COMSTIVE v Lierop

[1999] WASCA 288

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

CITATION:   COMSTIVE -v- LIEROP & ANOR [1999] WASCA 288

CORAM:   McKECHNIE J

HEARD:   25 NOVEMBER 1999

DELIVERED          :   25 NOVEMBER 1999

FILE NO/S:   SJA 1192 of 1999

BETWEEN:   PAUL ANTHONY COMSTIVE

Appellant

AND

THEO VAN LIEROP
First Respondent

TROY NATHAN BABICH
Second Respondent

Catchwords:

Criminal law - Sentence - Eight charges - Property of burglary - Early plea of guilty - Sentence of 18 months with parole eligibility not excessive

Legislation:

Sentencing Act 1995 (WA)

Result:

Appeal dismissed

Representation:

Counsel:

Appellant:     Mr R D Young

First Respondent           :     Mr J W M Foulsham

Second Respondent       :     Mr J W M Foulsham

Solicitors:

Appellant:     Gunning

First Respondent           :     State Director of Public Prosecutions

Second Respondent       :     State Director of Public Prosecutions

Case(s) referred to in judgment(s):

Nil

Case(s) also cited:

Cheshire v R, unreported; CCA SCt of WA; Library No 897248; 7 November 1989

Crasson v The Queen (1936) 55 CLR 509

Fisher v R [1999] WASCA 122

House v The Queen (1936) 55 CLR 499

Little v R, unreported; CCA SCt of WA; Library No 970041; 3 February 1997

Pezzino (1997) A Crim R 135

R v Halliday, unreported; CCA SCt of WA; Library No 980143; 3 April 1998

R v Richards [1999] WASCA 105

Smith v R, unreported; CCA SCt of WA; Library No 9601778; 1 April 1999

Symonds v R, unreported; CCA SCt of WA; Library No 980616; 28 October 1998

The Queen v Tait (1979) 46 FLR 386

1. McKECHNIE J:  On 23 September 1999 the appellant, who is now aged 28, pleaded guilty to eight charges of burglary, two charges of driving under suspension and one charge of driving with an excess of .05 alcohol in his blood.

2. He was remanded for a pre‑sentence report which was delivered orally on 12 October 1999.  On that date the learned Chief Stipendiary Magistrate sentenced the appellant to a total of 18 months imprisonment with parole for all offences.  From that sentence the appellant has appealed, leave being granted on 9 November 1999 on a number of grounds, but essentially the grounds complain of error in concluding that imprisonment was the only appropriate disposition.

3. The offences occurred over a period between 19 February and 14 August 1999, the last offences occurring on the same day, 14 August.  They involved property in excess of $21,000, damage to property and general inconvenience to business owners.  Home invasions are very serious but it is a mistake to think that burglaries in business premises are not also serious involving, as they do damage, disruption and inconvenience.  For example, where, as here, computers are taken, often vital data relevant to the business is lost.

4. The Magistrate had available to him for sentencing a range of sentences up to 14 years imprisonment, in that if he decided that the matter could not be dealt with within the range assigned to him, that is, 2 years, he had the option of referring the matter to the District Court.  It should be borne in mind therefore that the sentence is to be judged on an available sentence of 14 years.

5. Both before the learned Chief Stipendiary Magistrate and before me, Mr Young, who appears for the appellant, has argued very capably matters of mitigation, which include the age, the prior good record, the good antecedents, the plea of guilty at an early opportunity, the cooperation with the authorities and a depressive illness.  That illness is not specifically linked to the crimes.  It is a factor perhaps of some weight to be taken into account in assessing the way in which a person might be sentenced and is part of their general background.

6. I am of the view that the range of crimes, the type of crimes and their seriousness are such that imprisonment was the only appropriate disposition.  While the Magistrate did not mention some matters of mitigation and while I might have attributed different weight to other matters which he did mention, when one has regard to the total sentence of 18 months, with parole eligibility, I consider that was in the circumstances, a moderate sentence.

7. The matters of mitigation to which the Magistrate had regard obviously caused a significant deduction from a sentence that would have been imposed had mitigatory factors been absent.  It is important to recognise that I am not a sentencing judge.  My job is to review the exercise of a discretion.  In my view the sentence is, in the circumstances, within the range of a sound discretionary judgment and the Magistrate did not err.  For these reasons I would dismiss the appeal.