Berry v Walker
[2008] WASC 130
•4 JULY 2008
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL
CITATION: BERRY -v- WALKER [2008] WASC 130
CORAM: JOHNSON J
HEARD: 14 APRIL 2008
DELIVERED : 4 JULY 2008
FILE NO/S: SJA 1098 of 2007
BETWEEN: DENNIS PAUL BERRY
Appellant
AND
WARRICK SCOTT WALKER
First RespondentDEWAYNE DAVID PARTINGTON
Second RespondentCHRISTOPHER MARTIN DUNBAR-SMITH
Third RespondentMARK DARRYL TWEEDDALE
Fourth RespondentSEAN DONALD MAPLES
Fifth RespondentSTEVEN MURRAY EDWARDS
Sixth Respondent
ON APPEAL FROM:
Jurisdiction : MAGISTRATES COURT BUNBURY
Coram :MAGISTRATE K T FISHER
File No :BU 3748 of 2007
Catchwords:
Criminal law - Sentencing - Failure to take into account time in custody - Failure to take into account plea of guilty - Totality principle - Whether drug use as a result of self-medicating for a mental illness mitigatory - Effect of no prior imprisonment - Quality of offending
Legislation:
Sentencing Act 1995 (WA)
Result:
Appeal dismissed
Category: B
Representation:
Counsel:
Appellant: Mr D S Hunter
First Respondent : Ms C E Fitzgerald
Second Respondent : Ms C E Fitzgerald
Third Respondent : Ms C E Fitzgerald
FourthRespondent : Ms C E Fitzgerald
Fifth Respondent : Ms C E Fitzgerald
Sixth Respondent : Ms C E Fitzgerald
Solicitors:
Appellant: Legal Aid (WA)
First Respondent : Director of Public Prosecutions (WA)
Second Respondent : Director of Public Prosecutions (WA)
Third Respondent : Director of Public Prosecutions (WA)
FourthRespondent : Director of Public Prosecutions (WA)
Fifth Respondent : Director of Public Prosecutions (WA)
Sixth Respondent : Director of Public Prosecutions (WA)
Case(s) referred to in judgment(s):
Cameron v The Queen [2002] 209 CLR 339
H v The State of Western Australia [2006] WASCA 53
Herbert v The Queen [2003] WASCA 61; (2003) 27 WAR
MacLean v The Queen [1999] WASCA 209
McDonald v White [2007] WASCA 213
Moody v French [2008] WASCA 57
Parker v The State of Western Australia [2008] WASCA 46
Postiglione v The Queen [1997] HCA 26; (1997) 189 CLR 295
JOHNSON J: On 20 November 2007 the appellant was sentenced to a total of 4 years imprisonment, having earlier pleaded guilty to seven counts of burglary, two counts of aggravated burglary, one count of burglary of a dwelling house (the burglary type offences) and a number of other offences including stealing, drug and traffic offences.
The appellant appeals against the sentences for each of the various types of burglary offences and also against the total sentence imposed. No appeal has been instituted against the sentences for any offences other than the burglary type offences, despite the fact that they were imposed as part of the same sentencing exercise.
Grounds of Appeal
The grounds of appeal are as follows:
1.The learned magistrate erred in failing to give the appellant any discount on the sentences imposed to account for the appellant's early pleas of guilty.
2.The aggregate sentence of 4 years imprisonment imposed by the learned magistrate was disproportionate to the overall criminality involved in the offences committed by the appellant when viewed in their entirety, and in regard to all the circumstances of the case, including those personal to the appellant.
3.The learned magistrate erred in not reducing the sentence of 4 years imprisonment to take into account the time the appellant had spent in custody in regard to the offences prior to being sentenced.
The final ground of appeal, ground 3, is referred to in the Notice of Appeal as ground 4. That is clearly an inadvertent error and in the course of these reasons I will continue to refer to the final ground of appeal as ground 3.
Each of the grounds are particularised, however, reference will be made to the particulars, if necessary, when the individual grounds of appeal are considered.
The offences
At the time the appellant was sentenced for the burglary offences he was also sentenced for a number of other offences. Some of those offences were the subject of fines. Table 1 itemises the offences for which fines were imposed and identifies any connection with the burglary offences. The table does not include licence suspensions or amounts of restitution.
Table 1
Offence
Date
Penalty
Stealing
16/01/2004
5c fine. Offence not connected to a burglary. Restitution ordered.
Stealing
02/03/2005
5c fine. Offence not connected to a burglary. Part restitution ordered.
Stealing goods to value of $900
01/01/2007
5c fine. Offence not connected to a burglary. Part restitution ordered.
Driving under influence of drugs
01/07/2007
$800 fine.
Failed to stop when called upon
01/07/2007
5c fine.
Stealing
20‑21/08/2007
5c fine.
Property of person working at burgled premises.
In relation to the traffic offences of 1 July 2007, the appellant was noticed by police as a result of his erratic driving. When police activated their vehicle's siren, the appellant accelerated to a top speed of 80 ‑ 90 kph through the carpark of a recreation centre before turning into the carpark of a tennis club. The appellant's vehicle mounted the kerb, was driven over the gravel shoulder and the appellant then braked heavily. He got out of his car and ran some distance away before being caught. When the appellant was apprehended and spoken to by police he was incoherent as a result of the ingestion of drugs.
It is apparent then that in imposing sentence for the offences in table 1 the magistrate imposed nominal sentences or significantly reduced sentences inconsistent with the circumstances of the offences. The only reasonable inference which can be drawn is that the magistrate took into account in imposing the total term of imprisonment that the appellant would not be in a position to pay the level of fines which these offences would normally attract. These particular offences are relevant only to show that the magistrate was clearly attempting to achieve an outcome which would not prove crushing either in relation to the terms of imprisonment served or the fines owed.
Some of the other offences also attracted terms of imprisonment (the additional offences), although for lesser periods of time than those imposed for the burglary type offences. The following table sets out the additional offences, the date of each offence and the actual penalty imposed:
Table 2
Offences
Date
Penalty
Driving under disqualification
18/10/2004
7 months imprisonment.
Sentence suspended when originally imposed on 28/01/2005.
Sentence breached by subsequent offending and 7‑month term ordered to be served on 20/11/2007.
Possession of MDMA
03/02/2006
1 month imprisonment
Possession of cannabis
03/02/2006
1 month imprisonment
Breach of bail
28/04/2006
1 month imprisonment
Stealing (from property burgled)
Between 15 ‑ 18/06/2007
6 months imprisonment
Possession of amphetamines
02/07/2007
1 month imprisonment
Breach of bail
06/07/2007
1 month imprisonment
Possession of smoking utensil (detectable traces of cannabis)
14/09/2007
1 month imprisonment
Possession of amphetamines
14/09/2007
1 month imprisonment
The court was advised of the value of the goods stolen, or taken from the burgled premises, although the value of the damage to the premises was not always separately identified or identified at all. However, it is apparent from the circumstances of each offence that in almost all cases, damage was done to the premises in order to gain entry, or to the motor vehicle in order to steal the goods within. Therefore, while the total value of property stolen and damage done of $27,887.95 reflects the value of all the property stolen, it does not reflect the complete value of the damage which resulted from the offences.
The period of time over which all the offences dealt with on 20 November 2007 took place was from 18 October 2004 to 14 September 2007. The reason the earlier offences were dealt with at the much later date was because on two separate occasions the appellant failed to appear to answer the charges with which he had been charged at that stage.
In relation to each of the burglary offences, the appellant was sentenced to 12 months imprisonment. For the offence of burglary of a dwelling house, the appellant was sentenced to 2 years imprisonment. Of the two aggravated burglary charges, the appellant was sentenced to 12 months imprisonment on one charge and 18 months imprisonment on the other charge.
The sentence of 2 years imprisonment for the offence of burglary of a dwelling house was ordered to be served cumulatively on the sentence of 12 months imprisonment for the aggravated burglary. The sentence of 12 months imprisonment for the offence of burglary relating to the Big Swamp Bird Park (being the last in time) was also ordered to be served cumulatively. The appellant was made eligible for parole.
With respect to the sentences imposed for the remaining burglary offences and the additional offences, the impact of them on the total term of imprisonment is not immediately clear.
After activating the 7‑month term of imprisonment which had previously been suspended, but had been breached by the other offences, the magistrate continued:
So far as the period of imprisonment indicated of 2 years in respect to the burglary on the dwelling, that's to be cumulative with the period imposed in respect of the burglary on Goodland….. In respect of the burglary last occurring on the City of Bunbury, that's to be cumulative on both the burglary on Goodland and also the burglary on the dwelling. The penalties otherwise in terms of a custodial one including that being the suspended period of imprisonment being activated are otherwise to be cumulative one with the other, giving, in all of the circumstances a head sentence of 4 years imprisonment….
Accumulating the sentences for the additional offences results in a total period of imprisonment of 21 months. Accumulating the offences for the remaining burglary offences would total 90 months. Accumulating all the remaining offences would add 9 years to the sentence which is entirely inconsistent with the head sentence of 4 years imprisonment to which the magistrate specifically referred. Consequently, the only reasonable conclusion to draw was the magistrate inadvertently said 'cumulative' rather than 'concurrent'. This conclusion is consistent with the prosecution notices where only the terms of imprisonment for the three burglary offences to which the magistrate specifically referred are stated to be cumulative. With respect to the remaining notices, only the term of imprisonment is noted.
The appellant's personal circumstances
The appellant was 19 years old at the commencement of the course of offending and 23 years old when dealt with for the group of offences. His first offence as an adult was dealt with on 18 November 2004 and was for possession of a smoking implement. In January 2005 he was dealt with for a breach of bail and in May 2007 for possession of unlicensed ammunition. He received fines of $200 to $300 for these offences. The appellant also had a juvenile record for stealing and burglary. For which he was given non‑custodial dispositions. His last offence as a juvenile of stealing attracted a 12‑month community based order with community work. However, on 20 December 2002 he was dealt with for breaching that order and placed on a further order.
The appellant also had a series of prior convictions, commencing in September 2002, for traffic offences. By the time he was sentenced on 20 November 2007 for driving under the influence of drugs and failing to stop when called upon, committed on 1 July 2007, the plaintiff had a significant prior record for traffic offences. He had four convictions for driving under fine suspension, two convictions for no valid motor driver's licence, four convictions for driving an unlicensed vehicle, one offence of dangerous driving, one of wilfully misleading police and one for driving a vehicle with false number plates. The appellant received fines no greater than $500 for these offences.
As at the date of sentencing, the appellant had not previously been ordered to immediately serve a term of imprisonment nor had he been placed on an intensive supervision order. However, as I have noted, as an adult the appellant received a community based order. The appellant was also placed on an adult community based order when he was a juvenile. According to the pre‑sentence report (PSR), the appellant breached the first order which was replaced with another order on 20 December 2002. The second order was subject to breach action for non‑compliance, however, that action was withdrawn. I note from the appellant's criminal history that on 9 September 2002 the appellant was convicted of driving under fines suspension, a conviction which occurred during the period of the second order. Nevertheless, no breach action was taken. The PSR also notes that the appellant was placed on a supervised treatment intervention regime (STIR), however, he was removed from the programme when his conditional bail order was cancelled due to his non‑attendance at counselling and continued use of illicit substances. Further, as I have noted, the appellant had previously been sentenced to a term of suspended imprisonment which was breached by subsequent offending.
In relation to the PSR, it is apparent that the author was not aware of the totality of the appellant's offending. The list of present offences includes only three burglary offences and some, but not all, stealing, drug and traffic offences. Only one burglary offence is referred to in the group of pending charges.
At the time the PSR was prepared the appellant was living with his mother, his girlfriend and her four children. The appellant and his girlfriend were expecting their first child. The appellant mentions the stillbirth of his first child and reported that it was the turning point when he sought out illicit substances to deal with the loss. The appellant also reported a history of depression although he stated he was not currently medicated. The appellant acknowledged his long term amphetamine and cannabis abuse but indicated that he saw the impending birth of his child as a chance to be motivated to abstain from further use when released from custody. The report also indicates that the appellant had been remanded in custody since 14 September 2007.
That author of the PSR recommended that, in light of the appellant's time spent in custody, his previous completion of the community based disposition in 2002, together with his recent resolve to address his use of illicit substances, the appellant may benefit from a programme requirement to attend counselling as directed. However, she describes him as a marginal candidate for supervision given his recent history of non‑attendance. The community corrections officer added that, because the appellant was before the court for what she described as his seventh offence of driving under fines suspension, the court might be considering a custodial sentence and a suspended term may be an appropriate measure to highlight to the appellant the seriousness of him continuing to drive whilst legally disentitled.
The magistrate also had the benefit of a psychological report which had been prepared on 8 November 2007. The appellant told the psychologist that his father left when he was five years old and, although an alcoholic, the appellant was unable to recall any violence in his parents' relationship. He also noted that his mother had depression and that he and his sister would stay with family when his mother was sick. As a result, the appellant had effectively looked after himself from the age of 14. The appellant left school in year 10 and worked from the age of 15 years old onwards in various occupations. According to the report, when the appellant was 16 years old he formed a significant relationship with a girl who would periodically leave him for other men. According to the appellant, when this occurred he would become upset and resort to significant drug use. This would, in turn, lead him to commit offences and to engage in risk‑taking behaviour.
Approximately eight months before the report was prepared, the relationship ceased. The appellant has a 5‑year‑old daughter from the relationship. The psychological report also refers to the fact that the appellant had another daughter born in 2001 but who died soon after birth. The appellant also told the psychologist that this event contributed to an increase in his drug use. The appellant reported that he had subsequently formed another relationship whilst on the run from police and his new girlfriend was expecting his child. The appellant stated that since being with her he had straightened up considerably. It would appear that the appellant was referring to his drug use as it is apparent from the timing of the charges before the court that he was not referring to his offending.
At the time he was interviewed for the report, the appellant described himself as depressed. He also acknowledged cannabis use from an early age as well as irregular amphetamine use which increased following the death of his daughter and as a result of his partner's conduct. According to the appellant, he commenced using amphetamines because he associated with people who used. He dealt drugs in order to impress his partner with the money he obtained. The appellant also reported psychotic episodes from using amphetamines.
For the preparation of the psychological report the appellant underwent psychological testing. On one test, designed to assess a range of information relating to personality, the appellant returned a profile where individuals with similar profiles display symptoms of depression and perceive themselves as worthless and not competent enough to function independently. Such people therefore create bonds with people they perceive as being able to lead and care for them. The psychologist considered that the appellant's attachment to his new girlfriend a few short months after the end of his previous relationship is illustrative of this tendency. Such individuals are said to have a limited range of competencies in reducing tension and stressors and may use alcohol and other drugs as a means of managing the tension and stress they experience and may experience a variety of drug‑related problems.
The appellant attributed his offending behaviour to his use of amphetamines to manage the distress he experienced as a result of his ex‑partner's behaviour and his grief at the death of his newborn daughter. However, it must be added that, on his own account, he was already using amphetamines before any of these events and did so because he associated with people who used amphetamines.
The report concludes in the discussion and summary part with the observation that the appellant is a young man with limited means of managing stress and tension in his life. This factor, combined with the death of his child, is said to be likely to have exacerbated an underlying depressive symptomatology that the appellant attempted to manage through drugs. Further, according to the psychologist, the extent and chronicity of the appellant's drug use is likely to have affected his insight and capacity to make appropriate decisions.
The report also refers to the appellant's expressed interest in attending drug counselling which was thought to be of benefit because it would enable him to process the underlying grief and to develop new and more functional ways of managing stress and tension. The conclusion drawn by the psychologist is that the appellant is unlikely to benefit from a custodial sentence and may respond well to intensive supervision, drug counselling and the opportunity to change his circumstances.
In passing sentence the magistrate referred to both the pre‑sentence and psychological reports and stated that he found the former less than helpful whilst the latter was most instructive and extremely helpful in explaining the appellant's conduct and what led him into his course of behaviour.
Ground 1
On behalf of the appellant it is said that the learned magistrate erred in failing to give the appellant any discount on the sentences imposed to account for the appellant's early pleas of guilty.
This ground of appeal was conceded by the respondent on the basis that, in relation to the charge of burglary of a dwelling‑house, there cannot have been any discount for the plea of guilty having regard to the maximum 3‑year term of imprisonment and the stated reduction made by the magistrate by reason of the Sentencing Legislation Amendment and Repeal Act 2003 (WA), sch 1, cl 2(1) ('the transitional provisions').
In relation to the balance of the burglary offences, the respondent accepted that no discount was made for the pleas of guilty because no starting point can be discerned from the sentences because no staring point was indicated by the magistrate. Further, it was said that it would be unlikely that the magistrate made a discount for pleas of guilty on the remaining charges but not on the burglary of a dwelling‑house charge.
It is said on behalf of the appellant that he entered early pleas of guilty. The appellant pleaded guilty to all the offences over a period of time. The court has been provided with a schedule entitled Chronology Of Offences By Date Order (the Schedule) which includes the date the plea of guilty was entered and the number of mentions before the plea of guilty was entered. In relation to some charges, including one of the burglary charges, it was not possible to ascertain this information from the prosecution notices. As to the remaining burglary offences, after two appearances before the court, the appellant pleaded guilty to the first aggravated burglary and the first of the burglaries on 7 February 2006, and then absconded on bail on 28 April 2006. On 25 May 2007 the appellant pleaded guilty to four burglary offences and the offence of burglary on a dwelling house. With one exception, the pleas were all entered on the fourth appearance in court. Then on 6 July 2007 the appellant again absconded on bail. It was only in relation to the last four offences (three burglary offences and one aggravated burglary offence) that pleas of guilty were entered on the first or second appearance and within a month or two of being apprehended on 14 September 2007.
In my view, much of the benefit of a plea of guilty, particularly the 'early' aspect of the plea, is lost where the offender then absconds and avoids the consequences of his actions for as long as he is able to remain at large. The appellant is obviously acknowledging his guilt but his failure to later appear for sentence is inconsistent with the remorse and acceptance of responsibility usually associated with such a plea, and with the intention of being dealt with for the offending at an early stage of the proceedings. In my view, such pleas are not evidence of real remorse or an acceptance of responsibility. Ultimately, the appellant was not dealt with for the earlier offences committed in October 2004 until approximately three years later. In relation to the break and entering offences, the first offence was committed in January 2006 and was dealt with nearly two years later.
Further, in considering the extent of the deduction to be made for the appellant's plea of guilty, it should be noted that the appellant's involvement in most of the offences was determined by DNA or fingerprint evidence arising from forensic examination of the scenes. In two cases, closed circuit television monitoring showed the appellant at the premises. In another case, the appellant was identified when he asked to be allowed to store a suitcase at another person's premises. That person surrendered the suitcase to the police and police found inside it the property taken during the offence. In relation to one of the stealing offences, the appellant was disturbed by police and apprehended on the premises. In relation to the traffic offences, the appellant was identified by police as the driver. One group of drug offences came to light when the appellant's person and premises were searched in relation to the burglary and breach of bail offences. There was only one incident where there was no evidence of this type but the appellant admitted his involvement during the police interview; that incident involved a burglary and a stealing offence and was committed on 21 August 2007.
When interviewed, the appellant said that he had no recollection of many of the offences as he was under the influence of illegal drugs for an extended period of time. Some support for that statement can be gained from the observations of the police officer who apprehended the appellant for the traffic offences committed on 1 July 2007, who observed that the appellant was incoherent as a result of the ingestion of drugs.
When the appellant was questioned by the community corrections officer for the purposes of the PSR, he maintained his burglary and stealing offences were committed to obtain food. He disputed that he took any property other than the food items. Of course, that statement is inconsistent with the nature of the property stolen and the nature of the property taken from the burgled premises which were part of the factual basis of the offences to which the appellant pleaded guilty. The appellant's explanation for the inconsistency between his version of what was taken and the evidence of what was actually taken was that others were present and continued to access the building after he left the premises.
In my view, these statements are an attempt by the appellant to minimise his involvement in the offences and are not representative of a complete acceptance of responsibility, nor of remorse.
In passing sentence the magistrate noted that the appellant had little or no recollection of his offending although, with one exception, he did not resile from or avoid his involvement in the offences. The exception was the comment made in relation to the offence involving a crowbar which had the appellant's fingerprints on it. During the police interview the appellant made the comment that 'anybody could have left the crowbar there'. However, the appellant pleaded guilty to the offence and the magistrate discounted the comment as one made in passing. Although the appellant did not resile from his involvement in the offences, as I have noted, he did attempt to minimise the seriousness of the offence by attempting to deny that he stole property other than food.
Despite my reservations about whether the pleas should properly attract the benefit usually associated with 'early' pleas and whether they were truly indicative of remorse rather than an acceptance of the inevitable, the appellant did plead guilty and was entitled to a discount for facilitating the course of justice and because the circumstances of his offending behaviour were not so serious that nothing less than the maximum sentence could be justified: Moody v French [2008] WASCA 57, [35] and [38] of the decision of the majority; McDonald v White [2007] WASCA 213, [28]; Cameron v The Queen [2002] 209 CLR 339.
On behalf of the appellant it was submitted that a plea of guilty on the fast track system in indictable matters entitles a defendant to a discount of up to 30% ‑ 35% from the otherwise appropriate sentence and that early pleas of guilty in the Magistrates Court are similarly discounted. In Moody v French the majority, relying on the decision in H v The State of Western Australia [2006] WASCA 53, observed (at [37]) that, ordinarily, fast track pleas of guilty attract a reduction in sentence of somewhere between 20% ‑ 35%, depending on the circumstances. However, the reference to the 'circumstances' indicates, and the majority confirmed, that the reduction may be less where, for example, there is a late plea or an absence of any real remorse. Most significantly, the amount of the reduction is discretionary, and judges 'must be accorded a wide measure of latitude which will be respected by appellate courts': Postiglione v The Queen [1997] HCA 26; (1997) 189 CLR 295 at 336; Moody v French [37].
In my opinion, the failure to appear to be sentenced means that the plea of guilty cannot be taken as evidence of remorse or acceptance of responsibility. Further, the extent to which the course of justice is facilitated by the plea of guilty is reduced where the final disposition of a charge is delayed to the date when an absconding offender is ultimately apprehended. It is also the case that there is no real expression of remorse in the pre‑sentence report or the police interview and, as I have noted, the appellant's acceptance of responsibility is watered down to a degree by the excuses he made. Further, in view of the wealth of scientific evidence, the appellant's plea can be taken as an acceptance of the inevitable. In the instant case, although there was an entitlement to a discount for the plea of guilty on the basis of recognition of the appellant's willingness to facilitate the course of justice, the factors to which I have referred are, in my view, such as to require only a small discount as opposed to the 30% ‑ 35% discount referred to by counsel for the appellant or the 20% ‑ 35% discount referred to in the authorities.
The magistrate in the course of sentencing the appellant stated that it was 'of great moment' that the appellant had pleaded guilty to the offences at various stages and had maintained and confirmed those pleas. Although there is no specific reference in the balance of the sentencing comments to a reduction for the pleas of guilty, it is clear that the magistrate was well aware that the appellant had pleaded guilty and acknowledged that fact. Section 8(4) of the Sentencing Act 1995 (WA) provides that if, because of a mitigating factor, a court reduces the sentence it would otherwise have imposed on an offender, that fact must be stated in open court. However, the failure to make such a statement will not be a reason for overturning the sentence imposed if it is obvious that a reduction has in fact been made: McDonald v White [19].
The maximum summary conviction penalty for the offences of aggravated burglary (s 401(1)(a)) and burglary of a dwelling‑house (s 401(1)(b)) is 3 years imprisonment. The maximum summary conviction penalty for burglary is 2 years imprisonment: s 401(1)(c). In Moody v French at [24] the Full Court considered the application of cl 2(1) of the Sentencing Administration Act 1995 (WA), (the transitional provisions), which provides that, when imposing a fixed term, the court must impose a fixed term that is two‑thirds of the fixed term it would have imposed had the old provisions been in operation at the time of the sentencing. The Full Court held (at [24]):
The clear effect of this provision is that sentencing should first proceed as it always has done, by taking into account all relevant factors, including the maximum penalty provided by the legislation for the offence. Then, having arrived at an appropriate sentence, the court is required to reduce that sentence by one‑third. It is worth restating that, in the case of multiple offences, this exercise must be undertaken before orders for cumulation or concurrency are made (Hapke v The State of Western Australia [2006] WASCA 188 [111]; Ugle v The State of Western Australia [2007] WASCA 199 [20] ‑ [22]), although there is nothing to prevent a sentencing judge considering the overall effect of possible individual sentences and various combinations of cumulation or concurrency before fixing the particular sentences and their appropriate aggregation: Hapke [111]; Ugle [21] and [22].
However, when sentencing an offender within the framework of summary conviction penalties where the nature and circumstances of the offence or the prior convictions of the offender require a sentence towards the top end of a reduced range, it is often useful to first reduce the maximum summary conviction penalty by one‑third to identify the available maximum so as to ensure that it is not exceeded. However, it is important to ensure that in identifying the appropriate penalty, the approach identified in the transitional provisions is adopted.
In relation to the offence of burglary of a dwelling‑house, which forms the largest component of the total sentence, the sentence passed was 2 years imprisonment. When the one‑third which is required to be deducted from the sentence considered appropriate is added to the sentence imposed, the term of imprisonment is 3 years, which is the maximum available. It is clear that, in those circumstances, no deduction, however small, was made for the appellant's plea of guilty.
In relation to the remaining offences, for one offence of aggravated burglary, a sentence of 18 months imprisonment was imposed. Therefore, the sentence before the deduction of the one‑third was 2 years 3 months imprisonment out of a maximum of three years. For the other offence of aggravated burglary a term of 12 months was imposed which equates to 18 months before the deduction out of a maximum of two years. A term of 12 months imprisonment was imposed for each of the burglary charges which also equates to an 18‑month term where the maximum available was two years.
For the offences of burglary and aggravated burglary it is clear that more than a very minor deduction has been made from the maximum. However, where there has been a failure to take into account the plea of guilty in relation to the offence of burglary of a dwelling‑house, in the absence of any express statement as to the basis of the deduction or anything else which would suggest some allowance was made for the plea of guilty, an appellate court simply cannot be satisfied that any, or any appropriate, deduction was, in fact, made. The whole of the deduction could simply relate to the circumstances of the offence and the personal circumstances of the offender.
It may well be that the error made was to fail to reduce the penalty as a result of the transitional provisions. Either omission amounts to an appellable error. However, as the ground addresses the failure to allow a reduction for the plea of guilty, I will frame the outcome in terms of the ground of the appeal.
In all the circumstances I have reached the conclusion that when sentencing the appellant for the burglary type offences, the magistrate erred in failing to take into account the appellant's pleas of guilty. This ground of appeal is made out.
Ground 3
It is convenient to deal with this ground before the ground that takes issue with the total sentence imposed. The appellant alleges that the magistrate did not take into account the time the appellant spent in custody for the offences prior to being sentenced.
According to the Sentence Information Unit, the appellant spent a total of 83 days in custody for the offences on which he was sentenced on 20 November 2007. The period of 83 days was comprised of seven days between 4 and 10 February 2006, eight days from 19 and 26 March 2007 and 68 days from 14 September to 20 November 2007.
Both the appellant and the respondent agree that the time in custody was indeed in relation to the offences before the magistrate. That view is consistent with the above information and is accepted. The appellant submitted that the magistrate erred when he said he was of the understanding the appellant had not been in custody from 14 September 2007 solely for the offences then being dealt with. On behalf of the respondent it was said that the magistrate erred in reaching the conclusion that the time in custody was not solely referable to the offences for which the sentences were imposed.
It is clear that the letter from the Sentence Information Unit was not placed before the judge. Neither did the prosecuting officer advise the court of the relevant time spent in custody. The only information before the court was the following statement made by counsel for the appellant:
Eventually he was arrested and then he was placed in custody on 14 September. He was placed in custody for three weeks (indistinct) February after (indistinct) and came back with all good intentions.
At the hearing of the appeal, counsel for the appellant advised the court that he had told the court that it was his understanding that the appellant had spent about three weeks in custody from February 2006, in addition to the period commencing 14 September. Counsel conceded that the period of three weeks was not specific and that the magistrate 'stuck with the 14 September date'.
The sentencing transcript reveals that, having passed sentence on the appellant and asked him to stand down, the magistrate immediately advised the appellant that he had omitted to mention that, in fixing the term of imprisonment, he took into account the fact that he had been in custody since 14 September 2007. He noted that it was his understanding that the offences before him were not the sole reason the appellant was kept in custody and the court was not in a position to definitively order a backdate. However, the magistrate added that, notwithstanding that fact, he had taken into account the fact that the appellant had been in custody for the period since September.
The magistrate was told that the appellant was placed in custody on 14 September 2007. He was not told whether that was solely in relation to the charges before the court. However, in view of the extensive period of time over which the numerous offences occurred, there was clearly a strong probability that the time spent in custody was in relation to one or more of those offences. The magistrate was also provided with the submission of the appellant's counsel that there was a further period of about three weeks spent in custody in February but that period was not specific and the appellant's counsel did not state that it was solely in relation to the offences before the court. That figure is not consistent with the information in the Sentence Information Unit letter even if the periods for February and March are taken together.
When both the submission of the appellant's counsel and the comments of the magistrate are considered together, it is not accurate to state, as counsel for the appellant has submitted on appeal, that the magistrate erred when he said he was of the understanding that the appellant has not been in custody from 14 September 2007 solely for the offences being dealt with. What the magistrate actually said was that his understanding was that the offences before him were not the sole reason the appellant was kept in custody. As the submission at the sentencing hearing was that there was a further period of custody than that commencing on 24 September 2007, in my view, the magistrate was clearly referring to the whole period. I consider that conclusion goes some way to explaining the observation that the court was not in a position to definitively order a backdating. Where periods in custody are not consecutive, sentencing judges or magistrates often consider the more convenient approach to be to deduct the total period spent in custody from the penalty for one or more offences. That approach is consistent with authority although it is certainly not the only approach to the issue: Parker v The State of Western Australia [2008] WASCA 46 Buss JA [23].
On behalf of the respondent it was said that the magistrate erred in reaching the conclusion that the time in custody was not solely referable to the offences for which the sentences were imposed. I believe that submission does not adequately take into account the state of the evidence before the magistrate at the time. As I have noted, the statement that it was the magistrate's understanding that the offences before him were not the sole reason for the time spent in custody was not a comment made solely in relation to the period of time from 14 September 2007. Based on the transcript, which is the only evidence before me, I am not in a position to conclude that the magistrate was in error in making that observation. The magistrate did not have the assistance of the letter from the Sentencing Information Unit and it is not possible to conclude from the statement from the appellant's counsel at the time that there was a further period of time in custody solely referable to the offences before the court.
As to the period from 24 September, the magistrate expressly stated that he had taken into account in the sentences already passed that the appellant had been in custody for that period of time. In fact, a statement by the magistrate that he had taken that period of time in custody into account both commenced and concluded the addendum to the sentencing comments made after the appellant was asked to stand down but before he actually did. That clear statement by the magistrate cannot be ignored as, it appears, both counsel for the appellant and counsel for the State have chosen to do.
In disposing of this ground of appeal it would then be necessary to consider whether the total sentence imposed reflected all relevant factors including the time spent in custody.
However, as the Court of Appeal determined in McDonald v White [28], in view of the conclusion on ground 1, it is not strictly necessary to conduct that exercise as, having found error in the exercise of the sentencing discretion, the appellant is to be sentenced afresh unless, even allowing for all relevant factors, the appellate court would not have imposed any different sentence. In reaching that conclusion the Court of Appeal referred to and relied upon s 31(4)(a) of the Criminal Appeals Act 2004 (WA). However, that section applies to appeals to the Full Court and not to appeals from a summary court to a judge of the Supreme Court. The relevant provision of the Criminal Appeals Act 1995 (WA) in relation to appeals to a single judge is s 14(2) which is differently worded from s 31(4)(a) and provides that, even if a ground of appeal might be decided in favour of the appellant, the Supreme Court may dismiss the appeal if it considers that no substantial miscarriage of justice has occurred.
In determining the sentence to be imposed, the court will be able to take into account, in any one of the appropriate ways, the total time in prison on remand for these offences as now advised by the Sentence Information Unit.
That issue will effectively be dealt with in tandem with the ground of appeal relating to the total sentence imposed.
Ground 2
This ground of appeal alleges that the aggregate sentence of 4 years imprisonment was disproportionate to the overall criminality involved in the offences committed by the appellant when viewed in their entirety, and in regard to all the circumstances of the case, including those personal to the appellant. The particulars of the ground allege that the appellant had never been sentenced to a term of imprisonment before, the appellant's age had not been sufficiently taken into account and the appellant's criminal record was not lengthy and consisted of minor offences. The final particular alleges that insufficient consideration was given to the appellant's depressive disorder and its connection and relationship to the appellant's drug use and offending.
In the course of the hearing on appeal, counsel for the appellant made the concession that a custodial sentence was clearly required for the appellant. Consequently, all the issues raised on behalf of the appellant in relation to this ground of appeal are said to be such as to require a lesser term of imprisonment to be imposed.
In its written submission the State submitted that, having regard to the fact the respondent has conceded that ground 1 and ground 3 have been made out, the appellant must be re‑sentenced according to law. I would agree with that proposition in so far as it relates to ground 1. The State further submitted in its written submissions that, as the requisite allowances on the sentences have not been made by the learned magistrate, the respondent accepts that the length of the fixed term imposed will require adjustment. With respect to counsel for the State, I do not agree that the automatic result of the appellant's success on ground 1 or ground 3 is that the sentence imposed by the appellate court will necessarily involve an 'adjustment' to the total sentence imposed by the magistrate. Such an outcome will almost always be the case where one or a small number of offences are involved. However, where the totality provision has been applied in order to impose a sentence reflecting the total criminality, it can be the case that, notwithstanding the error, the total sentence imposed not only reflected the total criminality but also the factor to which the judge or magistrate's error relates. Further, as I have noted above, the appeal will only be allowed if the sentence considered by the appellate court to be appropriate is less than the sentence imposed by the magistrate. It may be that in the course of determining his or her own sentence, the appellate judge may take a different approach which results in the same or a higher sentence.
Having been alerted at the hearing to the fact that the additional offences formed part of the total criminality of the appellant's offending and hence were also reflected in the total sentence, the view of counsel for the State was that the total sentence did not manifest error. Counsel for the State observed that the State's position was that the sentence imposed was, in terms of length, 'certainly not out of the ordinary and it's not in any way crushing'. The State had, in any event, always submitted in relation to the burglary offences that the magistrate correctly assessed the seriousness of the offences and had proper regard to the matters personal to the offender in assessing the totality of the offending conduct and the need for an accumulation of some terms of imprisonment.
Counsel for the appellant was unable to grasp the proposition that the total sentence imposed reflected the total criminality of all the offences and not just the burglary type offences. In maintaining that the only relevant components of the total criminality and, therefore, the total term of 4 years imprisonment were the burglary type offences, counsel for the appellant relied on the following factors:
1.The magistrate emphasised the burglaries;
2.The magistrate only stated the maximum penalties relating to the burglaries;
3.The magistrate referred at length in relation to the burglaries as to why he was sentencing as he did;
4.The magistrate clearly was of the view that the sentences for the additional offences should not increase the sentence he was imposing otherwise he would have said so.
On behalf of the appellant it was submitted that the additional offences were simply not relevant to the appeal as the sentences for those offences do not extend the sentence in any way. I understood this submission to mean that, as the sentences for the additional offences were stated to be served concurrently, they were not a component of the sentence against which the appeal lies. Presumably, that was the reason the appellant only appealed against the burglary charges and not the additional charges, despite appealing against the total sentence imposed. If the appellant's submission is applied consistently, the burglary type offences which received a concurrent sentence would also not form part of the overall criminality. When the appellant's submission is considered in that way, its flaw is immediately apparent.
The transcript indicates that all the offences, including the additional offences were before the court on 20 November 2007. It is also the case that the magistrate imposed the sentences for the additional offences as part of the same sentencing exercise in which he imposed the sentences for the burglary type offences. At the conclusion of imposing the individual sentences, the magistrate then made orders as to whether those sentences were to be served concurrently or cumulatively before stating that, as a result, the head sentence was one of 4 years imprisonment.
In my view, the proposition that the sentences for the additional offences did not form part of the total criminality reflected in the head sentence is untenable. The fact that the accumulation of a number of sentences for certain burglary type offences formed the basis of the total term was no more than a matter of convenience in that fewer individual sentences needed to be accumulated in order to reach the head sentence which the magistrate determined adequately reflected the total criminality of the total course of offending. This is a common and perfectly proper approach to sentencing for a large number of offences.
That the magistrate adopted such an approach is supported by the following statements as to the approach taken by him:
I should also wish to point out to you that the process the court has gone through is not a mathematical one. It is not something that we sit down and do the arithmetic to work out what the sums produce. The sentencing process is a personal one. It is personal to you, but it has aspects that reflect both the law, the community's input and concerns with breaches of the law, and those factors that are personal to an individual.
At another point in his sentencing comments the magistrate made this statement:
…I propose to impose upon you what I regard as an appropriate sentence, mindful of the factors of your age, and as I've indicated, my view that you would at the end of the day, in a drug free environment, be a valued member of the community.
The magistrate also made the following statement:
It is necessary, given that there are offences here, both in distinction between time, place and event, that there be consideration as to the concurrency or continuation of those offences, and perhaps the important starting point is the breach that you are in regarding the suspended period of imprisonment which I will now activate and order that you now serve the seven months imprisonment.
Although these statements also address other issues relevant to sentence, in my view, it is apparent that the magistrate was attempting to indicate that the process did not involve adding up the sentence for each offence, that the appropriate offences would be achieved by making some sentences cumulative and some concurrent, and that the sentence imposed would not only be appropriate for all the offences but also take into account the appellant's personal factors. Those propositions are consistent with principle. However, I would add that, where a sentencing judge or magistrate considers the appropriate total sentence for a number of offences, taking into account all relevant factors including a discount for pleas of guilty and time spent in custody, it is not open to the judge or magistrate to increase the individual sentences beyond that appropriate for each offence in its relevant circumstances. To do so simply to facilitate reaching the total sentence by accumulatively a lesser number of sentences would manifest error. Inadvertently imposing a sentence for a particular offence which exceeds a sentence appropriate to all the circumstances of that offence would also manifest error.
In my view, it is evident from the comments made by the magistrate that he was well aware that he was imposing a head sentence appropriate for the entire course of offending which he was dealing with and which he considered to be very serious for offences heard in a summary court. He said:
When one comes to measure the seriousness of your behaviour, looked at as an objective course of behaviour, when dealt with in this court it would be difficult to imagine a more serious course of behaviour…
For these reasons, I have drawn the conclusion that, in determining whether the total sentence imposed was disproportionate to the overall criminality, the court must take into account all the offences dealt with on that day and not only the 10 burglary type offences.
In determining the appropriate sentence it is useful to address the issues raised by the appellant on this ground of appeal as they are relevant to determining the sentence which the court must impose.
The primary proposition underlying the various matters relied upon in relation to this ground of appeal is that the magistrate placed too much emphasis on punishment and not enough on rehabilitation.
One particular criticism levied at the magistrate was that, in determining the appropriate sentence, the magistrate confused reformation with punishment and in so doing imposed a sentence that was excessive. When sentencing the appellant the magistrate made the following comment:
In my respectful view the sentence required here, together with your otherwise antecedents of continuing drug use, despite the opportunities afforded to you, would deny any reasonable expectation of your reform without a significant period of custody.
In support of the submission, counsel for the appellant, relied on the conclusion drawn by the psychologist that the appellant is unlikely to benefit from a custodial sentence and may respond well to intensive supervision, drug counselling and the opportunity to change his circumstances. As I understand the submission, despite the concession that a custodial sentence was appropriate, in view of the psychologists opinion that the appellant was unlikely to benefit from a custodial sentence, the term imposed was longer than that required to achieve rehabilitation.
Further, again based on the psychological report, the appellant's counsel submitted that the appellant has the capacity to cease his drug use and offending because he has insight into his problems. According to the appellant's counsel it is a question of whether in the appellant's particular situation he has the capacity to stop. It is said that, as the psychological report clearly suggest that the appellant has insight into what precipitates his drug use and also desires assistance, a shorter period of time in custody would give him that time to fully understand it and then be released. According to counsel, the sentence did not reflect that circumstance and was more punitive than it should have been.
Counsel for the appellant further submitted that the magistrate, in sentencing the appellant to 4 years imprisonment did not take into account the public interest in offenders, particularly young offenders, becoming good citizens through being rehabilitated.
The psychologist stated in the report that the appellant 'appears to demonstrate a degree of insight with regard to his situation identifying his girlfriend's behaviour and baby's death as precipitants to his drug use'. However, I note that the psychologist also said that the 'extent and chronicity of his drug use is likely to have affected his insight and capacity to make appropriate decisions'. I note also that the psychologist concluded that the appellant 'may respond well to intensive supervision, drug counselling and the opportunity to change his circumstances'. The psychologist did not address in his report the fact that the appellant has previously been given these types of opportunities without any impact on his offending.
It should be noted that whilst pre‑sentence and psychological reports commonly state that insight is required before treatment can be effective, it does not follow that insight will result in rehabilitation. Insight may be indicative of improved prospects of rehabilitation but it is far from necessarily the case that rehabilitation will result.
Reform, as used in the magistrate's comment set out above, was clearly a reference to relinquishing a criminal lifestyle. That is something which can occur as a result of a choice made out of a desire not to return to prison for a lengthy time or ever again. In this sense, the term does not have entirely the same meaning as rehabilitation which in this context usually means changing or curing the underlying practices, problems or views which give rise to the offending. According to the pre‑sentence report, the appellant was only a marginal candidate for supervision and had a history of not availing himself of opportunities for reform and of continuing to offend. He had breached bail on a number of occasions, had offended during the course of one community based order and a term of suspended imprisonment and had failed to comply with the requirements of a treatment programme on which he was placed. In those circumstances, it could not be said that the prospects of the appellant's rehabilitation were so great as to outweigh other aspects of the sentencing process such as deterrence, punishment and protection of the community.
My understanding is that the magistrate, having concluded that the appellant was not a candidate for a non‑custodial outcome, was referring to deterrence as a result of imprisonment; that the only thing which might make the appellant stop using drugs and offending was the prison term which would result if he were to continue with that behaviour. Whether that be described as reforming or conforming matters not.
It is also clear from the transcript that the magistrate clearly considered both the intensive supervision order suggested by the psychologist, a pre‑sentence order suggested by counsel for the appellant and suspending the term of imprisonment. The magistrate also referred specifically to other circumstances which would militate against those outcomes including the appellant's failure to appear, the commission of offences whilst on bail, the seriousness of the offences, the appellant's escalating drug use during the period of offending and his denial of responsibility. In my view it cannot be said that the magistrate failed to consider the appellant's prospects of rehabilitation or the public interest in imposing the sentence he did.
I do not accept that this criticism of the length of the term of imprisonment imposed by the magistrate is valid.
Other observations made in the psychological report were the basis for a further submission that the appellant's underlying depressive symptomatology, which he self‑managed with drugs, mitigated his conduct, something which was not reflected in the sentence imposed. Support for this proposition was said to be found in the magistrate's observation that the psychological report was particularly helpful. The magistrate in fact said that he found the psychological report most instructive and extremely helpful in explaining in large part the appellant's conduct and what had led him into his course of conduct. I consider the correct interpretation of this comment to be that the usefulness of the report was in explaining the appellant's conduct. It does not follow that he either accepted the conclusions drawn by the psychologist or adopted the recommendations contained in the report.
Counsel for the State submitted that mental illness is mitigatory where it is a diagnosed mental illness or psychiatric condition and is causative of the offending. It was further said that it is not mitigatory where the depression causes drug taking and the drug taking causes the offending. Counsel also observed that there was no evidence before the court to the effect that, because of his depressive symptomatology, the appellant had no control over his choice to use drugs and no control of his drug addiction. I accept each of these propositions.
Counsel for the appellant submitted that the appellant's underlying depressive symptomatology, exacerbated by particular historical events, including the death of his child in 2001, did cause the appellant to use illicit drugs to manage his mental health problems. Reliance was placed on the decision of Heenan J in The State of Western Australia v Reynolds [2006] WASC 31 [64] where his Honour observed that the courts had accepted the significance of chronic mental illness as a factor reducing culpability and encouraging leniency in sentencing where there are prospects of rehabilitation: R v Tsiaras [1996] 1 VR 398 and in Cooley v The State of Western Australia [2005] WASCA 204 especially at [102] to [113], [63].
Heenan J then referred to an extension of that principle referred to a passage from Fox and Freiberg in Sentencing: State and Federal Law in Victoria, (2nd ed, 1999) to this effect:
Where the consumption of the substance that contributed to the criminal behaviour was due to factors that can be considered beyond the offender's control, this may be regarded as mitigatory [64].
No judicial authority for this proposition is cited in The State of Western Australia v Reynolds. Heenan J described the proposition as confirming the traditional posture of the court of refusing to accept drunkenness as a mitigating factor in most cases. However, as Heenan J noted, the passage also extends the traditional posture to include, as a mitigating factor, drunkenness due to an underlying factor beyond the offender's control. Clearly mental illness would be such a factor. Further, if the proposition is accepted, it would apply equally to all types of substance abuse.
In The State of Western Australia v Reynolds, there was evidence that the offender had a history of quite severe depression and anxiety dating from at least 14 years of age. He began to use cannabis and alcohol from about 15 years and over time had developed severe alcoholism and drug abuse. The offender had been using both prescribed and illicit drugs to self-medicate. The offending was regarded as quite out of character and was found by Heenan J to have been committed during bouts of extremely disordered thinking and behaviour due to chronic alcoholism, multi‑substance abuse and underlying chronic mental depression [47]. Whilst conceding that there might be some uncertainty as to whether the more severe forms of the offender's mental illness was caused or precipitated by drug taking and/or alcoholism or whether the underlying mental disease was a precipitating factor for the alcoholism and poly drug abuse, Heenan J accepted the opinion of a psychiatrist that the offender had a genetic predisposition towards depression and, once this had developed, that he was more than usually prone to develop alcoholism and poly substance drug abuse [49]. Indeed there was a wealth of psychological and psychiatric evidence concerning the relevant mental illness and the interaction between the illness and the substance abuse and offending. Heenan J concluded that 'there was no doubt that the combined effect of the illness and the substance abuse was part of a complex syndrome which the offender was evidently unable to control' [66]. In passing sentence, Heenan J treated as mitigatory the offender's 'compulsive behaviour under the addiction of alcohol and drugs, in combination with the underlying mental condition' [72].
It is unnecessary for me to express a view on whether the relevant circumstances in The State of Western Australia v Reynolds should have been treated as mitigatory. In my view, the decision in The State of Western Australia v Reynolds is not authority for the proposition that offenders with a mental illness caused by drug abuse, or with a mental illness who then self‑medicate with illicit drugs, have a reduced moral culpability. The facts of that case were not the facts of this case.
The evidence before the magistrate came from the PSR and the psychological report. In the PSR, the author referred to previous suicide attempts and episodes of self harm which were said by the appellant to be the result of distress in his previous relationship. The appellant also discussed a history of depression but said that he was not currently medicated. In addition, the appellant advised that he has a drug problem which commenced at the age of 15 with the use of cannabis and intravenous amphetamines.
The psychologist notes that the appellant described himself as 'depressed'. The appellant also told him that his mother had been diagnosed with depression. A history of relationship problems was also related as a result of which the appellant would use drugs 'real hard'. The death of his child in 2001 also contributed to the appellant's drug use. It is clear from the report that the appellant's drug use commenced when he was provided with drugs by a friend of his mother. That use increased over time. Although the appellant attributed his behaviour over the last five years to his use of amphetamine to manage the distress he experienced as a result of his ex‑girlfriend's behaviour and the grief he felt at the death of his newborn daughter, he initially told the psychologist that he commenced using amphetamines because he associated with people who used. However, he also maintained that his amphetamine use had increased since the death of his daughter and with his relationship difficulties.
It is unclear from the report whether the psychologist actually made a diagnosis of depression in relation to the appellant because he speaks in general terms about 'individuals with similar profiles display recurrent symptoms of depression'. He also noted that such individuals do not feel capable and competent enough to function independently and therefore create strong bonds with people whom they perceive as being able to lead and care for them. The psychologist then refers to the fact that the speed with which the appellant attached to his new girlfriend a few short months after the end of a significant eight‑year relationship was illustrative of this. He went on to say that such individuals have a limited range of competencies in reducing tension and stressors, may use alcohol and other drugs as a means of managing the tension and stress that they experience, and may experience a variety of drug related problems.
The psychologist concluded that the appellant appeared to have limited means of managing stress and tension in his life and his inability to assert himself and set limits on his ex‑girlfriend's behaviour led him to seek alternative means of managing the distress her behaviour caused him. The psychologist considered it likely that this factor, combined with the death of the appellant's child, exacerbated an underlying depressive symptomatology that the appellant attempted to manage through drugs. The extent and chronicity of the appellant's drug use was thought by the psychologist to have been likely to affect his insight and capacity to make appropriate decisions.
In essence, the psychologist's opinion is that various personal events exacerbated the appellant's underlying depression which he attempted to manage through drug use. In view of the appellant's statement that he voluntarily commenced his drug use with respect to amphetamine because of his peer group, it would appear that there was no connection between any depressive symptoms and the commencement of the appellant's drug use. There was, therefore, no evidence before the magistrate to indicate that the mental illness caused, contributed to or compelled the drug taking, as opposed to the appellant, who had already used drugs, simply choosing to deal with his problem by continuing to use drugs or increasing his drug use. It may be that, as the appellant's problems increased, his depressive symptomatology increased and so did his drug taking. However, there is still no evidence that the appellant's drug taking was anything other than a choice on the part of the appellant to deal with his problems in that way. Neither was there any evidence that it was the appellant's depression which caused or contributed to his offending.
I note that, in fact, the appellant's counsel conceded at the hearing that the appellant was self‑medicating with drugs. Yet, in reliance on the decision in The State of Western Australia v Reynolds, he maintains that such conduct was mitigatory. As I have already noted, in my view, that decision does not support that proposition. The appellant's counsel also submitted that the appellant was in the category of offenders who were not taking drugs to get 'high' but because he was not coping with his circumstances. In my view, it matters not whether the appellant was voluntarily and deliberately taking drugs to get 'high', or because he was not coping, or for both reasons, the voluntary and deliberate ingestion of drugs is not mitigatory. In any event, it is difficult to see the distinction between the two propositions. In both cases it is still the effect of the drugs which is the reason for taking them.
As I have noted above, it is well established that drug use explains offending but does not mitigate it. The voluntary ingestion of drugs never reduces the culpability of an offender. To consider such conduct mitigatory would encourage people to deal with life's exigencies by consuming drugs and could only lead to an increase in drug use and an escalation in offending. The very concept of a person's illegal conduct being excused, to any extent, by other illegal conduct is an affront to common sense.
There is, in my view, no substance to the proposition that the appellant should have been dealt with more leniently because of a depressive illness which he treated by using illicit drugs.
In considering this ground of appeal much emphasis was placed by counsel for the appellant on the fact that the appellant had not previously been imprisoned. Reference was made to the decision in McDonald v White at [32]-[33] where, in reducing the sentence imposed, the Full Court took into account the fact that the appellant had not previously been imprisoned.
In circumstances where the appellant came to be sentenced for numerous offences committed over a lengthy period of time because he had on two occasions absconded whilst on bail and re-offended, it is difficult to see the basis on which he should be given a discount for not previously having been imprisoned. If the appellant had not refused to answer his bail there is little doubt he would have been imprisoned well before 20 November 2007 because of the breach of the motor vehicle offence for which he had received a suspended sentence. In any event, the issue in McDonald v White was that the appellant had been given a sentence close to the maximum the first time he was imprisoned. Although that occurred in relation to one of the charges, as dealt with in ground 1, that was certainly not the case in relation to the total offending.
The fact that the appellant came to be dealt with, on a single occasion, for a large number of serious offences which occurred over a lengthy period of time, was a result of his own actions. The consequences which flow from that are something the appellant must bear. In my opinion, the appellant was not entitled to any discount or reduction in the total term of imprisonment for the fact that he had not previously been imprisoned.
On behalf of the appellant it was also submitted that the circumstances of the offences were such as to attract a lower total term than that imposed. Counsel submitted that because the appellant had left behind biological traces, fingerprints, and had been caught on a surveillance camera, reflected the fact that the burglary offences were not sophisticated and involved little planning and were spontaneous.
This is a common submission which, curiously, is often made in circumstances where the offending was successful in terms of achieving the offender's purpose. I have often thought it odd that the court should give a benefit to an offender for not giving a polished performance when offending. I am unsure as to the components of a sophisticated burglary but I would imagine many would be inconsistent with the actions of a drug addled offender in any event.
The ultimate purpose of any burglary is to obtain property of value and that is what occurred in this case. Each of the burglaries was successful. As the magistrate noted, the appellant was not sufficiently affected by the intoxicating effects of the illicit substances to be unable to execute his plan of committing burglaries. Further, as I have indicated above, property of a substantial value was taken from the various premises. The fact that in particular cases the value of the property was low was a mere matter of chance. Some of the offences also involved causing significant damage to the premises, increasing the financial injury suffered by the property owner as well as causing added inconvenience.
Further, whether an offence is pre‑planned is simply a matter of degree. Individual premises may not have been determined well in advance of the offence and the means of carrying out the offence may not have been the subject of consideration over time, but, as the magistrate observed, the appellant committed a planned course of burglaries on premises that attracted his attention by reason of the opportunity they presented. In one case, the appellant even returned to the same premises.
The remaining issues which were said to have not been given sufficient weight in determining the appropriate total sentence was the appellant's age, his good work record, his limited criminal history and the matters personal to him, such as the death of his child, as well as his remorse.
In addition to considering the serious nature and aspects of the offence, the magistrate referred to the appellant's youth and lack of substantive record. He also referred to the fact that the appellant had pleaded guilty, that the pleas had been maintained and confirmed and he had not resiled from his involvement in the offences. I have already commented on my view of the impact of the pleas of guilty and consider that the magistrate was more favourable in his comments to the appellant than he deserved in light of his failure to appear on two occasions and the comments he made in the PSR. The magistrate also accepted that the appellant's drug use was a contributing factor in his offending
In all the circumstances, I am not persuaded that the magistrate failed to give sufficient weight when imposing the total sentence to any of the factors identified on behalf of the appellant. As the magistrate observed, offences of burglary are serious, and persistent burglaries on business premises are serious because they are, in large part, a soft target. The magistrate also referred to the fact that burglary offences committed on dwelling‑houses destabilise the occupants and leave them uncomfortable and insecure in their own home. Another aspect of the burglary offences commented upon by the magistrate was that they were committed under the cover of darkness. There were more than enough circumstances surrounding the commission of the burglary type offences, including the value of the property and the obvious lack of concern about causing damage to the premises, to justify their contribution to the total sentence imposed.
I would also add that, as the magistrate noted, the appellant was not a first‑time offender and had previously been given the benefit of non‑custodial options to assist with his addiction to illicit drugs. The appellant committed a large number of offences over a long period of time and, on two occasions whilst having absconded on bail. Ultimately, the offending only stopped when the appellant was apprehended. The appellant also continued to offend despite entering the relationship which counsel for the appellant suggested reduced the appellant's chances of re‑offending.
The totality principle requires that the court selects a sentence, or a series of sentences, which are proportional to the overall criminality of the offending which takes into account all relevant circumstances of the offences and the offender. The principle also requires that the overall sentence imposed should not be crushing: Herbert v The Queen [2003] WASCA 61; (2003) 27 WAR; MacLean v The Queen [1999] WASCA 209.
Taking into consideration all the factors to which I have referred I am not persuaded that the total sentence imposed exceeds the total penalty appropriate to the level of criminality involved taking into account both the pleas of guilty and the time spent in custody. In my view, the total sentence imposed would not be excessive if it had been imposed in relation to the burglary offences alone. When one takes into account the individual sentences for the additional offences, it certainly cannot be said that the sentence is excessive. As the appellant is a relatively young offender I should also note that, in my opinion, the sentence is no longer than necessary to meet the various purposes of retribution, deterrence and reformation. I would not uphold this ground of appeal.
Despite the fact that the individual sentence imposed for the offence of burglary of a dwelling house did not reflect a reduction for a plea of guilty and the sentences for the remaining burglary type offences may not have done so, in my opinion, the total sentence imposed adequately reflected this factor as well as the time spent in custody. Consequently, I consider there has been no substantial miscarriage of justice.
If I am wrong in my understanding of the application of s 14(2) of the Criminal Appeals Act, and I am required to allow the appeal unless the sentence I would impose is the same as that imposed by the magistrate, then I have concluded that the sentence that I would have imposed for the total offending would have exceeded the 4‑year total term. That is because I would have ordered that the 7‑month sentence for breaching the suspended imprisonment be served cumulatively. I would then have re‑adjusted some of the sentences for the remaining offences and ordered that some be accumulated, so as to reach a term of imprisonment in relation to all the offences of 4 1/2 years. In my view, such a term would reflect the total time spent in custody and the pleas of guilty as well as all other relevant factors.
The appeal is dismissed.
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