Barrett v Lapsley
[2017] WASC 277
•29 SEPTEMBER 2017
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL
CITATION: BARRETT -v- LAPSLEY [2017] WASC 277
CORAM: SMITH AJ
HEARD: 28 AUGUST 2017
DELIVERED : 29 SEPTEMBER 2017
FILE NO/S: SJA 1036 of 2017
BETWEEN: HECTOR LEE BARRETT
Appellant
AND
STUART LAPSLEY
First RespondentMATTHEW DAVID GULLAND
Second Respondent
ON APPEAL FROM:
Jurisdiction : CHILDREN'S COURT OF WESTERN AUSTRALIA
Coram :MAGISTRATE C ROBERTS
File No :WN 14 of 2016, WN 17 of 2016, WN 19 of 2016, WN 20 of 2016, WN 22 of 2016, KR 1261 of 2016, KR 1262 of 2016
Catchwords:
Criminal law - Appeal against sentence - Offender an adult at time sentence imposed - Magistrate erred in imposing suspended sentence of imprisonment of six months and one day contrary to s 21 of the Children's Court of Western Australia Act 1988 (WA) - No error demonstrated in imposition of suspended sentence of imprisonment - Turns on own facts
Legislation:
Children's Court of Western Australia Act 1988 (WA), s 21
Sentencing Act 1995 (WA), s 6(2), s 6(4), s 50B, s 128(1)(b), s 130(1), s 135
Young Offenders Act 1994 (WA)
Result:
Appeal allowed in part
Category: B
Representation:
Counsel:
Appellant: Ms N R Sinton
First Respondent : Ms G N Beggs
Second Respondent : Ms G N Beggs
Solicitors:
Appellant: Legal Aid (WA)
First Respondent : Director of Public Prosecutions (WA)
Second Respondent : Director of Public Prosecutions (WA)
Case(s) referred to in judgment(s):
Churnside v The State of Western Australia [2016] WASCA 146
DC v The State of Western Australia [2014] WASCA 121
Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321
Giglia v The State of Western Australia [2010] WASCA 9
Lowndes v The Queen [1999] HCA 29; (1999) 195 CLR 665
R v Churchill [2000] WASCA 230
R v Fernando (1992) 76 A Crim R 58
The State of Western Australia v Munda [2012] WASCA 164
Whitby v The State of Western Australia [2014] WASCA 99
Wilson v The State of Western Australia [2010] WASCA 82
Young v The State of Western Australia [2011] WASCA 100
SMITH AJ:
The hearing of the appeal - whether appellant has a cognitive impairment?
As a result of an opinion expressed by a solicitor employed by Legal Aid, Ms Zoe Irene Kickett, who represented the appellant before the learned magistrate, it was submitted at the hearing of the appeal before this court that it is possible the appellant suffers from a cognitive impairment.
At the conclusion of the hearing on 28 August 2017, the appeal was adjourned pending the provision of a fitness to plead report by a psychiatrist which was due to be available by 13 September 2017.
After the report became available on 11 September 2017, counsel for the appellant informed the court that the contents of the report were not sought to be admitted into evidence in the appeal, as its contents were not material to the grounds of appeal, unless the appeal succeeds on any ground. In that circumstance, it was submitted the contents of the report may then become relevant to the issue of re‑sentencing.
For reasons that follow, I am of the opinion that the report is not material to any issue of re‑sentencing and should not be admitted into evidence.
The offences
The appellant is now aged 18 years and 11 months.
On 21 February 2017, the appellant appeared in the Magistrates Court sitting at Warmun and was sentenced for one offence of aggravated burglary of a place and one offence of stealing on 25 November 2016 (the breaching offences). The appellant committed these offences when he was an adult.
At the same time the breaching offences were dealt with, the appellant was re‑sentenced, pursuant to s 128(1)(b) of the Sentencing Act 1995 (WA), by the magistrate presiding at Warmun sitting as the Children's Court for three offences of stealing a motor vehicle, one offence of aggravated burglary of a place and one offence of aggravated burglary of a dwelling (the CBO offences). These offences occurred when the appellant was a 'young person' to whom the Young Offenders Act 1994 (WA) applied. The appellant had been sentenced for these offences on 25 October 2016 to concurrent community based orders (CBO's) pursuant to s 50B of the Sentencing Act as he was over the age of 18 when sentenced.
The sentence imposed on 21 February 2017
The sentence imposed on 21 February 2017 for the breaching offences and the CBO offences was an aggregate period of suspended sentence of 10 months and one day imprisonment which was suspended for 12 months as follows:
(a) Magistrates Court ‑ breaching offences
KR 1261 of 2016
Aggravated burglary of
a place
4 months cumulative
KR 1262 of 2016
Stealing
1 month concurrent
(b) Children's Court ‑ CBO offences
WN 14 of 2016
Steal motor vehicle
6 months 1 day
WN 17 of 2016
Aggravated burglary of a place
6 months concurrent
WN 19/2016
Steal motor vehicle
6 months concurrent
WN 20/2016
Aggravated burglary of a dwelling
6 months concurrent
WN 22/2016
Steal motor vehicle
6 months concurrent
The grounds of appeal
The appellant seeks leave to appeal out of time against the sentence on two grounds.
The first ground of appeal alleges that the learned sentencing magistrate erred in imposing a suspended sentence of imprisonment, in circumstances where the seriousness of the offending was not such that only a sentence of imprisonment could be justified.
The second ground of appeal applies only to the sentence imposed on prosecution notice WN 14 of 2016. The effect of this ground is that the learned sentencing magistrate erred in law in imposing a suspended sentence of imprisonment of six months and one day, contrary to s 21 of the Children's Court of Western Australia Act 1988 (WA). Section 21 prohibits the imposition of a sentence on an offender who has reached the age of 18 years of age to a term of imprisonment, including an aggregate of sentences imposed on the one occasion for more than one offence, of longer than six months. This ground of appeal is in my opinion properly conceded by the respondents.
Ground one of the appeal
(a) Facts of the CBO offences ‑ steal motor vehicle and burglary
The appellant pleaded guilty on 25 October 2016 to all of the offences with which he was charged. On each occasion when the police spoke to him about each incident, he made full admissions of his involvement. All of the offences occurred when the appellant was 17 years old.
In the absence of transcript of the proceedings on 25 October 2015 or on 21 February 2016, it was agreed that regard can be had in this appeal to the statement of material facts of each of the breaching offences and the CBO offences.
It appears from the statements of material facts that the circumstances of three steal motor vehicle charges were very similar:
(1)On 6 December 2015, the appellant was a passenger in a stolen vehicle driven by the appellant's brother from Halls Creek to the Warmun community where the vehicle was dumped.
(2)On 19 February 2016, in the early hours of the morning, the appellant was a passenger in a car driven by his brother that he knew had been stolen. The vehicle was involved in a crash and extensive damage was caused to the vehicle.
(3)On 30 August 2016, in the early hours of the morning, the appellant in company with two co‑offenders was given a set of keys to a vehicle he knew had been stolen. The appellant drove the vehicle with the two co‑offenders in the vehicle through the Warmun community. After driving the vehicle through the community, he gave the keys and the vehicle to three other co‑offenders. Later, at the request of the community of the elders and his responsible adult, he presented to the Warmun Art Centre where he explained his actions to the Art Centre council.
The facts of the burglary offences were:
(1)On 18 April 2016, early in the morning, the appellant in company with co‑offenders forced entry into a shop in Kununurra through a window. He entered the shop, removed two cans of coke, left the shop, left the area and consumed the contents of the cans on the way home leaving the co‑offenders in the shop.
(2)Between 9 February 2016 and 13 February 2016, the appellant in the early hours of the morning, in company with two co‑offenders entered a home in Warmun when the resident was not at home. He searched the house with the intent of stealing items. He located a small ride‑on toy motorbike which he stole. It was later abandoned and subsequently returned to the owner.
(b) Facts of the breaching offences - burglary and stealing
In the very early hours of the morning of 25 November 2016, the appellant, together with seven juvenile co‑offenders, used an axe to gain entry to the Warmun community store. After unsuccessfully damaging the locks on the rear roller door with the axe, the appellant and one other co‑offender used the axe to create a hole in the side wall of the store.
Three co‑offenders entered the store through the hole and passed through the hole in the wall to the appellant and other co‑offenders a carton of fanta, a carton of powerade and numerous boxes of cigarettes. They consumed the powerade and divided the other property amongst the offenders.
When spoken to by the police the appellant made full admissions of the offences.
Submissions to the magistrate
In an affidavit sworn by Ms Kickett on 5 May 2017, Ms Kickett deposes evidence of the matters she put to the magistrate on 21 February 2017 on behalf of the appellant and the sentencing remarks she can recall that were made by his Honour. In the plea of mitigation, she made submissions which included the following:
(1)The appellant had entered early pleas of guilty and fully co‑operated with the police participating in an interview at the time of his arrest.
(2)He had been complying with a curfew since 16 December 2016.
(3)The appellant accepted the facts as alleged.
(4)The appellant accepted that the co‑offenders were aged 16 and 17 years old and were younger than him, however, he instructed he was following the group.
(5)Since the offences in November 2016, the appellant instructed he was not associating with these people anymore. There were not many people in Warmun community his own age but to stay out of trouble he had been playing video‑games and more recently completing his community work.
(6)The appellant was in court with a male person who supervised the appellant's community work (the supervisor). (At the time of swearing the affidavit, Ms Kickett could not recall the name or title of the supervisor). The supervisor was sitting in court and could affirm that the appellant had:
(a)completed three hours of community work that morning;
(b)completed 10 hours of community work since the pre‑sentence report was written; and
(c)carried out 12 hours of work that could not be counted as it was completed on the wrong days.
(7)The supervisor told her he was the only person who could supervise community work in Warmun and he had been on extended leave for some time which made it difficult for the appellant to complete more hours.
(8)The appellant was 18 years of age.
(9)His main source of income was Centrelink.
(10)He resides with his grandmother.
(11)He had completed up to year 9 at school.
(12)The appellant's father passed away when he was young and due to his mother's alcoholism and on‑going family violence he was raised mainly by his grandmother. Therefore, he had grown up in circumstances of disadvantage and that the principles in R v Fernando (1992) 76 A Crim R 58 applied.
(13)From the contents of the pre‑sentence report and from her interactions with him, it was possible he was suffering from a cognitive impairment such as foetal alcohol syndrome. However, she acknowledged there was no evidence before the court to substantiate this.
(14)Given his youth, his circumstances of disadvantage and the recent improvement in compliance with the CBO's, the focus should be on rehabilitation and asked that he be allowed a further opportunity on a CBO.
Ms Kickett states in her affidavit that she does not recall everything the magistrate said, but she does recall him stating words to the effect that:
(1)he is not sure why her Honour Magistrate Langdon had placed the appellant on CBO's;
(2)the appellant was a lazy person who would never amount to anything; and
(3)the appellant has a terrible record and should go to prison, but he was willing to give the appellant one last chance and suspend these terms of imprisonment.
The pre‑sentence report
The author of the report interviewed the appellant on 23 January 2017 and completed the report on 14 February 2017 after reviewing material records. The author noted:
(1)The appellant has an extensive juvenile court history incurring his first conviction in 2011 when he was 13 years of age and his offending had continued unabated since this time.
(2)The appellant has been afforded multiple youth community based dispositions.
(3)The appellant's offending relates to property burglary and stealing motor vehicles. His current offences appear to be of the same nature to his prior offending which relates to anti‑authoritarian attitudes and lack of pro‑social influence.
(4)The appellant was subject to a 12‑month CBO with the only requirement of 120 hours' community work on 25 October 2016. Breach action was initiated by 5 December 2016 as the appellant had completed no hours.
(5)The appellant was re‑signed after a court appearance on 23 January 2017 to commence community work from 7 February 2017. He could not commence earlier as the supervisor was on annual leave.
(6)The appellant attended community work as directed on 7 February 2017, but failed to attend on 13 and 14 February 2017. Therefore, 116 of the 120 hours of community work remained outstanding.
The author stated that the departmental records indicate that whilst the appellant has completed most of his youth community based dispositions, he demonstrated minimal motivation to comply and required continual reminding of his order obligations and it appears he has not taken his orders seriously. The author also stated to date the appellant appeared to have displayed the same attitudes to his first adult CBO.
The author also referred to the appellant's background, which was recounted to the learned magistrate by Ms Kickett.
The author noted the appellant does not report any health concerns, advised he consumes alcohol on occasion, but not before he was 18, and did not disclose any other substance abuse.
As to his education and employment, the author noted the appellant advised he did not complete year 10 of high school. He, however, engaged in a certificate III in woodwork which he enjoyed, but did not complete the course. The author also noted the appellant has never been gainfully employed.
In discussions the author had with the appellant about the breach offences, the author stated the appellant accepted responsibility, but did not appear to carry much insight into the effects the damage he and the co‑offenders caused to the community store.
The author concluded that the appellant's engagement with the current CBO proves difficult to recommend him for a further community based disposition. Notwithstanding this opinion, the author also stated that if the appellant be afforded a further community based disposition his anti‑authoritarian, pro‑criminal attitudes and negative peer association can be addressed via programmatic intervention and a supervision component to the order by a referral to the Gija Youth program in the Warmun community for on‑going youth mentoring and support in an attempt to develop pro‑social thinking and behaviours.
Was there any material before the magistrate upon which an inference could have been drawn that the appellant has or may have a cognitive impairment?
Ms Kickett in her affidavit states that she spoke with the appellant before they entered the court and that he exhibited poor language and communication skills. In particular, when she put propositions to him he would always answer affirmatively and if she asked open questions he would answer them but not in full sentences.
Ms Kickett also stated in her affidavit that from the contents of the pre‑sentence report and her interactions with the appellant, she formed the opinion it was possible that the appellant was suffering from a cognitive impairment.
Notwithstanding Ms Kickett's opinion, there is nothing in the pre‑sentence report which indicates that the appellant has or may suffer a cognitive impairment.
The appellant's criminal history
As noted in the pre‑sentence report, the appellant has an extensive criminal record. Prior to committing the breach offences on 25 November 2016, he had committed 39 offences, 14 of which were for aggravated burglary, six were for stealing a motor vehicle and eight were driving offences, including five offences of reckless driving.
Appeals against sentence ‑ general principles
The principles relevant to an appeal against sentence are well established. In Wilson v The State of Western Australia [2010] WASCA 82, the Court of Appeal summarised these principles as follows [2]:
1.The imposition of a sentence involves the exercise of a discretion. An appellate court can only intervene if the appellant demonstrates that the judge erred in exercising the discretion in one of two ways. The first is called express error and it involves acting on a wrong principle, for example, by mistaking the law, mistaking the facts, taking into account an irrelevant matter or failing to take into account a relevant consideration. The second is referred to as implied or inferred error. It arises where, although it is not possible to discover the exact nature of the error, the end result is so unreasonable or unjust that the court must conclude that a substantial wrong has occurred: House v The King (1936) 55 CLR 499, 505. In most instances a challenge based on implied error will involve the contention that an individual sentence is manifestly excessive (or inadequate) and (or) that the total effective term imposed for all charges offends the totality principle.
2.It follows that the appeal court will not intervene simply because the members of the court, had they been sentencing the offender at the original hearing, might have imposed a different sentence: House, 505.
3.Even if error is demonstrated the appellate court can intervene only if it is satisfied that a different sentence should have been imposed at the original hearing: Criminal Appeals Act s 31(4)(a).
4.An appellant must obtain leave to appeal on each ground that she or he wishes to advance in support of the appeal and the court must not grant leave unless it is satisfied that the ground has a reasonable prospect of succeeding: Criminal Appeals Act s 27(1) and (2).
5.To have a reasonable prospect of succeeding, a ground must have a rational and logical prospect of succeeding, or a real prospect of success: Samuels v The State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473 [25] - [61], especially [56].
Whilst the magistrate in this matter imposed higher sentences on the CBO offences than the breaching offences, in comparable cases involving multiple offences, the severity of the sentence imposed on an individual count will usually fall to be assessed in light of the sentences imposed in respect of the other counts and its contribution to the total effective sentence: Giglia v The State of Western Australia [2010] WASCA 9 [40]. The real question is whether the total effective sentence is excessive: Giglia [40].
An appeal court may not substitute its own opinion for that of the sentencing judicial officer merely because the appeal court would have exercised the discretion in a different way: Lowndes v The Queen [1999] HCA 29; (1999) 195 CLR 665, 671 ‑ 672.
Consequently, specific error of law or fact must be shown that the sentence imposed is so manifestly excessive or inappropriate to demonstrate a miscarriage in the exercise of discretion.
Young offenders ‑ Sentencing principles
Notwithstanding the appellant had turned 18 when he was sentenced, the sentencing principles in the Young Offenders Act applied to the CBO offences. In DC v The State of Western Australia [2014] WASCA 121, Mazza JA (with whom Buss JA and Newnes JA agreed) observed [50]:
The following propositions may be drawn from the case law in relation to young offenders. This list is not intended to be exhaustive.
1.The ultimate aim in sentencing a young offender is the protection of the community by the imposition of a sentence proportionate to the gravity of the offence, having regard to the circumstances of its commission and the circumstances personal to the offender: AM (a child) v The Queen (Unreported, WASCA, Library No 960263, 15 May 1996).
2.Youth is normally a powerful mitigating factor and the rehabilitation of the young offender is generally a dominant sentencing consideration: Ainsworth v D (a child) (1992) 7 WAR 102, 117.
3.A young offender must not be treated more severely than an adult for the same offence: s 7(c) and s 118(1)(b) of the YOA.
4.Deterrence, both personal and general, punishment, retribution and public protection are accommodated in the YOA and are relevant to the sentencing of young offenders, although their role will generally be tempered. However, when in a particular case the rehabilitation of an offender appears unlikely, the offending is serious and the character and personal circumstances of the offender justify it, these factors may become significant: JSA v The State of Western Australia (2012) 42 WAR 473; [2012] WASCA 25 [35].
5.Young offenders, even those with good antecedents, may, having regard to the circumstances of the case, be sentenced to detention or imprisonment: F (a child) v The State of Western Australia [2004] WASCA 193 [14].
6.The age and maturity of a young offender are relevant factors. Thus, a very young offender who is immature may be dealt with differently to an older child who, while still young, has a greater awareness and responsibility.
Sentencing considerations ‑ disadvantaged Aboriginal offenders
In Churnside v The State of Western Australia [2016] WASCA 146, the Court of Appeal recently observed [3]:
The Aboriginality of an offender is not, of itself, a characteristic which is relevant to the sentencing process (Bugmy v The Queen [2013] HCA 37; (2013) 249 CLR 571 [36] (French CJ, Hayne, Crennan, Kiefel, Bell & Keane JJ). However, the fact that an offender has experienced a traumatic childhood, deprivation and social disadvantage is relevant to the sentencing process (Bugmy v The Queen [37] (French CJ, Hayne, Crennan, Kiefel, Bell & Keane JJ)), and it is the long experience of the courts of this State that Aboriginal offenders are over-represented amongst those who have suffered such life experiences.
In Fernando, Wood J set out a number of factors which can lead a person of Aboriginal background into offending behaviour, which factors may be relevant to the matters taken into account in sentencing an offender. These are (62 ‑ 63):
(A)The same sentencing principles are to be applied in every case irrespective of the identity of a particular offender or his membership of an ethnic or other group but that does not mean that the sentencing court should ignore those facts which exist only by reason of the offenders' membership of such a group.
(B)The relevance of the Aboriginality of an offender is not necessarily to mitigate punishment but rather to explain or throw light on the particular offence and the circumstances of the offender.
(C)It is proper for the court to recognise that the problems of alcohol abuse and violence which to a very significant degree go hand in hand within Aboriginal communities are very real ones and their cure requires more subtle remedies than the criminal law can provide by way of imprisonment.
(D)Notwithstanding the absence of any real body of evidence demonstrating that the imposition of significant terms of imprisonment provides any effective deterrent in either discouraging the abuse of alcohol by members of the Aboriginal society or their resort to violence when heavily affected by it, the courts must be very careful in the pursuit of their sentencing policies to not thereby deprive Aboriginals of the protection which it is assumed punishment provides. In short, a belief cannot be allowed to go about that serious violence by drunken persons within their society are treated by the law as occurrences of little moment.
(E)While drunkenness is not normally an excuse or mitigating factor, where the abuse of alcohol by the person standing for sentence reflects the socio-economic circumstances and environment in which the offender has grown up, that can and should be taken into account as a mitigating factor. This involves the realistic recognition by the court of the endemic presence of alcohol within Aboriginal communities, and the grave social difficulties faced by those communities where poor self-image, absence of education and work opportunity and other demoralising factors have placed heavy stresses on them, reinforcing their resort to alcohol and compounding its worst effects.
(F)That in sentencing persons of Aboriginal descent the court must avoid any hint of racism, paternalism or collective guilt yet must nevertheless assess realistically the objective seriousness of the crime within its local setting and by reference to the particular subjective circumstances of the offender.
(G)That in sentencing an Aborigine who has come from a deprived background or is otherwise disadvantaged by reason of social or economic factors or who has little experience of European ways, a lengthy term of imprisonment may be particularly, even unduly, harsh when served in an environment which is foreign to him and which is dominated by inmates and prison officers of European background with little understanding of his culture and society or his own personality.
(H)That in every sentencing exercise, while it is important to ensure that the punishment fits the crime and not to lose sight of the objective seriousness of the offence in the midst of what might otherwise be attractive subjective circumstances, full weight must be given to the competing public interest to rehabilitation of the offender and the avoidance of recidivism on his part.
These principles were approved by the Court of Appeal in R v Churchill [2000] WASCA 230. In The State of Western Australia v Munda [2012] WASCA 164, Buss JA added that [128] ‑ [129]:
Where an offender alleges that he or she has suffered relevant disadvantage, the disadvantage must be established by evidence relevant to the particular offender, even if the disadvantage in question is attributable to the offender's membership of a particular ethnic group. See KU [133].
Relevant personal disadvantage, including disadvantage arising by reason of membership of a particular ethnic group, will be a relevant consideration in sentencing an offender, but the consideration may, in some circumstances, attract little weight. For example, the offending in question may be very serious or the offender may have an extensive prior criminal record and a propensity to re-offend or the offender may be a significant danger to the community. See Terrick [54] - [56].
In Churnside, the appellant appealed against a sentence of a term of imprisonment. The appellant suffered from a cognitive deficit, caused by foetal alcohol spectrum disorder. The Court of Appeal observed his cognitive deficits limit the general and personal effect of imprisonment. The Court of Appeal had before it specialist reports which indicated hope for rehabilitation if support could be provided to the appellant in the community. Whilst some material was before the sentencing judge which indicated there may be some support available in the community, further inquiries were made by the Court of Appeal which indicated that arrangements could in fact be made in the community to offer a better prospect than imprisonment for breaking the cycle of offending. The Court of Appeal found that the sentencing judge erred in finding that there was no viable community based disposition without directing the making of inquiries which would establish whether that was in fact the case [6]. Their Honours then went on to state [7]:
The circumstances of this case demonstrate that the courts of this State must make every possible effort and take every step consistent with the interests of justice to engage the services of governmental and non-governmental agencies to assist offenders to change their living circumstances and behaviour in a way which will reduce the risk of reoffending, particularly in relation to offenders who suffer from cognitive deficits of the kind associated with foetal alcohol spectrum disorder. Without those efforts being made, the repetitive cycle of offending followed by ineffective punishment is likely to continue indefinitely to the detriment of both the relevant offender and to the safety of the community. The circumstances of this case also demonstrate the practical difficulties of providing appropriate support and assistance to offenders who reside in regional and remote parts of our State. As Aboriginal people are over-represented amongst those who have suffered childhood trauma, deprivation and social disadvantage, and amongst those who suffer foetal alcohol spectrum disorder, and amongst those who reside in regional and remote Western Australia, assiduous effort by the courts of this State to engage and facilitate whatever support and services may be available to offenders with these characteristics is an essential component of any effective strategy to reduce disproportionate Aboriginal imprisonment
Is error demonstrated in suspended sentences of imprisonment imposed on the appellant?
Consistent with the reasoning of the Court of Appeal in Churnside, it is argued that the courts of this State should make every possible effort and take every step consistent with interests of justice to engage the services of governmental and non‑governmental agencies to change the living circumstances and behaviour of Aboriginal offenders in a way that will reduce their risk of re‑offending.
The appellant does not rely upon Ms Kickett's opinion that the appellant may have a cognitive impairment. There is no evidence before this court, nor was there any evidence before the learned magistrate, that the appellant has a cognitive impairment.
The decision of the Court of Appeal in Churnside must be read in context. In that matter, general and specific deterrence of a prison sentence was found to be ineffective because of the cognitive deficit suffered by the appellant.
In this matter, it is argued that the appellant is a very young adult, being 18 years 2 months and 18 days old when the breaching offences were committed and was a child when most of the offences were committed. Further, that the offences were not of a seriousness that imprisonment was warranted and for whom a community based program is available to mentor him and provide support to him through the Gija Youth program.
A decision to suspend a sentence involves a two‑step process. The first is a determination by the sentencing judge or magistrate that a term of imprisonment was called for. The second step is a determination that such a term of imprisonment should be suspended for a period of time: Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321 [85] (Kirby J).
Pursuant to s 6(4) of the Sentencing Act a sentence of imprisonment ought not to be imposed unless the court decides that the seriousness of the offence is such that only imprisonment can be justified or the protection of the community requires it.
The seriousness of the offence must be determined by taking into account the statutory penalty for the offence, the circumstances of the commission of the offence, any aggravating factors (including the vulnerability of the victim) and any mitigating factors (s 6(2) of the Sentencing Act).
It is argued on behalf of the appellant that although each of the offences are serious the facts of each place these offences at the lower end of the scale of seriousness for such offences. In respect of the steal motor vehicle offences, there is no suggestion that the appellant took the vehicle. However, it is conceded that the circumstances of the breaching offences are that when regard is had to the damage caused and the value of the property stolen ($1,118.97), these offences of burglary and stealing are not at the very lowest end of the scale. Counsel on behalf of the appellant informed the court that no issue of penalty arises as all co‑offenders were juveniles.
The respondents say that whilst the offences are not at the upper end of the scale of seriousness for offences of this type, the number of offences committed, the property damage involved in the breaching offences and the fact that all of the offences were committed in company are all factors that point to the appellant's offending being serious.
The maximum penalty for an offence of aggravated burglary of a dwelling or place is 20 years' imprisonment, or if dealt with summarily three years' imprisonment and a fine of $36,000 (s 401 of the Criminal Code (WA)).
Ordinarily, the offence of aggravated burglary attracts a term of immediate imprisonment, although a non‑custodial sentence can be imposed in appropriate circumstances: Young v The State of Western Australia [2011] WASCA 100 [19]. The primary sentencing considerations in relation to burglary and aggravated burglary are personal and general deterrence: Whitby v The State of Western Australia [2014] WASCA 99 [26] (Buss JA, McLure P agreeing).
In my opinion, each of the offences of aggravated burglary alone would not be regarded as serious, however the fact three offences of aggravated burglary were committed by the appellant in company late at night or very early in the morning over a period of 11 months, together with three offences of stealing a motor vehicle in a period of eight months shows a history of repeated offending that is of a kind that is detrimental and inconvenient to a small community. In these circumstances, the offences cannot be objectively regarded at the bottom end of the range of seriousness.
Section 135 of the Sentencing Act provides that where an offender is re‑sentenced pursuant to s 130(1) of the Sentencing Act, the court must take into account the extent of the offender's compliance with the order and the period of time for which the offender was subject to the order. The total number of hours the appellant was required to undertake was 120 hours.
It is contended on behalf of the appellant that by 21 February 2017 he had completed 10 hours of community work and had completed another 12 hours that had not been credited as they were undertaken on the wrong day. Consequently, he had undertaken some of the punitive element of the CBO sentence imposed on 25 October 2016.
Whilst it appears that the supervisor of community work at Warmun was away for an extended period, the duration of which is unknown, the author of the pre‑sentence report indicates in the report that the supervisor was on annual leave at least in January 2017 but that breach action had been initiated in early December 2017 as the appellant had completed no hours of community service.
Although his Honour's sentencing remarks are not available, it appears from the remarks of his Honour, recollected by Ms Kickett, that his Honour appears to have concluded from the appellant's past record and from the fact that the appellant committed the breaching offences within a month of being placed on an adult CBO, that his conduct was indicative of a poor attitude to his responsibilities as a member of the community. His Honour's views were supported by the author of the pre‑sentence report, who noted that the appellant had anti-authoritarian, pro‑criminal attitudes and poor compliance with youth community based dispositions.
When regard is had to the seriousness of the offences and to maximum penalty for aggravated burglary, the need for personal and general deterrence, the appellant's extensive criminal record and the fact that the author of the pre‑sentence report did not recommend the imposition of a further community based disposition, it cannot be said that it was not open to the learned magistrate to take a view of the circumstances that a sentence of imprisonment was an appropriate sentencing disposition.
The learned magistrate did not, however, impose a sentence of imprisonment. He imposed a sentence of suspended imprisonment. Whilst his Honour's reasons for doing so are not available, it is apparent that his Honour was not satisfied that the case was so serious that it warranted immediate imprisonment. The fact of the appellant's age, co‑operation with police, together with the fact that he had been complying with a curfew since arrest, had ceased associating with his co‑offenders, yet had been raised in circumstances of disadvantage and had entered pleas of guilty at first appearances would weigh in favour of a lesser sentence than immediate imprisonment. However, when regard is had to all relevant circumstances of this matter, it cannot be said that a suspended period of imprisonment was not open because there was an alternative disposition of a further CBO with both a supervision and program requirement.
Conclusion
For these reasons, I am not satisfied that ground one of the appeal has reasonable prospects of success. I am, however, satisfied that ground two of the appeal should be allowed and an order be made to the effect that the sentence imposed in respect of prosecution notice WN 14 of 2016 be set aside and a sentence of six months' imprisonment suspended for 12 months be substituted to be taken to have commenced on 21 February 2017.
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