Dann v Baker

[2021] WASC 128

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

IN CRIMINAL

CITATION:   DANN -v- BAKER [2021] WASC 128

CORAM:   TOTTLE J

HEARD:   6 APRIL 2021

DELIVERED          :   6 APRIL 2021

PUBLISHED           :   29 APRIL 2021

FILE NO/S:   SJA 1087 of 2020

BETWEEN:   JERMAINE DANN

Appellant

AND

ROHAN BAKER

First Respondent

GILLIAN SIMPSONS

Second Respondent

ON APPEAL FROM:

Jurisdiction              :   MAGISTRATES COURT OF WESTERN AUSTRALIA

Coram:   MAGISTRATE R S HUSTON

File Number            :   CA 514 of 2020, CA 518 of 2020, CA 793 of 2020, CA 795 of 2020

Catchwords:

Criminal law - Sentencing - Appeal against mandatory sentence of immediate term of imprisonment - Whether a repeat offender for the purposes of s 401 of the Criminal Code - Express error of fact and law - Appeal allowed - Appellant resentenced

Legislation:

Bail Act 1982 (WA), s 51
Criminal Code (WA), s 371A, s 378, s 401, s 401B
Road Traffic Act 1974 (WA), s 4, s 49
Sentencing Act 1995 (WA), s 9AA, s 11
Young Offenders Act 1994 (WA), s 189

Result:

Leave to appeal be granted
The appeal be allowed
Appellant resentenced

Category:    B

Representation:

Counsel:

Appellant	:	Mr W C Yoo
First Respondent	:	Mr B M Murray
Second Respondent	:	Mr B M Murray

Solicitors:

Appellant	:	Aboriginal Legal Service - Perth
First Respondent	:	Director of Public Prosecutions (WA)
Second Respondent	:	Director of Public Prosecutions (WA)

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

Herbert v The Queen [2003] WASCA 61; (2003) 27 WAR 330

Jackamarra v The State of Western Australia [2019] WASCA 150

Nguyen v The State of Western Australia [2007] WASCA 114

Robson v The State of Western Australia [2020] WASCA 153

Winmar v The State of Western Australia [2018] WASCA 155

TOTTLE J:

The application for leave to appeal and the appeal

1. At the hearing of this application for leave to appeal I granted leave to appeal, allowed the appeal and resentenced the appellant.  In the course of the hearing I gave brief oral reasons and said I would publish written reasons.  These are those reasons.

2. On 23 October 2020 the appellant was sentenced to a total effective sentence of imprisonment of 2 years in respect of two offences of aggravated home burglary contrary to s 401(2)(a) of the Criminal Code (WA) to which the appellant had pleaded guilty. At the same hearing the magistrate also dealt with other offences to which the appellant had pleaded guilty.

3. Before the magistrate both the prosecutor and appellant's sentencing counsel started their submissions from the position that, for the purposes of sentencing in respect of the aggravated home burglary offences, the appellant was a repeat offender within the meaning of s 401B of the Criminal Code.  The consequence of the appellant being held to be a repeat offender was that the court was required to sentence him to a term of imprisonment of at least 2 years, s 401(4)(b)(i) of the Criminal Code.  The magistrate sentenced the appellant on the basis he was a repeat offender. 

4. The prosecutor and the appellant's sentencing counsel considered the appellant was a repeat offender because the appellant had been convicted in the Children's Court of aggravated home burglary on 24 July 2017 and been sentenced to a period of 12 months immediate detention (ultimately not being released from detention until 4 July 2018).  The parties proceeded on the basis that the 24 July 2017 conviction counted as a relevant conviction for the purposes of considering whether the appellant was a repeat offender and that the date on which the appellant's status was to be determined was the date on which he committed the 'third' aggravated home burglary, (the night of 23 ‑ 24 June 2020).

5. The appellant applied for leave to appeal against sentence on the basis that when sentenced on 23 October 2020 he was not a repeat offender.

6. As was accepted by the respondent on the appeal, the appellant was not a repeat offender when he was sentenced on 23 October 2020. This was because the 24 July 2017 conviction for aggravated home burglary in the Children's Court was not to be regarded as a conviction for any purpose with effect from 3 July 2020. The reason for this was that a period of two years had expired since the discharge of the sentence imposed as a result of the 24 July 2017 conviction, s 189(2) of the Young Offenders Act 1994 (WA).

7. By the time the appellant came to be sentenced on 23 October 2020 he had two aggravated home burglary convictions (rather than at least three such convictions). Thus, he was not a repeat offender and not subject to the mandatory sentencing regime set out in s 401(4) of the Criminal Code.

8. For these reasons I granted leave to appeal, allowed the appeal and resentenced as described later in these reasons. 

Resentencing

1. The offences for which the appellant was sentenced on 23 October 2020 and the sentences imposed were as follows:

Charge	Offence date	Offence	Sentence
CA 514/2020	02/03/2020 - 03/03/2020	Aggravated burglary and commit offence in dwelling contrary to s 401(2)(a) of the Criminal Code	2 years' imprisonment (concurrent)
CA 793/2020	23/06/2020 - 24/06/2020	Aggravated home burglary and commit offence in dwelling contrary to s 401(2)(a)	2 years' imprisonment (cumulative)
CA 683/2020	29/06/2020	Breach of bail undertaking contrary to s 51(1) of the Bail Act 1982 (WA)	$250 fine
CA 795/2020	23/06/2020 - 24/06/2020	Breach of protective bail conditions contrary to s 51(2a)	3 months' imprisonment (concurrent)
CA 518/2020	25/04/2020 - 26/04/2020	Stealing a motor vehicle (as defined in s 371A of the Criminal Code) contrary to s 378 of the Criminal Code	3 months' imprisonment (concurrent)
CA 515/2020	02/03/2020	Stealing contrary to s 378 of the Criminal Code	Order for return of property, no penalty pursuant to Sentencing Act 1995 (WA) s 11
CA 794/2020	23/06/2020 - 24/06/2020	Stealing contrary to s 378 of the Criminal Code	Order for return of property, no penalty pursuant to Sentencing Act 1995 (WA) s 11
CA 516/2020	29/04/2020	No authority to drive (never held MDL) contrary to s 49(1)(a) of the Road Traffic Act 1974 (WA)	$200 fine and MDL disqualified for 3 months (cumulative)
CA 517/2020	29/04/2020	Used an unlicensed vehicle contrary to s 4(2) of the Road Traffic (Vehicles) Act 2012 (WA)	$200 fine

1. The respondent accepted the following statement of the relevant facts contained in the appellant's written submissions.

   In the charge of aggravated burglary and commit an offence in a dwelling and associated stealing [MC CA 514-5/2020] the appellant was in company with a co-accused at 2 Saw Street in East Carnarvon at 2am on 3 March 2020.  The co-accused smashed a house window, the appellant entered the address by the broken window with the others.  The appellant left via the same broken window and stood on a large water tank to act as a lookout while the co-accused continued to rummage through the house.  The co-accused took a samurai sword and handed it to the appellant after leaving the house.  On 21 March 2020[1] the appellant admitted to police that he acted as a lookout and took the sword from the address;

   The charge of no motor driver's licence and using an unlicensed vehicle on a road [MC CA 516-7/2020] occurred at about 10:10am on 29 April 2020.  The appellant drove an off-road motorbike on Tonkin Crescent in Brockman.  When the appellant was arrested on 21 May 2020 for another offence it was ascertained he was not authorised to drive a motor vehicle having never held a driver's licence.  The off-road motorbike was unlicensed with no registration plate and was not permitted to be on the road;

   The charge of stealing a motor vehicle [MC CA 518/2020] occurred between 11pm on 25 April 2020 and 7am on 26 April 2020. An unregistered Honda off-road motorbike, the property of a Damian Smith, was stolen.  On 29 April 2020 the appellant was seen riding the unregistered Honda motorbike without permission on Tonkin Crescent.  On 21 May 2020 the appellant admitted riding the motorbike without consent but explained that he did not know it was stolen;

   The aggravated home burglary and associated stealing [MC CA 793‑794/2020] occurred between 6pm 23 June 2020 and 3:55am on 24 June 2020.  The appellant went to 44 Crowther Street, Carnarvon in company with others.  The rear bedroom window was smashed and entered through.  Drawers and cupboards in all rooms of the house were rummaged through.  A number of items were stolen from a cupboard from a back bedroom.  The victim was not at home at the time because he was away.  The appellant's DNA was found on the internal bedroom window lock.  An Ipad, an Apple stylus, Bose headphones, cash and jewellery were stolen.  On 13 August 2020 at 12:35pm the police arrested the appellant at 4 William Street, East Carnarvon.  The police located an Ipad and Bose headphones.  The appellant admitted stealing the items he was found with but denied entering the house to steal the items.  No other items were recovered;

   In relation to the breach of protective bail [MC CA 795/2020], the appellant was bailed from Carnarvon Police Station.  Inter alia, a residential condition to remain at 4 William Street, East Carnarvon, between 7pm and 7am daily was imposed.  At 8:26pm on 23 June 2020, Carnarvon Police officers conducted a curfew check and there was no response.  The appellant admitted leaving the home address to break into 44 Crowther Street, Carnarvon; and

   In relation to breach of bail [MC CA 683/2020], the appellant was bailed to appear at Carnarvon Magistrates Court on 29 June 2020. The appellant did not appear on that date.

   [1] At the hearing of the application it was suggested by the respondent's counsel that the appellant was not in fact arrested until 21 May 2020.  This was favourable to the appellant since it meant that he was not on bail at the time of the stealing offence committed on 25 April 2020.

2. The following mitigating factors were identified by the appellant's counsel:

   (1)The appellant had pleaded guilty to all charges at an early stage.

   (2)The appellant was young, he was born on 10 July 2000 and was thus 19 years of age at the time of the offending.

   (3)Prior to the 2020 offending, the appellant had been living with his aunt in Perth, where he had enjoyed relative stability for approximately seven months.

   (4)The appellant returned to Carnarvon in March 2020 following his mother's death, at which point he fell into negative peer association and antisocial behaviour. 

   (5)The appellant had played a limited role in relation to both of the 2020 aggravated burglaries, and in both instances had confessed to police, provided the co-accused's name to police, pleaded guilty on his fifth appearance in respect of the first aggravated home burglary charge and pleaded guilty on his second appearance to the second aggravated home burglary charge.

   (6)The appellant had been in custody since 13 August 2020.

3. The aggravating factors that were identified by the respondent included:

   (1)The fact that both aggravated home burglaries were serious offences, committed in company.

   (2)The appellant was on bail for the March aggravated burglary when he committed the June burglary.[2]

   [2] Jackamarra v The State of Western Australia [2019] WASCA 150 [57] ‑ [59].

4. The maximum penalty for each of the aggravated home burglary offences is 20 years' imprisonment, with a summary conviction penalty of 3 years' imprisonment and a fine of $36,000.00.[3]

   [3] Criminal Code s 401(2)(a).

5. The general principles relevant to sentencing for offences of aggravated home burglary were recently summarised by the Court of Appeal in Robson v The State of Western Australia:[4]

   The customary sentencing standards for that offending are referred to in recent decisions of this court in Eldridge v The State of Western Australia, and Brindley v The State of Western Australia.  In Brindley, the court observed:

   'The circumstances of burglary offences can vary widely and attract a wide range of sentences.  Home burglaries are viewed as being particularly serious offences, and are generally seen as requiring substantial penalties in order to recognise considerations of personal and general deterrence, and reflect the prevalence of the offence.  Home invasions, which involve forcible entry into residential premises known or suspected to be occupied at the time, accompanied by threatened or actual violence, are generally significantly more serious than home burglaries which lack those characteristics.  A home invasion which is committed with intent to intimidate the occupants is generally more serious than a burglary which involves simply an intention to steal.'

   The court in Brindley referred to a number of earlier decisions which reviewed the range of sentences commonly imposed for burglary offences, which the sentence in the present case falls under or well within. In Eldridge, the court observed:

   'The cases illustrate that there is no tariff for home burglary, whether aggravated or non-aggravated.  This is hardly surprising given the vast variation of circumstances in which offences of home burglary are committed and the personal circumstances of those who commit them.

   What is clear is that home burglaries are serious offences which are prevalent and which are ordinarily met with terms of imprisonment.  There has long been a recognition that sentences for home burglary need to be firmed up. Whether this has in fact happened is debatable.' (citations omitted)

   [4] Robson v The State of Western Australia [2020] WASCA 153 [20] ‑ [21].

6. In Robson v The State of Western Australia, the Court of Appeal described a sentence of 2 years and 3 months as lenient.[5]  In comparison to the appellant in this appeal, the appellant in Robson was older, had also pleaded guilty, was remorseful, had taken steps towards rehabilitation and had not previously been imprisoned.[6]  In Robson the 74‑year‑old home owner was present at the time of the burglary and was significantly affected by the incident.

   [5] Robson v The State of Western Australia [2020] WASCA 153 [25].

   [6] Robson v The State of Western Australia [8] ‑ [10].

7. In Winmar v The State of Western Australia[7] the offender was 23 years old and had previously been convicted of home burglary. The offender entered a plea of guilty at the first reasonable opportunity. His offending involved a home burglary where property worth approximately $59,000 was stolen. The Court of Appeal imposed a sentence of 3 years' imprisonment, which included a 20% reduction under s 9AA of the Sentencing Act 1995 (WA) for the guilty plea. In the course of his judgment in Winmar Mitchell JA referred to the decision in Herbert v The Queen[8] where post-transitional sentences of three years and four months for home burglary, where there had been a plea of guilty, were held to not be manifestly excessive.

   [7] Winmar v The State of Western Australia [2018] WASCA 155.

   [8] Herbert v The Queen [2003] WASCA 61; (2003) 27 WAR 330.

8. It is well established from the cases that the range of sentences imposed for aggravated burglary have been firmed up because of the prevalence of such offending.

9. Steytler P summarised the range of sentences imposed for both home burglary and aggravated home burglary in Nguyen v The State of Western Australia.[9]  This established a range of sentences spanning 18 months to 3 years and 6 months.

   [9] Nguyen v The State of Western Australia [2007] WASCA 114.

10. The appellant has a lengthy criminal record and although that is not a factor of aggravation it emphasises the importance of personal deterrence in the sentencing disposition.  The prevalence of this type of offending means that general deterrence has a significant influence on sentencing.

11. The seriousness of the aggravated home burglary offence committed on 23 ‑ 24 June 2020 was increased by the fact that the appellant was on bail in respect of the 3 March 2020 offence when he committed the second home burglary offence.  A sentence of 2 years' imprisonment in respect of this offence was not inconsistent with the decisions of the Court of Appeal to which I have referred earlier. 

12. Further, the magistrate's decision to order that the terms of imprisonment in respect of the two aggravated home burglaries be served concurrently with each other, and with the stealing charge, resulted in a sentence that objectively was at the lenient end of the range.

13. I resentenced the appellant to a total effective sentence of 22 months' imprisonment structured as follows:

    (1)In respect of charge CA 793/2020 (in which the offending was aggravated by the fact that it was committed while the appellant was on bail and in breach of curfew) the starting point was a term of 24 months' immediate imprisonment.

    (2)The term of 24 months was reduced by 5 months to take account of the appellant's guilty plea.

    (3)The sentence was reduced by a further 2 months in recognition of the appellant's other mitigating factors such as his youth and the disruptive effect on the appellant's stability caused by the death of his mother.

    (4)As a result, the sentence in respect of charge CA 793/2020 was 17 months' immediate imprisonment backdated to 13 August 2020.

    (5)In respect of charge CA 514/2020 the starting point was a sentence of 18 months' immediate imprisonment reduced by four months to take account of the appellant's guilty plea making the final sentence a term of imprisonment of 14 months, backdated to 13 August 2020.

    (6)The term of imprisonment for CA 514/2020 is to be served partly concurrently with the term of imprisonment imposed for charge CA 793/2020.  The part of the term that is to be served concurrently with CA 793/2020 will commence when 7 months of the term of imprisonment for CA 793/2020 has been served.

    (7)In respect of charge CA 518/2020 the starting point was a term of 4 months' imprisonment.  This was reduced by one month to take account of the appellant's guilty plea to produce a sentence of 3 months' imprisonment.

    (8)The term of imprisonment for CA 518/2020 is to be served partly concurrently with the term of imprisonment imposed for charge CA 514/2020.  The part of the term that is to be served concurrently with CA 514/2020 will commence when 12 months of the term of imprisonment for CA 514/2020 has been served.

    (9)For charge CA 795/2020 I would sentence the appellant to 3 months' imprisonment to be served concurrently with the term of imprisonment for CA 793/2020, backdated to 13 August 2020.

    (10)I made a parole eligibility order.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.

RC

Research Associate to the Honourable Justice Tottle

29 APRIL 2021