Dangerfield v The State of Western Australia - [2009] WASC 97

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL

CITATION: DANGERFIELD -v- THE STATE OF WESTERN AUSTRALIA [2009] WASC 97

CORAM: McKECHNIE J

HEARD: 16 MARCH 2009

DELIVERED : 17 APRIL 2009

FILE NO/S: SJA 1095 of 2008

BETWEEN: PETER JAMES DANGERFIELD
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent

ON APPEAL FROM:
Jurisdiction              :  MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram  :MAGISTRATE P M HOGAN
File No  :MI 8494 of 2008, MI 8491 of 2008, MI 8493 of 2008, MI 8492 of 2008, MI 8487 of 2008, MI 8486 of 2008, PE 47203 of 2008, PE 47204 of 2008, PE 47199 of 2008, PE 47200 of 2008, PE 47201 of 2008, PE 47205 of 2008, PE 47198 of 2008, RO 10371 of 2008, RO 10372 of 2008, MI 12665 of 2008, MI 12666 of 2008, MI 12667 of 2008

Catchwords:

Criminal law - Sentence - Series of offences against wife and burglaries on strangers' houses - Whether sentence manifestly excessive - No new principles

Legislation:

Nil

Result:

Application for leave to appeal refused

Category: D

Representation:

Counsel:

Appellant: In person
Respondent: Mr C G Astill

Solicitors:

Appellant: In person
Respondent: Director of Public Prosecutions (WA)

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

Nil

McKECHNIE J: On 21 October 2008 the appellant appeared in the Magistrates Court at Midland on a series of charges. The appellant disputes that he had pleaded guilty to a number of the offences. At the commencement of proceedings discussion ensued about the charges. Counsel for the appellant indicated that on the last occasion there was a plea to two charges but they were not dealt with and there needed to be pleas in relation to the 13 matters sent up from Rockingham. The magistrate noted she had taken pleas on seven charges on 19 August 2008 and it was an indicated plea of guilty to the burglary at Midland, charge number MI 08/8494. I have examined the endorsements on the prosecution notices which indicate that on 19 August 2008 the appellant pleaded guilty to a number of matters; they being, prosecution notice MI 08/8489, MI 08/8488, MI 08/8493, MI 08/8486, MI 08/8492, MI 08/8487. On 16 September 2008 he pleaded guilty to MI 08/8491. He pleaded guilty to the balance of the charges on 21 October 2008.
No challenge was made at the time of the pleas. I am satisfied that the appellant had pleaded guilty to all the offences for which he was sentenced.
So it was he came to be sentenced for 21 charges:
8 x breaches of a violence restraining order;
1 x breach of a protective condition;
1 x criminal damage;
6 x burglaries upon a habitat;
3 x charges of stealing;
1 x attempted fraud;
1 x trespass.
The magistrate grouped the offences into two categories. The first group she described as directly arising out the breakdown of the appellant's marriage resulting in repeated breaches of violence restraining orders, abusive acts, of damage and burglary.
The second group is a series of offences arising from burglaries on different private dwellings, associated stealing and one fraud.
The magistrate outlined details of the offences in relation to the breach of violence restraining orders and the associated offences of damage and burglary. She noted that the appellant appeared in court on those offences on 16 July 2008 and was given bail. Within a week, on 23 July 2008, he commenced the second group of offences.
She said:
So the situation is clear in terms of penalty. Given the nature and the volume of the offences, imprisonment is the only option, because we have got those serious breach of violence restraining orders. They are not just phone calls, saying, 'I love you. I want to get back with you.' They develop into that abusive behaviour I have referred to, a horrible threat made against the complainant via the brother-in-law, but then he goes on to commit these burglaries.
With any burglary, the punishment must be such as to reflect the fact that the community simply doesn't accept burglary as an activity. It is something that puts fear into home occupants and it's also a very significant invasion of privacy to come home and find your house has been rummaged through and your personal belongings taken. There are often reports of people being fearful that the person will return to their property and reports that people - I haven't heard in this case, but just to give a general idea of why it's so serious. People do get frightened that the burglar will come back again.
They are very serious offences, usually punishable by imprisonment and in this case, it should be. (t/s 20)
The magistrate took into account mitigating factors:
The charges also did occur in a relatively short period of time and I am prepared to accept that it was in the context of his very bad reaction to the marriage breakdown. Nevertheless, the offending is very serious and deterrence, both specific and general, plays a very important factor with such offending, particularly given the abusive nature of the breaches, or some of the breaches at least, and the fact that he has committed the burglaries on those separate private homes, totally unrelated to wife's home, where there was also two burglaries, and of course it's a serious matter that the occupants on two occasions actually sighted him in the backyard. It's very fortunate that the prosecution were prepared to give him the benefit of the doubt and amend one of the charges, so that it was no longer an indictable only charge.
I have looked at the accused's personal circumstances and I have looked at the seriousness of the offending and I have decided that it is inappropriate to suspend any terms of imprisonment that I impose today. In setting the penalties, I am acknowledging the pleas of guilty. I am acknowledging the mitigating factors that I have referred to. I am acknowledging the lengthy period of abstinence of offending, because he is a man with a criminal record and there are serious matters disclosed within that record.
I note that there have been no burglaries, however, since he was a child and that these are the first breach of violence restraining order matters. The lengthy abstinence does give some confidence that he is capable of rehabilitation. He also has three children to give him motivation not to reoffend. (t/s 20, 21)
The magistrate specifically adverted to the totality principle noting that to accumulate sentences on all of the charges would be to impose a sentence that is too severe.
Ultimately, she structured the sentences to reach a total sentence of 2½ years backdated to 1 August 2008. She achieved this result by imposing sentences of 18 months in relation to a number of burglaries and a 12 month cumulative term in relation to another burglary. All other sentences were made concurrent. For some offences, fines were imposed.
From these sentences the appellant lodged a notice of appeal. On 9 January 2009 I ordered that the application for leave to appeal and appeal be heard together.
In advance of the hearing, the appellant sent by post a large number of documents including prospective grounds of appeal. I have read all the documents. These have been made available to the respondent who has filed detailed submissions. Included in the material is a letter addressed to me giving an explanation about the offences and the background of the appellant who complains about the conduct of his lawyer at the hearing and some of the submissions she made. He has described to me in the material his version of the marriage and its breakdown and his descent into drug use in consequence. It appears that the appellant has been treated in Hakea Prison and his present anti‑depressive medication seems to be working. Some of these matters were repeated in oral argument.
The material which the appellant has provided amplifies to a considerable degree the matters of mitigation put on his behalf. However, the fact remains that he has pleaded guilty to a lengthy series of charges including numerous burglaries. A total sentence of 30 months for the criminality disclosed, whether treated as one continuous course of conduct or two separate events, is a moderate sentence. The magistrate made no error in sentencing and even if leave to appeal was granted I would nevertheless dismiss the appeal as there is no miscarriage of justice in the result.
However, I do not consider that any ground has reasonable prospects of success and so will refuse leave.
Some of the grounds of appeal have limited relevance to the sentence. I will deal with others.
Grounds 1, 2, 3, 8, 9, 10, 11, 12 and 13 all relate to the issue whether the appellant had pleaded guilty to some charges earlier. I am satisfied that he did.

Ground 4

If the record of convictions was mine, then the juvenile part was used extensively.

As reflected in the quoted remarks of the magistrate, the juvenile record was not used adversely to him.

Ground 5

My early guilty plea, which was supposed to be 'fast track' and reduce the sentence, did not materialise.

The magistrate expressly acknowledged the pleas of guilty and the sentence has been moderated appropriately.

Grounds 6 and 15

6.Magistrate Hogan divided my offences into two separate groups. The offences were, heavily tied, together.
15.The structure of the sentencing, by way of coming to a total, the filling in the gaps, so to speak, also using cumulative aspects, is crushing, and not 'Just' on the first strike, if at all.

In my opinion, the magistrate's differentiation between the groups of offences was appropriate but, in any event, the total sentence was within the range of a sound sentencing discretion.

Grounds 7 and 19

7.My medical condition - 'not being of sound mind', seemed to be ignored.
19.On page 20, 5th paragraph. The magistrate clearly accepts the offences are, locked together as a whole group, with the same, catalyst.
This shows the Pre sentence report did have validity and merit! As thought, by the officer, who did the report.

The magistrate noted that the offences were in the context that it was a very bad reaction to the marriage breakdown but also noted the offending was very serious and deterrence both specific and general plays a very important part.
Having regard to the pleas of guilty, only limited weight could be placed on the appellant's state of mind especially, as he recounts in the material given to me, he had relapsed into drug use.

Ground 8

Money played no part, in what I did. Drugs did. And that was dismissed.

This ground seems to arise out of a comment made by the magistrate. The prosecutor in sentencing submissions says:
Now, of particular concern is in relation to - - - there's a drug habit that he refers to, which is the reason he is doing this offending behaviour, the burglaries.
HER HONOUR: No, that was in the past. I think now he's going to his old ways not to get money for drugs but to get money. (ts 15)
In the circumstances, the difference is immaterial. The ground has no reasonable prospects of success.

Ground 7 (sic) in fact grounds 9, and 19

The pre-sentence report, was far to readily set aside, and given no credence at all.

There is no evidence that the magistrate ignored it.

Ground 8 (sic) in fact ground 10

My lawyers defence, was manifestly inadequate, a catalyst, to the wrong perception, I think.

This is followed by particulars. Although the appellant complains about the quality of his representation and factual inadequacies, the plea in mitigation made by counsel is supported by the facts in the pre‑sentence report and by the material sent to me by the appellant. There was a reference to offences as a child but the magistrate noted it was in the Children's Court and as counsel said: 'So it's a long way back'.
The magistrate's comments disclose that she had a sound appreciation of the relevant matters both in aggravation and mitigation of the offences.
One particular (4 of ground 8) states:
I was called a career criminal by the prosecutor, which 'I am not', your honour. I feel she should have at least objected to that statement.
What the prosecutor said was:
So his behaviour, especially as a 45-year-old, just about indicates that at this stage he could be considered a career criminal, although in the last eight years I do admit the offending behaviour has been very minimal.
I do not consider the reference played any part in her Honour's sentence.

Ground 16

The Magistrate states, I had no right to be at nine tuart road Lesmurdie (I had a lawful right to be there I believe).

The appellant pleaded guilty to a charge that he was, without consent, in the dwelling of his estranged wife and committed an offence therein. That plea is an admission of the elements of the offence. There was evidence that he had transferred his interest in the property to his estranged wife.

Ground 17

On page 19, third paragraph, the Magistrate clearly defines the connection to my mental condition to all offences.

The passage to which the ground refers is as follows:
Now, if that had been the end of that dreadful reaction to the marriage breakdown, perhaps he may have been given - and I say may, because there are a lot of unknowns, given how he continued to behave after this - but he may well have been given an opportunity of perhaps a pre‑sentence order, perhaps even an adjourned sentencing, to see whether he could be helped by a family violence program, something alone those lines, but he completely blew any prospect of a community based disposition or a deferral of sentence when he continued to offend. (t/s 19)
While the appellant might see his offending as a continuous process brought about by his disordered mental state, the magistrate did not err in grouping the offences in the way she did. The first group of offences had as its central target the appellant's estranged wife. He was charged with those offences and received bail. This is a reasonable dividing line between that group of offending and the second group of offending which commenced a week thereafter and involved dishonesty offences against strangers. In any event, the total sentence is within the range of a sound sentencing discretion no matter which way it is reached.

Ground 18

Page 20, 2nd paragraph. No threats were made, no brother in law exists, he died many years ago.

The prosecutor's statement of facts are as follows:
On 15 July, he contacted the complainant's brother‑in‑law and requested that he tell the complainant something. A number of things he said, but one of them was to, 'Tell them I'm going to slit their throats'. (t/s 9)
The prosecutor's comment was not challenged. The comment relates to prosecution 08/8486 which reads:
That on 15/07/2008 at Lesmurdie having been personally served with a Violence Restraining Order 2008 07683 breached that order by attempting to communicate with the protected person, Yvonne Dangerfield.
The appellant was sentenced to a period of 6 months' imprisonment to be served concurrently with the other sentences. I do not overlook the appellant's complaints about his representation but in the absence of any challenge to the statement of material facts, the magistrate was entitled to accept the statement. In any event, the sentence imposed was made to be served concurrent with what she described as the series of burglary offences.

Conclusion

The magistrate correctly described the offending as two distinct episodes, one involving his relationship with his wife and the other being offences of dishonesty against members of the public. The actual sentences passed and the structure of the sentencing, with many sentences being concurrent and some being cumulative, display no error of principle. Nor does the total sentence for the overall criminality exceed the exercise of a proper sentencing discretion. None of the grounds of appeal, whether considered singly or in combination, enjoy sufficient prospects of success to warrant leave being granted. Leave to appeal is therefore refused.