Beynon v The State of Western Australia
[2021] WASCA 153
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: BEYNON -v- THE STATE OF WESTERN AUSTRALIA [2021] WASCA 153
CORAM: BUSS P
MAZZA JA
HEARD: 4 AUGUST 2021
DELIVERED : 31 AUGUST 2021
FILE NO/S: CACR 36 of 2021
BETWEEN: DAVID JAMES BEYNON
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram: LONSDALE DCJ
File Number : IND 1237 of 2020
IND 2149 of 2020
Catchwords:
Criminal law - Application for leave to appeal against sentence - Appellant convicted on two indictments of two counts of aggravated home burglary contrary to s 401(2)(a) of the Criminal Code (WA), and two counts of stealing contrary to s 378 of the Criminal Code - Whether the sentencing judge made express errors of fact - Whether the total effective sentence infringed the first limb of the totality principle
Legislation:
Criminal Code (WA), s 401(2)(a), s 378
Sentencing Act 1995 (WA), s 9AA
Result:
Leave to appeal refused
Appeal dismissed
Category: B
Representation:
Counsel:
| Appellant | : | S G Duce |
| Respondent | : | No appearance |
Solicitors:
| Appellant | : | Efficient Law Group |
| Respondent | : | Director of Public Prosecutions (WA) |
Case(s) referred to in decision(s):
Abraham v The State of Western Australia [2014] WASCA 151; (2014) 244 A Crim R 1
Brindley v The State of Western Australia [2019] WASCA 153
Charles v The State of Western Australia [2021] WASCA 114
Eldridge v The State of Western Australia [2020] WASCA 66
Kabambi v The State of Western Australia [2019] WASCA 44
Mason v The State of Western Australia [2018] WASCA 43
JUDGMENT OF THE COURT:
This is an application for leave to appeal against sentences imposed on the appellant by Lonsdale DCJ on 12 March 2021.
The appellant was charged on two indictments with the following offences:
Indictment 1237 of 2020
Count 1
On 9 January 2020 at North Beach, [the appellant], while in the place of [TH], without her consent, committed the offence of stealing
And that [the appellant] was in company with another
And that immediately before the commission of the offence [the appellant] knew or ought to have known that there was another person in the place
And that the place was ordinarily used for human habitation.
Count 2
On the same date and at the same place [the appellant] stole a purse, a sum of money, earrings, sunglasses and sundry items the property of [TH].
Indictment 2149 of 2020
Count 1
On 30 December 2019 at Mindarie [the appellant] stole money, a garage door remote control and sunglasses the property of [LW].
Count 2
On the same date and at the same place as in count 1 [the appellant], while in the place of [LW] without her consent, stole a bicycle.
And that immediately before the commission of the offence [the appellant] knew or ought to have known that there was another person in the place
And that the place was ordinarily used for human habitation.
On 12 March 2021, the appellant was convicted on his pleas of guilty of all of the above charges. He was sentenced by her Honour as follows:
Indictment 1237 of 2020
Count 1
12 months' immediate imprisonment (reduced from 14 months for totality)
Count 2
No punishment, pursuant to s 11 of the Sentencing Act 1995 (WA)
Indictment 2149 of 2020
Count 1
3 months' immediate imprisonment
Count 2
16 months' immediate imprisonment
Her Honour ordered that the sentences imposed for the offences in indictment 2149 of 2020 be served concurrently with each other and that the sentence for count 1 in indictment 1237 of 2020 be served cumulatively upon the sentence imposed for count 2 in indictment 2149 of 2020. Thus, the total effective sentence was 2 years 4 months' immediate imprisonment. The appellant was made eligible for parole and the sentence was backdated to commence on 6 July 2020.
The appellant seeks leave to appeal on two grounds. Ground 1 alleges that her Honour made express errors with respect to findings of fact in relation to count 2 in indictment 2149 of 2020. Ground 2 alleges that the total effective sentence infringed the first limb of the totality principle.
For the reasons which follow, leave to appeal should be refused on each proposed ground of appeal and the appeal should be dismissed.
The facts
We will first deal with the facts of the offences in indictment 2149 of 2020. These were committed before the offences the subject of indictment 1237 of 2020.
Indictment 2149 of 2020
At approximately 12.33 am on 30 December 2019, the appellant, who was by himself, approached a house being occupied by LW. He opened the victim's vehicle, which was parked in the driveway, and stole sunglasses, some coins and a garage remote control. At about this point, the victim woke up, having heard her dog bark. She looked outside and saw that the security light was on, but did not regard this as suspicious. The appellant used the stolen remote control to open the garage roller door. Once inside the garage, the appellant placed a fridge trolley underneath the roller door so that it did not close. The appellant then stole a mountain bike valued at approximately $1,000 from the garage, and left with all of the stolen items.[1]
[1] ts 23.
Meanwhile, the victim noticed that her vehicle was open. From inside the house, she unsuccessfully attempted to close the garage roller door. The victim then became afraid and called her husband, who was overseas at the time. She asked him to stay on the telephone with her while she investigated. The victim discovered that someone had broken into the garage and the mountain bike had been stolen. Fearing the appellant would return, she unplugged the garage door motor and reported the incident to police.[2]
[2] ts 23 - 24.
Indictment 1237 of 2020
In the early hours of 9 January 2020, the appellant and a co‑offender, Gareth John Begg, were driving around the North Beach area in a vehicle which had been stolen by Mr Begg. The men were looking for open garages from which to steal property. At 4.52 am, the appellant and Mr Begg stopped at TH's home. The appellant entered the property through the garage door, while Mr Begg waited in the stolen vehicle as a lookout and the getaway driver. At the sentencing hearing, there was a dispute about whether the appellant actually went from the garage inside the home. Her Honour was unable to resolve the difference, but stated that it made no difference to the sentence that she was going to impose. In any event, while inside the victim's premises, the appellant stole a number of items including a purse, a bank card, some cash, some jewellery and some sunglasses.[3]
[3] ts 38.
The pleas of guilty
The appellant entered pleas of guilty to the offences in indictment 1237 at the first reasonable opportunity. On count 1, her Honour gave a discount of 25%, pursuant to s 9AA of the Sentencing Act 1995 (WA). However, in respect of the offences the subject of indictment 2149 of 2020, the appellant did not enter his pleas of guilty at the first reasonable opportunity, although they were entered at an early stage in the proceedings. In respect of these offences, her Honour gave a discount of 20%, pursuant to s 9AA of the Sentencing Act.[4]
[4] ts 39.
The appellant's personal circumstances
Her Honour was provided with a pre‑sentence report and a psychological report written by a forensic psychologist, Ms Claire Lynn. These documents, along with the sentencing submissions of defence counsel, fully canvassed the appellant's personal circumstances.
At the time of the commission of the offences, the appellant was 32 years of age. He was 33 years old when he was sentenced. The appellant was raised in New Zealand, predominantly by his mother. During his childhood, his mother had multiple male partners with whom the appellant did not get along. The appellant left school at the age of 15 or 16 and, after working in furniture manufacturing and at a winery, joined the New Zealand army. Tragically, on his first day of service, he learned that his mother and younger brother had been killed in a car accident. After a six‑month break, he resumed active service and served in the army for a period of three years, including overseas in East Timor.
After he was discharged from the army, the appellant worked in accounts and in sales. In 2014, the appellant came to Western Australia. He returned to New Zealand in 2016. In mid‑2018, he came back to Western Australia where initially he worked as as salesperson, then at a bar.
The appellant struggled following the sudden loss of his mother and brother. After his return from East Timor, he experienced anxiety, nightmares and flashbacks. At the age of 21, he began using ecstasy and then methylamphetamine. Despite some periods of abstinence, he has been a regular user of methylamphetamine. The appellant increased his use of alcohol when abstinent from methylamphetamine.
The appellant admitted to having stolen money from an employer in New Zealand when he was 22 and advised the author of the pre‑sentence report that he had numerous outstanding charges in New Zealand. In 2018, the appellant was convicted in the Perth Magistrates Court of one count of fraud, ten counts of stealing as a servant and one count of stealing, and placed on a community based order for a period of 12 months. In 2019, the appellant was convicted in the Joondalup Magistrates Court of giving false personal details to police and fined $450.
According to Ms Lynn:[5]
(a)The appellant fails to identify risky decisions or the likely consequences of these, and is focused on short‑term desires and gratification.
(b)The appellant's offending is associated with chronic addictions and excessive behaviours, which continually compromise his capacity to think and live pro‑socially and conduct positive relationships.
(c)Past trauma and anxiety have adversely affected his learning, emotional regulation and self‑management.
(d)Substance abuse is likely to have impeded his capacity to evolve in relation to developing impulse control, managing relationships, emotional expression, processing and regulation, and problem‑solving.
[5] Psychological report, page 6.
Ms Lynn identified risk factors relevant to the appellant's risk of reoffending, including antisocial attitudes, antisocial peers, poor educational and vocational functioning, lack of pro‑social leisure activities and substance abuse.[6]
[6] Psychological report, pages 6 - 7.
Ms Lynn noted that the appellant was willing to engage in treatment and receive professional support. However, his capacity to do so meaningfully 'has yet to be demonstrated'.[7]
[7] Psychological report, page 7.
The sentencing remarks
After summarising the facts of the offending relating to both indictments, her Honour said that she regarded the two aggravated home burglary offences as 'particularly serious'.[8] She elaborated:[9]
In each case, the property that you stole related to those burglaries was not insignificant. On both occasions you were in company with another person and on both occasions the offences were committed in darkness, either late at night or in the early hours of the morning. (emphasis added)
[8] ts 39.
[9] ts 39.
The appellant alleges, in ground 1, that the statement, 'on both occasions you were in company with another', was erroneous, in that the appellant was in company only when he committed the aggravated home burglary on 9 January 2020.
Her Honour accepted, in relation to the aggravated home burglary offences, that no violence was used, nor was there any evidence that the appellant was armed with any weapon, and there was minimal damage to the properties.[10]
[10] ts 40.
Her Honour comprehensively dealt with the appellant's personal circumstances.[11] She acknowledged receiving a letter of apology from the appellant.
[11] ts 40 - 41.
Her Honour took into account the mitigating circumstances, of which the most significant were the pleas of guilty.[12]
[12] ts 41 - 42.
Her Honour then imposed the sentences referred to at [3]. She stated that some accumulation of the sentences was appropriate, because the appellant engaged in two separate and distinct episodes of offending, which occurred on different days and involved different victims.[13] Applying the totality principle, her Honour reduced the sentence she would have otherwise imposed on count 1 in indictment 1237 of 2020 from 14 months' immediate imprisonment to 12 months' immediate imprisonment.[14] The appellant was made eligible for parole and, to take into account the 249 days he had been in custody on remand, the sentences were backdated to commence on 6 July 2020.
[13] ts 42.
[14] ts 42.
The transcript reveals that the sentences were pronounced at approximately 12.04 pm on 12 March 2021. However, the matter was recalled at about 2.52 pm on the same date in response to an emailed request by defence counsel.[15] The relevant part of the email is as follows:
Upon reflection of the above sentence imposed by her Honour this morning, the offences on IND 2149/2020 occurred prior to the offences on IND 1237 of 2020 however the sentence imposed on IND 2149/2020 was longer than the sentence imposed on IND 1237 of 2020 which occurred later and included the additional circumstance of aggravation of being in company.
[15] ts 44.
During the recalled proceedings, the following exchange took place:[16]
[16] ts 44 - 45.
LONSDALE DCJ: Well, I'll tell you what it was. So for the one that was in company, which was - - -
DUCE, MS: Which is 1237.
LONSDALE DCJ: 1237. It was a sentence of 14 months reduced to 12 months. And for the other one, it was a sentence of 16 months. But the other one, the discount for the plea of guilty was less than for the discount on the other one.
In the end, I didn't consider that there was really much difference in the two, just because one was in company and the other one wasn't. So my starting point in respect of both of them was the same. And of course, I had to reduce one of them for totality. And I could have reduced the other one for totality, but I reduced the first one for totality.
DUCE, MS: I think the potential issue, and it may not be, I just raise it with the court, is that the charges on indictment 2149 are the first in time and the charges on 1237 occur about a week and a half later.
LONSDALE DCJ: I see. Yes.
DUCE, MS: So that's the real question I was raising in my email.
LONSDALE DCJ: Well, I don't think it makes much difference, Ms Duce, to the outcome. The total was one of 2 years and 4 months and that's the sentence that I thought reflected the criminality of [the appellant's] conduct. And I've chosen to structure it that way.
DUCE, MS: If your Honour pleases. I just raise it with the court because of the potential confusion over the later indictment is actually the earlier charges.
LONSDALE DCJ: Well, look, I could have done it the other way around. I could have and I chose not to do that. But I'm not minded to interfere with the sentences I've imposed this morning.
DUCE, MS: Thank you, your Honour.
LONSDALE DCJ: But thank you for raising it.
Ground 1
Ground 1, shorn of its 10 particulars, reads:
The sentencing judge made express errors with respect to findings of fact in relation to count 2 on IND 2149/2020.
It appears from the particulars and the written submissions in support of this ground, that the appellant contends that her Honour made two errors in sentencing the appellant in respect of the aggravated home burglary which was committed on 30 December 2019. First, her Honour is said to have sentenced the appellant for the offence on the basis that he committed it in company when, in fact, he committed it on his own. Second, her Honour is said to have failed to appreciate that the aggravated home burglary the subject of count 2 in indictment 2149 of 2020 was committed before the offence the subject of count 1 in indictment 1237 of 2020, and that, as a consequence, she erroneously regarded the offending on 30 December 2019 as warranting a higher term of imprisonment than the offence committed on 9 January 2020.
In support of the appellant's first contention, the appellant points to the italicised portion of the sentencing remarks set out at [20] above.
The submissions in support of the second error are unclear, but it appears that, in substance, it is claimed that her Honour did not appreciate that the aggravated home burglary committed on 30 December 2019 was, of the two burglary offences, (1) committed first in time, and (2) resulted in the theft by the appellant of property of a lower value.
Ground 1 - disposition
As this court recently explained in Charles v The State of Western Australia,[17] when assessing whether the sentencing judge made any express error, primacy is to be given to the sentencing reasons rather than to any explanation given by the judge after the sentences have been pronounced. Based on her Honour's sentencing reasons, we are satisfied that her Honour made the first alleged error, but not the second.
[17] Charles v The State of Western Australia [2021] WASCA 114 [35] ‑ [39].
In respect of the aggravated home burglary committed on 30 December 2019, the State did not charge the appellant with committing the offence in company, and the prosecutor, in reading aloud the facts of the offending, did not allege that the offence was committed in company. In these circumstances, there was no factual basis to conclude that the offence of 30 December 2019 was committed in company. Accordingly, her Honour erred when she stated in her sentencing remarks that both offences of aggravated home burglary were committed in company. Only the offence committed on 9 January 2020 was committed in company.
The second alleged express error may be dealt with briefly. A perusal of the sentencing remarks does not reveal the alleged express error. Her Honour's recitation of the facts of the offending was, other than in respect of the matter dealt with at [33], correct. She did not believe (erroneously) that count 2 in indictment 2149 of 2020 was committed after count 1 in indictment 1237 of 2020.
While part of ground 1 has been made out, this court retains a discretion to refuse the grant of leave to appeal on a ground which alleges an express error if the court is satisfied that it is not reasonably arguable that a different sentence should have been imposed: Abraham v The State of Western Australia.[18] This is such a case. It is not reasonably arguable that, if this court is called upon to re‑exercise the sentencing discretion afresh, a different sentence should be imposed. In these circumstances, while ground 1 has been made out in part, leave to appeal should be refused.
[18] Abraham v The State of Western Australia [2014] WASCA 151; (2014) 244 A Crim R 1 [81].
Ground 2
Ground 2 alleges that the total effective sentence imposed on the two indictments infringed the first limb of the totality principle.
In support of this contention, counsel for the appellant pointed to the absence of aggravating features and that, up until the commission of the two aggravated home burglary offences the subject of this appeal, the appellant had not been convicted of a burglary offence.
Ground 2 - disposition
The general principles applicable to allegations that a sentence is manifestly excessive or that a total effective sentence infringes the first limb of the totality principle are well‑established. They were stated in Kabambi v The State of Western Australia.[19] We adopt this statement without repeating it.
[19] Kabambi v The State of Western Australia [2019] WASCA 44 [21].
The maximum sentence for each of the aggravated home burglary offences committed by the appellant is 20 years' imprisonment.
While the commission of each offence did not involve the aggravating features sometimes seen in offending of this kind, such as the use of weapons, direct confrontations with the occupiers of the house, or the theft of more valuable property, the offences were not without serious features. Each offence was committed at night when the occupant was at home and asleep. The appellant then proceeded to steal valuable property. In respect of the offence committed on 30 December 2019, the mode of entry and the manner in which the appellant prevented the garage door from closing had a degree of ingenuity. It also instilled fear into the occupant of the house. The offence committed on 9 January 2020 was premeditated and involved the use of a co‑offender as a look‑out and getaway driver.
There is no tariff for offences of aggravated home burglary, but as this court recently stated in Brindley v The State of Western Australia,[20] home burglaries are serious and they are ordinarily met with substantial penalties in order to recognise their prevalence and to provide personal and general deterrence. Offences of the kind committed by the appellant create a sense of intrusion and fear for victims.[21]
[20] Brindley v The State of Western Australia [2019] WASCA 153 [39].
[21] Mason v The State of Western Australia [2018] WASCA 43 [68].
In Eldridge v The State of Western Australia[22] and Brindley,[23] this court discussed the standard of sentences customarily imposed for offences of the type committed by the appellant. It is sufficient for present purposes to observe that each of the individual sentences imposed upon the appellant was well within the proper exercise of her Honour's sentencing discretion.
[22] Eldridge v The State of Western Australia [2020] WASCA 66.
[23] Brindley [41] - [48].
The most significant mitigating factors were the appellant's pleas of guilty. Some mitigation was also to be found in the lingering impact on the appellant of the tragic deaths of his brother and mother. However, he is not a youthful offender and does not have the advantage of prior good character. Moreover, as Ms Lynn stated in her report, there are factors relevant to the appellant which heighten his risk of reoffending, and his capacity to successfully engage in a rehabilitative program has yet to be demonstrated.
The appellant committed two serious aggravated home burglaries in the space of 10 days. Accumulation of the sentences was appropriate to properly reflect the total criminality of the offending. With respect to the offending which took place on 9 January 2020, her Honour reduced the sentence she would otherwise have imposed for totality. The total effective sentence of 2 years 4 months' immediate imprisonment was well within the proper exercise of her Honour's sentencing discretion. The allegation that the total effective sentence infringed the first limb of the totality principle is without merit and must fail.
Conclusion and orders
Leave to appeal on both grounds must be refused and the appeal dismissed. The orders that we would make are:
(1)Leave to appeal is refused on grounds 1 and 2.
(2)The appeal is dismissed.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
NF
Research Associate to the Honourable Justice Murphy and the Honourable Justice Mazza
31 AUGUST 2021
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