Burnes v The State of Western Australia
[2017] WASCA 77
•21 APRIL 2017
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: BURNES -v- THE STATE OF WESTERN AUSTRALIA [2017] WASCA 77
CORAM: NEWNES JA
MAZZA JA
BEECH J
HEARD: 10 MARCH 2017
DELIVERED : 21 APRIL 2017
FILE NO/S: CACR 50 of 2016
BETWEEN: MAX ANTHONY BURNES
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram :BIRMINGHAM DCJ
File No :IND 236 of 2015, IND 861 of 2015
Catchwords:
Criminal law and sentencing - Totality - Error of fact in sentencing - Turns on own facts
Legislation:
Nil
Result:
Appeal upheld in part
Appellant resentenced
Category: B
Representation:
Counsel:
Appellant: Mr P D Yovich SC
Respondent: Mr J A Scholz
Solicitors:
Appellant: Seamus Rafferty Barrister & Solicitor
Respondent: Director of Public Prosecutions (WA)
Case(s) referred to in judgment(s):
LJH v The State of Western Australia [2016] WASCA 155
Sathitpittayayudh v The State of Western Australia [2015] WASCA 152
Veen v The Queen [No 2] [1988] HCA 14; (1988) 164 CLR 465
REASONS OF THE COURT: This is an appeal against sentences imposed by Birmingham DCJ on 3 March 2016.
The appellant was convicted on his pleas of guilty of a total of 23 offences contained in two indictments (IND 236 of 2015 and IND 861 of 2015), and on a notice pursuant to s 32 of the Sentencing Act 1995 (WA), being: one count of possession of methylamphetamine with intent to sell or supply it to another (IND 861 of 2015); one count of burglary of a dwelling with intent to commit an offence and one count of stealing (IND 236 of 2015); one count of attempting to pervert the course of justice; three counts of possession of firearms or ammunition while not licensed to do so; one count of possession of stolen property; two counts of possession of a prohibited weapon; one count of carrying a prohibited weapon; one count of carrying a controlled weapon; three counts of breach of bail; one count of making threats to injure; three counts of stealing a motor vehicle; one count of assault to prevent arrest; one count of driving without a motor vehicle driver's licence; one count of reckless driving and one count of failing to stop in circumstances of aggravation (the s 32 notice).[1]
[1] ts 40 - 45.
The table below sets out the details of the individual sentences that were imposed.
| Indictment number | Count/charge | Offence | Section | Maximum | Sentence/ outcome |
| 236/2015 | Count 1 PE92613/2014 28/06/14 | Burglary and commit offence in dwelling | 401(2)(b) Criminal Code (WA) (Code) | 18 years' imprisonment | 2 years' imprisonment head sentence |
| 236/2015 | Count 2 PE92614/2014 28/06/14 | Stealing | 378 Code | 7 years' imprisonment | No further punishment - s 11 |
| S 32 notice PE48554/2015 11/08/15 | Attempt to pervert justice | 143 Code | 7 years' imprisonment | 1 year imprisonment, cumulative | |
| 861/2015 | Count 1 PE92561/2014 29/12/13 | Possession of prohibited drug with intent to sell or supply (methylamphetamine) | 6(1)(a) Misuse of Drugs Act 1981 (WA) | $100,000 fine or 25 years' imprisonment or both | 1 year 6 months' imprisonment, cumulative, order for destruction of drugs and drug paraphernalia |
| S 32 notice PE11871/14 Between 26/05/14 - 09/07/14 | Steal motor vehicle (as defined in s 371A Code) | 378 Code | 7 years' imprisonment | 1 year imprisonment, concurrent | |
| S 32 notice PE48541/2015 05/10/15 | Possession of firearm / ammunition without licence / permit | 19(1)(c) Firearms Act 1973 (WA) (FA) | 7 years' imprisonment | 1 year imprisonment, concurrent, forfeiture order firearm | |
| S 32 notice PE48542/2015 05/10/15 | Possession of firearm/ammunition without licence / permit | 19(1)(c) FA | 7 years' imprisonment | 3 months' imprisonment, concurrent, forfeiture order ammunition | |
| S 32 notice PE48543/2015 11/08/15 | Possession of stolen or unlawfully obtained property | 417(1) Code | 7 years' imprisonment | 6 months' imprisonment, concurrent, forfeiture order $4,700 cash | |
| S 32 notice PE48544/2015 11/8/15 | Carried a controlled weapon | 7(1) Weapons Act 1999 (WA) (WA) | 2 years' imprisonment and $24,000 fine | 8 months' imprisonment, concurrent, forfeiture order imitation firearm | |
| S 32 notice PE48545/2015 11/08/15 | Possessed a prohibited weapon | 6(1)(b) WA | 3 years' imprisonment and $36,000 fine | 4 months' imprisonment, concurrent, forfeiture order knuckledusters | |
| S 32 notice PE48546/2015 11/08/15 | Possession of firearm / ammunition without licence / permit | 19(1)(c) FA | 5 years' imprisonment | 9 months' imprisonment, concurrent, forfeiture order ammunition | |
| S 32 notice PE48548/2015 | Possession of prohibited weapon | 6(1)(b) WA | 3 years' imprisonment and $36,000 fine | 8 months' imprisonment, concurrent, forfeiture order crossbow | |
| S 32 notice PE48549/2015 17/06/15 | Breach of bail (fail to appear) | 51(2) Bail Act 1982 (WA) (BA) | 3 years' imprisonment or $10,000 or both | 3 months' imprisonment, concurrent | |
| S 32 notice PE48550/2015 31/07/15 | Breach of bail (fail to appear) | 51(2) BA | 3 years' imprisonment or $10,000 or both | 3 months' imprisonment, concurrent | |
| S 32 notice PE48551/2015 31/07/15 | Breach of fail (fail to appear) | 51(2) BA | 3 years' imprisonment or $10,000 or both | 3 months' imprisonment, concurrent | |
| S 32 notice PE48601/2015 17/06/15 | Threats to injure, endanger or harm any person | 338B(b) Code | 3 years' imprisonment | 1 year 6 months' imprisonment, cumulative | |
| S 32 notice PE48602/2015 17/06/15 | Steal motor vehicle to use without consent of owner | 378 Code | 7 years' imprisonment | 9 months' imprisonment, concurrent | |
| S 32 notice PE48603/2015 20/06/15 | Assault with intent to prevent arrest of a person | 317A(c) Code | 5 years' imprisonment | 1 year 6 months' imprisonment, cumulative, compensation order of $1,739.10 | |
| S 32 notice PE48604/2015 20/06/15 | No authority to drive | 49(1)(a) & 49(3)(b) Road Traffic Act 1974 (WA) (RTA) | Subsequent offence: 18 months' imprisonment and a fine of between $1,000 and $4,000, and disqualification of motor vehicle driver's licence for a period between 9 months and 3 years | 6 months' imprisonment, concurrent and suspension of motor vehicle driver's licence for 12 months | |
| S 32 notice PE48605/2015 20/06/15 | Reckless driving (dangerous to public or any person) | 60(1) RTA | Second offence: 9 months' imprisonment or $9,000 fine, and disqualification of motor vehicle driver's licence for not less than 12 months | 8 months' imprisonment, concurrent, suspension of motor vehicle driver's licence for 24 months | |
| S 32 notice PE48606/2015 20/06/15 | Driver of a vehicle failed to comply with a direction to stop (circumstance of aggravation) | 44 Road Traffic (Administration) Act 2008 (WA) | 2 years' imprisonment or a min $5,000 fine, and disqualification of motor vehicle driver's licence for not less than 2 years | 1 month imprisonment, concurrent, and suspension of motor vehicle driver's licence for 4 years, cumulative | |
| S 32 notice PE48607/2015 20/06/15 | Carried a prohibited weapon | 6(1)(b) WA | 3 years' imprisonment and $36,000 fine | 6 months' imprisonment, concurrent, forfeiture order taser | |
| S 32 notice PE48608/2015 20/06/15 | Steal motor vehicle to use without consent or owner | 378 Code | 7 years' imprisonment | 1 year 6 months' imprisonment, concurrent |
The learned sentencing judge imposed a total effective sentence of 7 years 6 months' imprisonment with eligibility for parole, backdated to commence on 15 September 2015. As may be seen, his Honour also made disqualification, compensation and forfeiture orders. Nothing more needs to be said about these orders as they are not the subject of the appeal.
There are two grounds of appeal. Ground 1 alleges that the total effective sentence infringed the first limb of the totality principle. Ground 2 alleges that his Honour made a material express error of fact in respect of the offence of threats to injure (PE 48601 of 2015).
Leave to appeal has been granted in respect of ground 2. The question of leave to appeal on ground 1 was referred to the hearing of the appeal.
The facts of the offending
There was no dispute, either in the court below or in this court, as to the facts of the offences committed by the appellant. It is convenient to commence with the facts of the drug offence the subject of IND 861 of 2015.
Indictment 861 of 2015
At about 7.00 am on 29 December 2013, the appellant was driving a motor vehicle on the Kwinana Freeway. He was speeding. As a result, the vehicle was stopped by police officers and subsequently searched. The police found a set of electronic scales and a quantity of a crystalline substance in a clipseal bag, which was later analysed and found to be 10.9 g of methylamphetamine with a purity of 27%. The appellant denied knowledge of the methylamphetamine. However, a DNA profile taken from the clipseal bag was later matched to the appellant.[2]
Indictment 236 of 2015
[2] ts 45, 46.
The facts of the offences the subject of IND 236 of 2015 are as follows. Between 1.30 pm and 4.30 pm on 28 June 2014, the appellant gained entry to the complainants' house in High Wycombe by removing a flyscreen from a sliding door and then smashing the glass. The appellant entered the house and ransacked it. He stole a large amount of jewellery worth approximately $27,000. The appellant was identified as the offender as a result of his DNA profile being recovered from a blood swab taken from the inside of the house. The complainants have been significantly psychologically affected by the offence. None of the items of jewellery have been recovered. Some of them had sentimental value to the complainants. The complainants recovered only $12,000 from their insurers.
On 13 July 2014, the appellant was apprehended and charged with these offences and the drug offence the subject of IND 861 of 2015. He was then released on bail.
We will now set out the facts of the s 32 notice offences. We will do so in chronological order.
Charge 11871 of 2014
On 26 May 2014, a hired BMW hatchback was due to be returned to the hirer's premises in Perth. The vehicle was not returned and was subsequently reported to the police as stolen. On 9 July 2014, the vehicle was found abandoned at Bibra Lake. A DNA profile taken from the steering wheel of the vehicle was later matched to the appellant.
Charge 48608 of 2015
On 7 June 2015, the appellant attended at an address in Swan View. There, he obtained the keys to a black Ford Falcon sedan by intimidating and making threats towards the owner. He then drove from the address in the vehicle.
Charge 48549 of 2015
On 22 May 2015, the appellant appeared at the Perth Magistrates Court. He was remanded on bail to appear on 17 June 2015. He failed to appear as ordered. He was arrested on 5 October 2015. He did not proffer any explanation for his non‑appearance.
Charges 48601 and 48602 of 2015
Between 9.30 pm on 21 May 2015 and 6.40 am on 22 May 2015, a Holden Commodore utility was stolen from an address in Warwick. Sometime between those days and 17 May 2015, the appellant came into possession of the vehicle. At about 2.15 pm on 17 June 2015, the appellant drove to his former partner's house in Rivervale. He did not have the permission of the owner to be in possession of, or drive, the vehicle. The appellant's partner walked up to the vehicle to speak to him. They became involved in a heated argument during which the appellant told the complainant that he would 'fix him', referring to the complainant's new partner. The appellant then reached behind the driver's seat of the vehicle and picked up a firearm and pointed it directly at the complainant and said, 'I'll fix you'. The complainant then went inside the house. The complainant called the police and the appellant drove away. The police recovered the vehicle the following day at an address in Edgewater.
Charges 48603, 48604, 48605, 48606 and 48607 of 2015
At about 2.10 pm on 20 June 2015, the appellant was seen by police to get into the driver's seat of the black Ford Falcon sedan the subject of charge 48608 of 2015. Police officers in an unmarked vehicle drove towards the appellant and stopped their vehicle behind and to the side of the stolen vehicle to prevent him from driving away. It was the intention of the police officers to arrest the appellant with respect to the offences he had committed on 17 June 2015 at his former partner's house. The police officers activated the emergency lights and siren on their vehicle. The appellant accelerated heavily and deliberately reversed into the police vehicle in order to get away. The collision caused minor panel damage to the vehicle and constituted an assault with intent to prevent arrest on the two police officers who were in the vehicle, neither of whom suffered any physical injury.
The appellant failed to stop after the collision. The vehicle he was driving was then pursued by a number of marked and unmarked police vehicles, with their lights and sirens activated, for approximately five minutes. The appellant drove the stolen vehicle at speed along a number of suburban streets and, on numerous occasions, drove on the incorrect side of the road. In addition, he contravened traffic signals and lights. At the time of the pursuit it was raining heavily and there were other vehicles on the road. At one point, the appellant mounted a kerb and drove over a median strip in order to avoid apprehension. The appellant continued to drive in a manner so dangerous that the pursuit was aborted. At the time the appellant committed these offences he was not the holder of a valid driver's licence.
At about 6.30 pm on 20 June 2015, police located the abandoned stolen motor vehicle in Palmyra. Inside the vehicle was what appeared to be a black torch. In fact, it was a prohibited electronic shock weapon.[3]
Charges 48550 and 48551 of 2015
[3] ts 50.
These are further breach of bail charges. On 15 March 2015, the appellant appeared in the District Court. He was remanded on bail to appear at the District Court on 31 July 2015. However, he failed to do so. An arrest warrant was issued which was not executed until 5 October 2015.
Charges 48543, 48544, 48545, 48546 and 48554 of 2015
On 11 August 2015, the appellant went to a serviced apartment complex on Adelaide Terrace, East Perth, to meet an acquaintance. Police were in attendance at the complex in order to execute a Misuse of Drugs Act search warrant at the acquaintance's room. The police were alerted to the appellant's presence in the lobby. A search located $4,700 in cash in the appellant's bag. He told the police that the money was the proceeds of sale of a motor vehicle, but he was subsequently unable to provide any documentation to support his claim. During the search, police officers also located a replica firearm. The appellant said that he carried the item for self‑defence.
The police also searched the appellant's motor vehicle, where they located a set of home‑made knuckle dusters, nine 12 gauge shotgun cartridges and 51 .22 calibre revolver rounds.
When the police asked him to provide his personal details, he gave the police officers false personal details including a false name. The appellant was, at the time, the subject of the arrest warrant issued by the District Court. The appellant was conveyed to the Perth police station where he signed an identification document using the false name. Police took a DNA sample, fingerprints and a photograph of the appellant under that same false name. The appellant then signed a bail undertaking in that name. He remained at large until 5 October 2015.
Charges 48541, 48542 and 48548 of 2015
On 5 October 2015, detectives executed a search warrant at the appellant's premises in Maylands. During the search of those premises police located in the appellant's bedroom a .22 calibre bolt‑action repeater rifle which was loaded with six bullets. The serial numbers on the rifle had been removed and the butt had been modified to form a pistol grip. Also located in the search was a crossbow hidden behind a lounge room chair.
The appellant's antecedents
The appellant was 28 years of age when he was sentenced. He left school at year 8 and his employment history was described by his Honour as 'minimal'. The appellant has a long and entrenched history of illicit drug use. He commenced using amphetamines at the age of 15 years and his use of that drug has increased as he has got older. His peer group comprises others involved in illicit drug use. His Honour, adopting what was said in the pre‑sentence report, described the risk factors relating to the appellant as being:
Involvement in the drug culture and illicit substances, antisocial attitudes, normalisation of criminal behaviour, poor coping skills faced with emotional instability, extensive criminal history commencing at a young age and then serious unaddressed treatment needs, propensity to use violence to problem solve, poor prison behaviour and negative peer associations.[4]
[4] Sentencing ts 4 ‑ 5.
The appellant's criminal history is, indeed, extensive. The appellant has prior convictions for stealing a motor vehicle, firearms offences, reckless driving, failing to stop when called upon by police, driving under suspension, stealing, making threats, giving false personal details, possession of prohibited weapons, assaulting a public officer, possession of prohibited drugs and armed robbery.
This history shows a persistent defiance and disregard of the law. The appellant's offending was not uncharacteristic of him. In this case, retribution, deterrence and the protection of society were all relevant sentencing considerations and warranted the imposition of a more severe penalty.[5]
[5] Veen v The Queen [No 2] [1988] HCA 14; (1988) 164 CLR 465, 477.
Appellate sentencing principles
The general legal principles applicable to appeals against sentence are well known and uncontroversial. An appellate court can intervene only if the appellant demonstrates either an express or implied material error. Express error usually involves mistaking the law or facts or taking into account an irrelevant factor. Implied error arises where the end result is so unreasonable or unjust that the court must conclude that a substantial wrong has occurred. Thus, an appellate court cannot substitute its own opinion for that of the sentencing court merely because the appellate court would have exercised a sentencing discretion differently.
Ground 1, which alleges an infringement of the first limb of the totality principle, is a claim of implied error. The specific allegation is that the total effective sentence did not bear a proper relationship to the overall criminality involved in all the offences, viewed in their entirety and having regard to the circumstances of the case, including those referable to the offender personally, and, where they exist, other reasonably comparable cases.
Ground 1
Ground 1 assumes that his Honour did not make the factual error alleged in ground 2. We will deal with it on this basis. We have already set out the details of the offences committed by the appellant, the relevant maximum penalties and the circumstances in which they were committed. Having described the fact of the appellant's offending, the seriousness of the appellant's overall offending is self‑evident and scarcely needs to be stated, but we note the following features:
(a)The offending involved the commission of numerous serious offences.
(b)Many of the offences were committed in breach of bail, including the offences committed on 17 June 2015, 20 June 2015 and 11 August 2015.
(c)The disregard the appellant displayed towards his victims. A particularly egregious example of this is the burglary the subject of indictment 236 of 2015 which resulted in the theft of jewellery, some of which had sentimental value to the complainants and which has not been recovered.
(d)The offences committed on 20 June 2015 were committed without any regard to the safety of the police officers involved or the members of the public who were endangered by his driving.
(e)The appellant has access to weapons and firearms. The use of the firearm to threaten his former partner on 17 June 2015 is concerning to say the least.
(f)With the knowledge that he was subject to an arrest warrant issued by the District Court and, in order to avoid the execution of that warrant, he attempted to pervert the course of justice by lying to police about his identity and signing a bail undertaking in a false name.
The appellant's antecedents are unfavourable. His Honour's observations about his criminal history were correct. His Honour was also correct in identifying retribution, deterrence and the protection of society as relevant sentencing considerations which warranted the imposition of a more severe penalty.
The only mitigating factor of substance was the appellant's pleas of guilty.
There are no comparable cases decided by this court which are capable of providing a useful comparison. This is unsurprising given the persistence of the offending and its variety.
In our opinion, the total effective sentence of 7 years 6 months' imprisonment did not infringe the first limb of the totality principle. It bore a proper relationship to the overall criminality involved in the offences, viewed in their entirety and having regard to all of the circumstances of the case, including those personal to the appellant.
Ground 1 has no reasonable prospect of succeeding. Leave to appeal should be refused.
Ground 2
In respect of the offence of making threats to injure (the subject of prosecution notice PE 48601/2015 in the s 32 notice), his Honour found that the appellant used a loaded firearm when making the threat.[6] The respondent conceded that this finding was erroneous. The concession should be accepted. In the sentencing proceedings, the State did not allege that the weapon was loaded, nor was it a matter admitted by the appellant. It may be that when his Honour made the finding with respect to the offence, he had in mind that on 5 October 2015 the police discovered, at the appellant's premises in Maylands, a loaded .22 calibre rifle. There was no evidence before the sentencing judge that the weapon found in the appellant's premises on 5 October 2015 was the same weapon used to threaten his former partner on 17 June 2015. There was no evidence to support his Honour' finding that the firearm was loaded during the offence committed on 17 June 2015. His Honour erred as alleged.
[6] Sentencing remarks ts 3, 7, 11.
His Honour's error was material. The appellant should have been sentenced in respect of PE 48601 of 2015 on the basis that the weapon he used was unloaded. The finding that the firearm used to threaten the appellant's former partner was loaded made the offence more serious. This is because of the risk that a loaded firearm may somehow be discharged. It is evident from the sentencing remarks his Honour regarded the 'fact' that the firearm was loaded justified the imposition of a more severe penalty.
Ground 2 has been made out.
Resentencing
Once a material express error has been demonstrated, it is for this court to exercise the sentencing discretion for itself.[7] By s 31(4)(a) of the Criminal Appeals Act2004 (WA), this court may only allow an appeal if, in its opinion, a different sentence should have been imposed.
[7] LJH v The State of Western Australia [2016] WASCA 155 [106] and cases there cited.
Although the firearm was not loaded, the victim was not to know whether the weapon was loaded or unloaded. The use of the unloaded weapon by the appellant was designed to terrify and doubtless had that effect. The offence was still serious. However, as the appellant should have been sentenced on the basis that the weapon was unloaded, the risk we mentioned in [36] was absent. In our opinion, a different and lower sentence should have been imposed.
Having regard to the maximum penalty, the circumstances in which the offence was committed, the appellant's antecedents, his plea of guilty for which we would give a discount of 20% pursuant to s 9AA of the Sentencing Act 1995 (WA), the sentencing objectives of retribution, personal and general deterrence and protection of society, we would resentence the appellant on PE 48601 of 2015 to 12 months' immediate imprisonment.
As his Honour's sentencing discretion miscarried in respect of one of the individual sentences forming part of the total effective sentence, the total effective sentence should be set aside and the appellant should be resentenced for the other offences: Sathitpittayayudh v The State of Western Australia[8].
[8] Sathitpittayayudh v The State of Western Australia [2015] WASCA 152 [28] (Hall J, McLure P & Mazza JA agreeing).
We will not repeat the details of the offences committed by the appellant, the relevant maximum penalties, the circumstances in which each offence was committed or the appellant's antecedents.
In respect of each offence, the only mitigating factor of any significance was the appellant's pleas of guilty. With respect to the indictable offences, they progressed to a trial listing hearing in the District Court. We would allow reductions in respect of each of the offences of 10% pursuant to s 9AA of the Sentencing Act. With respect to the s 32 notice offences, the appellant entered his pleas of guilty at the earliest reasonable opportunity, although in the face of a strong prosecution case. We would allow a discount in respect of each offence of 20% pursuant to s 9AA of the Sentencing Act.
In our opinion, having regard to all of the relevant circumstances, including totality, a total effective sentence of 7 years' imprisonment is a proper reflection of the appellant's overall criminality. Consequently, we would not impose any different individual sentence to those imposed by his Honour save, of course, for PE 48601 of 2015. Nor would we differ as to the orders for concurrency and cumulacy.
We would make orders to the following effect:
1.Leave to appeal on ground 1 is refused.
2.The appeal is allowed.
3.The sentence imposed by his Honour on PE 48601 of 2015 is set aside and the appellant is resentenced for this offence to 12 months' imprisonment.
4.All of the other sentences and orders made by his Honour, including as to concurrency and cumulacy, stand.
Thus, the total effective sentence imposed upon the appellant is 7 years' imprisonment to commence on 15 September 2015. The appellant remains eligible for parole.
5
3
1