Conley v The State of Western Australia
[2013] WASCA 95
•12 APRIL 2013
CONLEY -v- THE STATE OF WESTERN AUSTRALIA [2013] WASCA 95
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2013] WASCA 95 | |
| THE COURT OF APPEAL (WA) | |||
| Case No: | CACR:244/2012 | 20 MARCH 2013 | |
| Coram: | NEWNES JA MAZZA JA | 12/04/13 | |
| 10 | Judgment Part: | 1 of 1 | |
| Result: | Leave to appeal refused on both grounds Appeal dismissed | ||
| B | |||
| PDF Version |
| Parties: | TROY MICHAEL CONLEY THE STATE OF WESTERN AUSTRALIA |
Catchwords: | Criminal law Appeal against sentence Burglary on a dwelling Stealing a motor vehicle Manifest excess Totality principle |
Legislation: | Criminal Code (WA), s 401(2) |
Case References: | Ashworth v The State of Western Australia [2006] WASCA 36 Butler v The State of Western Australia [2012] WASCA 249 Hayward v The Queen [2000] WASCA 237 Herbert v The Queen [2003] WASCA 61; (2003) 27 WAR 330 Ho v The State of Western Australia [2011] WASCA 108 Krijestorac v The State of Western Australia [2010] WASCA 35 Nguyen v The State of Western Australia [2007] WASCA 114 Papertalk v The State of Western Australia [2011] WASCA 229 R v Engert [1995] 84 A Crim R 67 R v Wright (1997) 93 A Crim R 48 Wilson v The State of Western Australia [2010] WASCA 82 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : CONLEY -v- THE STATE OF WESTERN AUSTRALIA [2013] WASCA 95 CORAM : NEWNES JA
- MAZZA JA
- Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram : STEVENSON DCJ
File No : IND 609 of 2012
Catchwords:
Criminal law - Appeal against sentence - Burglary on a dwelling - Stealing a motor vehicle - Manifest excess - Totality principle
(Page 2)
Legislation:
Criminal Code (WA), s 401(2)
Result:
Leave to appeal refused on both grounds
Appeal dismissed
Category: B
Representation:
Counsel:
Appellant : In person
Respondent : No appearance
Solicitors:
Appellant : In person
Respondent : Director of Public Prosecutions (WA)
Case(s) referred to in judgment(s):
Ashworth v The State of Western Australia [2006] WASCA 36
Butler v The State of Western Australia [2012] WASCA 249
Hayward v The Queen [2000] WASCA 237
Herbert v The Queen [2003] WASCA 61; (2003) 27 WAR 330
Ho v The State of Western Australia [2011] WASCA 108
Krijestorac v The State of Western Australia [2010] WASCA 35
Nguyen v The State of Western Australia [2007] WASCA 114
Papertalk v The State of Western Australia [2011] WASCA 229
R v Engert [1995] 84 A Crim R 67
R v Wright (1997) 93 A Crim R 48
Wilson v The State of Western Australia [2010] WASCA 82
(Page 3)
1 NEWNES JA: I agree with Mazza JA.
2 MAZZA JA: This is an application for leave to appeal against sentence. On 16 October 2012, the appellant entered fast-track pleas of guilty to two counts on an indictment as follows:
(1) On 7 April 2012 at Mandurah Troy Michael Conley stole a red Honda off road motorcycle and a green Kawasaki off road motorcycle to the value of $15,850, the property of Brendan Wayne Jones.
(2) On the same date and at the same place Troy Michael Conley, while in the place of Brendan Wayne Jones without his consent, committed the offence of stealing.
3 The offences were committed in breach of a suspended imprisonment order made in the Rockingham Magistrates Court on 8 March 2012 for an offence of burglary on a dwelling.
4 Stevenson DCJ sentenced the appellant as follows:
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5 His Honour ordered that all of the sentences be served cumulatively, resulting in a total effective sentence of 4 years' imprisonment. The appellant was made eligible for parole, and the sentence was backdated to commence on 25 April 2012.
6 The appellant seeks leave to appeal on two grounds. First, that the individual sentences imposed upon him were manifestly excessive and, second, that the total effective sentence infringed the first limb of the totality principle.
7 These proposed grounds of appeal must be considered in light of the well-known general principles applicable to appeals against sentence. These were succinctly and accurately set out by McLure P and Owen JA in Wilson v The State of Western Australia [2010] WASCA 82 [2] and need not be repeated. Both grounds allege implied error.
(Page 4)
The facts of the appellant's offending
8 There is no dispute about the relevant facts of the appellant's offending. I will deal first with the facts of the indictable offences and then the facts relating to the charge for which the appellant received a suspended imprisonment order.
The indictable offences
9 On the evening of 7 April 2012, the appellant was drinking in a hotel in the Mandurah area. There he met two men. Apparently at the behest of these men, the appellant attended a house in Mandurah with the intention of stealing property. The premises comprised the house itself and a separate rear shed. The appellant gained entry to the rear shed by forcing open a roller door. Once inside, the appellant stole a red Honda motorcycle valued at $7,000, and a green Kawasaki motorcycle valued at $8,850. The appellant exited the shed by smashing open a locked side door.
10 The appellant then entered the complainant's house by forcing open a lounge room window. Once inside, he stole a large amount of property valued at $37,237. A subsequent forensic examination of the house revealed blood. The DNA from the blood was matched to the appellant. On 25 April 2012, the appellant was arrested. He participated in a record of interview, but made no admissions.
11 It is unclear from the record whether any of the stolen property was recovered. What is clear is that the appellant did not retain the property, save that he pawned one of the stolen motorcycles and received the sum of $1,000.
The offence the subject of the suspended imprisonment order
12 At the time the appellant committed these offences, he was subject to a 7-month term of imprisonment suspended for 12 months which, as I have already said, was imposed on 8 March 2012, that is, only one month before the commission of the indictable offences.
13 The facts of that burglary offence are as follows. Some time in the afternoon of 21 December 2011, the appellant went to a house in Safety Bay. He gained entry into the house by smashing a locked bedroom window at the rear of the property. Inside, after going through the drawers in the bedroom, he stole a digital camera and a video camera. The appellant was arrested on 12 January 2012 and made full admissions to the offence. None of the stolen property was recovered.
(Page 5)
The appellant's antecedents
14 At the time of sentencing, the appellant was 42 years of age. His Honour had before him a pre-sentence report dated 10 July 2012 and a psychological report dated 15 August 2012. He has a constant record of employment as a roof fixer. The appellant came from what was described in the pre-sentence report as a 'normal and caring environment'. It was evident from a young age that he had learning difficulties. In the psychological report, he was described as having 'significant deficits in intellectual functioning'. These have been exacerbated by entrenched drug and alcohol use. He also has attention deficit hyperactivity disorder.
15 As to the appellant's alcohol and illicit drug use, the author of the psychological report said:
The overall impression gained from Mr Conley's account of his drug use is that he has enjoyed it, albeit that it has come at a price and that he struggles to overcome it. At this point in time motivation and genuine desire to address drug and alcohol issues is questionable, especially if Mr Conley does not think reconciliation with his wife is a definite prospect.
16 The appellant has a criminal history consistent with his use of alcohol and drugs, including prior convictions for stealing a motor vehicle (2005) and burglary (2003 and 2004).
17 According to the pre-sentence report, the appellant has not demonstrated any commitment or motivation to address his substance abuse, despite being given prior opportunities to engage in therapeutic intervention to assist him to do so. It was said that the appellant had 'minimum' insight into the impact of his offending behaviour. The psychologist said that the appellant's prognosis for change was 'guarded'.
18 The appellant was, at the time of sentence, separated from his wife. In defence counsel's plea in mitigation, he said that the appellant's wife had recently been diagnosed with inoperable cervical cancer. This diagnosis was known to the appellant in October of 2011, prior to the commission of all of the offences for which the appellant was sentenced or re-sentenced. No information was put before the learned sentencing judge as to the condition or prognosis of the appellant's wife.
The sentencing remarks
19 As the grounds of appeal allege implied error, it is unnecessary to describe his Honour's sentencing remarks in detail. It is clear that
(Page 6)
- his Honour took into account as the primary mitigating factor the appellant's fast-track pleas of guilty (ts 31). He also accepted that the appellant had what he described as 'personal issues' (ts 30). He acknowledged the appellant's illicit drug use and the association between that and the appellant's offending (ts 31).
20 He noted that the appellant had limited victim empathy and little insight into his offending behaviour. He said that the indictable offences were aggravated because at the time they were committed the appellant was on a suspended imprisonment order (ts 31).
21 His Honour considered that both general and personal deterrence were important sentencing factors (ts 32). He rejected defence counsel's submission that a suspended term of imprisonment should be ordered. He imposed immediate terms of imprisonment because of the 'gravity and the seriousness and extent of [the appellant's] offending'. Moreover, he did not regard the appellant's antecedents as justifying a suspended sentence (ts 33). His Honour made express reference to the totality principle. He invoked that principle to reduce the sentence he would otherwise have imposed on count 1 from 12 months to 5 months.
22 With respect to the breach of the suspended imprisonment order, his Honour, in effect, decided that it would not be unjust for the appellant to serve the sentence of 7 months' imprisonment that the magistrate had imposed (ts 32 - 33); s 80(1) and (3) of the Sentencing Act (WA) 1995.
Ground 1 - Manifest excess
23 An allegation that an individual sentence is manifestly excessive is to be judged having regard to:
(a) the maximum penalty for the offence;
(b) the standards of sentencing customarily observed with respect to the offence;
(c) the place which the criminal conduct occupies in the scale of seriousness of crimes of that type; and
(d) the personal circumstances of the offender.
24 The appellant's written submissions, upon which he chiefly relied, address only the sentence of 3 years imposed in respect of count 1 on the indictment. The maximum penalty for this offence is 18 years' imprisonment: s 401(2) of the Criminal Code (WA).
(Page 7)
25 As his Honour rightly pointed out, the circumstances of this burglary were serious. The appellant entered residential premises at night and stole a substantial amount of property. Although there is nothing to indicate that the occupier of the house was home at the time, the prospect of confronting the occupier and the consequences that can flow from such a confrontation are relevant factors. As I observed in Papertalk v The State of Western Australia [2011] WASCA 229 [29], householders are entitled to feel confident that they and their property will be safe at home, and the kind of offending engaged in by the appellant undermines this confidence. The appellant was, at the time, on a suspended imprisonment order and had prior convictions for burglary.
26 This was not a case where the appellant's impairment in his intellectual functioning was causative of his offending. Of course, that does not mean that the appellant's mental functioning was irrelevant to his sentencing. It is not the law that mental impairment will automatically result in a lesser sentence: R v Engert [1995] 84 A Crim R 67, 71. Each case must be dealt with on its facts and it is matter of balancing all the relevant circumstances. There is nothing to indicate that the appellant did not understand the wrongfulness of the offences he committed on 7 April 2012. In the circumstances, general and personal deterrence remained significant considerations: R v Wright (1997) 93 A Crim R 48, 51. Further, and in any event, it cannot be ignored that the appellant's prospects for rehabilitation are guarded and the protection of the public was an important factor.
27 The range of sentences imposed for burglary and aggravated burglary have firmed up because of the prevalence of such offending. Ordinarily, though not always, the offence attracts a term of immediate imprisonment. In the present case, it is not argued that the appellant should have been sentenced to something other than an immediate term of imprisonment. The issue is the length of the sentence imposed for the burglary offence.
28 In his written submissions, the appellant relied upon the cases of Hayward v The Queen [2000] WASCA 237 and Krijestorac v The State of Western Australia [2010] WASCA 35, to show that the term of 3 years' imprisonment imposed for count 2 was manifestly excessive. Neither of those cases are apt comparators. Each case concerned burglary on commercial premises which generally, other things being equal, are less serious than burglary on residential premises: Krijestorac [24] (Wheeler JA, Owen & Newnes JJA agreeing).
(Page 8)
29 There is no tariff for home burglary, but in recent years sentences have increased to reflect the prevalence of the offence and to provide proper personal and general deterrence: Butler v The State of Western Australia [2012] WASCA 249 [40].
30 In Herbert v The Queen [2003] WASCA 61; (2003) 27 WAR 330, sentences of 5 years (post-transitional 3 years 4 months) were upheld by the Court of Criminal Appeal. Herbert was cited with approval by Roberts-Smith JA in Ashworth v The State of Western Australia [2006] WASCA 36 and in other cases such as Nguyen v The State of Western Australia [2007] WASCA 114 [12] - [14].
31 It is true, as Steytler P pointed out in Nguyen, that since Herbert was decided, the sentences imposed in cases of burglary have varied [14]. This is to be expected, having regard to the widely-varying nature of residential burglaries and the antecedents of the offenders. In the end, of course, each case must be decided on its own facts.
32 I have already set out the appellant's antecedents. While not ignored, they do not, in the circumstances, afford significant mitigation.
33 I do not think that it is reasonably arguable that the sentence imposed for count 2 is, in all the circumstances, plainly unjust or unreasonable.
34 Although no submissions were made in support of the contention that the sentence for count 1 was manifestly excessive, the ground refers to 'sentences'. The sentence of 5 months imprisonment for the theft of the two motorcycles was very obviously within the range of a sound sentencing discretion and could in no way be described as manifestly excessive.
35 I would not give leave to appeal with respect to ground 1.
Merits of ground 2
36 The totality principle comprises two limbs. This appeal is only concerned with the first limb. The first limb provides that the total effective sentence must bear a proper relationship to the overall criminality involved in all of the offences, viewed in their entirety and having regard to the circumstances of the case, including those referable to the offender personally. The principal argument put by the appellant is that the term of imprisonment of 3 years' imprisonment for the burglary offence was severe and that, by imposing cumulative terms for the stealing and the breach of a suspended imprisonment order, his Honour
(Page 9)
- imposed a total effective sentence that infringed the first limb of the totality principle.
37 The appellant also submitted that the indictable offences arose from substantially the same act, or were closely related occurrences and should have been the subject of concurrent sentences because of the so-called one-transaction rule.
38 As this court has made clear on many occasions, the one-transaction rule is not a rule at all. It is a handy rule of thumb. There is no principle of law or sentencing that requires concurrent sentences to be imposed for multiple offences constituting one transaction or a continuing episode. This is because wholly concurrent sentences may not reflect the total criminality of the offending. The ultimate question is whether the punishment imposed on the appellant reflected the total criminality of what he did: Ho v The State of Western Australia [2011] WASCA 108 [15] - [16].
39 The offences the subject of the indictment, although committed on the same night and at the same premises, involved two separate and distinct actions. First, the appellant broke into the shed and stole two valuable motorcycles. Second, he broke into the house and stole almost $40,000 worth of property. Cumulative sentences were justified to properly reflect the criminality of all that he did at the victim's premises.
40 Save for the appellant's pleas of guilty, mitigating factors were few. The appellant had little choice but to plead guilty, given the presence of his DNA on the premises he burgled.
41 His Honour was correct to accumulate the sentence for the breach of the suspended imprisonment order. This was a separate event in time and place.
42 In all of the circumstances of this case, the total effective sentence of 4 years' imprisonment could not reasonably be seen as infringing the first limb of the totality principle. In my view, it was a proper reflection of the appellant's overall criminality having regard to all relevant factors, including those which were personal to him.
43 I would refuse leave to appeal in respect of ground 2.
(Page 10)
Conclusion
44 Neither ground of appeal has reasonable prospects of succeeding. I would refuse leave in respect of both grounds. The appeal must be dismissed.
Orders
1. Leave to appeal is refused on both grounds.
2. The appeal is dismissed.
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