2003 the business premises of Reelman Australia Pty Ltd on Coast Road, West Swan, were broken into by forcing apart sheeting at the rear of the workshop, and by cutting padlocks. The CIG arc welder, a Ryobi mitre saw and tools were stolen.
15 The arc welder, mitre saw and an Estwing claw hammer were subsequently identified as proceeds of that burglary, found amongst the property located by police at the applicant's house on 27 May 2003.
16 IND 267 of 2003 - Count 4 (Receiving - s 414 of the Code): In April 2003 the business premises of Nomad Western Australia Pty Ltd in Victoria Road, Malaga, were broken into. Items stolen included nine fridges, an oxy-acetylene bottle, hoses, gauges, an LPG gas bottle, a DeWalt jigsaw, a dual axel box trailer, a Halite drill and other tools. On 24 May 2003 the owners were shown the property located at the applicant's house and identified the gas bottle and hoses, the box trailer (which had been painted a different colour), the Halite drill, tools and a Daiken split-system indoor fan coil unit as items which had been stolen during the burglary. The total amount of property stolen during that burglary was $24,647.
17 IND 267 OF 2003 - Counts 5 and 6 (Burglary - s 401(2) of the Code): In April 2003 the complainant advertised two coin watches for
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- sale in the "Sunday Times". On 15 April that year, the applicant telephoned and spoke to her. By arrangement, he went to her house about 6.30 pm that day and purchased one of the watches. He told her he would come around the following day to purchase the other watch. He gave the complainant a piece of paper with his mobile phone number on it. The next day her house was broken into. The only items of property stolen were the remaining coin watch (valued at $758.55) and the piece of paper with the applicant's mobile phone number on it. The following day (17 April) he again broke into her house. On that occasion he stole a computer system, an Olympus digital camera, a Fossil ladies' watch, a Sony DVD player and a Yamaha amplifier and speakers, together with jewellery, of a total value of almost $19,000.
18 IND 267 of 2003 - Count 8 (Receiving): In late April 2003 a new house under construction by Homebuyers Pty Ltd in Henley Brook was broken into by the smashing open of a door between the garage and the kitchen. The house was at "lock-up" stage. A Rheem hot water system, a stainless steel Chef hotplate, and an oven had been delivered to the house the day before and were still in their boxes. Those items were stolen. On 18 June 2003 a builder employed by the complainant identified the hot water system, the oven and the hotplate, as being the items stolen. They were found in the applicant's premises. They were valued in total at $1474. The complainant in that offence had to completely remodel her kitchen at a cost of $3342 and although she was partially insured, she still lost $2000. As this was a receiving count, no claim for a compensation order could be made against the applicant (the responsibility for the damage being that of the burglar, not the receiver).
19 IND 267 of 2003 - Count 10 (Receiving): Sometime between 4 and 13 May 2003, a new house under construction at Hellfire Drive, Darch, was broken into. A box of door handles and locks, security door locks, bathroom towel rails and toilet roll holders were stolen. These items were later found amongst the property at the applicant's house on 24 May 2003. The value of that property was $319.25.
20 IND 267 of 2003 - Count 12 (Receiving): In early May 2003, another house under construction at Denham Gardens, Landsdale, was broken into. The installed kitchen of the house was taken. The value of the kitchen and shelving was $3560. A construction manager employed by the complainant later identified kitchen bench tops and cupboards found at the applicant's house as being items stolen during the burglary.
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21 IND 267 of 2003 - Count 14 (Receiving): Between 9 and 11 May 2003 the business premises of SAC Furniture on Crocker Drive, Malaga, were broken into. A number of items were stolen. Their total value was $3460. The complainant subsequently identified a quantity of items found by police at the applicant's address as being amongst the stolen items. Those identified were a front-loading washing machine, a sofa and a timber wine chest.
22 IND 267 of 2003 - Count 16 (Receiving): On an unknown date between 11 and 16 May 2003, a shed on a hobby farm at Bullsbrook was broken into. It was a shed in which the complainants occasionally used to sleep. The lock of the door of the shed was broken off and a number of items stolen, to a total value of $20,642. On 26 May 2003 the complainant was able to identify amongst the property seized from the applicant's home, a horse saddle, a whipper snipper, an Akai colour TV, a Dryz-a-bone jacket, side cutters, a Hewlett Packard colour printer, a Umax scanner, a metal gas barbeque and gas bottle, two sleeping bags, a futon bed with mattress, two sheepskins, four drill bits, a screwdriver, two cement screeding floats, three spirit levels, an extension cable, a two-stroke water pump, mini bolt cutters, a hacksaw, a Bohrer drill bit set, two pliers, two spade-type drill bits, five nail punches, a turbo pressure cleaner, two hammers, a measuring tape, two cement trowels, two metal files, one metal square, a torch, a crowbar and a Canon digital camera.
23 IND 267 of 2003 - Count 18 (Receiving): Sometime between 15 and 18 May 2003, a house being constructed on Brumby Avenue, Ellen Brook, was broken into. Items stolen during that burglary were laminate kitchen tops, a stainless steel kitchen sink, a laminated vanity bench top and a ceramic vanity basin. On 27 May 2003 police located the bathroom basin and a vanity top at the applicant's premises.
24 IND 267 of 2003 - Count 20 (Receiving): Between 20 and 23 May 2003, the business premises of Tom Cat Hard Chrome Engineering Pty Ltd at Berringara Drive, Malaga, were broken into. All the power tools and hand tools and consumables on the premises were stolen. The total value of the property stolen was $37,205. On 29 May that year, the complainant was able to identify a red cordless drill located amongst the property at the applicant's home as having been stolen during the burglary offence.
25 IND 267 of 2003 - Count 21 (Receiving): In late January 2003, business premises belonging to a business trading as Chambers & Rowe Marketing and Wembley Sportswear in Caversham was broken into by
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- knocking down a front aluminium sliding door. Sports clothing and accessories were stolen. There was approximately $2000 worth of property stolen and $500 worth of damage to the premises. In May 2003 the complainant identified from amongst the property at the applicant's premises, 16 sports tops and jackets, as being property stolen during the burglary.
26 I turn now to the offences on the s 32 notice (the numbering relates to that on the notice, bearing in mind some offences were not proceeded with).
27 3 - Unlawful possession: This related to the two searches on 24 and 27 May 2003. In addition to the items of property referred to on the indictment, the following was found which was reasonably suspected to have been stolen or unlawfully obtained: 47 alarm sirens, two removalist trolleys, three metal first aid cabinets, two vacuum cleaners, two angle grinders, two electric drills, four cordless drills, a bench grinder, jigsaw, router, two compressors, a digital camera, laundry trough, box of ceramic tiles, heavy duty industrial cord and compressor hose, four rolls of industrial abrasives and six toolboxes containing numerous tools, fixings and hardware. Although the applicant took part in what is described as a "field video record of interview" during both those searches, he failed to give any satisfactory account of how he obtained the items. On 27 May 2003 he attended the Kiara police station to clarify ownership of the property but he declined to take part in another video-taped record of interview.
28 4 - Breach of bail: On 6 June 2003 the applicant appeared in the Midland Court of Petty Sessions and was remanded in custody. He appeared on several other dates and on 20 October that year was released on bail to appear at that Court on 13 April 2004. He failed to do so. However, two days later, on 15 April 2004, he presented himself at the Midland police station and was arrested on a warrant.
29 7 - Burglary: In the late evening on Sunday 29 September 2002, the applicant went to the complainant's address in Shakespeare Street, Mount Hawthorn. At the time the house was being renovated and was unoccupied. The applicant smashed a rear family room window to gain entry. In the process he cut himself, leaving a small amount of blood at the scene. Once inside he removed several items, including power tools and an oven. He loaded the property onto the back of the utility in which he had arrived. On 8 September 2004, police went to his address and took him to the Central Metropolitan TIG office where a video interview was
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- conducted. He admitted that offence, stating that he remembered taking the oven and putting it into the utility. The value of the property was $6960.
30 8 - Stealing: At 11.15 pm on Sunday 19 September 2004, the applicant went to the Timberlane delicatessen on Beechboro Road, Beechboro. His intention was to steal gas bottles from the locked storage facility at the front of the shop. He drove to the delicatessen in an unregistered vehicle which he had fitted with false registration plates. He took a pair of bolt cutters and a torch with him. He used the bolt cutters to remove the padlock from the steel mesh storage facility and placed all 11 gas cylinders into his vehicle. The cylinders were full 9 kg bottles.
31 The applicant left the delicatessen, but on his way home was sighted by police. He was stopped and spoken to as he arrived home. He told the officers that he was in the barbeque business and had recently purchased the bottles for $35 each and was going to resell them for $65 each. He was arrested on other driving matters and during a video record of interview admitted to stealing the gas bottles. He said that he was going to try and sell them.
32 9 - Unlicensed vehicle: The vehicle the applicant was driving on 19 September 2003 was a silver Hyundai which had been unregistered since March 2003. It had been delicensed and the plates had been returned. The applicant admitted having owned the vehicle and said he bought it unlicensed and he knew it ought not to be driven on a road.
33 10 - False plates: At the time, the silver Hyundai was fitted with false number plates. The applicant said he had attached them to the vehicle prior to driving because he knew it was unregistered and that it had no plates.
34 11 - No motor driver's licence: At the time of the previous offences the applicant was not the holder of a driver's licence. He told police that he knew he should not be driving because his licence had expired but said he just had not got around to resitting it.
35 12, 13 and 14 - Stealing: Each of these involved stealing vehicle number plates. The plates fixed to the silver Hyundai the applicant was driving on 19 September 2004 had been stolen from a Toyota Hilux on 14 February the previous year. The applicant told police that he found the plates at Sims Metal Scrap Yard several months earlier and had decided to keep them. Inside the same car at the time, there was also another set of plates found under the mat in the boot of the vehicle. The applicant gave
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- exactly the same explanation in relation to those. They had in fact been reported to police as stolen on 29 September 2002. The applicant had a brown Holden sedan parked on the front lawn of his house. He told police that he owned that vehicle. When they checked, they found the plates affixed to it were not for that vehicle but had been reported stolen from a Magna sedan in May 2004. Again, the applicant gave the same explanation, that he had found them at a scrap metal yard.
36 Breach of District Court suspended imprisonment order: About 10 pm Thursday 3 October 2002, the resident of a unit in Maylands heard loud banging noises. When he looked outside he saw the applicant in the backyard. The complainant confronted the applicant, who pulled a knife on the complainant, holding it downwards in his left hand. He asked the complainant whether he had ever been stabbed before and at the same time lunged at him, threatening to stab him. The complainant jumped back and said "No. Have you?". The applicant left the scene. Police apparently arrived quickly and the complainant was able to point the applicant out to them as he walked down the road. When he saw them he ran and hid. A police dog tracked the applicant approximately 150 metres into the front yard of a nearby house, where he was found lying down in bushes. As he was being arrested, the applicant kicked and punched the police dog. The dog handler called the dog off and the applicant stood up. According to the State prosecutor, when the police handler instructed the applicant to lie down on his front, the applicant made a sudden lunge towards the officer's bag. In fact, as will be seen later, the applicant suddenly ran towards his own backpack. Fearing for his safety, the police handler set his dog upon the applicant again. This time the applicant kicked, punched and tried to strangle the police dog. He also kicked the dog handler and struggled violently. The dog handler used pepper spray on the applicant. Extra police arrived at the scene and assisted in successfully arresting the applicant. The police dog handler received cuts and abrasions to the inside of his right wrist as a result of falling on the ground whilst struggling with the applicant. The prosecutor said that police found the knife on the ground near the applicant when he was arrested. The applicant did not require any medical attention. The dog handler was about the same height and build as the applicant. No video record of interview was conducted.
37 Breach of District Court CBO: That community based order had been imposed (so his Honour was told) by the District Court in respect of an offence of assaulting a public officer, arising out of the facts just outlined.
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38 The applicant's criminal history records that both the offence of assaulting a public officer and that of threatening to injure were dealt with in the Court of Petty Sessions on 28 July 2003, and that in respect of the former, the applicant was sentenced to an 18 month adult community based order, and in respect of the second, to a term of 12 months' imprisonment, suspended for 18 months. Counsel accepted the record was in error on this and that both matters were dealt with in the District Court.
39 Breach of Court of Petty Sessions CBO: The State prosecutor, in reference to this, began by saying (AB 68):
"This is a breach by noncompliance with community work, performing 81 out of - - -"
- At which his Honour said "Yes" and the prosecutor then went on to describe the facts of the offence. He said they were that at 12.40 am on Sunday 18 May 2003, police found the applicant lying underneath the grey Nissan 4WD at Malaga. (This was the incident referred to earlier.) The vehicle was stolen at the time. The engine of the vehicle was running. When the police spoke to the applicant he said he had driven the vehicle to that location and that it had mechanical difficulties. He gave a false name and address before fleeing the scene on foot. A week later the police located him at his home and found all of the stolen property already referred to. The prosecutor said nothing further about the facts of this, but a breach report dated 12 May 2004 noted that he had generally complied with the supervision requirement of the order, but his attendance at community work was "less than satisfactory". He only completed 81 of the required 120 hours. That was the breach.
40 The statement of material facts attached to the breach report refers to the police finding the applicant underneath the vehicle on 18 May 2003. It then continues to state that on 24 May 2003, in the course of a video record of interview, he told police he was given the vehicle by a person known as "Cozza", but was unaware it was stolen. He could not give a satisfactory reason for running away from police or giving false particulars. In a later interview at the Kiara police station in respect of the burglary offences, the applicant told the police he believed the vehicle may have been stolen, but nonetheless continued to use it.
41 Then, in his plea in mitigation, counsel for the applicant said that the applicant would be 34 in January and that his first really serious offence resulted in a conviction in the Midland Court of Petty Sessions in February 2003, when he was convicted on his plea of guilty to an offence
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- of burglary and fined $1500. Counsel said that related to the applicant returning to premises where he lived as a youth, that he was intoxicated at the time and that he broke in and did some damage.
42 Before dealing with the applicant's background, counsel said that the statement of material facts read to the court by the State prosecutor in relation to these offences was "broadly" admitted (AB 73):
"… except for the facts in relation to the threats to injure and the assault on a public officer which was dealt with in the District Court on 28 July.
Those facts were disputed at the time. Those are the facts that were read out by the state [sic] originally but they were disputed by me at the time and in the end the matter was simply resolved by the penalties that were imposed, and I'll come back to that, if I may."
43 It was then agreed between counsel that the applicant had spent 169 days in custody and any sentence should be backdated to 30 June 2004.
44 Counsel for the applicant continued, informing his Honour that the applicant was born in Perth and had lived here most of his life, apart from about a 10 year period in South Australia. His father is dead, although his mother is still alive and he is in regular contact with her. He has two brothers and two sisters. The applicant is the middle child in the family. He left school in Year 10 with an Achievement Certificate, intending to take up an apprenticeship, but before he could do so, he was involved in a motor vehicle accident. He spent a lengthy time in hospital as a result and was unable to pursue his apprenticeship after that. He has had employment in various occupations including landscape, gardening and other horticulturally related jobs, as well as the building industry.
45 Counsel said the applicant was married in 1994 and there were three children of that marriage, aged 10, 7 and 6.
46 The appellant developed an amphetamine addiction in his past and has struggled with it ever since, as well as having problems with alcohol. In the last few years he has had stomach problems which have not been properly diagnosed despite him attending hospitals and doctors. It seems that at one stage the applicant thought he might have stomach cancer and the fear of that led him to increasing his amphetamine use, as a result of which amphetamine became a real addiction problem for him.
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47 The applicant's counsel referred to various observations in the pre-sentence report (to which I will return). He said that by the early part of 2003 the applicant had a very bad amphetamine habit and associated with others with a similar problem. He found that the only way to be able to afford the amphetamine was to come to an arrangement with people he knew, whereby they would bring him stolen goods, which he would then exchange with an amphetamine dealer who would supply him with amphetamine. He would then pass on part of this to the people who brought him the goods.
48 In relation to the burglary offences - counts 5 and 6 on the indictment - counsel said the applicant accepted the State's facts as put to his Honour, although he had no recollection of the burglaries and it may well be that heavy amphetamine use had affected his memory in that respect.
49 Likewise, counsel said, the burglary on the s 32 notice involving the stealing of the oven into the back of a utility, was not something of which the applicant had much memory, although he accepted that he had committed the offence. The other offences were committed whilst he was on bail.
50 With respect to the false number plate charges, counsel said they really arose from the applicant not being able to afford the registration fees for his vehicle but needing to use it for family-related purposes. He had no licence at the time and was also unable to afford to deal with that.
51 So far as the stealing of the gas bottles was concerned, counsel said the applicant and his family were having a barbeque at home when the gas bottle ran out. He decided to go out, but could not find the place to sell him a barbeque. On seeing a store of gas bottles, he used bolt cutters to get into the enclosure where they were kept. However, instead of stealing one, he took the lot.
52 As to the stolen licence plates, the applicant accepted they were stolen, although counsel said he did actually acquire them at a scrap metal yard and did not pay for them.
53 Counsel then turned to the matters the subject of the orders made by then Chief Judge Hammond in the District Court on 28 July 2003. In relation to the threatening behaviour offence, counsel said (AB 80):
"… it was disputed then that Mr Ashworth held a knife in his hand. I said to his Honour at the time that my instructions were that Mr Ashworth might have had a shift or a metal - shift or a
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- wrench in his hand at the time. It was at night, it glinted and a local resident - you see, what had happened was Mr Ashworth became intoxicated; walking home, he decided to take a drink of tap water from a tap.
A local resident thought he was up to no good and approached him. There was a confrontation and Mr Ashworth menaced, if that's the right word, the local resident with the shift. The local resident thought it might have been a knife, and said as much in his deposition. Later Mr Ashworth staggered off and was apprehended by a police officer. This was the subject of some correspondence between myself and the state [sic] - or the crown [sic] at the time. Originally the crown [sic] alleged that he kicked the police officer - tried to strangle the dog and kick the police officer.
What happened was the dog actually went for him and bit him on the leg and he was trying to get the dog off. The policeman became involved. They both fell to the ground and there was pushing and shoving. At the end of the day I think the police officer accepted that there wasn't a deliberate kick but there was deliberate pushing and shoving which would constitute an assault. Mr Ashworth was sentenced by his Honour on that basis rather than that it was a deliberate kick to the police officer. There was pushing and shoving that occurred during the course of an arrest."
54 In relation to the applicant's pleas of guilty, counsel told his Honour that although the applicant had not pleaded guilty on the fast-track, he had in fact done so at a very early stage following considerable correspondence between his lawyer, the arresting police officers and the office of the DPP. In the end the State accepted pleas to 12 out of some 21 charges on the indictment. Counsel said that was the reason there was not a plea at an earlier stage: the applicant had indicated early on that he was always prepared to plead guilty to receiving charges, but it was just a question of what he would be pleading guilty to.
55 Finally, counsel submitted that most of the offences had been fuelled by an amphetamine addiction which arose because of a belief at one stage that the applicant had stomach cancer, following which he developed a hopelessness and sense of depression about his life. Fortunately his wife, children and his mother remained supportive.
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56 The pre-sentence report was dated 16 August 2004. It was compiled from information gained by way of interview with the applicant, his mother, a Dr Harvey, court history and departmental records.
57 The Community Corrections officer noted that in relation to the offences charged on the indictment, the applicant had told her that he bought goods from local Aboriginal youths not realising they were stolen, although on reflection he should have realised that, as those individuals had asked him for drugs previously, the goods were likely to have been illegally obtained. She went on to state that the applicant was remorseful for his offences, indicating that he realised the "wrong in crime", but that he was motivated by the need to finance his drug use at the time of the offences.
58 It will be immediately apparent that the explanation given by the applicant to the Community Corrections officer was an obvious attempt to minimise his culpability, and which could not stand in light of what was subsequently put to his Honour and accepted by the applicant.
59 Most of what was contained in the pre-sentence report reflected what had already been put to his Honour by the applicant's counsel.
60 In relation to the applicant's substance use, the officer noted that he had a history of amphetamine and cannabis use which he had previously addressed through substance abuse counselling while subject to community supervision, but he had relapsed. The applicant had reported his use of amphetamines as costing approximately $1000 per week around the time he committed the offences on the indictment, although he reported having ceased using drugs and having stopped drinking approximately two years prior to the date of the report.
61 In summary, the officer concluded that the applicant presented as having a medium risk of re-offending "whilst his offence related issues remain".
62 The State prosecutor provided his Honour with three victim impact statements from three students who lived at the house the subject of the burglaries in counts 5 and 6. One of them had her computer stolen just before exams, losing all the information stored on it. His Honour read the statements before counsel proceeded.
63 The State prosecutor submitted that the burglaries had caused the victims significant emotional trauma and frustration and that there was a need for general deterrence in respect of home burglaries.
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64 Concerning the receiving offences, it was put to his Honour that the applicant fenced a huge amount of property in return for drugs. Counsel noted this is a significant problem in the building industry, costing huge amounts of money each year, where houses are targeted by burglars and frequently this property is taken just prior to the houses being occupied by their residents. He submitted that the courts have expressed the need for general deterrence in relation to receiving offences because they encourage burglars and would-be burglars by enabling them to easily move the property. He further submitted this particular offender was able to provide a very good avenue for property to be fenced by drug users, effectively encouraging would-be burglars or burglars. He said there was a considerable amount of property stolen, on his understanding, somewhat in excess of $60,000.
65 In relation to the offences the subject of the community based orders - the assaulting police and threat to injure - the State prosecutor pointed out that the statutory maximum penalties were 3 years and 10 years' imprisonment respectively. As to the facts, he said it was clear from the prosecution brief that the police located a knife near the applicant when he was arrested. Further, it had to be said that in the course of that arrest the police officer had done his best to attempt to arrest the applicant and it was only at a very late stage, when he was forced to use capsicum spray and was assisted by other officers, that he was able to apprehend the applicant. Counsel submitted it was a violent offence, in the course of which the applicant had produced a knife and made a threat. This submission appears to have confused the offence of threatening behaviour with that of assaulting the public officer.
66 In his sentencing remarks, his Honour began by noting that the applicant had pleaded guilty to 10 counts of receiving and two counts of burglary on the indictment and also on a s 32 notice, to one count of unlawfully obtaining goods, one of breach of bail, one of burglary, four counts of stealing, one of using a vehicle not validly licensed, one of driving a motor vehicle with false number plates and one count of not being the holder of an appropriate valid motor driver's licence. He further noted that additionally, in the District Court on 28 July 2003, the applicant had been convicted on his own confession of assaulting a public officer and admitted to a community based order for 18 months. He noted that on the previous day (22 December 2004) the applicant was convicted of breaching bail and for stealing offences, as a result of which he admitted a breach of the community based order and had become liable to be sentenced by his Honour for the offence of assaulting a public officer.
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67 Additionally, on 28 July 2003 in the District Court at Perth, he had been convicted on his own plea of guilty, of threatening to harm, and was sentenced to 12 months' imprisonment, suspended for 18 months.
68 Likewise, the applicant had been convicted of breach of bail and admitted to breach of the suspended imprisonment order and so became liable to be sentenced for the offence of threatening to harm.
69 Finally, his Honour noted that on 20 October 2003, in the Court of Petty Sessions at Midland, the applicant had been convicted on his plea of guilty, of one count of driving without a motor vehicle driver's licence and one count of stealing a motor vehicle, for which he had been admitted to a community based order for 6 months with supervision and community work requirements of 120 hours. He had admitted failing to complete the required hours of community service work and accordingly a breach of that community based order. As such he had become liable to be sentenced by his Honour for the offences of driving without a licence and stealing a motor vehicle.
70 Although noting that the case was not a "fast-track" plea as such, his Honour said he took into account the fact of relatively early pleas of guilty in relation to these matters.
71 He said that in general the facts recited by the prosecutor showed there was a substantial number of aggravated burglaries of which the applicant had not been convicted, but as a result of which he had received the proceeds. They mostly occurred in 2003. The offences on the s 32 notice also occurred over that period of time.
72 Referring to what the applicant's counsel had submitted to him, his Honour observed that the applicant would turn 34 the following month and that he did not have a bad record until 2003 when he was fined $1500 for his first burglary offence. It was accepted that he had been in custody for 169 days and that any sentence his Honour was to impose could commence from 30 June 2004.
73 His Honour said the applicant had been born in Perth. He had spent 10 years in South Australia, although there was no South Australian record in relation to him. He had two brothers and sisters. He left school at Year 10. He had a serious motor vehicle accident following that and had been employed in various jobs. He was married in 1994, having three children aged, 10, 7 and 6. According to what his Honour had been told, the sole cause of the applicant's offending was addiction to both amphetamine and alcohol. The applicant apparently had some stomach
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- problems which had not been diagnosed and it had been submitted by his counsel that was part of the reason for his increased amphetamine use. By early 2003 he had a very severe amphetamine habit and it was to afford that that he bartered stolen goods and passed on the amphetamine to others.
74 His Honour observed that the applicant's counsel had accepted that he was "a classic case of a fence". He added (AB 90) that:
"The state [sic] later told me that the burgled property was in excess of $60,000, so these are people who knew where they could take proceeds from burglaries to either - to receive drugs, as I understand it. Some of the - the two burglaries that you committed yourself on the indictment and the burglary on the section 32 notice you - by reason of your addiction to drugs you have - apparently have no memory of those matters."
75 His Honour noted it had been said by the applicant's counsel that he pleaded guilty at an early stage and his Honour accepted that to be the case; that most of the offences were fuelled by an amphetamine addiction; that he had family support; that since being in custody the applicant had undertaken courses and tried to modify his behaviour; that he realised that he would receive a significant term of imprisonment and that his Honour should apply the principle of totality.
76 The Judge then referred to submissions which had been put to him on behalf of the State, adverting to the victim impact statements relating to the burglaries which indicated clearly that they had caused trauma to the victims. Further, he said there was no doubt the burglaries which had preceded the applicant's receiving offences, had themselves caused additional trauma.
77 His Honour said it was quite clear that there is a need for general deterrence in respect of offences such as these. He then said (AB 90):
"The state's [sic] submission that - in relation to these matters that a huge amount of property was stolen as a result of the burglaries, the cost to the community is high and that this matter requires general deterrence and I agree with all of that. As I have said, the state [sic] says that the property taken in relation to these matters was in excess of $60,000."
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78 His Honour said that offences of this nature cause a great deal of cost to the community and the courts have always recognised that they required personal and general deterrence.
79 His Honour then imposed the sentences to which I have referred. He noted that the terms of imprisonment imposed totalled something over 20 years and that obviously on the totality principle, that would be too much for the applicant to serve and his Honour did need to take totality into account. However, he said that notwithstanding that, they were serious offences and the applicant still needed to serve a substantial term of imprisonment. In his Honour's view, that should be 6 years. He then achieved that outcome by orders as to cumulation and concurrency. He ordered that the applicant be eligible for parole and that his sentence of imprisonment commence on 30 June 2004.
Observations on the grounds of appeal
80 Ground 1 complains of the individual sentences imposed in respect of the burglary, breach of CBO (assaulting public officer) and breach of CBO (stealing motor vehicle) offences were manifestly excessive. The sentences in respect of the burglary offences are described as "… four years' imprisonment reduced to two years eight months each" and the others are described in a similar way. It is misleading and distracting to express sentences in that way. There is in each instance only one sentence, and it is that which was actually imposed: so the burglary sentences were each imprisonment for 2 years 8 months.
81 The form of words used in the notice derives from his Honour's application of cl 2 of Sch 1 of the Sentencing Legislation Amendment & Repeal Act 2003 (WA), which came into operation on 31 August 2003. That clause provides that if a court sentencing an offender proposes to impose a fixed term (with or without a parole eligibility order), it must impose a fixed term that is two-thirds of the fixed term that it would have imposed prior to 31 August 2003.
82 It will be appreciated that this provision in practice had the effect of reducing all the statutory maximum terms, other than life imprisonment, by one-third, without actually amending those statutory maxima.
83 Thus it was, for example, his Honour stated that the appropriate sentence for each of the burglary offences "under the old legislation" was 4 years' imprisonment and that application of Sch 1 of the amending Act "reduced" that term to one of 2 years 8 months.
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84 As counsel for the applicant expressed it, the first two grounds complain that the individual sentences were manifestly excessive and that the aggregate term of 6 years' imprisonment offended the principle of totality, but that the third issue, that of the cooperation the applicant gave to the police, "runs across" the first two. The logical approach is to deal first with the first two grounds and then with the third. That is the approach I take.
Ground 1 - Individual sentences manifestly excessive
85 Burglary is a serious offence. It is notoriously prevalent and so calls for sentences which are significantly predicated on the need for both specific and general deterrence, particularly when committed on domestic premises. The range of sentences imposed in respect of domestic burglary has been firmed up in recent years.
86 Individual sentences of 5 years were upheld by the Court of Criminal Appeal in Herbert v The Queen (2003) 27 WAR 330. In that case the offender had been sentenced in respect of 33 offences, including armed robbery in company (8 years' imprisonment), armed robbery (6 years' imprisonment), burglary of a habitation (5 years on each of four charges), stealing (3 years), fraud (2 years on each of six counts) and offences of threatening to injure (2 years on each of two counts). The sentencing Judge accommodated the totality principle by ordering that a number of the sentences run concurrently. The effective total term was 15 years' imprisonment. On appeal the offender argued that a number of the individual sentences (particularly those of 5 years in respect of the burglary offences) were manifestly excessive, and that the aggregate sentence was manifestly excessive having regard to the totality principle.
87 In dismissing the appeal, Malcolm CJ noted (at [2] and [5]) that it was of considerable significance that in 1996 Parliament had increased the maximum sentence of burglary from 14 to 18 years' imprisonment, as a consequence of the increasing prevalence of the offence. He agreed with Anderson J that, although it appeared that to that date there had not been any significant degree of firming up of sentences for burglary, in light of the increased penalties provided by Parliament, it was necessary for the courts to give effect to the clear intention of the legislature by increasing the sentences imposed for that offence.
88 Malcolm CJ went on to observe (at [6] - [7]) that while it may be acknowledged that the burglary offences in that case were not in the worst category in terms of the amount and value of property stolen, they were serious examples of the kind which had become prevalent in recent years,
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- involving as they did, forced entry and a search of premises, constituting a gross invasion of the space and privacy of the occupants, leaving them with a great sense of insecurity and characterised by the removal of everything of value that could be carried away without too much difficulty. His Honour concluded that in his opinion, having regard to the maximum now available, the sentences of 5 years were by no means manifestly excessive.
89 On this point, Anderson J referred (at [130] - [131]) to R v Pezzino (1997) 92 A Crim R 135, in which the Court of Criminal Appeal held that the time had come to "firm up" sentences of burglary of a habitat, owing to the prevalence of that particular offence. His Honour noted the fact that in many cases since then, the penalty for burglary (and even aggravated burglary) on a plea of guilty, had been much less than 5 years. Nonetheless, his Honour went on to say (at [133]):
"I think it must be accepted that the range of sentences in these cases do not reveal in fact any significant firming up; and it is true that the concept of equal punishment and consistency in sentencing has a significant role to play in the sentencing process, generally speaking. This is the foundation for Mr Young's submission that we should hold that sentences of five years imprisonment for each of these burglaries was manifestly excessive. It is a very understandable submission in light of sentencing patterns. However, what must not be lost sight of is that in 1966 Parliament increased the maximum penalty for burglary from 14 years to 18 years. The object in doing so was to bring about an increase in the sentences being imposed for this crime due to its prevalence and the considerable community concern arising from that prevalence. Whilst the burglary offences committed by the applicant were not in the worst category, if regard is had to the amount of property stolen and the level of professionalism (or lack of it) involved, still they were serious burglaries of the very kind which have become so prevalent; that is forced entry by damaging windows and the like, followed by a thorough search of the premises, involving rummaging through bedrooms, cupboards and drawers and the taking of everything of value which could easily be carried away. It seems to me impossible to say that a sentence of five years imprisonment against a maximum of 18 years is manifestly excessive even although it may be significantly higher than sentences imposed in like cases
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- hitherto. I would like to repeat what I said in Heferen v The Queen (1999) 106 A Crim R 89 at 97-98:
'I do not consider it is open to the courts now to regard home burglaries as anything but very serious offences. The courts in this State have recognised for sometime now that the offence has become prevalent and is causing considerable community concern. Quite apart from that, which would itself be a reason for the courts to continue to firm up sentences in home burglary cases, parliament has recently singled out the offence for special treatment. Prior to 1996 the maximum penalty for burglary was 14 years imprisonment. In 1966 amendments were made which increased the maximum penalty for domestic burglaries by 28.5 per cent from 14 years to 18 years. It is of course the duty of the courts to give effect to the policy behind this change'."
91 In the instance case, the offences were premeditated, artfully executed and brazenly carried out. They were separate offences committed on successive days. The unfortunate victim was specifically targeted by the applicant. The value of the property stolen was substantial and the trauma experienced by the victim (as outlined in her victim impact statement) was severe.
92 These sentences were clearly within the range of sentences which could properly have been imposed. This ground must fail in respect of them.
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93 The respondent submits that although substantial, the sentence of 2 years' imprisonment imposed for the offence of assaulting a public officer, was within the sound exercise of the sentencing discretion.
94 It must be accepted there is a need to protect police officers from such offences by demonstrating through the sentencing process that such conduct will not be tolerated and will attract severe punishment (see R v Leucas, unreported; CCA SCt of WA; Library No 940130; 24 March 1995).
95 The statutory maximum for this offence is 10 years' imprisonment (s 318(1)(d) of the Criminal Code).
96 Etheridge v The Queen [2004] WASCA 152 was a case in which the offender first threatened police officers as they attempted to remove him from a parked car. When an officer said they would break the rear window and forcibly remove him if he did not get out, he told the officer he would "blow his fuckin head off". The officers did subsequently remove him and took him to the police station. There, when asked to remove personal jewellery, he refused. He assaulted a police officer by biting him on the thigh, twisting his finger and then biting him on the edge of the palm of the right hand. The officer had to punch the applicant three times to break his grip. The bite broke the officer's skin.
97 The offender in that case was sentenced to 18 months' imprisonment on each offence of threatening a public officer and assaulting a public officer. Those sentences were ordered to be served concurrently, but a sentence of 6 months' imprisonment for breach of bail was ordered to be served cumulatively.
98 Miller J (with whom Murray and McLure JJ agreed) held that the individual sentences of 18 months' imprisonment were not "in any way excessive" and that the overall sentence of 2 years' imprisonment was within the appropriate range for the three offences. His Honour referred to authority (Green v The Queen [1995] WASCA 139; Leucas (supra); Kelly v The Queen, unreported; CCA SCt of WA; Library No 950245; 19 May 1995) emphasising the need for specific and general deterrence for offences involving threats to, or assaults upon police officers in the performance of their duties, and noting that mitigating antecedents of an offender play a "much lesser role" in such cases.
99 The circumstances of this offence were serious. The sentencing Judge was obliged to form his own view of them based on the material before him. Although reference had been made to the applicant having
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- threatened the householder complainant with a knife (which counsel said was denied by the applicant, who said he had threatened the complainant with a shifting spanner), and although the State prosecutor put to his Honour that a knife was found on the ground when the applicant was arrested, it was not alleged that the applicant had threatened the police officer with the knife.
100 Nonetheless, the circumstances as they were acknowledged by the applicant's counsel were certainly serious enough. The seriousness of the offending is indicated by the level of violence, as well as the applicant's continued resistance despite the police officer's instruction to submit.
101 The statements on the prosecution brief were before his Honour. That of the arresting police officer presented a more detailed picture than that outlined by the State prosecutor. It also revealed that he was in error in stating the knife was found on the ground; it was in fact located on the applicant's person. The officer described the events thus, from the point at which his dog found the applicant lying in a garden bed between plants:
"As the dog approached the suspect he has kicked out at the dog which resulted in the police dog restraining the suspect by the leg.
The suspect has then got off the ground and began to kick and punch the dog before he complied with my instructions and the dog was called off.
On recalling the dogs the offender run [sic] back towards the garden bed were [sic] his backpack was still lying. He refused to stop and as a result the police dog was released again to restrain the suspect.
This time thought [sic] the suspect was even more violent towards the police dog. After punching the dog he has attempted to strangle him.
I have then assisted in restraining the suspect who continued to struggle violently, at one stage we have fallen over and I suffered cuts and abrasions to my right wrist and forearm.
I was eventually required to use police issued OC spray, which had little effect on the suspect.
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- The suspect was finally restrained when other police arrived at the scene.
The suspect was searched and a quantity of item [sic] was located on him including an open flick knife. He was then conveyed to Bayswater Police Station were [sic] an ambulance attended to treat his wounds which were sustained during the arrest."
102 Mr Sklarz submits that the circumstances do not warrant a term of 3 [sic 2] years' imprisonment. He relies upon the circumstances that:
"(i) The [applicant] and Police Officer were of the same height and build
(ii) The Police Officer was in fact a dog handler with a Police dog
(iii) The Police dog was set upon the [applicant] on two separate occasions
(iv) The Police Officer used pepper spray to subdue the [applicant]
(v) The most serious aspect of the incident was the [applicant's] resistance to arrest and not the assault
(vi) The only injuries sustained by the Police Officer were cuts and abrasions to the inside of his right wrist, as a result of falling on the ground whilst struggling with the [applicant]."
103 I am unable to accept the submission that there is mitigation on the facts that the applicant and police officer were of the same height and build, or that the officer was a dog handler with a police dog which was set upon him on two separate occasions. On any view, the applicant violently and strenuously resisted arrest in the course of which he assaulted the police officer, so much so that he could only be restrained by the use of pepper spray and with the assistance of other officers. The police officer set the dog on the applicant a second time because the applicant suddenly ran towards his backpack. It is not suggested that the officer either contributed to, or escalated, the events unnecessarily.
104 I am mindful of the injunction of the High Court in Lowndes v The Queen (1995) 195 CLR 665 at 671 - 672, to the effect that a Court of
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- Criminal Appeal is not to substitute its own opinion for that of the sentencing Judge merely because the members of the Court may have exercised their discretion in a manner different from that in which the sentencing Judge did so.
105 Nonetheless, the authorities suggest that the range of sentences ordinarily imposed for a deliberate assault on a police officer in the execution of his or her duty, involving punching, kicking or biting, but not resulting in any particularly serious injury, prior to 31 August 2003, was 12 months to 2 years' imprisonment. Looked at in that light, a sentence which equates to a pre-August 2003 term of 3 years' imprisonment is outside the range of a proper exercise of the sentencing discretion.
106 The submission that the most serious aspect of the incident was the resisting arrest (with which the applicant had not been charged) must be accepted. The injuries suffered by the police officer were relatively minor, and were sustained when he and the applicant fell over in the course of the struggle. The assault itself involved pushing and shoving rather than a deliberate kicking. The circumstances did not justify a sentence effectively one-third higher than the top of the appropriate range (that in itself being attracted only by the more serious examples of offences in this category of seriousness).
107 I would uphold this ground of appeal in relation to this sentence and substitute for it a sentence of 12 months' imprisonment (equivalent to a pre-August 2003 sentence of 18 months' imprisonment).
108 The complaint that the sentence of 2 years' imprisonment for stealing a motor vehicle (the offence which resulted in the Petty Sessions community based order) was manifestly excessive, was founded upon a particular that the sentencing Judge incorrectly considered the breach as an indictable matter, attracting a maximum penalty of 7 years' imprisonment. However, that particular was expressly abandoned by the applicant's counsel at the hearing of the appeal. Counsel was right to take that course. Sentences passed by the Supreme Court pursuant to a s 32 notice are to be treated as having been imposed following conviction on indictment (see s 33(3) Sentencing Act 1995 (WA) and Herbert v The Queen (supra) at [153] - [155]).
Ground 2 - Totality
109 The first submission made in support of this ground is that his Honour "over-emphasised" the burgled value of the property as being
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- in excess of $60,000, which total far exceeded, and did not reflect, the lesser value of the property actually received by the applicant.
110 I do not accept this submission. The proposition was first advanced by the State prosecutor, in elaborating his contention that the applicant had fenced "a huge amount" of property, that burglary from building sites is a significant problem in the community and that the courts have emphasised the need for deterrent sentences for receivers of stolen property because of the encouragement they give to those who commit burglaries. The point that the applicant provided a "very good avenue" for property to be fenced by drug users, effectively encouraging burglars, was illustrated by referring to the fact that the value of the property stolen during the related burglaries was in excess of $60,000. That was the way in which his Honour took that submission, as is apparent from the pertinent passages from his Honour's remarks quoted above. His Honour recognised the point went to the seriousness of the encouragement given by the applicant, as a criminal receiver of stolen property, to those who would commit burglaries. I do not see any indication that his Honour was fixing the applicant with criminal responsibility for the burglaries themselves.
111 I note in passing that on the figures provided by counsel, the actual value of the property stolen in the relevant burglaries, was in excess of $100,000, and that the value of the property received by the applicant was substantially more than $10,000, although no actual figure could be determined.
112 The next submission made in support of this ground is that although his Honour stated that he should apply the principle of totality, he did "not seem to apply it properly" and that totalling the sentences to 21 years 8 months is not a proper method of applying the principles of totality.
113 I do not understand this submission. All his Honour did, having imposed what he had determined were appropriate sentences for the individual offences (as he was required to do: Pearce v The Queen (1998) 194 CLR 610) was state what the total of those sentences would be if they were all to be served cumulatively. He said that was something in the order of 21 years 8 months. Having said that, his Honour then went on to say (AB 92):
"Obviously, on the totality principle that would be too much to serve and I do need to take totality into account."
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114 His Honour then concluded that an appropriate aggregate term would be 6 years' imprisonment, and he achieved that by orders as to concurrency and cumulation. He made the sentences of 2 years' imprisonment imposed in respect of the first three receiving counts on the indictment cumulative upon each other, but all the other sentences concurrent.
115 The totality principle requires a sentencing Judge, who has passed a series of sentences, properly calculated in relation to the offence for which each is imposed, and each properly made consecutive in accordance with the principles governing consecutive sentences, to review the aggregate sentence and consider whether that is "just and appropriate". The court must not content itself by doing the arithmetic and passing the sentence so produced; the sentencing Judge must look at the totality of the criminal behaviour and ask whether the aggregate sentence is appropriate and proportionate to that (Mill v The Queen (1988) 166 CLR 59). It is not suggested in the present case that the aggregate sentence would be "crushing", which would bring different considerations into account.
116 The principle of totality describes that last look which must be taken in the sentencing process to ensure that the total term is properly proportionate to the totality of the criminal behaviour. That may require a reduction of the total term imposed, for, as Ipp J explained in Jarvis v The Queen (1993) 20 WAR 201 at 207:
"The reason for such a reduction is that the severity of a term of imprisonment increases exponentially as it increases in length."
117 His Honour's approach here was entirely in accord with principle. There is no substance in this submission.
118 Next it was submitted that there were strong mitigating factors. So there may have been, but merely to say so cannot ground judicial error. What must be shown is that the sentencing Judge either failed to have regard to them at all (which I do not understand to be asserted here) or failed to give them a degree of weight which any reasonable exercise of the sentencing discretion would require. The latter is a particularly difficult argument upon which to succeed, and the applicant does not do so here.
119 The mitigating factors referred to are that the pre-sentence report emphasised a history of serious substance abuse, through the use of amphetamines, alcohol and cannabis; prior to 2003 the applicant had a minimal criminal record; the applicant was 33 years of age, married with
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- three young children and had never been incarcerated prior to his arrest in respect of these matters; and that he had indicated remorse by his early plea of guilty and "total cooperation with the police".
120 The last was said by the applicant's counsel to be "full and frank admissions in respect of these offences". However, as was pointed out by Ms O'Connor, although the applicant had made admissions in his video record of interview in respect of the receiving offences, during the videotaped searches of his house earlier he had failed to give any account or any satisfactory account of how he obtained the items. Also, after the second search he declined to take part in another videotaped record of interview. In short, he did not cooperate by making admissions in respect of all of the offences.
121 That aspect aside, all of the factors relied upon were taken into account by his Honour by way of mitigation. The sentencing Judge acknowledged his plea of guilty, past criminal history and family situation. He acknowledged that substance abuse was said to be the cause of the applicant's behaviour. As to that, however, intoxication is not a mitigating factor in sentencing. Furthermore, the community is entitled to receive protection from offenders who commit offences to support their own drug habit.
122 For the reasons given above, the receiving and burglary offences in particular, were such that personal mitigating features carried less weight. Subject to what I have said about the assaulting a public officer offence, none of the sentences, either individually or in their totality, are such as to indicate his Honour made any error of principle in the weight which he accorded to the circumstances of mitigation advanced on behalf of the applicant.
123 I mentioned earlier the concession made by the respondent that the sentences of 2 years' imprisonment (equivalent to sentences of 3 years imposed prior to 31 August 2003) for each of the three offences of stealing number plates and one of stealing a gas cylinder "at first sight appear beyond the exercise of a sound discretionary judgment". As there is no application for leave to appeal against those individual sentences, and no argument was addressed by Mr Sklarz in respect of them, this concession could only sound in the totality ground. I shall return to this.
Ground 3 - Cooperation
124 The applicant relies upon the affidavit of Paul Dixon, a State prosecutor, sworn 25 July 2005. He deposes that in the course of his
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- employment he was the file manager of the prosecution against the applicant and that he has reviewed his file notes in relation to it. Prior to the applicant being sentenced, Mr Dixon had a discussion with the arresting officer from the Western Australian Police Service about the prosecution. That was because Mr Dixon had been informed by the applicant's counsel, Mr Illari, that the applicant considered he was entitled to a "letter of comfort" from the police. The arresting officer informed Mr Dixon that the police would not be issuing a letter of comfort to the applicant, notwithstanding that, to the knowledge of the arresting officer, the applicant had provided police with information which led to the location of approximately 28 grams of the prohibited drug dexamphetamine and that people had been arrested over that seizure.
125 Mr Dixon deposes that from his discussions with the arresting officer, he was of the understanding that Mr Illari had been made aware of this assistance and would be raising it by way of mitigation when the applicant was sentenced. He further deposes however, that upon receiving the sentencing transcript it became apparent to him that no mention had been made to the sentencing Judge of this assistance by either Mr Illari or the State prosecutor.
126 Mr Dixon states that in hindsight, he ought to have instructed the State prosecutor appearing on the sentencing to have informed the court of this assistance that the applicant gave to police, even though the police were not prepared to provide the applicant with a letter of comfort. He says he did not do so because he understood Mr Illari would be raising it with the court.
127 The applicant's submission is that it is likely that his Honour would have further reduced the applicant's sentence if "this substantial mitigating factor" had been put to him either by the prosecutor or by defence counsel during the sentencing proceedings.
128 We were informed that the applicant complained to the Corruption and Crime Commission about the failure of the Police Service to provide a letter of comfort. The complaint was not upheld. We have been provided with a copy of the Complaint Resolution Report. Although the applicant's complaint was not upheld, it appears to have been intended that some limited assistance, which was not sufficient to justify a formal "letter of comfort", be brought to the attention of the sentencing Judge. It is against that background that the respondent concedes this ground "but only to the limited extent of cooperation in fact provided".
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129 The respondent's concession with respect to this amounts to a concession in principle but one which allows no practical consequence.
130 It is unnecessary to set out the details of what the applicant sought to rely upon by way of cooperation. They are set out in the Complaint Resolution Report. It is apparent that the arrest and charging of persons concerned with the possession of 28 grams of dexamphetamine was the only outcome of whatever cooperation the applicant agreed to give to the police. I agree that the applicant was entitled to some allowance for that. His Honour could not take that matter into account because he was not told of it. That is not an error in the exercise of his Honour's sentencing discretion, but given the concession made by the respondent, it did result in an injustice to the applicant. Even so, the question again is whether or not that brings this Court to a conclusion that a different (aggregate) sentence should have been imposed (s 31(4)(a) Criminal Appeals Act 2004 (WA)). The answer to that question turns on a consideration of the combined effect of this factor and what I have said about the offence of assaulting the public officer.
Conclusion
131 His Honour's assessment of the applicant's overall criminal culpability represented by all of the offences in respect of which he was imposing sentence, which assessment must properly have been the primary (if not the sole) determination of the appropriate aggregate term, must necessarily have been influenced by the seriousness with which his Honour viewed the offence of assaulting the public officer, and the other individual offences. I have concluded that his Honour erred in imposing a sentence which was manifestly excessive for that offence. That sentence reflected a degree of criminal culpability which the offence did not warrant, for the reasons I have explained. Taking that into account, and making some (but not substantial) allowance for the additional cooperation extended by the applicant to the police, I am persuaded a different aggregate term should have been imposed. I would consider an overall term of 5 years' imprisonment to be appropriate. I would achieve that in the same manner as McLure JA, by ordering a sentence of 12 months' imprisonment be substituted for that of 2 years' imprisonment for the offence of assaulting the police officer, and save for the sentences for the offences of breach of bail and threat to injure, reducing each of the remaining sentences by 4 months structured in the way her Honour has done.
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132 I would accordingly grant leave to appeal and allow the appeal to the extent I have indicated.
133 MCLURE JA: I agree with Roberts-Smith JA that the applicant should have an extension of time within which to apply for leave to appeal. I too, would grant leave to appeal, allow the appeal and reduce the total sentence from 6 years to 5 years. However, I propose to state my own reasons for that conclusion. The facts and grounds of appeal are set out in the reasons of Roberts-Smith JA and not repeated here unless necessary for an understanding of these reasons.
134 The applicant contended at the hearing that (1) the sentences imposed for the offences of burglary and assaulting a public officer were manifestly excessive; (2) the total sentence was inconsistent with the totality principle; and (3) the sentencing Judge erred in failing to take into account the applicant's cooperation with police.
135 I agree, for the reasons given by Roberts-Smith JA, that the sentences for the burglary offences were not manifestly excessive. I also agree that the sentence imposed for assaulting a public officer was, having regard to the standards of sentencing customarily observed with respect to that crime, outside the range of a sound sentencing discretion and thus manifestly excessive. Initially the applicant received an 18 month community-based order for the offence. He admitted a breach of the community-based order and that the breach rendered him liable to be re-sentenced for that offence.
136 Offences towards the upper end of the scale of seriousness of offences of that type generally receive a sentence of between 18 months and 2 years under the sentencing regime that applied prior to the commencement of the SentencingLegislation Amendment and Repeal Act 2003 (WA): see, for example Etheridge v The Queen [2004] WASCA 152; Hill v Bodenham [2000] WASCA 37. Under the AmendmentAct, sentences imposed after 31 August 2003 must be two-thirds of the sentence that would have been imposed under the former provisions. A sentence of 18 months to 2 years under the old provisions corresponds with 12 to 16 months under the AmendmentAct. I would characterise the circumstances of the applicant's assault offence as serious. In reaching that conclusion I have had regard to all the relevant circumstances, including those leading to the assault. The police officer's attempt to use his dog to subdue the applicant and prevent him from escaping was met with violence to the dog and a further attempt to flee. By his conduct, the applicant left the police officer with no alternative but to act so as to put
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- his personal safety in jeopardy. The applicant's violence to the police officer was extended and only came to an end when other officers provided additional assistance. Having regard to all relevant factors, including the applicant's cooperation the subject of the third ground of appeal, I would impose a term of immediate imprisonment of 12 months for that offence.
137 It is convenient to deal with cooperation before addressing the broader question of totality. The respondent conceded, correctly in my view, that there was relevant information relating to the applicant's cooperation with police that ought to have been, but was not, before the sentencing Judge. This was the result of an oversight by counsel. In those circumstances, there is no relevant sentencing error by the trial Judge. However, this Court has a discretion to admit, and have regard to, the material relating to cooperation if it is necessary or expedient in the interests of justice. It was a common cause that the Court should do so. However, an error or omission in sentencing will only result in an appeal being allowed if, in the opinion of the Court of Appeal, a different sentence should have been imposed: s 31(4) of the Criminal Appeals Act 2004 (WA). The State submitted that there should be no change to the total sentence of 6 years.
138 I do not accept the State's submission. Securing cooperation is an important weapon in the task of uncovering crimes and prosecuting participants: R v B [2004] WASCA 1 at 35. The applicant's cooperation had some, albeit limited, value in which event it is a mitigating factor that should reduce the otherwise appropriate sentence (see F vThe Queen [2005] WASCA 135 at [16 - 17]). Cooperation, like remorse and a plea of guilty, is relevant in determining the appropriate sentence for each of the applicant's offences and also relevant to the question of totality, a matter to which I will return later.
139 As previously noted, I would impose a term of 12 months for the offence of assaulting a public officer. Save for the sentences for the offences of breach of bail and threat to injure (which are already at the lower end of the appropriate range), I would reduce the remaining sentences of imprisonment by 4 months as follows:
Indictable offences
Receiving (10) - 1 year and 8 months on each count
Burglary (2) - 2 years 4 months on each count
Section 32 Notice
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- (3) Unlawful possession - 8 months
(7) Burglary - 1 year 8 months
(8) Stealing - 1 year 8 months
(12) Stealing - 1 year 8 months
(13) Stealing - 1 year 8 months
(14) Stealing - 1 year 8 months
Breach of CPS CBO
Stealing motor vehicle - 1 years 8 months
141 The sentencing Judge's error in imposing a manifestly excessive sentence for the offence of assaulting a public officer enlivens this Court's jurisdiction, if it has the necessary materials to do so, to re-sentence for that offence and to consider afresh the question of totality. That is also the effect of the omission of relevant material relating to cooperation.
142 The applicant contended that a term of 6 years (9 years under the former sentencing regime) was disproportionate to the total criminality of the offences for which he was sentenced. The applicant relied, interalia, on his minimal prior criminal record (he had never previously been incarcerated), his cooperation with police and his history of serious substance abuse which is said to have contributed to his offending. The applicant's substance abuse is an explanation but not a justification for his criminal behaviour.
143 Further, the applicant's limited prior criminal record has to be weighed against the fact that the numerous offences for which he was
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- sentenced took place over an extended period and had all the hallmarks of a criminal business enterprise. Further, the nature of the offences are such that they were dependent on, or connected with, the commission of other offences by other people. Having regard to the nature and extent of the applicant's offending, I would give significant weight to the need for both personal and general deterrence.
144 Having regard to all relevant factors, including the changes to the sentences imposed by the sentencing Judge, I am satisfied that an aggregate sentence of 5 years is what is fairly necessary to achieve all of the recognised sentencing objectives, including punishment, retribution and deterrence. I would achieve that by ordering that the sentences for three receiving counts (those numbered 2, 4 and 8 on the indictment) be made cumulative and the balance of the sentences of imprisonment be served concurrently. That results in a total effective sentence of 5 years.
145 Accordingly, I would grant an extension of time and leave to appeal, allow the appeal, set aside the sentences and re-sentence in the way indicated in [139] of these reasons. I would order the sentences for counts 2, 4 and 8 in the indictment to be served cumulatively with each other and concurrently with all the remaining sentences of imprisonment, making a total sentence of 5 years' imprisonment commencing on 30 June 2004. The applicant will remain eligible for parole.
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