Caruana v Director of Public Prosecutions for Western Australia
[2024] WASC 27
•8 FEBRUARY 2024
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL
CITATION: CARUANA -v- DIRECTOR OF PUBLIC PROSECUTIONS FOR WESTERN AUSTRALIA [2024] WASC 27
CORAM: LEMONIS J
HEARD: 1 FEBRUARY 2024
DELIVERED : 8 FEBRUARY 2024
FILE NO/S: SJA 1093 of 2023
BETWEEN: RIVAH JOSEPH CARUANA
Appellant
AND
DIRECTOR OF PUBLIC PROSECUTIONS FOR WESTERN AUSTRALIA
Respondent
ON APPEAL FROM:
For File No: SJA 1093 of 2023
Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram: MAGISTRATE S MALLEY
File Number : JO 4410/2023, JO 3826/2023, JO 3825/2023, JO 4409/2023, PE 35410/2023; RO 5076/2023, RO 5077/2023
Catchwords:
Appellant sentenced to terms of imprisonment in respect of seven separate offences - Appellant pleaded guilty - Whether the learned magistrate correctly approached the application of s 9AA of the Sentencing Act 1995 (WA) in respect of each offence - If there was an error, whether there was any substantial miscarriage of justice and whether the appellant should be resentenced
Legislation:
Criminal Appeals Act 2004 (WA)
Criminal Code (WA)
Director of Public Prosecutions Act 1991 (WA)
Road Traffic Act 1974 (WA)
Sentencing Act 1995 (WA)
Result:
Leave to appeal granted on ground 1
Appeal allowed
Appellant resentenced
Category: B
Representation:
Counsel:
| Appellant | : | N R Sinton |
| Respondent | : | M L Wong |
Solicitors:
| Appellant | : | Legal Aid (WA) |
| Respondent | : | The Director of Public Prosecutions (WA) |
Case(s) referred to in decision(s):
Beekman v The State of Western Australia [2022] WASCA 130
IEB -v- The State of Western Australia [2015] WASCA 207
Miorada v The State of Western Australia [2022] WASCA 143
R v Nichols (1991) 57 A Crim R 391
Ritchie v The State of Western Australia [2023] WASCA 120
Wallam v The State of Western Australia [2015] WASCA 132
Weiss v The Queen [2005] HCA 81; (2005) 224 CLR 300
Wimbridge v The State of Western Australia [2009] WASCA 196
LEMONIS J:
On 9 October 2023, the appellant (Mr Caruana) was sentenced to terms of imprisonment in respect of seven offences, which were carried out over the period 13 February 2023 to 29 August 2023. The learned magistrate imposed a total effective sentence of 18 months immediate imprisonment. Mr Caruana was also sentenced that day in respect of eight other offences, for which fines were imposed.
Mr Caruana now appeals against the total effective sentence of 18 months immediate imprisonment. Pursuant to s 13(b) and s 19 of the Director of Public Prosecutions Act 1991 (WA), the Director of Public Prosecutions has taken over the appeal and has become the respondent.
An urgent appeal order was made on 27 November 2023, so as to ensure this appeal was heard before Mr Caruana is sentenced for another offence in the District Court, with sentencing anticipated to take place in March 2024.
There are two grounds of appeal. First, the learned magistrate erred in the application of s 9AA of the Sentencing Act 1995 (WA). The alleged error applies to all of the seven separate sentences of imprisonment that were imposed. In that way, ground 1 affects the total effective sentence. The second ground is that the learned magistrate erred in imposing a total effective sentence that infringed the first limb of the totality principle.
Nature of the appeal
The appeal is brought pursuant to s 7(1) of the Criminal Appeals Act 2004 (WA) (CA Act), Mr Caruana being a person aggrieved by the decision of the learned magistrate.
An appeal may be made on grounds that include:
1.the learned magistrate made an error of law or fact or of both law and fact;[1]
2.the learned magistrate imposed a sentence that was inadequate or excessive.[2]
[1] Criminal Appeals Act2004 (WA) s 8(1)(a)(i).
[2] CA Act s 8(1)(a)(iii).
Ground 1 asserts an error of law in the application of s 9AA. Ground 2 asserts that the learned magistrate imposed a sentence that was excessive.
Leave of this court is required for each ground of appeal. I must not give leave to appeal on a ground unless I am satisfied the ground has a reasonable prospect of succeeding.[3]
[3] CA Act s 9.
The appeal cannot be commenced later than 28 days after the date of the decision unless the Supreme Court orders otherwise.[4] Therefore, in this case, the appeal ought to have been commenced by 6 November 2023. It was commenced on 9 November 2023, thus three days late.
[4] CA Act s 10(3).
Section 14 of the CA Act sets out the options available to me in deciding the appeal. These include setting aside the decision of the learned magistrate and substituting a decision that should have been made. Further, pursuant to s 14(2) even if a ground of appeal might be decided in favour of Mr Caruana, I may dismiss the appeal if I consider that no substantial miscarriage of justice has occurred. This provision is permissive, not mandatory.[5]
[5] Weiss v The Queen [2005] HCA 81; (2005) 224 CLR 300 [44] - [45].
Extension of time within which to appeal
In Wimbridge v The State of Western Australia,[6] Buss JA (as his Honour then was) set out the following five principal factors to be considered in deciding whether to exercise the discretion to extend time, also noting those factors are not exhaustive:
First, the nature and extent of the delay. Secondly, the reasons for the delay. Thirdly, the proposed grounds of appeal and their merit. Fourthly, the prejudice to the applicant if an extension of time is not granted. Fifthly, the prejudice (if any) to the State or the Crown if an extension of time is granted. These factors are not intended to be an exhaustive statement of the relevant considerations. No doubt, in a particular case, there may be additional factors.
[6] Wimbridge v The State of Western Australia [2009] WASCA 196 [45].
Additional factors include whether the delay is intentional, is the result of a bona fide mistake and whether the delay is caused by the appellant themself or by their lawyer.
The application for an extension of time is supported by an affidavit of Mr Caruana's counsel, Ms Sinton, affirmed 9 November 2023. The predominant reason for the delay is that the office of Legal Aid did not receive the transcript of Mr Caruana's sentencing until 2 November 2023.
In circumstances where the delay was not caused by Mr Caruana and the period of the delay is very short, I consider it appropriate to grant an extension of time to commence the appeal. I grant the extension through to the filing of the appeal notice on 9 November 2023.
Sentences of imprisonment the subject of this appeal
The offences for which Mr Caruana was sentenced to a term of imprisonment, the applicable maximum and summary penalty and the term of imprisonment imposed are set out in the table below.
Offence Number Description and Section Number Maximum Penalty Summary Maximum Penalty Term Imposed JO 4409/2023
s 378 Criminal Code
Steal motor vehicle (as defined in s 371A)
7 years imprisonment
2 years imprisonment and a $24,000 fine
6 months imprisonment (concurrent)
JO 4410/2023
s 378 Criminal Code
Steal motor vehicle (as defined in s 371A)
7 years imprisonment
2 years imprisonment and a $24,000 fine
6 months imprisonment (concurrent)
JO 3825/2023
s 68(1) Criminal Code
Being armed in a way that may cause fear
7 years imprisonment
3 years imprisonment and a $36,000 fine
9 months imprisonment (head)
JO 3826/2023
s 338B(1)(b)(iii) Criminal Code
Made a threat to unlawfully do an act, namely injure, endanger or harm any person
3 years imprisonment
18 months imprisonment and a $18,000 fine
9 months imprisonment (concurrent)
PE 35410/2023
s 378 Criminal Code
Stealing
7 years imprisonment
2 years imprisonment and a $24,000 fine
4 months imprisonment (concurrent)
RO 5076/2023
s 401(2)(b) Criminal Code
Home burglary and commit offence
18 years imprisonment
3 years imprisonment and a $36,000 fine
9 months imprisonment (cumulative)
RO 5077/2023
s 378 Criminal Code
Stealing
7 years imprisonment
2 years imprisonment and a $24,000 fine
4 months imprisonment (concurrent)
The learned magistrate did not expressly say how it was that he arrived at a total effective sentence of 18 months. From having read the sentencing remarks, it seems that it is arrived at by the sentence on RO 5076/2023 being served cumulatively on the sentence on JO 3825/2023, with the remaining sentences being served concurrently. This is reflected in the table at [15].
The stealing offence the subject of RO 5077/2023 was the 'grounding offence' for the home burglary the subject of RO 5076/2023. His Honour ordered that the sentence of 4 months imposed for RO 5077/2023 be served concurrently. In accordance with s 11(1) of the Sentencing Act, no sentence should have been imposed for RO 5077/2023.[7] However given the sentence imposed was ordered to be served concurrently, that makes no difference to the outcome of this appeal.
[7] Beekman v The State of Western Australia [2022] WASCA 130 [49]; see also Ritchie v The State of Western Australia [2023] WASCA 120 [66].
The facts of the offending were read out by the prosecutor at the sentencing hearing and were accepted by Mr Caruana's then counsel. In the chronological order in which the offending occurred, the facts are as follows.
JO 4409/2023 & JO 4410/2023 - Steal motor vehicle
Between 6.00 pm on Monday, 13 February 2023 and 8.30 am on Tuesday, 14 February 2023 a Suzuki motorcycle belonging to the victim was stolen from Jupiter Way in Duncraig. The vehicle keys were stolen from inside the house and were used to steal the motorcycle from the address.
The victim discovered the offence and reported the matter to police. On Thursday, 16 February 2023 the motorcycle was recovered by police at an address in Girrawheen, where Mr Caruana resided.
Between 5.30 pm and 8.30 pm on Saturday, 8 April 2023, a Toyota RAV4 motor vehicle belonging to the victim was stolen from an address in Girrawheen. The vehicle keys had been left in the ignition of the vehicle. On Sunday, 9 April 2023 the vehicle was recovered by police at Montrose Park. A forensic examination of the vehicle was conducted and a DNA sample taken from the steering wheel, which was identified as belonging to Mr Caruana.
JO 3825/2023 & JO 3826/2023 - Threat to unlawfully do an act, namely injure, endanger or harm any person and being armed in a way that may cause fear
At 5.35 pm on Sunday, 9 April 2023 Mr Caruana was at a reserve located in Girrawheen. At the time there were multiple people in the reserve, including families with children. Mr Caruana was in an agitated state. The victim was at the reserve with his three young children aged 8, 10 and 12. The victim and Mr Caruana were not known to each other. Mr Caruana approached the victim and his children and initiated a verbal argument with the victim.
Mr Caruana removed a knife from his pants pocket, brandished it at the victim and said: 'I will stab you. I will kill you'. The victim attempted to flee from Mr Caruana, although Mr Caruana pursued him for approximately 30 metres before the victim armed himself with a large stick in an attempt to defend himself from Mr Caruana. Mr Caruana stopped and diverted his attention to another member of the public.
A female witness observed the incident and phoned police. Mr Caruana's actions caused the female witness to fear for her safety and that of other members of the public.
PE 35410/2023 - Stealing
On 4 July 2023, Mr Caruana was at the Stirling train station on Cedric Street. He was in company with another male when he approached the victim, who was waiting for a friend, with his e‑scooter and friend's bicycle. Mr Caruana took the e‑scooter without consent and ran off with it. The victim's friend chased Mr Caruana and sprayed him with pepper spray, causing him to run off, leaving the e‑scooter.
The property was returned to the victim. However, the keys were missing at the time.
RO 5076/2023 & RO 5077/2023 - Home burglary and stealing the subject of the home burglary
Between 1.50 am and 2.00 am on Tuesday, 29 August 2023, Mr Caruana entered an open garage situated at the subject property. The occupier was asleep inside the house at the time and had accidentally left the garage roller door open. Mr Caruana concealed his identity wearing a surgical mask, rimmed New York Yankees baseball hat with a circular reflective sticker on the brim and glasses. Mr Caruana peered through the windows of two parked vehicles with a torch and placed one of his hands on the exterior of the right‑hand side door of a Hyundai Santa Fe. Mr Caruana rummaged through the vehicles for items to steal.
A short time later Mr Caruana stole a white Giant brand men's road bicycle, which was hanging on brackets on the wall of the garage.
The following day, a search warrant was executed at the property where Mr Caruana lived. During the search of his bedroom the following items were located: the white Giant bicycle, two torches and also the clothes and hat that he was wearing at the time of the offences.
Mr Caruana's explanation for this offending, which explanation was not disputed, was that it was opportunistic. He saw the garage door was open and entered. He stole the bike for the purposes of getting back home.
Additional offences for which Mr Caruana was sentenced
In addition to the offences the subject of this appeal, the other offences to which the learned magistrate sentenced Mr Caruana were four offences of stealing, three offences of possession of drug paraphernalia and one offence of breach of bail. These were committed over the period from 6 March 2023 to 30 August 2023.
Personal circumstances
Mr Caruana's personal circumstances at the time he was sentenced are as follows.
Mr Caruana was 22 years of age. He was also 22 at the time he committed each of the offences.
Mr Caruana had a limited criminal history as an adult. The offences he had committed were predominantly made up of stealing and motor vehicle related offences. The prior sentences imposed on him were all fines.
Mr Caruana had an employment history of working fly in and fly out. Approximately 12 months prior to the offending the subject of this appeal, Mr Caruana returned to Perth to care for his mother who was unwell. His mental health declined and he turned to illicit substances and alcohol as a means of coping. Up until then, as an adult, Mr Caruana had not previously had any issues regarding the use of illicit substances. This is consistent with Mr Caruana's adult criminal record, which does not contain any drug related offending prior to 9 April 2023.
By the time that Mr Caruana was sentenced on 9 October 2023, he had spent 40 days in custody. While in custody, Mr Caruana had been attended to by medical practitioners, been placed on medication and referred to a psychologist.
The prosecutor did not dispute the circumstances as I have set out in [35] and [36] and the learned magistrate appears to have accepted them for the purposes of sentencing.
Principles applicable to the sentencing exercise before the learned magistrate
The applicable sentencing principles are set out in pt 2 div 1 of the Sentencing Act.
Section 6(1) provides that a sentence must be commensurate with the seriousness of the offence. Section 6(2) provides that the seriousness must be determined by taking into account: (a) the statutory penalty for the offence; and (b) the circumstances of the commission of the offence, including the vulnerability of any victim of the offence; and (c) any aggravating factors; and (d) any mitigating factors.
Section 8(1) provides that mitigating factors are factors which in the court's opinion decrease the culpability of the offender or decrease the extent to which the offender must be punished.
Section 9AA provides for a sentence to be reduced where a person has pleaded guilty. The court may reduce the head sentence for the offence in order to recognise the benefits to the State, and to any victim of or witness to the offence, resulting from a plea. The phrase 'head sentence' is defined by s 9AA(1) to mean the sentence that the court would have imposed for the offence if the offender had been found guilty after a plea of not guilty and there were no mitigating factors.[8]
[8] See also IEB v The State of Western Australia [2015] WASCA 207 [9].
It is the application of s 9AA to the sentences imposed which is critical to the disposition of this appeal.
The learned magistrate's sentencing remarks
As would be expected, the learned magistrate's sentencing remarks are relatively brief. That being so, I will set the remarks out in full:[9]
Mr Caruana, in relation to these charges, in an ideal world it would be nice to think that, you know, the options of community supervision and rehabilitation would be useful. But, unfortunately, sometimes you cross the line. The offences particularly of going armed in public, making threats and the burglary are offences which cause the community generally anxiety. You go armed into a public environment where there are families and children and start waving around - whether you're on drugs or alcohol or whatever it may be, it's just untenable.
I take the view for - what you did is over a period of, say, approximately seven months between February and August you went on a bender. And you, during that time, were causing people harm by, you know, taking their property, you know, stealing their property, making threats. Whatever it may be, you were causing them harm. And you may well have had your own problems, but you made your problems the community's problems.
Now, there reaches a point in time I acknowledge your pleas of guilty, and I'm going to give you a full 25 per cent. Acknowledged your youth and your limited record, although this is a train that has been coming, one would think. But it reached a point now where, in my view, the charges, particularly the going armed and making threats and the home burglaries - home burglary, is a point in time where nothing other than an immediate term of imprisonment represents the community's need for personal and general deterrence.
Certainly in the case of a home burglary, the case of Pizzano, in my view, is a leading authority. The Supreme Court has made it quite clear that those who choose to invade other people's homes do so at their peril and the peril of their liberty for the reasons laid out in that case. Taking into account your plea of guilty in relation to charge 3825, that's Joondalup being armed, I would have imposed 12 months. I reduce it down to nine, 25 per cent.
In relation to the making a threat to harm, likewise, nine months concurrent. In relation to the home burglary, 12 months down to nine on 25 per cent discount, 9AA. In relation to the stealing motor vehicles by two, that's 4[4]09 and 4410, there is six months on the same basis. They, like the stealing 35410 and stealing 5077, they will be concurrent. So the two steal motor vehicles are six months each.
The two stealings are fourth months each. So it's a total of 18 months. In setting that period and making all other matters concurrent, I have taken into account the 40 days which you have spent in custody. You will be eligible for parole. So it's 18 months from today, eligible for parole. Thank you.
[9] Hearing 9 October 2023, ts 9 - ts 10.
It is convenient to start with ground 1.
Ground 1
Ground 1 addresses the manner in which the learned magistrate approached and applied s 9AA of the Sentencing Act.
As can be seen from the sentencing remarks, the learned magistrate acknowledged Mr Caruana's pleas of guilty and said that '… I'm going to give you a full 25 per cent'. His Honour then said 'Acknowledged your youth and your limited record ...'.
The most direct illustrations of how his Honour applied the 25% discount are in respect of the sentences imposed for JO 3825/2023 and RO 5076/2023. In respect of JO 3825/2023, his Honour said 'Taking into account your plea of guilty in relation to charge 3825 … I would have imposed 12 months. I reduce it down to nine, 25 per cent'. In respect of RO 5076/2023, his Honour said '12 months down to nine on 25 per cent discount, 9AA'.
Mr Caruana's counsel points out that in the sentencing remarks, the learned magistrate 'acknowledged' both the pleas of guilty and Mr Caruana's youth and limited record. Mr Caruana's counsel submits that on the proper interpretation of the learned magistrate's sentencing remarks, the learned magistrate therefore accepted that Mr Caruana's youth and limited record were mitigatory factors. Mr Caruana's counsel submits it can therefore be inferred that the learned magistrate took account of those mitigating factors in coming to an initial sentence and then applied the discount for the pleas of guilty to that initial sentence. By way of illustration in respect of JO 3825/2023, Mr Caruana's counsel submits that the learned magistrate took account of Mr Caruana's youth and limited record in coming to the initial term of 12 months, and then applied the 25% discount to that term of 12 months, resulting in a term of 9 months. Mr Caruana's counsel submits that the learned magistrate ought to have applied the 25% discount to the head sentence as defined in s 9AA, which is the sentence the court would have imposed if Mr Caruana had been found guilty after a plea of not guilty and there were no mitigating factors.
Counsel for the Director rightly accepts that it would be an error for the learned magistrate to have proceeded in the way outlined by Mr Caruana's counsel. However, the Director submits it is not clear how the learned magistrate approached the application of the discount.
The Director submits there are two alternatives open. First, the interpretation put forward by Mr Caruana's counsel. Second, that the learned magistrate reduced the sentences by reason of the pleas of guilty and did not give any further reduction for Mr Caruana's youth and limited prior criminal record. So, to again illustrate in respect of JO 3825/2023, the Director submits that a possible interpretation is that the initial term of 12 months was the head sentence in accordance with s 9AA of the Sentencing Act, the learned magistrate applied the 25% reduction to that 12 month term and did not further reduce the term to take account of Mr Caruana's youth and limited record. The Director quite properly accepts that Mr Caruana ought to have been afforded a reduction in sentence because of his youth, although the Director also submits that reduction ought to have only been a modest one given Mr Caruana's prior criminal history and the nature and number of offences for which he was sentenced by the learned magistrate.
With respect to the learned magistrate, it is difficult to discern precisely how it was that his Honour proceeded. His Honour did not say that he had reduced the sentences for Mr Caruana's youth and limited record before applying the 25% discount. Further, if his Honour proceeded as Mr Caruana's counsel submits, then in respect of the sentences of 4 months imposed for PE 35410/2023 and RO 5077/2023 respectively, the starting point would be 5 and a third months, with the 25% discount resulting in the ultimate sentence being 4 months. That appears to be a somewhat unlikely starting point. On the other hand, the learned magistrate expressly acknowledged Mr Caruana's youth and limited record and it would seem unlikely that no mitigatory weight was then given to them.
In any event, irrespective of how it was that the learned magistrate proceeded, his Honour was in error. If the learned magistrate proceeded as Mr Caruana's counsel submits, then there was an error in the application of s 9AA as the learned magistrate did not apply the discount to the 'head sentence' for each offence. If the learned magistrate proceeded on the second possible formulation put forward by the Director, there was an error because each sentence did not contain any reduction for youth and what the learned magistrate acknowledged as Mr Caruana's limited record.
While the second formulation of error does not neatly fit within ground 1, I am of the view that it does arise in conjunction with how his Honour approached the application of the s 9AA discount. Accordingly, both possible errors fall within ground 1.
Given that ground 1 affects each of the individual sentences, in my view it is not appropriate to separately consider ground 2. The starting point for the consideration of totality is the individual sentences imposed. Where all of those sentences are affected by error, I do not think it is appropriate to consider separately whether the learned magistrate erred in the application of the totality principle.
The Director submits that even though there was error, the appeal should still be dismissed because there is no substantial miscarriage of justice. In this respect, the Director submits that no lesser sentence should be imposed. However, this is not a case where I can properly assess whether no lesser sentence should be imposed without carrying out the sentencing exercise myself. In this respect, both possible formulations of the learned magistrate's sentencing remarks carry with them the possibility that a different sentence might have been imposed if it were not for the error.
Accordingly, I am not satisfied there is no substantial miscarriage of justice. That being so, I grant leave to appeal on ground 1 and the appeal is allowed on ground 1.
Resentencing
I have already set out the facts of the offending and Mr Caruana's personal circumstances at the time of sentencing.
On the hearing of the appeal, Mr Caruana's counsel updated Mr Caruana's personal circumstances as follows. Mr Caruana has gone to Narcotics Anonymous sessions, he has been working in prison as a carpenter and continues to be placed on medication to assist with his mental health conditions. Mr Caruana is still waiting for a formal medical diagnosis. Further, he has accommodation available to him living with his mother upon release from prison and hopes to return to fly in fly out work in the future.
Subsequent to being sentenced by the learned magistrate, Mr Caruana pleaded guilty to an offence of robbery (s 392 of the Criminal Code) for which he is awaiting sentence in the District Court. This offence was committed prior to Mr Caruana being sentenced by the learned magistrate on 9 October 2023.[10]
[10] Hearing 9 October 2023, ts 9.
In assessing the seriousness of Mr Caruana's offending the subject of this appeal, the offences of being armed, making a threat to injure, endanger or harm and home burglary (JO 3825/2023, JO 3826/2023 and RO 5076/2023 respectively) were the more serious offences of those committed by Mr Caruana.
In respect of the offending the subject of JO 3825/2023 and JO 3826/2023 Mr Caruana was armed with a knife, which has the capacity to significantly injure. The victim was at the community reserve with his three young children aged 8, 10 and 12. The threats Mr Caruana made were of a very serious nature. The victim attempted to flee and ultimately armed himself with a large stick as a form of defence. No doubt, Mr Caruana's conduct generated quite substantial fear in both the victim and his children and other members of the community who were present. A member of the public called the police, fearing for her own safety and that of the other people there. Mr Caruana's conduct carried with it the significant risk of escalating to a point where someone was significantly injured.
In respect of the home burglary offence, the prosecutor did not dispute Mr Caruana's version of that event that the offending was opportunistic and that Mr Caruana stole the bicycle as a way to get home. That may well be the case, however Mr Caruana had with him a torch and a mask and was plainly open to opportunities to steal that might present themselves. Even though the occupier was asleep, there was a risk of altercation if the occupier had awoken while Mr Caruana was in the garage. And, while Mr Caruana did not enter the living areas of the home, he still did invade the privacy of the home occupier by entering the garage and rummaging through it. The bike was recovered and there is no suggestion it was damaged.
In respect of the two offences of stealing a motor vehicle (JO 4409/2023 and JO 4410/2023), the offending was based on s 371A of the Criminal Code. The offending was therefore predicated on Mr Caruana having used, taken or driven the vehicle without the owner's consent. It is not possible to assess the particular circumstances of Mr Caruana's association with the vehicles. Further, the vehicles were of value, however they were recovered without any apparent damage.
In respect of the final stealing offence (PE 35410/2023), the offending was opportunistic in nature and the e‑scooter was recovered, albeit without the keys. The circumstances of that offending were such that there was a risk of altercation with the owner of the e‑scooter and his friend who intervened.
In terms of the matters in mitigation, firstly there are Mr Caruana's pleas of guilty. I will allow a discount of 25% off the head sentence (as defined in s 9AA) for each offence.
The second matter in mitigation arises from Mr Caruana's youth and his prospects of rehabilitation, to which Mr Caruana's prior criminal history is closely allied.
In Miorada v The State of Western Australia,[11] the Court of Appeal in a joint judgment observed that ordinarily an offender's youth is a significant mitigating factor. The judgment explained there are a number of reasons underpinning that approach. These include:
1.A very young adult may be impressionable, impulsive and less cognisant of the seriousness of particular offending than an older person. Youthful offenders are often less able to exercise mature reflection and proper judgment and this is relevant in assessing their level of moral culpability.
2.Youthful offenders are often more capable of rehabilitation. It is more likely that behavioural issues and causative factors that have contributed to offending can be successfully addressed in a young offender than in an older offender who may have become more entrenched in their habits. Thus, concerted efforts to achieve the rehabilitation of a young offender will often be in the interests of the offender and the community generally.
3.The potential consequences of imprisonment on a youthful offender may be greater and there is a risk that imprisonment will corrupt rather than rehabilitate a young person. This risk is particularly relevant in the case of an offender who has never previously been imprisoned.
4.Because young offenders are often impulsive and lack judgment, they may not be suitable vehicles for general deterrence. That is, general deterrence assumes a level of rationality that may not be a feature of a young offender's conduct. This may make it inappropriate to impose a sentence on a young person that incorporates an exemplary component.
[11] Miorada v The State of Western Australia [2022] WASCA 143 [33].
There are however qualifications on the availability of youth as a mitigating factor. As Hall J (as his Honour then was) observed in Wallam v The State of Western Australia:[12]
In the appellant's favour he was comparatively youthful. Youth is usually a factor deserving of a more merciful disposition. However, when young people have been before the courts on numerous occasions and shown no inclination for reform the relevance of youth as a mitigating factor will diminish.
[12] Wallam v The State of Western Australia [2015] WASCA 132 [48] (Hall J) (with whom Martin CJ and Mazza JA agreed). See also R v Nichols (1991) 57 A Crim R 391, 396.
Mr Caruana did have a criminal history of stealing prior to the offending the subject of this appeal. Subsequent to being sentenced by the learned magistrate, Mr Caruana has also pleaded guilty to a further offence of robbery. The offending the subject of this appeal did not occur as an isolated instance of conduct. Rather, the seven offences occurred over five separate instances and over a period from 13 February 2023 to 29 August 2023. Accordingly, the impressionable nature of youth and a reduced ability to appreciate the seriousness of the conduct have less weight than might ordinarily be the case.
However, for the period of Mr Caruana's adult life until he was 22 years of age, his offending behaviour was limited to offences under the Road Traffic Act 1974 (WA), for which he was fined. Mr Caruana has not previously been the subject of community based orders to assist with his rehabilitation. This is the first significant period of time he has spent in prison, which should be a wake‑up call for him. Mr Caruana has also demonstrated that he can be a positive member of the community through regular employment and has made initial steps towards rehabilitation while in custody. Having regard to these matters, in my view, it remains the case that Mr Caruana's youth makes it more likely that the behavioural issues and causative factors that have contributed to his offending can be successfully addressed. Further, the potential consequences of imprisonment may be greater for someone of his age.
Accordingly, notwithstanding Mr Caruana's criminal history and the sustained nature of his offending the subject of this appeal, in my view his youth remains a mitigating factor of some significance, both in terms of the individual sentences and also the total effective sentence imposed.
Furthermore, separately to youth, I am satisfied that Mr Caruana has positive prospects of rehabilitation, which is also a mitigating factor.
In setting the total effective sentence, I take account of the 40 days that Mr Caruana had spent in custody prior to being sentenced on 9 October 2023.
General deterrence and the protection of the community are significant sentencing considerations. In particular, members of the public are entitled to visit public reserves with their children without the fear of being threatened or harmed and are entitled to be in their homes without the fear of someone rummaging through it looking for items to steal. General deterrence is to strongly discourage members of the community from engaging in the type of offending behaviour that Mr Caruana engaged in. I consider personal deterrence is also a relevant sentencing consideration, although not as significant as general deterrence given my assessment that Mr Caruana has positive prospects for rehabilitation. Personal deterrence is to strongly discourage Mr Caruana from offending again.
In respect of the offence the subject of RO 5077/2023, no sentence should be imposed by reason of s 11(1) of the Sentencing Act. In respect of the remaining offences, in my view the seriousness of Mr Caruana's offending is such that a sentence of imprisonment is the only appropriate sentence for each offence. In fixing the terms of imprisonment, I have had regard to the circumstances and seriousness of the offences committed, including the vulnerability of the victims. I have also made reductions for the mitigating factors and had regard to Mr Caruana's background generally.
I sentence Mr Caruana as follows:
1.In respect of JO 4409/2023, to a term of imprisonment of 5 months.
2.In respect of JO 4410/2023, to a term of imprisonment of 5 months.
3.In respect of JO 3825/2023, to a term of imprisonment of 8 months.
4.In respect of JO 3826/2023, to a term of imprisonment of 6 months.
5.In respect of PE 35410/2023, to a term of imprisonment of 3 months.
6.In respect of RO 5076/2023, to a term of imprisonment of 7 months.
I must now consider the totality principle. It requires me to consider all of Mr Caruana's offending and to ensure the total effective sentence bears a proper relationship to his overall criminality viewed in its entirety, having regard to the circumstances of the case including Mr Caruana's personal circumstances. I order that the sentence on RO 5076/2023 be served cumulatively on the sentence on JO 3825/2023. The remaining sentences are to be served concurrently with the sentence on JO 3825/2023, the remaining sentences being those imposed in respect of JO 4409/2023, JO 4410/2023, JO 3826/2023 and PE 35410/2023. The total effective sentence is therefore 15 months.
Given the total effective sentence does not exceed 60 months, it is open for me to order that all of it be suspended, either unconditionally or conditionally, or to order that part of it be suspended. I must be positively satisfied that it is not appropriate to suspend the term of imprisonment before I can order that it be served immediately.
I am positively satisfied it is not appropriate to suspend the term of imprisonment. The offending the subject of JO 3825/2023 and of JO 3826/2023 is too serious to permit a suspended sentence to be imposed.
The total effective sentence is taken to have commenced on 9 October 2023, being the date when the learned magistrate sentenced Mr Caruana. I make Mr Caruana eligible for parole. He will become eligible for parole once he has served 7 and a half months calculated from 9 October 2023.
Conclusion
For these reasons, I make the following orders:
1.I extend the time to file the appeal notice to 9 November 2023.
2.I grant leave to appeal in respect of ground 1.
3.The appeal is allowed on ground 1.
4.I set aside the sentences the subject of this appeal that were imposed by the learned magistrate on 9 October 2023.
5.In lieu of those sentences, Mr Caruana is sentenced as follows:
(a)In respect of JO 4409/2023, to a term of imprisonment of 5 months.
(b)In respect of JO 4410/2023, to a term of imprisonment of 5 months.
(c)In respect of JO 3825/2023, to a term of imprisonment of 8 months.
(d)In respect of JO 3826/2023, to a term of imprisonment of 6 months.
(e)In respect of PE 35410/2023, to a term of imprisonment of 3 months.
(f)In respect of RO 5076/2023, to a term of imprisonment of 7 months.
6.In respect of the offence the subject of RO 5077/2023, no sentence is imposed by reason of s 11(1) of the Sentencing Act.
7.I order that the sentence on RO 5076/2023 is to be served cumulatively on the sentence on JO 3825/2023. The remaining sentences are to be served concurrently with the sentence on JO 3825/2023, the remaining sentences being those imposed in respect of JO 4409/2023, JO 4410/2023, JO 3826/2023 and PE 35410/2023. The total effective sentence is therefore 15 months, which is taken to commence on 9 October 2023.
8.I make Mr Caruana eligible for parole.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
CA
Associate to the Honourable Justice Lemonis
8 FEBRUARY 2024
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