Burrows v The State of Western Australia
[2014] WASCA 147
•12 AUGUST 2014
BURROWS -v- THE STATE OF WESTERN AUSTRALIA [2014] WASCA 147
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2014] WASCA 147 | |
| THE COURT OF APPEAL (WA) | |||
| Case No: | CACR:43/2014 | 1 JULY 2014 | |
| Coram: | McLURE P HALL J | 12/08/14 | |
| 13 | Judgment Part: | 1 of 1 | |
| Result: | Leave to appeal refused Appeal dismissed | ||
| B | |||
| PDF Version |
| Parties: | BRADLEY JOHN BURROWS THE STATE OF WESTERN AUSTRALIA |
Catchwords: | Criminal law Appeal against sentence Burglary Stealing a motor vehicle Offences committed on commercial premises over short period Whether total sentence of 6 years 6 months disproportionate to overall criminality Turns on own facts |
Legislation: | Nil |
Case References: | Dunks v The State of Western Australia [2009] WASCA 82; (2009) 195 A Crim R 130 Hintz v The Queen [2002] WASCA 38 Karolides v The State of Western Australia [2006] WASCA 240 Main v The State of Western Australia [2010] WASCA 28 Nannup v The State of Western Australia [2011] WASCA 257 O'Brien v The State of Western Australia [2008] WASCA 104 Pelemis v The State of Western Australia [2009] WASCA 151 Pennetta v The State of Western Australia [2013] WASCA 234 R v Vletter [2004] WASCA 96 Ridley v The State of Western Australia [2013] WASCA 45 The State of Western Australia v Viskari [2008] WASCA 143 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : BURROWS -v- THE STATE OF WESTERN AUSTRALIA [2014] WASCA 147 CORAM : McLURE P
- HALL J
- Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram : EATON DCJ
File No : IND 343 of 2013
Catchwords:
Criminal law - Appeal against sentence - Burglary - Stealing a motor vehicle - Offences committed on commercial premises over short period - Whether total sentence of 6 years 6 months disproportionate to overall criminality - Turns on own facts
Legislation:
Nil
Result:
Leave to appeal refused
Appeal dismissed
Category: B
Representation:
Counsel:
Appellant : Mr A L Troy
Respondent : No appearance
Solicitors:
Appellant : Justine Fisher Barristers & Solicitors
Respondent : Director of Public Prosecutions (WA)
Case(s) referred to in judgment(s):
Dunks v The State of Western Australia [2009] WASCA 82; (2009) 195 A Crim R 130
Hintz v The Queen [2002] WASCA 38
Karolides v The State of Western Australia [2006] WASCA 240
Main v The State of Western Australia [2010] WASCA 28
Nannup v The State of Western Australia [2011] WASCA 257
O'Brien v The State of Western Australia [2008] WASCA 104
Pelemis v The State of Western Australia [2009] WASCA 151
Pennetta v The State of Western Australia [2013] WASCA 234
R v Vletter [2004] WASCA 96
Ridley v The State of Western Australia [2013] WASCA 45
The State of Western Australia v Viskari [2008] WASCA 143
1 McLURE P: I agree with Hall J.
2 HALL J: This is an application for leave to appeal against sentence.
3 On 13 February 2014 the appellant was sentenced to a total effective sentence of 6½ years' imprisonment following his late pleas of guilty to five charges of burglary, contrary to s 401(2) of the Criminal Code (WA), five charges of stealing a motor vehicle, contrary to s 371A of the Criminal Code and one charge of receiving, contrary to s 414(a) of the Criminal Code.
4 The sentences imposed on the individual counts were as follows:
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5 The sentencing judge ordered that the sentences on counts 1, 7 and 10 would be served cumulatively with that on count 5 and that the sentences on the remaining counts would all be served concurrently with that on count 5. His Honour ordered that the appellant be eligible for parole.
6 The ground of appeal is that the total effective sentence of 6 years 6 months infringed the first limb of the totality principle. That is, it is
submitted that the sentence is disproportionate to the total criminality having regard to all of the circumstances of the case, including those referable to the appellant personally. It is not contended that the sentences imposed for any of the individual offences is manifestly excessive. The appellant argues that the 6 years 6 months total effective sentence exceeded what was required to satisfy all sentencing objectives given the fact that the burglaries in this case were predominantly committed on commercial premises and that the offending was confined to a period of 24 days.
The facts
7 On Monday 5 March 2012 a worker laying floorcovering at a shop in East Fremantle parked his white Ford Falcon utility outside the shop with the keys in the ignition. At some time prior to 6.10 pm the vehicle was stolen. The appellant was not the person alleged to have taken the vehicle. Rather it was alleged that he subsequently used the vehicle to commit a series of burglaries commencing on 7 March 2012 and that he did so knowing that the vehicle had been stolen. When the vehicle was eventually recovered it was extensively damaged. A roof rack had been cut off. The owner's tools, university books and business papers that had been in the vehicle were not recovered. The vehicle and tools were uninsured. This conduct constitutes count 1 on the indictment.
8 At around 1.30 am on 7 March 2012 the appellant drove the stolen Falcon utility to a pharmacy in Aubin Grove. He parked the stolen vehicle near the entrance of the pharmacy and got out. He then used a wrecking bar to smash a glass panel in the front door of the pharmacy and gained entry. He went behind the counter and took a quantity of cold syrup and tablets from the shelves. He also stole a sunglasses display with around 40 sunglasses on it and other items. The value of the stolen items together with the cost of the damage was estimated to be $1,100. The appellant was at the scene for approximately four minutes. A security alarm was activated but the appellant had fled by the time the owner attended. The appellant's actions were caught on CCTV. This conduct constitutes count 2 on the indictment.
9 Immediately following the offence in Aubin Grove the appellant drove to a pharmacy on Canning Highway in Applecross. At around 2.20 am he used a wrecking bar to smash a glass panel of the front door of the premises and gain entry. He searched shelves for pseudoephedrine based medication but unable to find any then stole a cash tin containing $41. The cost of the damage together with the cash stolen totalled $911. This conduct constitutes count 3 on the indictment.
10 The appellant then drove to another pharmacy on Canning Highway in South Perth. He arrived there at around 2.30 am. He again gained access to the premises by smashing the glass panels of the front door. Once inside he stole 78 packets of medication, including cold and flu tablets containing pseudoephedrine. An alarm was activated and private security personnel arrived within a short time but the appellant had already left the scene. The value of the medication, cost of the damage and the call out fee for the security services totalled $1,085. This conduct constitutes count 4 on the indictment.
11 In the early hours of the morning of 10 March 2012 the appellant drove the stolen Ford Falcon utility to a pharmacy on Rockingham Road in Spearwood. In this case the front glass doors and glass wall panels were protected by large internal aluminium screen doors and bars. The appellant backed the vehicle up to within 10 metres of the front doors. He then smashed a hole in the bottom glass panel of one of the doors and threaded a four wheel drive recovery strap through the glass and around the bars of the inner security grille. He attached the other end of the strap to the towbar of the vehicle. He then drove the vehicle away pulling the front doors, security panels and glass wall frames away from the building. Once inside the appellant stole 48 packets of cold and flu medication. The value of the stolen medication, cost of the damage and an insurance assessor's fees totalled $24,864. This conduct constitutes count 5 on the indictment.
12 On 11 March 2012 the stolen Ford Falcon utility was photographed by a speed camera. Police viewing CCTV footage from the pharmacy burglaries had also identified the vehicle. On two occasions, 12 and 14 March 2012, police sighted the vehicle and pursued it. On the second occasion the vehicle was abandoned and seized. Forensic examination of the vehicle disclosed the presence of fingerprints and DNA of people who were associates of the appellant.
13 On the evening of Monday 19 March 2012 the owner of a blue Hyundai Excel station wagon drove into a service station to get fuel. The owner left his keys in the vehicle when he went to pay. The appellant then stole the vehicle and used it over the next two days. It was abandoned in Bayswater on 21 March 2012. This conduct constitutes count 6 on the indictment.
14 At some time between the afternoon of 20 March 2012 and the morning of 21 March 2012 an associate of the appellant stole a red Mazda utility from the workshop of a Mazda dealership on Guildford Road in Bayswater. The vehicle was near new and had been taken to the workshop by the owner on 20 March 2012 for its first service. It was also there to have some accessories fitted. At the time the vehicle had a roll bar, tray liner, floor mats, a set of mag wheels and performance tyres. After having accessories fitted the vehicle was left parked near the entrance to the workshop with the keys in it. The associate who stole the vehicle picked up the appellant shortly after and the appellant took possession of the vehicle knowing it was stolen. The appellant then used the vehicle until he abandoned it late on the night of 26 March 2012. During the period that the appellant was in possession of the Mazda he allowed others to remove items from it in exchange for cash or drugs. He also caused damage to the vehicle or allowed others to do so. When ultimately recovered the vehicle had sustained significant damage. The mag wheels and tyres had been replaced and the roll bar, tray liner and floor mats were all missing. The roll bar, liner and mats were later found at an address where the appellant was residing. The damage was such that the vehicle was written off and replaced at a cost of $62,575. This loss may have been reduced as a result of the sale at auction of the damaged vehicle. There were also costs associated with the dealership providing the owner with a loan vehicle and paying the cost of replacing locks and keys on the owner's house. This conduct constitutes count 7 on the indictment.
15 On 26 March 2012 at about 5.30 pm detectives conducting enquiries at a shopping complex in Canning Vale observed the red Mazda utility entering the car park at excessive speed and screeching its tyres. The appellant got out of the vehicle and entered a pharmacy. A short time later the appellant returned to the vehicle and drove off. The detectives followed. At some point the appellant became aware that he was being followed and a police pursuit ensued. Due to the manner in which the appellant drove police lost sight of the vehicle.
16 Sometime later on the night of 26 March 2012 the appellant drove the red Mazda utility to a car park in Kelmscott. He sprayed the vehicle with a chemical to make it difficult to collect fingerprints and DNA and then walked to his home. The vehicle was subsequently located by police and forensically examined. Despite the efforts of the appellant a number of items were found that connected the vehicle to him. These included a palm print, a black glove that contained DNA consistent with that of the appellant and a mobile telephone registered to the appellant.
17 Sometime between 23 and 30 March 2012 a house in Connell Avenue, Martin was broken into. The couple who had previously resided there were moving to a new address but they still had belongings at the house. On 30 March 2012 the house was discovered to have been ransacked and a significant amount of personal property stolen. Amongst that property was a backpack on which the name and address of the owner had been written in a white marker and a case containing a silver and black Pentax camera and accessories. At some time the appellant came into possession of these items knowing that they had been stolen during a burglary. His receipt of those stolen items is the subject of count 8 on the indictment.
18 Between midnight and 7.00 am on 27 March 2012 commercial premises in Belmont were broken into and property stolen. Amongst the items stolen was a white Ford Courier dual cab utility. Although it is not alleged that the appellant was involved in the burglary he subsequently came into possession of the Ford utility and used it knowing that it had been stolen. This conduct is the subject of count 9 on the indictment.
19 At around 4.30 am on 29 March 2012 the appellant drove the stolen white Ford utility to a computer store on South Street in O'Connor. As with the Spearwood pharmacy, the front glass doors and wall panels were protected by large aluminium screen doors and bars. The appellant used a small sledgehammer to smash the front door panels. He then used a four wheel drive recovery strap to pull the doors off the front of the building in the same manner as he had in respect of count 5. The appellant then entered the store and took 12 laptop computers. However, he dropped them on his way to the vehicle and they were broken beyond repair. At this time the appellant was sighted by police officers conducting a patrol. He fled in the stolen Ford utility and a police pursuit ensued. He abandoned the vehicle a short distance away. A forensic examination found fingerprints, DNA and stolen items that identified the appellant as the offender. The damage to the computer shop, including the replacement cost of the computers, totalled $42,070. This conduct constitutes count 10 on the indictment.
20 After abandoning the Ford utility the appellant walked to a lunch bar in Hamilton Hill where he purchased items using his credit card. His image was caught on CCTV footage in the lunch bar. Whilst he was in the shop the owner of a green Ford Explorer parked his vehicle outside and went to a neighbouring shop. The owner left his keys in the car with the engine running as he was trying to warm up the motor. The appellant came out of the lunch bar, got into the vehicle, revved the engine loudly and drove away. The appellant then drove to Fremantle to pick up his girlfriend who had been recently released from police custody in regard to her involvement in the offences. The girlfriend was under police surveillance at the time. Police officers followed the appellant and his girlfriend to their residence where they were arrested. The theft of the green Ford Explorer is the subject of count 11 on the indictment.
21 The appellant was interviewed by police on 29 March 2012. He declined to answer many of the police officers' questions but did answer some. He denied any involvement in any of the burglaries. He admitted to stealing the blue Hyundai Excel station wagon which is the subject of count 6 but denied all the other offences. He suggested that the burglaries had been committed by other people using cars that he may have had contact with and that this would explain how his prints or DNA might have been found in those cars.
22 The appellant did not enter pleas of guilty to the charges until Friday, 25 October 2013. Other than in respect of count 8, these were very late pleas as the appellant's trial was listed to commence on the following Monday, 28 October 2013. There had been an earlier offer to plead guilty to some of the charges, but that offer was conditional on the State discontinuing the remaining counts and was rejected. Count 8, the receiving charge, was substituted for a burglary charge on 25 October 2012, accordingly the appellant's plea to that charge was entered at the earliest reasonable opportunity.
23 Because of the number of charges and an indication that all the forensic experts and police officers involved in the matter were required, the preparations for trial were extensive. The first indication that the appellant would plead guilty to the counts the subject of this appeal was the morning of 25 October 2013.
Personal circumstances
24 The appellant was 28 years old at the time he came to be sentenced. He was born in Perth and comes from a stable and supportive family. He left school following Year 10 and after doing a pre-apprenticeship course gained employment in the drilling industry. He has worked either in that industry or for his father who is self-employed.
25 The appellant has an entrenched history of methylamphetamine use. This commenced in his mid teens and by the age of 20 had increased to daily injections. He accepts that his offending is directly related to his drug use. He commits offences either under the influence of drugs or in order to obtain them. The only times that he has been abstinent from drugs in his adult life is when he has been imprisoned.
26 The appellant has a significant history of prior offending. This commenced in 2003 at the age of 19. He has previously committed offences of stealing and receiving and was imprisoned for 9 months in 2010 for stealing a motor vehicle. His compliance with court orders has been poor and on 21 October 2010 he was sentenced to 7 months' imprisonment for breaching an intensive supervision order that had originally been imposed for an offence of aggravated burglary in 2009.
27 At the sentencing hearing the appellant's counsel said that the offences occurred in the context of excessive drug use. It was accepted that the appellant was stealing medications with ephedrine or pseudoephedrine with a view to exchanging them for methylamphetamines that he could then use. He was not concerned with the impact of the offending at the time though he had subsequently expressed remorse for it.
28 It was submitted on the appellant's behalf that he had the support of his family and had made efforts towards rehabilitation whilst in custody. By the time he came to be sentenced he had been in custody for nearly two years. In that time he had been abstinent from drugs and had undertaken a number of courses including drug and alcohol programmes and a cognitive skills programme. He had also been designated as a peer support person within the prison. In that role he had been entrusted with assisting new prisoners and prisoners having problems within the system.
Sentencing remarks
29 It is not suggested that there was any material express error in the sentencing judge's remarks on sentence. Accordingly it is not necessary to engage in a detailed examination of those remarks.
30 His Honour referred to the circumstances of the offences, the maximum penalties and the appellant's prior history of offending. He noted that the intensive supervision order imposed in 2009 had been ineffective. He referred to the fact that the 11 offences in the indictment had been committed in a period of just over three weeks but that it was fair to say that in that short period the appellant had created 'a good deal of havoc'.
31 His Honour noted that the appellant had pleaded guilty, but at a very late stage. He then said:
Now you're not in any sense going to be penalised for pleading not guilty. That's everyone's right but the law is that people do get the benefit of an early plea of guilty because it saves a considerable amount of expense and organisation on the part of those people who are involved in the prosecution of a criminal charge. Section 9AA of the Evidence Act enshrines that particular principle. The benefit to be gained from an early plea of guilty and allows for a maximum of up to a 25% discount.
Having regard to those provisions and having regard to the circumstances of your plea, I have to say that I will allow only a fairly small discount for the benefit of your pleas when arriving at sentences for each offence. A discount of 25% is the maximum allowed by law and that's allowed for a plea at the earliest possible opportunity and your pleas don't come anywhere near that (ts 137).
32 Having made those remarks his Honour did not in fact quantify the discount that he gave to the appellant. Section 9AA(5) provides that if a court reduces the head sentence for an offence in order to recognise the benefits to the State, victims or witnesses resulting from a plea of guilty, the court must state that fact and the extent of the reduction in open court. His Honour's failure to state the extent of the reduction that he gave was an error. However, it is not an error that the appellant complains of. The reason for that is obvious. The failure to quantify the discount does not mean that that discount was not given. Any discount in this case would have been very small. In the circumstances of this case the failure to quantify the discount was not a material error and could not support a conclusion that a different sentence should have been imposed: s 31(4)(a) Criminal Appeals Act 2004 (WA): See Pelemis v The State of Western Australia [2009] WASCA 151.
Merits of the appeal
33 The first limb of the totality principle provides that the total effective sentence must bear a proper relationship to the overall criminality involved in of the offences, viewed in their entirety and having regard to the circumstances of the case, including those referable to the offender personally. The second limb requires that the total effective sentence not be crushing. The appellant relies only upon the first limb.
34 The sentences imposed for the individual offences are accepted as being all within the appropriate discretionary range. That concession is properly made. The sentences imposed for the stealing motor vehicle offences are consistent with sentences imposed in comparable cases: See Karolides v The State of Western Australia [2006] WASCA 240; The State of Western Australia v Viskari [2008] WASCA 143; Dunks v The State of Western Australia [2009] WASCA 82; (2009) 195 A Crim R 130 and Nannup v The State of Western Australia [2011] WASCA 257.
35 Similarly the individual sentences imposed for the burglary offences are consistent with those imposed in comparable cases involving burglaries of commercial premises: See Ridley v The State of Western Australia [2013] WASCA 45; Pennetta v The State of Western Australia [2013] WASCA 234; Main v The State of Western Australia [2010] WASCA 28; O'Brien v The State of Western Australia [2008] WASCA 104; Hintz v The Queen [2002] WASCA 38 and R v Vletter [2004] WASCA 96.
36 The appellant places emphasis on two factors that he suggests reduced the seriousness of this series of offences. Those factors are that the burglaries were all committed on commercial premises and that the offending was confined to a period of 24 days.
37 It is true that the burglary offences in this case were not committed in circumstances of aggravation nor did they occur in places that were ordinarily used for human habitation. Of course if those factors had been present the appellant would have been liable to the applicable higher maximum penalties of 20 years and 18 years respectively. In the absence of those factors a burglary carries a maximum penalty of 14 years' imprisonment.
38 A sentence imposed on an offender must be commensurate with the seriousness of the offence. The seriousness of the offence is determined by taking into account the maximum penalty for the offence as well as the circumstances of the commission of the offence and any aggravating and mitigating factors: s 6 Sentencing Act 1995 (WA). But it does not follow from this that burglaries committed on commercial premises will always attract lower sentences than those committed in circumstances of aggravation or on a dwelling. Much will depend upon the particular circumstances of the offences in question.
39 The appellant does not suggest that the individual sentences imposed in this case were inappropriate for burglaries committed on commercial premises. What seems to be suggested is that in deciding whether to accumulate the individual sentences some additional discount should have been afforded for the fact that these burglaries were committed on commercial premises. That contention has only to be stated to be seen as wrong. Each of the individual offences was separate and discrete and in those circumstances some accumulation was appropriate. The only real fetter on accumulating all of the sentences was the totality principle. Clearly if all the sentences had been made cumulative the total effective sentence would have been disproportionate to the total criminal conduct. The only question is whether the total effective sentence in this case was disproportionate having regard to all of the circumstances of the offence including those personal to the appellant.
40 The fact that the offending occurred over a relatively short period was not a significant mitigating factor. The harm caused by the offences was not in any respect minimised by the length of the period over which they were committed. What it showed was that the appellant was engaged in a persistent and determined course of conduct. Given his past history of drug related offending there was no reason to think that this period of offending represented a significant aberration in his behaviour.
41 The offences in this case were very serious examples of their type. The burglaries all occurred at night and in circumstances where the appellant caused significant damage to the premises. That is particularly the case in respect of the two offences where the appellant used a stolen vehicle to rip off the front of the shops. Pharmacies, in particular, are vulnerable to offences of this nature because it is known that they stock medications.
42 The offences of stealing motor vehicles were also serious. In particular the theft of the white Ford Falcon utility (count 1) and the red Mazda utility (count 7). Whilst it was not alleged that the appellant had taken those two vehicles he had used them knowing them to be stolen and, whilst they were in his possession, had caused or permitted significant damage to them. Furthermore, he had used several of the stolen vehicles in the commission of the burglary offences. He had also used them to evade capture by police.
43 In my view the total effective sentence imposed in this case was not disproportionate to the total offending. Indeed, it seems to me to have been entirely appropriate. Offending conduct of this type is deserving of an appropriately lengthy sentence of immediate imprisonment. General deterrence is an obvious and important sentencing consideration. In this case personal deterrence was also a significant consideration. The appellant's persistent offending and failure to be deterred by past sentences of imprisonment indicated the need for a firm sentence. There was very little that could be said to mitigate the offending.
Conclusion
44 In my view the ground of appeal has no reasonable prospects of succeeding. Leave to appeal should be refused. I would make the following orders:
(1) Leave to appeal refused; and
(2) the appeal is dismissed.
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