Downey v The State of Western Australia
[2012] WASCA 55
•14 MARCH 2012
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: DOWNEY -v- THE STATE OF WESTERN AUSTRALIA [2012] WASCA 55
CORAM: McLURE P
MAZZA JA
HEARD: 15 FEBRUARY 2012
DELIVERED : 14 MARCH 2012
FILE NO/S: CACR 166 of 2011
BETWEEN: CARL JOHN DOWNEY
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram :WISBEY DCJ
File No :IND 1060 of 2011
Catchwords:
Criminal law - Application for leave to appeal against sentence - Aggravated burglary on a dwelling - Stealing - Fraud - Whether relevant factors not revisited when sentencing - Whether individual sentences manifestly excessive - Whether total effective sentence infringed the first limb of the totality principle
Legislation:
Criminal Appeals Act 2004 (WA), s 27(2)
Sentencing Act 1995 (WA), s 32, s 39(2)
Result:
Appeal dismissed
Category: D
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
Cartwright v The State of Western Australia [2010] WASCA 4
Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321
Fogg v The State of Western Australia [2011] WASCA 11
Moody-Jackamarra v The State of Western Australia [2007] WASCA 7
Morris v The State of Western Australia [2011] WASCA 47
Nguyen v The State of Western Australia [2007] WASCA 114
Papas v The State of Western Australia [2011] WASCA 3
Papertalk v The State of Western Australia [2011] WASCA 229
Roffey v The State of Western Australia [2007] WASCA 246
Wilson v The State of Western Australia [2010] WASCA 82
Young v The State of Western Australia [2011] WASCA 100
McLURE P: I agree with Mazza JA.
MAZZA JA: This is an application for leave to appeal against sentences imposed by Wisbey DCJ on 4 October 2011.
The appellant entered a fast‑track plea of guilty to a charge of aggravated burglary on a dwelling contained in an indictment. He also pleaded guilty to an offence of stealing and an offence of fraud contained in a notice pursuant to s 32 of the Sentencing Act 1995 (WA).
His Honour imposed the following terms of immediate imprisonment:
(a)Aggravated burglary - 18 months
(b)Stealing - 7 months
(c)Fraud - 3 months
He ordered that the terms for the aggravated burglary and the fraud offence be served cumulatively and the term for the stealing offence be served concurrently. The total effective sentence was 21 months' imprisonment. The appellant was made eligible for parole.
There are two proposed grounds of appeal. Ground 1 alleges that his Honour erred in his approach to the question of whether suspended imprisonment should be imposed. Ground 2 alleges implied errors in that the individual sentences were manifestly excessive and that the total effective sentence breached the first limb of the totality principle.
In order for leave to appeal to be granted, a ground must have reasonable prospects of succeeding: s 27(2) Criminal Appeals Act 2004 (WA). The legal principles applicable to appeals against sentence are well known and are set out in Wilson v The State of Western Australia [2010] WASCA 82 [2]. They do not require repetition here.
Background
On 8 April 2011, at some time after 11 am, the appellant and a co‑offender travelled by train to Currambine station. They got off and went to the complainant's house in Joondalup, which was a short distance from the station, with the intention of breaking into the house and stealing property. The appellant knocked on the front door and, realising that no‑one was home, jumped over the fence into the backyard and gained
entry to the house by pushing through the flyscreen door with his fingers and unlatching the back door. Once inside, the appellant rummaged through the premises stealing various items including electronic equipment and jewellery worth approximately $15,000. The appellant and the co‑offender then headed back to Currambine station and left the area. Later that day the appellant pawned an iPod stolen from the burglary by falsely representing that he was the owner.
Fingerprint evidence obtained from the complainant's house implicated the appellant. On 21 April 2011 the police arrested him and recovered some of the items that had been stolen.
The appellant was interviewed by the police and admitted his offending. By way of explanation, he told the police that he had committed the offences because he was homeless, hungry and needed money for food. His Honour did not accept this explanation: ts 13. The appellant did not identify his co‑offender.
At the time he was sentenced, the appellant was 22 years of age. He was from a supportive family and since the commission of the offences he had returned home to live with them. The appellant's mother told the author of the pre‑sentence report that the appellant had been a long‑term user of cannabis although the appellant denied this. He had some old convictions as a juvenile for burglary offences and had a minor traffic record as an adult. The author of the pre‑sentence report assessed the appellant as being a medium risk of reoffending.
The victim impact statement provides a vivid and moving account of the nature and extent of the adverse impacts the burglary offence has had on the lives of the complainant and his wife. Not only were personal items of jewellery stolen and not recovered, but the offence left them feeling insecure in their own home.
His Honour's sentencing remarks
There is a factual error in the sentencing remarks. His Honour found that the fraud offence had occurred on 21 April 2011. In fact, as indicated in my description of the facts, that offence occurred on 8 April 2011, the same date as the aggravated burglary. I do not regard the error as material.
His Honour described the aggravated burglary as 'obviously planned'.
He expressly acknowledged that he could not impose a term of immediate imprisonment upon the appellant unless the seriousness of the offence or the protection of the public required it. He observed that 'generally speaking' aggravated burglaries are met with a term of immediate imprisonment: ts 13. He took into account the appellant's personal circumstances, as well as the circumstances of the offending.
His Honour clearly regarded the aggravated burglary as a serious offence. He gave particular emphasis to general deterrence and some weight to personal deterrence: ts 13.
After referring to the appellant's pleas of guilty and his young age, he said:
In all the circumstances here, I am quite satisfied that the seriousness of the offending behaviour and the necessity to provide a disposition which pays proper regard to general deterrence is such that imprisonment to be immediately served is the only appropriate disposition: ts 14.
The appellant's submissions
The appellant represented himself in this appeal. At the hearing he relied on his written submissions.
In support of ground 1, the appellant alleged that the learned sentencing judge did not revisit, when deciding whether or not to suspend the term of imprisonment, the considerations relevant to the decision to impose terms of imprisonment as required by the High Court in Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321. In particular, it is alleged that his Honour failed to revisit those factors that were favourable to the appellant.
In respect of ground 2, the appellant emphasised the mitigatory factors in the case, including his pleas of guilty and age. He referred to the cases of Morris v The State of Western Australia [2011] WASCA 47; Papas v The State of Western Australia [2011] WASCA 3; Fogg v The State of Western Australia [2011] WASCA 11; and Young v The State of Western Australia [2011] WASCA 100, submitting, in effect, that they demonstrated the alleged implied errors.
Analysis of the grounds of appeal
Ground 1
The proper approach to the imposition of a term of suspended imprisonment was set out by McLure P, with whom Owen and Wheeler JJA agreed, in Cartwright v The State of Western Australia [2010] WASCA 4 where her Honour said at [8] ‑ [10]:
Section 39(2) of the Sentencing Act 1995 (WA) (the Act) sets out the various sentencing options. The ultimate option is a term of immediate imprisonment and the two preceding it are conditional suspended imprisonment and suspended imprisonment respectively. Under s 39(3) of the Act a court must not use a sentencing option in subs (2) unless satisfied that it is not appropriate to use any of the options listed before that option. The same considerations that are relevant to the imposition of a term of imprisonment must be revisited in determining whether to suspend the term; the power to suspend is not confined by reference wholly, mainly or specially to the effect that suspension would have on the rehabilitation of a particular offender: Dinsdale v The Queen (2000) 202 CLR 321 [18], [26], [84], [85].
However, as noted in Collins v The State of Western Australia [2007] WASCA 108 [17], the sentencing discretion is not to be exercised in a vacuum. A sentencing judge must impose a type of sentence that falls within a sound discretionary range. The decisions of this court and its predecessor provide guidance to sentencing judges with the aim of achieving consistency in sentencing …
However, even if a term of immediate imprisonment is generally the appropriate penalty, the sentencing judge is not relieved of his or her obligation to determine the appropriate penalty in the particular case. In such circumstances the question for the sentencing judge is whether having regard to all relevant sentencing factors, the case does not require the imposition of the generally appropriate type of sentence: Collins [21].
This court has in recent times dealt with a number of sentencing appeals in connection with offences of aggravated burglary, including Ashworth v The State of Western Australia [2006] WASCA 36; Nguyen v The State of Western Australia [2007] WASCA 114; Moody-Jackamarra v The State of Western Australia [2007] WASCA 7 and Papertalk v The State of Western Australia [2011] WASCA 229. Ordinarily, the offence attracts a term of immediate imprisonment, but, of course, each case must be determined on its own facts.
Although his Honour did not specifically refer to the 'two stage' process in Dinsdale, that does not necessarily demonstrate error. As the court in Cartwright emphasised, the sentencing discretion is not to be exercised in a vacuum. It is clear from His Honour's sentencing remarks that he appreciated that immediate imprisonment could only be imposed if no lesser option was appropriate. His Honour's sentencing remarks, read as a whole, show that he considered all relevant sentencing factors. Having considered those factors, he decided that immediate imprisonment was the only appropriate disposition. On the facts of the case, particularly having regard to the planned and deliberate nature of the offence, the substantial amount of property stolen from the premises, the impact on the victims and the need to provide general and personal deterrence, his Honour's conclusion was correct, notwithstanding the acknowledged mitigating factors. His Honour did not err as alleged.
For these reasons ground 1 has no reasonable prospects of success.
Ground 2
It is clear from the appellant's submissions that the appellant's allegation of manifest excess is focused on the sentence his Honour imposed for the aggravated burglary offence.
The following are factors which are to be taken into account when deciding whether a manifestly excessive sentence has been imposed:
(a)the maximum statutory penalty;
(b)the standard of sentences customarily imposed with respect to the offence;
(c)the place which the criminal conduct occupies in the scale of seriousness; and
(d)the personal circumstances of the offender.
Aggravated burglary carries a maximum penalty of 20 years' imprisonment. This reflects the seriousness with which Parliament views the offence.
In Papertalk v The State of Western Australia it was observed that the range of sentences imposed for burglary and aggravated burglary have been firmed up because of the prevalence of such offending. In that case, a sentence of 2 years' immediate imprisonment was held to be within the standards of sentencing customarily observed. I have considered the cases referred to by the appellant in his written submissions. When this court has regard to its decisions in other cases, it does so with an eye to ensuring broad consistency. The sentence in this case is broadly consistent with sentences imposed in other cases.
With respect to the seriousness of the offence, I have already noted that his Honour regarded the offending as serious. While the aggravated burglary was not the worst example of its type, his Honour was correct to characterise the offending as serious.
The personal circumstances of the appellant were, in general terms, favourable.
Having weighed these factors, neither the sentence of 18 months' imprisonment for the aggravated burglary nor any of the other individual sentences was unjust or unreasonable. The claim of manifest excess has not been made out.
I now turn to the appellant's submission with respect to the first limb of the totality principle. The terms of that principle and how it operates were usefully set out in Roffey v The State of Western Australia [2007] WASCA 246:
The appellant relies on the totality principle which comprises two limbs. The first limb is that the total effective sentence must bear a proper relationship to the overall criminality involved in all the offences, viewed in their entirety and having regard to the circumstances of the case, including those referable to the offender personally: Woods v The Queen (1994) 14 WAR 341.
The second limb is that the court should not impose a 'crushing' sentence. The word crushing in this context connotes the destruction of any reasonable expectation of a useful life after release: Martino v The State of Western Australia [2006] WASCA 78 [16]. An aggregate sentence may be inappropriately long under the first limb even if it cannot be described as crushing: Jarvis v The Queen (1998) 20 WAR 201, 216 (Anderson J).
The practical effect of the totality principle is ordinarily to arrive at an aggregate sentence that is less than that which would be arrived at by simply adding up all the terms appropriate for the individual offences: R v Holder [1983] 3 NSWLR 245, 260 (Street CJ). A rationale for the totality principle is that there is assumed rehabilitation and reduced demand for retribution after the initial sentences have been served. Where the principle of totality comes into effect, it is of little importance how the ultimate aggregate is made up: R v Holder (260) [24] ‑ [26].
The total effective sentence of 21 months did not offend the first limb of the totality principle. I do not need to repeat what I have already said about the seriousness of the charge of aggravated burglary. The fraud charge was a separate act of offending, albeit committed on the same day as the burglary. Some additional punishment for this offence was justified. The total effective sentence when seen in the light of all of the circumstances of the case including those referable to the offender personally was an appropriate exercise of his Honour's sentencing discretion. There is no basis for this court to interfere with it.
For these reasons, ground 2 has no reasonable prospects of success.
Conclusion
As no ground has a reasonable prospect of success, leave to appeal on each ground must be refused and the appeal is dismissed.
Orders
1.Leave to appeal is refused.
2.The appeal is dismissed.
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