Butler v The State of Western Australia
[2012] WASCA 249
•29 NOVEMBER 2012
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: BUTLER -v- THE STATE OF WESTERN AUSTRALIA [2012] WASCA 249
CORAM: McLURE P
BUSS JA
MAZZA JA
HEARD: 21 AUGUST 2012
DELIVERED : 29 NOVEMBER 2012
FILE NO/S: CACR 210 of 2011
BETWEEN: NATHAN SCOTT BUTLER
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram :STAUDE DCJ
File No :IND 582 of 2011
Catchwords:
Criminal law - Appeal against sentence - Aggravated burglary - Unlawful damage - Aggravated unlawful assault - Breach of protective bail conditions - Whether sentence manifestly excessive - Whether totality principle had been breached - Whether sufficient discount given for the appellant's guilty pleas
Legislation:
Sentencing Act 1995 (WA), s 32
Result:
Appeal dismissed
Category: D
Representation:
Counsel:
Appellant: Ms A S Rogers
Respondent: Ms A L Forrester
Solicitors:
Appellant: Abigail Rogers Barristers & Solicitors
Respondent: Director of Public Prosecutions (WA)
Case(s) referred to in judgment(s):
Ashworth v The State of Western Australia [2006] WASCA 36
Bahar v The Queen [2011] WASCA 249; (2011) 255 FLR 80
Buxton v The State of Western Australia [2009] WASCA 6
Cameron v The Queen [2002] HCA 6; (2002) 209 CLR 339
Drake v The State of Western Australia [2006] WASCA 209
Herbert v The Queen [2003] WASCA 61; (2003) 27 WAR 330
Holland v The Queen [1999] WASCA 43
Lesay v The State of Western Australia [2011] WASCA 154
Moody v French [2008] WASCA 67; (2008) 36 WAR 393
Nannup v The State of Western Australia [2011] WASCA 257
Nguyen v The State of Western Australia [2007] WASCA 114
Roffey v The State of Western Australia [2007] WASCA 246
Wilson v The State of Western Australia [2010] WASCA 12
Woodley v The State of Western Australia [2008] WASCA 92
McLURE P: I agree with Mazza JA.
BUSS JA: I agree with Mazza JA.
MAZZA JA: This is an appeal against sentence.
The appellant pleaded guilty on 20 October 2011, on the first day of his scheduled trial before Staude DCJ and a jury, to two offences contained in an indictment, being:
(1)On 7 September 2009 at Westminster Nathan Scott Butler, while in the place of Michelle Anne Riley without her consent, committed the offence of assault
And that immediately before the commission of the offence Nathan Scott Butler knew or ought to have known that there was another person in the place
And that the place was ordinarily used for human habitation.
(2)On 7 September 2009 at Westminster Nathan Scott Butler wilfully and unlawfully damaged an internal door.
His Honour remanded the appellant for sentence to 8 December 2011 and ordered that a pre‑sentence report and a psychological report be prepared. On that day, before his Honour proceeded to sentence the appellant for the offences in the indictment, the appellant pleaded guilty to two offences contained in a notice under s 32 of the Sentencing Act 1995 (WA), being offences of aggravated unlawful assault and breach of protective bail conditions.
The appellant was sentenced as follows:
Aggravated burglary: 3 years and 6 months' imprisonment Unlawful damage: 6 months' imprisonment Aggravated unlawful assault: no penalty pursuant to s 11 of the Sentencing Act (the offence being the same assault as alleged in the aggravated burglary) Breach of protective bail conditions: 6 months' imprisonment
His Honour ordered that the sentences for the aggravated burglary and breach of bail be served cumulatively. Thus, the total effective sentence imposed upon the appellant was 4 years' imprisonment. The appellant was made eligible for parole and the sentence was backdated to commence on 3 April 2011, to take into account time served in custody on remand.
There are four grounds of appeal. Ground 1 alleges that the sentence imposed for the offence of aggravated burglary was manifestly excessive. Grounds 2 and 3, in effect, allege that the total effective sentence infringed the first limb of the totality principle. Ground 4 alleges that his Honour failed to give 'sufficient discount' to the appellant's pleas of guilty. Leave to appeal has been granted in respect of grounds 1 and 2. The question of leave to appeal on grounds 3 and 4 was referred to the hearing of the appeal.
The legal principles applicable to appeals against sentence are well known and need not be repeated. They were accurately stated by McLure P and Owen JA in Wilson v The State of Western Australia [2010] WASCA 12 [2].
The facts of the appellant's offending
There is no dispute as to the facts of the appellant's offending.
The appellant and the complainant had been in a long‑term de facto relationship and have three young children. They separated some 6 months before the offences the subject of this appeal were committed. The complainant and the children were residing at a unit in the suburb of Westminster.
In May 2009, the appellant was charged with two counts of unlawfully assaulting the complainant in circumstances of aggravation and wilful damage. He was released on bail in respect of these offences. Among the conditions of bail was a requirement that the appellant not contact or attempt to contact the complainant by whatever means, except through a solicitor and that he was not to behave in an intimidating or offensive manner towards her.
On 6 September 2009, with the consent of the complainant, the appellant went to the complainant's house to collect some personal items. As it was Fathers Day, and because the complainant wanted to encourage the appellant's relationship with the children, the appellant was allowed to stay overnight.
The following morning the complainant asked the appellant to leave, but he refused to do so. She then sought and obtained the attendance of the police. The appellant left the unit before the police arrived. Meanwhile, the complainant locked all the doors and windows. The appellant waited for the police to leave and then returned to the unit. He kicked in the back door and forced his way in without her consent. In response, the complainant barricaded herself and the three children in her bedroom. The appellant smashed her bedroom door in half and entered the room. There, in the presence of the children, he punched the complainant with his right fist to the head, pushed her into a corner, kicked her in the back, grabbed her by the hair with both hands and dragged her into the lounge room. The police were called and the appellant left the house. The complainant sustained a sore back, bruising to her head and a sore stomach. She did not seek medical attention. The cost of the damage to the bedroom door was $500. The appellant's conduct breached the bail conditions imposed in respect of the offences which were alleged to have been committed in May 2009.
The appellant's antecedents
The appellant was 32 years of age when he was sentenced. He was born in the United Kingdom and emigrated to Australia with his family when he was about 15 years old. He had a stable family life, but it appears that he resented the move to Australia. He is estranged from his parents and older brother.
The appellant has a long history of illicit drug use, particularly methylamphetamine. He also has a long history of domestic violence towards his female partners, all of whom have been vulnerable for one reason or another. Moreover, he has committed numerous traffic and dishonesty offences.
Specifically, in relation to the complainant, the appellant has been convicted as follows:
(a)on 20 March 2006, of aggravated common assault, being armed to cause fear and criminal damage;
(b)on 7 December 2007, of criminal damage by, during an argument, damaging a door frame;
(c)on 28 July 2008, of breaching a violence restraining order taken out by the complainant by attending her home and threatening her; and
(d)on 6 April 2010 in respect of the charges stemming from the incident in May 2009. In that incident the appellant pushed the complainant's head into a wall and kneed her to the head. She also sustained a broken finger which required hospital treatment.
The appellant has, in the past, breached intensive supervision orders, violence restraining orders and bail undertakings. The appellant has participated in courses designed to address his tendency towards domestic violence. Although he has demonstrated an understanding of the theoretical content of these courses, he has been unable to actually change his behaviour.
Based on the psychological report, his Honour found that the appellant is unable to accept the conclusion of relationships, has little insight into his offending behaviour and tends to minimize his conduct: AB 71 ‑ 72.
The only favourable aspect of the appellant's antecedents was his constant history of paid employment.
His Honour's sentencing remarks
His Honour characterised the offences as being 'very serious': AB 68. He found that the appellant, by leaving the premises and waiting for the police to come and go, displayed a degree of determination to commit an offence. He said that the appellant embarked upon a deliberate course of conduct: AB 68.
His Honour said that the offences showed that the appellant has a propensity to commit domestic violence and to disregard court orders made for the protection of the complainant: AB 68.
Staude DCJ concluded that, due to the appellant's tendency towards domestic violence, he posed a significant risk to the safety of his partners and his children: AB 72.
His Honour considered that the principal sentencing considerations were punishment and denunciation of domestic violence, personal and general deterrence and the protection of the community.
With respect to the appellant's late pleas of guilty, his Honour found that the appellant did not expect the complainant to attend to give evidence and that he pleaded guilty on the first day of trial only when it became clear that she was going to give evidence: AB 73.
As to the plea of guilty, his Honour said:
Normally, some allowance, although it may be small, would be made for a plea of guilty even at a late stage, but it is clear from what occurred on the first day of the trial that you did not indicate a change of plea until you were certain that the trial would proceed. And I take the view that you did not expect the complainant to attend to give evidence: AB 73.
His Honour imposed an a cumulative penalty for the breach of bail because it involved disobedience of a court order made for the benefit and protection of the complainant. He regarded it as offending which was separate to the aggravated burglary: AB 73 ‑ 74.
Ground 4 - the plea of guilty
It is convenient to first deal with ground 4. Although this ground alleges that his Honour failed to give 'sufficient discount' for the appellant's guilty pleas, counsel for the appellant, in oral argument, submitted that the learned sentencing judge failed to give any discount for the guilty pleas.
A reading of his Honour's sentencing remarks, paying particular regard to the passage set out in [26] of these reasons, shows that his Honour did not give any discount for the pleas of guilty. The question to be answered is whether his Honour erred in so doing.
Section 8(2) of the Sentencing Act provides that a plea of guilty is a mitigating factor, and the earlier in the proceedings that it is made or an indication is given that it will be made, the greater the mitigation. Section 8(2) was discussed by the High Court in Cameron v The Queen [2002] HCA 6; (2002) 209 CLR 339. In that case, Gaudron, Gummow and Callinan JJ, in considering the extent to which a plea of guilty may be taken into account in mitigation, referred to whether the plea is indicative of remorse, acceptance of responsibility and willingness to facilitate the course of justice [22].
See also Bahar v The Queen [2011] WASCA 249; (2011) 255 FLR 80 (McLure P, Martin CJ & Mazza J agreeing).
In Moody v French [2008] WASCA 67; (2008) 36 WAR 393, Steytler P, Wheeler, McLure and Buss JJA in their joint judgment said that, in cases in which a plea of guilty is inevitable because of the strength of the prosecution case, it will ordinarily attract a discount because it nonetheless evinces a willingness to facilitate the course of justice and, perhaps, indicates an acceptance of responsibility [36]. It was further said that, other than an exceptional case, some discount should be allowed, even when the plea of guilty is unavoidable and unaccompanied by any remorse or acceptance of responsibility.
The appellant's counsel argued that the late plea of guilty was as a result of the appellant's recollection of the offences being affected by drugs. This is inconsistent with his Honours findings and, in any event, does not show an acceptance of responsibility.
In the present case, based on his Honour's unchallenged findings, the appellant's pleas of guilty were not motivated by remorse, contrition or a desire to assist the administration of justice. The appellant entered his pleas of guilty on the first day of the trial only when it became apparent that the complainant had, contrary to his expectations, attended court to give evidence for the prosecution. The clear inference to be drawn was that the appellant believed she would not do so. This is to be understood in the context of a relationship in which the complainant had been subjected to repeated acts of domestic violence by the appellant and had apparently reconciled with him. The saving of time by reason of the late pleas of guilty was minimal. Because of the very late plea, there would have been no realistic opportunity to list another case before his Honour, and the State's witnesses, most particularly the complainant, would have already been summonsed to attend the trial. No doubt the complainant would have already been proofed and would have suffered the anxiety associated with the anticipation of giving evidence.
Having regard to the combined force of these circumstances, I regard the present case as being exceptional and that his Honour did not err by not giving a discount for the appellant's pleas of guilty.
Ground 1 - manifest excess
The assertion that the sentence for the aggravated burglary is manifestly excessive was supported by the following particulars:
1.1The Appellant's atrocious childhood and lack of education;
1.2The Appellant's longstanding and untreated drug addiction, such addiction impacting heavily upon the Appellant's recollection of the event before the Court;
1.3The Appellant's prior good work history;
1.4The Appellant's offending was motivated by his feelings towards the Complainant and aggravated by ongoing their previous relationship as opposed to for financial gain;
1.5The genuine remorse demonstrated by the Appellant;
1.6The Appellants plea of guilty negating the necessity for the victim to give evidence in Court;
1.7Sentences customarily imposed for like offending.
In oral argument, the appellant's counsel abandoned particular 1.1, there being nothing to sustain the proposition that the appellant had an 'atrocious childhood'. Further, counsel did not press particular 1.2 in the context of this ground. Particular 1.4 asserts, in effect, that an aggravated burglary motivated by hostility towards a domestic partner is less serious than an aggravated burglary committed for financial gain. This assertion is not supported by any authority and wrongly minimises the seriousness of the appellant's conduct. I reject it. Particular 1.5 is inconsistent with his Honour's findings. In relation to particular 1.6 although the complainant did not give evidence, for the reasons I have given in respect of ground 4, this is an exceptional case where the plea of guilty was not mitigatory. This leaves particulars 1.3 and 1.7.
In respect of particular 1.7, Ms Rogers submitted that the sentence for the offence of aggravated burglary was outside the range of sentences customarily imposed.
One of the factors to be considered when determining whether a sentence is manifestly excessive is the standard of sentencing customarily observed in respect of the offence.
There is no tariff for the offence of aggravated burglary because of the wide range of circumstances in which the offence can be committed. However, in recent years, sentences imposed for home burglary have increased to reflect the prevalence of the offence and to provide proper personal and general deterrence: Herbert v The Queen [2003] WASCA 61; (2003) 27 WAR 330 and Buxton v The State of Western Australia [2009] WASCA 6 [17].
Counsel for the appellant pointed to the cases of Holland v The Queen [1999] WASCA 43 and Woodley v The State of Western Australia [2008] WASCA 92 and asserted that, when compared with these cases, the sentence imposed on the appellant was outside the range of sentences customarily imposed.
Holland is of little comparative value. As McLure JA observed in Buxton [19], the standards of sentencing customarily imposed in 1999 provide no reliable guide to contemporary sentencing standards for the offence of burglary.
In Woodley, the appellant travelled to his estranged wife's house with weapons, but he did not bring them inside. He entered the premises without the complainant's consent, grabbed her by the hair and punched her around the head. He continued to assault her as he took her out to his car. He subsequently raped her. The appellant pleaded not guilty and was convicted after trial of aggravated burglary (entry with intent to assault), assault occasioning bodily harm, deprivation of liberty and sexual assault. He had a moderate criminal record. He showed no remorse, acceptance of responsibility or insight into what he had done. He was sentenced to 2 years and 8 months' imprisonment for the aggravated burglary and 1 year for the assault occasioning bodily harm, to be served concurrently for totality reasons. Thus, absent totality, the appellant would have received a sentence of 3 years and 8 months for the aggravated burglary and the assault. In the present case, the elements of the aggravated burglary and the assault were reflected in the aggravated burglary. The sentences imposed in Woodley and the present case are, contrary to the appellant's submission, broadly consistent.
Other cases decided in this court do not bear out the appellant's submission. In Herbert, sentences of 5 years' imprisonment (3 years and 4 months post‑transitional) imposed in that case for home burglary offences to which the offender pleaded guilty and which did not involve violence were not held to be manifestly excessive. In Buxton, the appellant, who had no prior convictions for offences involving violence, was sentenced to 2 years and 8 months' imprisonment for a violent aggravated burglary upon the complainant, with whom he had been in a relationship. He pleaded guilty, but the complainant was required to give evidence at a trial of the issues. The sentence was held not to be manifestly excessive.
Recently in Nannup v The State of Western Australia [2011] WASCA 257, the appellant, an 18‑year‑old man with an extensive record of prior offending, pleaded guilty to seven serious offences committed over a short period of time. Among those offences were three counts of aggravated burglary, the most serious of which (count 2) involved the appellant and co‑offenders breaking into a house occupied by two young women, demanding money and car keys from them, while threatening them with violence. The learned sentencing judge sentenced the appellant to 4 years' imprisonment on each charge of aggravated burglary, after taking into account the guilty plea. On appeal, this sentence was reduced to 3 years and 4 months, but only because his Honour had failed to take into account the appellant's post‑offence cooperation with the police.
In addition to the cases relied upon by the appellant I have taken into account other cases such as Ashworth v The State of Western Australia [2006] WASCA 36, Drake v The State of Western Australia [2006] WASCA 209 and Nguyen v The State of Western Australia [2007] WASCA 114, where the standards of sentencing customarily imposed for burglary and aggravated burglary were reviewed.
In my opinion, the cases do not bear out the proposition that the sentence imposed upon the appellant in this case was outside the range of sentences customarily imposed.
As to particular 1.3, any leniency that could be afforded by the appellant's good work history was outweighed by his history of prior offending and his remarkable lack of insight and remorse.
The sentence of 3 years and 6 months' imprisonment for the aggravated burglary was not manifestly excessive. The maximum penalty for the offence is 20 years' imprisonment. His Honour's unchallenged findings show the circumstances of the offence were very serious. The sentence was within the range customarily imposed. The appellant's antecedents were unfavourable and demonstrate that personal deterrence and public protection were important sentencing objectives. The sentence was not unjust or unreasonable. There is no basis for this court to interfere with it.
Grounds 2 and 3 - totality
Grounds 2 and 3 can be dealt with together. In effect, they allege that the total effective sentence imposed upon the appellant offended the first limb of the totality principle.
The totality principle is described in Roffey v The State of Western Australia [2007] WASCA 246. The first limb of the totality principle provides that the total effective sentence must 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 [24].
The appellant's principal argument was that, by accumulating the sentences for the aggravated burglary and the breach of bail, his Honour infringed the so‑called one transaction rule.
As this court has pointed out on many occasions, the one transaction rule is merely a rule of thumb designed to assist judges to ensure that the total sentence imposed for offences which occur close together in time or in a spree is proportionate to the offender's overall criminality. It will sometimes be the case that cumulative sentences are justified to properly reflect an offender's overall criminality: Lesay v The State of Western Australia [2011] WASCA 154 [21].
In my opinion, the total effective sentence imposed upon the appellant of 4 years was a proper reflection of his overall criminality. It was appropriate for his Honour to mark the breach of bail with its own cumulative sentence, having regard to the appellant's history of disobedience of court orders.
Although not argued by the appellant's counsel, I have considered whether there was any aspect of double punishment, that is, whether the sentence for the aggravated burglary took into account that the appellant had breached his bail conditions. It is clear from his Honour's sentencing remarks that he did not do so. He expressly stated that in arriving at his sentence for the offence of aggravated burglary he had not taken into account the breach of bail: AB 74.
Grounds 2 and 3 have not been made out.
Conclusion and orders
Although I would give leave to appeal in respect of grounds 3 and 4 none of the grounds of appeal have been made out.
The orders I would make are as follows:
1.Leave to appeal is granted on grounds 3 and 4.
2.The appeal is dismissed.
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