Dos Santos v The State of Western Australia
[2016] WASCA 46
•16 MARCH 2016
DOS SANTOS -v- THE STATE OF WESTERN AUSTRALIA [2016] WASCA 46
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2016] WASCA 46 | |
| THE COURT OF APPEAL (WA) | |||
| Case No: | CACR:119/2015 | 18 FEBRUARY 2016 | |
| Coram: | BUSS JA MAZZA JA CORBOY J | 16/03/16 | |
| 11 | Judgment Part: | 1 of 1 | |
| Result: | Application for extension of time granted Appeal dismissed | ||
| B | |||
| PDF Version |
| Parties: | MICHAEL DOS SANTOS THE STATE OF WESTERN AUSTRALIA |
Catchwords: | Criminal law Aggravated burglary Aggravated assault occasioning bodily harm Appeal against sentence Whether sentence imposed upon the aggravated burglary charge manifestly excessive |
Legislation: | Criminal Code (WA), s 317(1), s 401(2)(a) |
Case References: | Abraham v The State of Western Australia [2014] WASCA 151 Cotterill v The State of Western Australia [2013] WASCA 52 Edmonds v The State of Western Australia [2013] WASCA 250 Eves v The State of Western Australia [2008] WASCA 7 Fenton v The State of Western Australia [2015] WASCA 225 Johnson v The Queen [2004] HCA 15; (2004) 78 ALJR 616 Longbottom v The State of Western Australia [2008] WASCA 203; (2008) 38 WAR 396 Sartori v The State of Western Australia [2014] WASCA 98 The State of Western Australia v Ellement [2016] WASCA 1 The State of Western Australia v Peacock [2013] WASCA 248 Tunney v The State of Western Australia [2013] WASCA 286 Wragg v The State of Western Australia [2013] WASCA 198; (2013) 234 A Crim R 380 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : DOS SANTOS -v- THE STATE OF WESTERN AUSTRALIA [2016] WASCA 46 CORAM : BUSS JA
- MAZZA JA
CORBOY J
- Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram : O'NEAL DCJ
File No : IND 1229 of 2013
Catchwords:
Criminal law - Aggravated burglary - Aggravated assault occasioning bodily harm - Appeal against sentence - Whether sentence imposed upon the aggravated burglary charge manifestly excessive
Legislation:
Criminal Code (WA), s 317(1), s 401(2)(a)
Result:
Application for extension of time granted
Appeal dismissed
Category: B
Representation:
Counsel:
Appellant : Mr A L Troy
Respondent : Mr J A Scholz
Solicitors:
Appellant : Justine Fisher Barrister & Solicitor
Respondent : Director of Public Prosecutions (WA)
Case(s) referred to in judgment(s):
Abraham v The State of Western Australia [2014] WASCA 151
Cotterill v The State of Western Australia [2013] WASCA 52
Edmonds v The State of Western Australia [2013] WASCA 250
Eves v The State of Western Australia [2008] WASCA 7
Fenton v The State of Western Australia [2015] WASCA 225
Johnson v The Queen [2004] HCA 15; (2004) 78 ALJR 616
Longbottom v The State of Western Australia [2008] WASCA 203; (2008) 38 WAR 396
Sartori v The State of Western Australia [2014] WASCA 98
The State of Western Australia v Ellement [2016] WASCA 1
The State of Western Australia v Peacock [2013] WASCA 248
Tunney v The State of Western Australia [2013] WASCA 286
Wragg v The State of Western Australia [2013] WASCA 198; (2013) 234 A Crim R 380
1 BUSS JA: I agree with Mazza JA.
2 MAZZA JA: This is an appeal against sentence.
Background
3 On the morning of 24 March 2013, the appellant, who was in a jealous rage, broke into the house in which his former partner, EDS, and her two children were residing. He assaulted EDS and threatened to kill her. In doing so, he terrorised EDS and the children.
4 The appellant was charged on indictment in the District Court with two offences, as follows:
(1) On 24 March 2013 at Beaconsfield [the appellant], while in the place of [EDS] without her consent, committed the offence of Aggravated Assault Occasioning Bodily Harm.
And that [the appellant] was armed with an offensive instrument namely a knife
And that [the appellant] threatened to kill [EDS].
And that immediately before the commission of the offence [the appellant] knew or ought to have known that there was another person in the place
And that the place was ordinarily used for human habitation.1
(2) On the same date and at the same place [the appellant] unlawfully assaulted [EDS] and thereby did her bodily harm
And that [the appellant] was in a family and domestic relationship with [EDS]
And that a child was present, namely [B].2
6 On 17 October 2014, his Honour sentenced the appellant to 5 years 6 months' imprisonment on count 1 and to 3 years 6 months' imprisonment on count 2. The sentences were ordered to be served concurrently. Thus, the total effective sentence imposed upon the appellant was 5 years 6 months' imprisonment. His Honour backdated this sentence to 27 August 2014 and ordered that the appellant be made eligible for parole.
7 This appeal was commenced almost eight months out of time. Accordingly, the appellant requires an extension of time within which to appeal. The application (white AB 1 - 2, 5 - 7) is not opposed by the respondent (white AB 25). I would grant an extension of time.
8 The appellant relies upon one ground of appeal, namely, that the sentence on count 1 is manifestly excessive. Leave to appeal has been granted in respect of this ground.
9 For the reasons which follow, I would dismiss the appeal.
The facts of the offending
10 The appellant does not challenge his Honour's findings as to the circumstances of the offences, which may be summarised in this way.
11 In about 2006, the appellant and EDS formed a relationship. EDS had a son, B, from a previous relationship. In 2008, the appellant and EDS became engaged. In 2009, the engagement ended for a number of reasons, including the appellant's violent behaviour towards EDS (ts 361).
12 The appellant followed EDS to Western Australia in late 2009, and they reconciled. In July 2010, their child, a boy whom I will refer to as MJ, was born. The appellant, EDS, B and MJ lived in rented accommodation in a Perth suburb. Up until October or November 2012, the appellant was frequently away from home due to his fly-in/fly-out work on various construction projects in Australia and overseas. In October or November 2012, the appellant lost his job (ts 361). Soon after, the relationship broke down and the appellant was asked to move out. The appellant's keys were 'effectively confiscated' by EDS, and his personal belongings were 'packed up and made available for collection' (ts 362). By the end of December 2012, no personal items belonging to the appellant of any significance were inside the house, and the appellant had moved into a house he owned, which was some distance from the house occupied by EDS and the children (ts 362).
13 The appellant was unable to accept that the relationship was at an end. He would turn up unannounced at EDS' house, including in the early hours of the morning. He would also try to persuade EDS to allow him to stay the night at her house. She refused these overtures. His Honour found that the appellant developed an 'irrational fixation' with EDS (ts 362).
14 On the evening of 23 March 2013, until about 1.00 am on the following day, EDS was entertaining friends at her house. At about 4.00 am or 5.00 am on the morning of 24 March 2013, she was awoken by noises and footsteps coming from the backyard. EDS telephoned a friend who sent her husband, Daniel Triscari, to investigate and offer assurance (ts 362).
15 At about 6.00 am, EDS and Mr Triscari were sitting at the kitchen table looking at some photographs on her iPad. For some time, the appellant had been at the side of the house, outside the kitchen window, listening. At trial, the appellant claimed that he overheard noises or conversations of a sexual nature. However, his Honour was positively satisfied that no such thing had occurred. The appellant began shouting and, almost immediately, smashed the kitchen window with his fist, scattering glass across the kitchen. He then jumped inside the house. He was so enraged that he did not care that he had cut his hand in the process (ts 362 - 363).
16 Once inside, he began screaming at Mr Triscari. At this point, EDS grabbed MJ and B ran with them into B's room. MJ was screaming. EDS told B to call the police, which he did (ts 363).
17 In the meantime, the appellant argued with Mr Triscari. Eventually, Mr Triscari left the house (ts 363).
18 EDS spoke to the police on the telephone. A recording of the triple zero call was played to the jury. His Honour described EDS' voice as being 'full of fear' (ts 364).
19 EDS then left the bedroom, carrying MJ. The appellant confronted EDS in the hallway. He called her a number of obscene names and accused her of having a sexual relationship with Mr Triscari. EDS denied the accusation, telling the appellant that he was 'mad' (ts 364). The appellant then began assaulting EDS. There was a considerable physical disparity between the appellant and EDS. At the time, the appellant weighed approximately 100 kg and EDS weighed approximately 60 kg. EDS was unable to defend herself because she was holding MJ. The appellant hit EDS three times in the head with a closed fist. He 'backhanded' EDS a couple of times to the head as she moved towards the lounge room in order to escape from the appellant (ts 364). At this point, EDS was feeling dizzy and thought she would collapse, so she moved towards the couch, still holding MJ. The appellant continued to hit her in the head. EDS ended up half leaning on the armrest of the couch. She put MJ down; however, because the child was in a state of fear, he kept coming back to her. The appellant pushed and shoved EDS while she screamed for B to take MJ. By this time, B was trying to help EDS by pulling the appellant off her. His Honour noted that there was 'an even more uneven' physical disparity between the appellant and B (ts 364). B begged the appellant to leave his mother alone, but he refused.
20 EDS ended up on her back on the ground with the appellant on top of her. He grabbed her by the hair and banged her head on the floorboards while hitting her. B continued trying to pull the appellant off his mother, but only succeeded in tearing the appellant's T-shirt off him. At one point, the appellant pushed B away, smearing blood across his cheek (ts 364).
21 Eventually, the appellant got off EDS; however, her ordeal was not at an end. The appellant then said to EDS 'I'm going to get a knife now and I'm going to kill you', as he walked towards the kitchen where knives had been scattered among the broken glass on the floor (ts 366). Fortunately, B had gathered up from the floor the knives that he could reach and hid them under his bed (ts 366).
22 In response to this threat, EDS ran from the house. At virtually the same time, the police arrived and apprehended the appellant (ts 366). Photographs of EDS taken on the day of the offences showed obvious physical injuries (ts 367).
23 The following day, EDS was examined by a doctor who observed multiple bruises to her head, including in the hairline of her scalp, on her forehead, on her face over the right temple, near her temporomandibular joint, and on her left cheek. The doctor also observed bruising over both of EDS' forearms and down her back (ts 367).
The appellant's personal circumstances
24 The appellant was 34 years of age at the time of the offences and 36 years old when he was sentenced (ts 367). He has two daughters from a previous marriage (ts 367; white AB 64). The appellant completed school to year 10. In time, he became a rigger, working in construction and in particular, in operations, which required heavy lifting. Letters tendered to his Honour showed that the appellant is highly regarded in his field of work. Apart from drinking to excess occasionally, he has no known substance abuse issues. The appellant has a prior criminal history comprising traffic offences and minor criminal offences involving mostly public disorder. He had never previously been sentenced to a term of imprisonment (ts 368).
25 The learned sentencing judge accepted EDS' evidence that the appellant had been violent towards her during their relationship, and that he had previously assaulted her. His Honour remarked that the offences represented a 'significant escalation of [the appellant's] violence against her', but were not 'completely out of character' or 'a one-off event' (ts 368 - 369).
The sentencing remarks
26 The learned sentencing judge characterised the offending as being 'a very serious example' of its type, although it fell short of being in the category of worst cases of its type (ts 371).
27 His Honour identified the following aggravating factors:
(a) The appellant not only appreciated that adults would be in the house when he smashed in the window; but he knew 'almost to a certainty' that B and MJ would also be present (ts 366 - 367).
(b) The appellant's attack upon EDS was 'prolonged', 'sustained' and 'repeated' (ts 367).
(c) The threat to kill EDS was not bluster (ts 367).
(d) The appellant's conduct was not inhibited by EDS' pleas for mercy, B's attempts to pull him away from her, or MJ's presence in the hallway. To the contrary, his Honour found that, 'had the police not arrived when they did, the consequences … would have been tragic' (ts 367).
(e) EDS was particularly vulnerable, not only because of the disparity in size between her and the appellant; but also, because she was trying to protect her children (ts 367).
28 The learned sentencing judge found that the appellant's offending had caused EDS, B and MJ to suffer anxiety and distress (ts 370).
29 The only mitigating factors identified by his Honour were the appellant's work history and the support he had given to his family (ts 370).
30 The learned sentencing judge made a positive finding that the appellant was not remorseful (ts 369 - 370). This finding was, in part, based upon the appellant's demeanour during the trial (ts 370). His Honour observed that the appellant was 'visibly amused' and 'grinned quite cheerfully' whilst B gave evidence, during which B was obviously distressed (ts 365 - 366).
31 His Honour found that the appellant did 'not care in the least for the distress caused to [EDS] and [B]' (ts 371). As I have already said, the learned sentencing judge said that the offending could not be said to be uncharacteristic of the appellant, although it represented an escalation from what appeared in his criminal history (ts 371).
32 His Honour ordered the sentences to be served concurrently, having regard to the fact that they occurred in the course of the one series of events and that they had common elements (ts 372).
General appellate principles
33 The general principles applicable to this appeal are uncontroversial. This court's jurisdiction to intervene is only enlivened if it is demonstrated that the learned sentencing judge made a material express or implied error of fact or law. In the present case, no express error is alleged. The claim that the sentence on count 1 is manifestly excessive relies upon the implication of error. The sentence must be shown to be unreasonable or plainly unjust, it being outside the range of a sound sentencing discretion.
34 In determining whether a sentence is manifestly excessive, regard is had to the maximum sentence for the offence; the standards of sentencing customarily observed, and the place which the criminal conduct occupies on the scale of seriousness, for that type of offence; and the personal circumstances of the offender.
35 Sentences customarily imposed provide a yardstick against which to measure the sentence under consideration with the aim of ensuring broad consistency in outcomes. However, they do not mark the boundaries within which the sentencing discretion is to be exercised. What is important is the unifying principles which sentences imposed in comparable cases both reveal and reflect: The State of Western Australia v Ellement [2016] WASCA 1 [38] (Mazza JA) and Fenton v The State of Western Australia [2015] WASCA 255 [17] (McLure P).
The submissions to this court
The appellant's submissions
36 The appellant's counsel conceded that the facts and circumstances of the aggravated burglary in this case were serious (appeal ts 3). The appellant's principal submission was, having regard to previous decisions involving sentences for aggravated burglary accompanied by threatened or actual violence, the sentence imposed upon the appellant was 'too high' (appeal ts 5). Counsel referred to Wragg v The State of Western Australia [2013] WASCA 198; (2013) 234 A Crim R 380; The State of Western Australia v Peacock [2013] WASCA 248; Edmonds v The State of Western Australia [2013] WASCA 250; Tunney v The State of Western Australia [2013] WASCA 286; Sartori v The State of Western Australia [2014] WASCA 98 and Abraham v The State of Western Australia [2014] WASCA 151 (and the cases referred to therein) in support of this submission.
The State's submissions
37 The State acknowledged that the sentence imposed upon count 1 was high; however submitted that, having regard to all of the relevant facts and circumstances, particularly the seriousness of the offending, the sentence was within the range of a sound sentencing discretion (appeal ts 6).
Disposition of the ground of appeal
38 The maximum penalty for count 1 is 20 years' imprisonment.
39 The cases cited on behalf of the appellant reveal the following general principles:
(a) Home burglary is a particularly serious offence.
(b) Offences of home burglary will generally require substantial penalties to reflect the prevalence of the offence and to recognise considerations of personal and general deterrence.
(c) Home burglaries which involve forcible entry into resident premises and are accompanied by threatened or actual violence are viewed more seriously than those which involve 'merely' an intent to steal or actual stealing.
40 A consideration of cases characterised as being 'home invasions' was undertaken by Hall J in Wragg [46] - [61]. His Honour observed that the sentences imposed in those cases were between 2 years and 4 1/2 years' imprisonment. In doing so, Hall J was merely summarising the outcomes in the cases he examined. His Honour was not enunciating any kind of tariff.
41 The learned sentencing judge's characterisation of the offending in this case as being 'a very serious example' of its type was open to his Honour and was, with respect, correct, having regard to the aggravating features to which I have already referred. The appellant's criminality is particularly elevated by the extreme vulnerability of EDS. Not only was the appellant physically bigger than her; she was unable to protect herself because she was attempting to shield MJ and B from the appellant. The appellant's actions caused EDS, MJ and B great fear and distress. Apart from the appellant's work record and the support he had given to his family, there was no mitigation. The appellant could not rely upon youth, pleas of guilty or remorse as mitigating factors. While his work record and the support he had given to his family were regarded as mitigating, they could not, when balanced against the seriousness of the offending, afford much mitigation.
42 The appellant acted out of unfounded jealousy. He knew that he was not permitted to be at EDS' home, or to enter it without her consent. His jealousy in no way ameliorates or excuses his actions. EDS and her children were entitled to the protection of EDS' home. The appellant and persons in the appellant's position must be deterred from acting in the manner that he did.
43 There was, no doubt, a very significant overlap between counts 1 and 2. As McLure P (Buss and Mazza JJA agreeing) noted in Cotterill v The State of Western Australia [2013] WASCA 52 [27], there is no single correct mechanism for avoiding double punishment. It may be done, for example, by reducing the otherwise appropriate term of imprisonment or ordering partial or total concurrency. See Johnson v The Queen [2004] HCA 15; (2004) 78 ALJR 616; Eves v The State of Western Australia [2008] WASCA 7 and Longbottom v The State of Western Australia [2008] WASCA 203; (2008) 38 WAR 396. In the present case, his Honour recognised that counts 1 and 2 'occurred in the course of one series of events, so that it could be said that they effectively amount to one transaction' (ts 372). His Honour also noted that counts 1 and 2 'have common elements' (ts 372). His Honour dealt with the overlap in a manner that was, in the circumstances, appropriate; namely, by ordering that the individual sentences for counts 1 and 2 be served wholly concurrently (ts 372).
44 I accept that the sentence imposed upon the appellant for count 1 was high compared to sentences cited on behalf of the appellant. However, as I have observed, the outcomes in the other cases do not necessarily dictate the outcome in any particular case. I have considered all of the relevant facts and circumstances of this case. The appellant's criminality was high and there was little that could be said in mitigation. The appellant has not persuaded me that the sentence on count 1 was outside the range of a sound sentencing discretion. It was not unreasonable or plainly unjust.
Conclusion and orders
45 The ground of appeal has not been made out and the appeal must be dismissed.
46 The orders that I would make are as follows:
1. The application for an extension of time is granted.
2. The appeal is dismissed.
47 CORBOY J: I agree with Mazza JA.
1 Contrary to s 401(2)(a) of the Criminal Code (WA).
2 Contrary to s 317(1) of the Criminal Code.
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