Dilger v The Queen - [2003] WASCA 140

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT : COURT OF CRIMINAL APPEAL

CITATION: DILGER -v- THE QUEEN [2003] WASCA 140

CORAM: SCOTT J
TEMPLEMAN J
WHEELER J

HEARD: 17 APRIL 2003

DELIVERED : 17 APRIL 2003

PUBLISHED : 27 JUNE 2003

FILE NO/S: CCA 237 of 2002

BETWEEN: TARNYA MAREE DILGER
Applicant
AND
THE QUEEN
Respondent

Catchwords:

Criminal law - Sentencing - Turns on own facts

Legislation:

Nil

Result:

Appeal allowed

Category: B

Representation:

Counsel:

Applicant: Ms G A Archer
Respondent: Mr D Dempster

Solicitors:

Applicant: Legal Aid of Western Australia
Respondent: State Director of Public Prosecutions

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

Kakai v The Queen, unreported; CCA SCt of WA; Library No 990082; 23 February 1999
McKenna (1992) 63 A Crim R 452
R v Larsson, unreported; CCA SCt of Victoria; 28 June 1994
Robinson v The Queen, unreported; CCA SCt of WA; Library No 980587; 9 October 1998
Siganto v The Queen (1998) 194 CLR 656

Case(s) also cited:

R v Boyd [1998] VCSA 91

SCOTT J: I have had the advantage of reading the reasons for judgment of Wheeler J. I agree with them and there is nothing I wish to add.
TEMPLEMAN J: I have read in draft the reasons to be published by Wheeler J. It was for those reasons that I joined in the decision to allow the application and the appeal against sentence, and to substitute for the sentence imposed by the learned trial Judge, an order suspending the balance of the term of imprisonment to which the appellant was sentenced.
WHEELER J: On 17 April 2003 this Court allowed the applicant's application and appeal against sentence, and substituted for the sentence imposed by the learned trial Judge an order suspending the balance of the appellant's sentence of imprisonment. These are my reasons for joining in that order.
On 25 November 2002 the appellant was sentenced to 2 years' imprisonment in respect of one charge of aggravated burglary and one charge of deprivation of liberty. The sentences were ordered to be served concurrently with one another and the appellant was made eligible for parole.
The facts of the offence broadly were as follows. The appellant was experiencing financial hardship. She had been working fulltime as a bar attendant, but due to seasonal factors, her hours were decreased. Her car was about to be repossessed and her insurance was cancelled. She had a number of bills. The debt which weighed most heavily upon her related to $1,000 which she had borrowed from her mother's current partner to use for bond on a house in April 2000. She decided to go to the hotel where she had previously worked, in order to break in and steal money. She organised for a friend to assist her. She knew the alarm code and the combination of the floor safe. She alleged that she was owed a sum of money by her former employer at that hotel, which she had been unable to recover which alleged debt made her decision to steal easier. She obtained a beanie in which she cut holes so as to allow her to put it over her face as a balaclava. At about 1.30 am she made a telephone call to the hotel, which call was answered by the cleaner. She and her co‑offender waited until 3 am to go to the hotel, hoping that by then the cleaner would have vacated the premises, but knowing that it was possible that he would be there.

The appellant went to the office area and attempted to open the safe but was unable to do so. As she was aware of the combination, and there was apparently no difficulty with the safe, she said that what had prevented her from opening the safe was in effect a crisis of conscience. She remained indecisively at the safe for a short time, not wanting to leave empty‑handed after she had involved another person in the burglary, but also not wanting to carry out the offence that she had planned to commit. There was a considerable quantity of other property which could have been stolen by the appellant and her co‑offender if they had wished to do so, including cameras, computers and a considerable quantity of alcohol.
At that time the cleaner came unexpectedly into the office and said: "Take whatever you want. I'll do whatever you want." The appellant panicked, the co‑offender took the cleaner in a neck lock and took him to an area variously described as a "storage cupboard" and a "storage room" under a set of stairs. He was locked in that area and the appellant and her co‑offender left. He was not able to break out of that area for 90 minutes. The victim impact statement provided by him reveals, as one would expect, that in reaction to that traumatic event, he was now very tense and his employment had been affected. He was not able to be in closed areas without becoming very anxious and tense.
Turning to the appellant's antecedents, she had a traumatic upbringing, with her father dying two months before she was born and her mother drinking to excess. Her mother remarried when she was eight and she did not get on with her stepfather. As a result of her dysfunctional home life, she was effectively looking after herself from the age of approximately 12, with her mother usually being out of the house. At 14 she moved out of home and was living with friends. Because the family moved often she had a disrupted education. She left school in year 10. She then completed three months of a pre‑apprenticeship course in cabinet making. Since that time she has had fairly continuous employment in lunch bars, catering and bars. She was at the time of the offence a little over 19 years of age and had, despite her upbringing, no previous offences of any kind. She pleaded guilty at the earliest opportunity and was said to be extremely remorseful. She co‑operated fully with the police investigating the matter, but did not name her co‑offender, because, as she said the offences had been her idea and she should take entire responsibility for them.
It can immediately be seen that the offences are serious ones of their kind. The burglary involved a breach of trust, being committed in relation to a former employer who had entrusted her with information about the alarms and safe. The procuring of the beanie and gloves, and the involvement of the co‑offender, were also consistent with a degree of premeditation. Further, although it is accepted that the appellant hoped that the cleaner would not be on the premises it is clear that she must have anticipated that he might be. The locking of the cleaner in the storage area and leaving the premises, informing no‑one, in circumstances where it was unlikely that he would be discovered for many hours, shows a total disregard for his welfare. It is however accepted, as to this last matter, that the appellant did react in panic and that the initial steps in taking the cleaner to the storage area were taken by her co‑offender.
The grounds of appeal were as follows:
"1.The learned Judge erred in treating the failure by the applicant to name her accomplice as an aggravating feature.
2.The learned Judge erred in imposing an immediate term of imprisonment.
Particulars
(a)The learned prosecutor conceded that a non‑custodial disposition was appropriate.
(b)The learned Judge placed insufficient weight on the unusual circumstances surrounding the offences.
(c)The learned Judge placed insufficient weight on the mitigating factors, in particular, the applicant's age of 19 years, her fast track pleas of guilty, and her antecedents."
Ground 1 is conceded by the Crown. That concession arises out of a passage in her Honour's sentencing remarks which arose in the following way. Having taken time to consider the matter after the plea in mitigation, over the luncheon adjournment, her Honour returned and made sentencing remarks broadly to this effect. She first outlined the circumstances of the offence. She noted the personal matters which led the appellant to decide to commit the offence, and briefly summarised certain of the material in the pre‑sentence report. She noted that the offences were extremely serious, as indeed they were. Her Honour said:
"In looking at the appropriate penalty, it's important that I look first of all at the seriousness of the offences and then turn and look very carefully at all the matters that are put to me in mitigation."
Her Honour then outlined a number of matters which appeared to her to be aggravating, including the use of balaclavas and gloves, and the likelihood of the cleaner being on the premises. Her Honour also said:
"It seems to me that there is a slight aggravation in this matter in the sense that she has failed to name her co‑offender but I understand that she has done that because she wants to entirely take the blame herself. However it is also an aggravating factor that violence was used against the victim in order to make good her escape."
Her Honour then turned to look at matters in mitigation.
The passage quoted plainly reflects an error of law. An offender falls to be punished for the offence committed, not for any denial of guilt (Siganto v The Queen (1998) 194 CLR 656) or for lack of co‑operation with the police generally, or for failure to name co‑offenders. However, this is not to say that a failure to name co‑offenders is irrelevant. An offender is entitled to have considered as a mitigating circumstance contrition, remorse, a plea of guilty, and co‑operation with authorities. Depending upon the circumstances, a failure to name co‑offenders may well demonstrate that remorse is limited and/or may detract from the allowance which would otherwise be made in mitigation for co‑operation with authorities. The failure to name the co‑offender in this case was therefore a factor which her Honour was entitled to take account of, but it was not an aggravating factor.
In the light of the Crown's concession, I was prepared to accept that the error made influenced the sentence which her Honour imposed, with the result that it now falls to this Court to exercise the sentencing discretion afresh. I would note however that I have some reservations about whether the concession was well‑founded. It is true that the passage quoted reflects an error of law. However, it is not the case that every apparent error of law or of fact which may be noted in the course of a Judge's sentencing remarks will be operating at the time of sentencing. Judges, particularly Judges in a busy court making extempore sentencing remarks, must be expected from time to time to be prone to a slip of the tongue, a mis‑statement, or an infelicitous phrasing. The real question is whether the principles which come to be applied in fixing the sentence are the appropriate ones and the relevant facts are at that stage correctly identified. When her Honour came to sum up the factors which she considered were relevant both so as to require her to impose a sentence of imprisonment to be served immediately, and to reduce the term of that sentence from what it might otherwise have been, she said the following:
"What I am faced with, however, is a person who was involved in offences which used violence against an unfortunate person who happened upon them while they were committing the offence. It seems to me that when one takes account of the balaclavas, going in the middle of the night, the breach of trust and the violence that was perpetrated on this unfortunate man, this is the situation where the offending is so serious, despite the matters in mitigation, that a sentence of imprisonment is required.
…
In looking at this I have considered very carefully the seriousness of the offending and I would commence by saying that for the burglary offence normally a sentence of 3 years would be required and for the unlawful detention 2 years. I would have made those concurrent.
However, I would reduce those because of your early pleas of guilty to a period of 2 years' imprisonment because you have pleaded guilty at the earliest opportunity and, except for not naming your co‑offender, have co‑operated with the police."
It is plain from the above passage that any failure to name the co‑offender appears not to have been a factor which her Honour considered to be relevant to her decision that the circumstances were so serious that a sentence of imprisonment was required. Further, it is clear when her Honour came to deal with matters of mitigation that she dealt correctly with the failure to name the co‑offender, as being a circumstance (and apparently the only circumstance) which detracted to an extent from the force of those mitigating factors which were operating.
In the light of the concession made by the Crown, and the fact that the sentencing discretion therefore falls to be considered afresh by this Court, it is not necessary to consider ground 2. I would however note in relation to the particulars of that ground, that they were obviously matters which were present to the mind of the learned Judge and that the mitigating factors in particular were the subject of anxious consideration by her. Had there been no error of law, I would have found some difficulty in reaching a conclusion that the imposition of an immediate term of imprisonment, even having regard to the mitigating circumstances, necessarily displayed error.
Assessing the relevant factors for myself however, the fact that the Crown prosecutor conceded that a non‑custodial disposition might be appropriate is a relevant factor: Robinson v The Queen, unreported; CCA SCt of WA; Library No 980587; 9 October 1998; R v Larsson, unreported; CCA SCt of Victoria; 28 June 1994.
It appeared that, on the hearing of the appeal, the Crown sought to resile from that concession. It was argued by the Crown that the concession was relevant only at the time of sentencing before her Honour, and not at the hearing of an appeal by an offender. However, criminal proceedings are adversarial proceedings and the Crown, like other parties, will not generally be permitted on an appeal to take a position different from that adopted in the court below. Of course, concessions may be mistakenly made on occasion and a concession of this kind is in any event not binding upon the court. However, it is a relevant factor and, in my view, this Court should have regard to it.
There were very significant mitigating factors. The first is that the applicant was relatively young. Even in relation to adult offenders, youth is a significant mitigating factor, it having been said on many occasions that a court should seriously consider all of the circumstances and only impose imprisonment as a last resort in the case of a young offender who has not previously served a term of imprisonment: McKenna (1992) 63 A Crim R 452; Kakai v The Queen, unreported; CCA SCt of WA; Library No 990082; 23 February 1999. Of course, imprisonment is a sentence of last resort in any event, but that is a consideration which is particularly powerful in the case of a young offender.
The applicant's having managed to obtain regular employment and to support herself from an early age, without in any way breaking the law, is an indication of her generally good character. While her motivation for the offences was to obtain money, it was not a motivation of pure greed. It appears that her financial plight was caused in part by circumstances beyond her control (the reduction in working hours) and the debts she had incurred had been incurred effectively as ordinary living expenses.
Finally, and importantly, although the offences were very serious, the burglary was not carried to its intended conclusion purely for the reason that the appellant voluntarily desisted. The unlawful detention, while very serious, was instigated by the co‑offender and was something done by the appellant in a state of panic.
In those circumstances, it appears to me that while the offences are such that it is appropriate to impose a term of imprisonment, the mitigating factors are such as to make its suspension appropriate.