Drake v The State of Western Australia - [2006] WASCA 209

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT : THE COURT OF APPEAL (WA)

CITATION: DRAKE -v- THE STATE OF WESTERN AUSTRALIA [2006] WASCA 209

CORAM: MARTIN CJ
WHEELER JA
ROBERTS-SMITH JA

HEARD: 23 MAY 2006

DELIVERED : 12 OCTOBER 2006

FILE NO/S: CACR 124 of 2005

BETWEEN: KIM YOLANDE DRAKE
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent

ON APPEAL FROM:
Jurisdiction              :  DISTRICT COURT OF WESTERN AUSTRALIA
Coram  :MULLER DCJ
File No  :IND BUN 60 of 2005

Catchwords:

Appeal - Criminal law and procedure - Sentence - Three counts of aggravated burglary - Two counts of assault occasioning bodily harm - Home invasion - Aggregate sentence of 32 months' imprisonment - Whether 26 months' imprisonment on aggravated burglary manifestly excessive - Whether order for partial cumulation an error - Discount for pleas of guilty - Unexplained discrepancy in reductions for pleas of guilty - Whether indicative of error

Legislation:

Nil

Result:

Appeal allowed in part
Sentences on counts 1, 3 and 4 set aside
Sentences of 22 months' imprisonment substituted respectively
Sentence on count 4 to commence after appellant has served 4 months of the sentence on count 1
Sentence on count 1 backdated to 14 December 2004
Order that appellant be eligible for parole

Category: D

Representation:

Counsel:

Appellant: Mr S B Watters
Respondent: Mr M Mischin

Solicitors:

Appellant: David Manera
Respondent: State Director of Public Prosecutions

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

Anglesey v The Queen [2002] WASCA 194
Bell v The Queen [2001] WASCA 378
Bourne v The Queen [2003] WASCA 26
Heferen (1999) 106 A Crim R 89
Herbert v The Queen (2003) 27 WAR 330
Little v The Queen [2001] WASCA 87
Lowndes v The Queen (1999) 195 CLR 665
Mallard v The Queen [2003] WASCA 85
Palmer v The Queen, unreported; CCA SCt of WA; Library No 940024; 14 January 1994
Penny v The Queen, unreported; CCA SCt of WA; Library No 990189; 16 April 1999
Pieri v The Queen [2001] WASCA 357
Pollock v The State of Western Australia [2004] WASCA 280
Postiglione v The Queen (1997) 189 CLR 295
R v Faithfull (2004) 142 A Crim R 554
R v White [2002] WASCA 112
Stapleton v The Queen [2004] WASCA 130
Tan v The Queen, unreported; CCA SCt of WA; Library No 960188; 1 April 1996
The State of Western Australia v Sabek [2005] WASCA 207
Ward (1999) 109 A Crim R 159

Case(s) also cited:

Cameron v The Queen (2002) 209 CLR 339
Cooper v The Queen [2001] WASCA 379
Everett (1994) 73 A Crim R 550
Hibbs v The Queen [2002] WASCA 204
Jarvis v The Queen (1993) 20 WAR 201
McColl v The Queen [1999] WASCA 306
Mill v The Queen (1988) 166 CLR 59
Pop (2000) 116 A Crim R 398
R v Barbis [2003] WASCA 107
Sindel v The Queen, unreported; CCA SCt of WA; Library No 990110; 15 February 1999
Stipanich v The State of Western Australia [2005] WASCA 145
Van Thong Dao v The Queen, unreported; CCA SCt of WA; Library No 990015; 22 January 1999

MARTIN CJ: I have had the opportunity of reading the reasons for decision delivered by Justice Roberts-Smith. For the reasons he gives, I agree that the appeal should be allowed and the appellant resentenced in the terms he proposes.
WHEELER JA: I have had the advantage of reading in draft the reasons for decision of Roberts‑Smith JA. I gratefully accept his Honour's description of the events, and I accept his Honour's accurate and helpful summary of the principles relating to what might be described as the "enforcer" type of home invasions.
However, I would disagree with his Honour's conclusion that the appeal should be allowed and the sentences imposed varied in the way which his Honour describes. The ultimate question for the Court of Appeal is whether the sentence imposed represents anything other than a proper exercise of sentencing discretion. Put another way, the question is not only whether there is error, but also, even where error exists, whether a different sentence "should have been passed": see R v Faithfull (2004) 142 A Crim R 554 per McLure J at [18]; Bourne v The Queen [2003] WASCA 26 at [33] per Templeman J; Mallard v The Queen [2003] WASCA 85 at [33], [34] per McKechnie J; Anglesey v The Queen [2002] WASCA 194 at [8] and [9] per Templeman J and Bell v The Queen [2001] WASCA 378 at [11] and [12] per Steytler J.
It is my view that the sentence imposed, of 32 months' imprisonment, is well within the range of a sound sentencing discretion for offences of this nature.
I accept that there must have been some miscalculation by the learned sentencing Judge at some point in relation to the discount which he allowed for the plea of guilty and other mitigating circumstances. There is an apparent discrepancy in relation to the proportionate discount between counts 1, 3 and 4, on the one hand, and counts 2 and 5 on the other. Further, as Roberts‑Smith JA points out, it is clear that the 9 month reduction was only somewhat less than 20 per cent, taking as a starting‑point the 4 years' imprisonment to which his Honour the learned sentencing Judge referred in relation to counts 1, 3 and 4. The fast track plea and the appellant's personal circumstances plainly called for a larger proportionate discount.
However, notwithstanding that there appears to have been some error of calculation in relation to the discount for the plea of guilty, my view is that the overall sentence is well within an acceptable range. The

starting‑point of 4 years was, as Roberts‑Smith JA points out, at the bottom of the appropriate range. The circumstances of the offences were not such as to place them at the very bottom of the appropriate range. In particular, I would respectfully disagree with Roberts‑Smith JA's assessment that the case of Tan v The Queen, unreported; CCA SCt of WA; Library No 960188; 1 April 1996, was a "far more" serious case than the present. In my view, it is almost on all fours with the present, in the sense that it related to a person taking into his own hands the enforcement of a debt which he considered to be owed to him, going in company with another to ensure that the complainant was outnumbered, and the striking of the complainant with an object, causing injury. A starting‑point of 5 years rather than 4, would, in my view, have been justified.

Further, as Roberts‑Smith JA points out, the offences, although committed on the same day, were not part of one transaction, but involved deliberate and serious invasions of different interests, being committed on different people at different locations. In those circumstances, unless the totality principle would require some other approach, the sentences should, as Roberts‑Smith JA points out, be cumulative. The 6 months' cumulation ordered by his Honour was limited, and some higher degree of cumulation would, in my view, have been appropriate.
For those reasons, even if I were to exercise for myself the sentencing discretion in this case, I would not arrive at a lesser overall term of imprisonment. I would therefore not allow the appeal.
ROBERTS-SMITH JA: On 8 July 2005 the appellant pleaded guilty to, and was consequently convicted on three counts of aggravated burglary and two counts of assault occasioning bodily harm. These were all contained in the same indictment, namely IND BUN 60/05. The charges resulted from two incidents on 14 December 2004, when the appellant and another broke into the residences of two different complainants and assaulted both complainants while they were in their homes. Both complainants suffered bodily harm as a consequence of these assaults.
The facts of the offences, as outlined by the prosecutor at the commencement of the sentencing proceedings, and incorporated by the sentencing Judge, Muller DCJ, in his sentencing remarks, were that between 4.30 pm and 4.40 pm on Tuesday, 14 December 2005, the appellant and her de facto went to a motel room in Bunbury, where the appellant knocked on the door and waited for a response from the complainant, Ms L (a 33‑year‑old woman). The complainant unlocked the door and the appellant ran inside, jumped on the complainant whilst the complainant was lying on her bed and continually struck her to the

face and body, causing her bodily harm. The appellant then grabbed the bedside lamp and struck Ms L to the face, causing a laceration to the left side of her eye. Her de facto then "forcibly" removed her from the unit and took her back towards the vehicle in which they had travelled to the motel. This initial entry and assault were counts 1 (aggravated burglary) and 2 (assault occasioning bodily harm) on the indictment. The prosecutor emphasised that the appellant knew the complainant was home.

The appellant broke free from her de facto and ran back inside the unit a second time where she continued to punch the complainant to the face. Again, she had to be removed from the unit by her de facto. These actions were count 3 on the indictment - a second charge of aggravated burglary. It was also alleged that she made a third attempt to re‑enter the room but was unable to do so because the complainant managed to lock the door.
As a result of these events, Ms L received a three-centimetre laceration to the area above her left eye that required sutures to seal the injury. She also had bruising and swelling to the left ulna and to her left knee.
The facts relating to counts 4 (aggravated burglary) and 5 (assault occasioning bodily harm) on the indictment are that the appellant and her de facto then travelled to another address where, on arrival, the complainant (Mr B, a 24‑year‑old man) heard them both yelling abuse at him. As they walked towards his front door he locked it to prevent them from coming inside. However, the appellant's de facto kicked the door, damaging the lock and gained entry to the premises and then king‑hit the complainant to the face, injuring his nose. Then both the appellant and her de facto began to kick and punch the complainant to the face causing bodily harm.
The complainant attempted to run into his bedroom to get away from both of them but was followed and repeatedly punched to the face. The appellant and her de facto then left.
Mr B received a possible broken nose, bruising and swelling to the left eye, bruising to the left ear, a cut to his lower lip and tenderness over his jaw.
On the same day, the appellant and her de facto were interviewed at Bunbury police station where the appellant took part in a videotaped record of interview. She explained her conduct by saying she believed that the complainants both owed her money; she did not think the police were actioning a complaint made against them expeditiously, and so she had decided to take things into her own hands. The appellant explained that her anger had led to the offending.
The appellant was sentenced to a total of 32 months' imprisonment. The individual sentences received were:
(a)Count 1- 26 months' imprisonment;
(b)Count 2 -10 months' imprisonment (concurrent);
(c)Count 3 - 26 months' imprisonment (concurrent);
(d)Count 4 - 26 months' imprisonment (partially concurrent with count 1, namely 6 months to be served on count 1 before count 4 was to commence); and
(e)Count 5 - 10 months' imprisonment (concurrent).
The head sentence was backdated to commence on 14 December 2004 with eligibility for parole. By operation of s 88(4) and s 94 of the Sentencing Act 1995 (WA), the first 6 months in respect of count 4 are not included in the calculation of the term subject to parole; therefore the appellant should have been eligible for parole after serving 19 months imprisonment, on 14 July 2006.
However, the appellant was subsequently further sentenced by the Magistrates' Court for a variety of other offences pending on a s 32 notice. For these offences a total term of 6 months' imprisonment was given (with each separate term being ordered to be served concurrently). This term was ordered to be cumulative on her other terms and she was made eligible for parole. This extended her non-parole period by 3 months (half of 6 months). Accordingly she should have been eligible for parole on 14 October 2006.
On top of these sentences, it appears that on 30 March 2006 she was ordered to serve an additional 5 days' imprisonment, cumulative on existing sentences, for non‑payment of fines. This delays her eligibility for release on parole until 18 October 2006.
If the appellant is not released on parole, her sentence will conclude on 18 February 2008.
The present appeal is only against those sentences imposed on 8 July 2005 by Muller DCJ.
On 21 July 2005, the appellant filed an application for leave to appeal against sentence. This application contained two brief grounds of appeal. No particulars were given supporting the grounds.
The Appellant's Case was received on 13 October 2005 and contained amended grounds of appeal. There were five grounds in total. However, at the hearing of this appeal, counsel for the appellant Mr S Watters indicated that he was mindful not to press ground 4 since no information had been supplied to the court in support of that ground. I take that as having been abandoned.
The grounds of appeal as they now stand read:
"1.The effective sentence of 26 months imprisonment for each of the charges of Aggravated Burglary, being Counts 1, 3 and 4 was manifestly excessive in that, the starting point of 4 years imprisonment was too high in view of the following matters -
(i)No weapons were carried by the appellant.
(ii)No serious injury was caused to either of the complainants.
(iii)The antecedent [sic] of the appellant.
2.The discount of 9 months imprisonment allowed by His Honour for the pleas of 'guilty' and other mitigating factors, including the appellant's lack of relevant criminal record was too little.
3.In view of the fact that all offences occurred on the same day, His Honour erred in making the sentence on Count 4 partly cumulative on the other sentences.
4.[abandoned]
5.The sentence of 26 months imprisonment for each of the offences of 'Aggravated Burglary' was outside the sentencing range for such an offence."

Grounds 1 and 5

There are no details offered for ground 5 in the appellant's submissions. Given the content of the details offered in support of ground 1 though, it appears that grounds 1 and 5 can be treated as one ground.
The submissions do not address the matters raised in the grounds, namely that no weapons were carried by the appellant; no serious injury was caused to either of the complainants; and the antecedents of the appellant. All that is given is reference to numerous case authorities and details of those cases. It is submitted by the appellant that the facts of each of these cases were more serious than the facts before us and "that it follows that the sentence was excessive".
I will turn first to those matters raised in the grounds of appeal, but not properly addressed within the submission.
The appellant emphasises that no weapons were carried by the appellant during the attacks as a mitigating circumstance. This ignores the fact that the appellant picked up a lamp by Ms L's bed and used that as a weapon causing injury to Ms L, in what was a premeditated, "savage" and "persistent attack". The sentencing Judge accepted the lamp was only used to strike the arms and legs of the complainant. As was noted by him (t/s 24):
"Most significantly of all, your intention in going to both places was to attack the occupants and exact retribution.
I now turn to the assaults. The attack on the first complainant was quite savage. The first complainant was lying on her bed when you jumped on her and struck her on the face and body. Not content with using your hands and fists, you also struck her with a bedside lamp, although I do take into consideration your assertion that you only used the weapon to strike her on the leg or body."
It is submitted by the appellant that there was no serious injury to the complainants. While their injuries were not life-threatening they were certainly not minor; lacerations to an eye and facial injuries can often result in long‑term damage such as blindness, and while this was not the case here, it could have easily been so. The sentencing Judge equally appears to have been of the opinion that the injuries inflicted were not to be dismissed as relatively minor. At t/s 24 ‑ 25:
"Whatever the situation might have been, the fact remains that she sustained a laceration to her left eye which subsequently required to be sutured or in some way sealed. The victim was powerless to resist. She was taken by surprise and received a severe beating in her own home. Her premises were invaded, and she subjected to what must have been a terrifying ordeal.
Not content with having assaulted the complainant on the first occasion, you returned to her room after having been removed by your partner and attacked her a second time. Once again you punched her in the face and about the body. Once again you had to be forcibly removed from the unit. This demonstrates, as the prosecutor has said, the persistence of your conduct on this particular occasion.
The attack upon the second victim was equally as vicious. On this occasion your co‑offender was a party to the attack. He was the one who struck the complainant in her [sic] face, damaging his nose and perhaps inflicting the other facial injuries which are evident from the photographs and described in the report."
Aggravating the seriousness of the assaults was the fore-planning of the attacks by the appellant and her de facto. I note that the Police Statement of Material Facts states that, at the time the charges were brought against the appellant, both Ms L and Mr B were prosecution witnesses in other matters against her and her de facto and had received numerous threats from them.
I turn now to the antecedents of the appellant looking first at the remarks of the learning sentencing Judge. He stated that the appellant was born on 24 May 1967 and that at the time of sentencing she was 38, and commented on her record of previous offending, including a conviction for aggravated assault in 1986, as well as convictions for dishonesty in that same year. More recently the appellant was convicted, in December 2004, of aggravated burglary and sentenced to a term of imprisonment which was subsequently set aside on appeal (that offence post‑dating the convictions at hand). It is the case though that the appellant was on bail for that offence at the time she committed the present offences.
Her personal circumstances were extensively set out by Mr Manera in his sentencing submissions, as counsel for the appellant when sentenced, and in a pre‑sentence report and a psychological report read by the learned sentencing Judge before the sentencing proceedings commenced.
The information before the court outlined the appellant's background and upbringing in New Zealand and emphasised her unhappy childhood and problematic background. She was married in 1990 and has a 13‑year‑old child who is currently being looked after by the appellant's mother. Her marriage has now ended. The appellant has a history of drug dependency including the use of cannabis, opiates and amphetamines. According to the pre-sentence report and from the address of counsel for the appellant, at the time of sentencing, she was no longer dependent on or using illicit drugs.
His Honour noted that the psychiatric report focused on the appellant's personal problems and made the point that she had reflected upon her recent behaviour and shown remorse for her actions. He mentioned a reference in the report to the appellant's tendency to deflect blame for what happened towards the victims of these assaults - the appellant believed she had been wronged. Mr Manera had emphasised that the appellant accepted she had overreacted on this occasion.
In mitigation of sentence Muller DCJ expressly took into account the appellant's plea of guilty on the fast‑track system; her childhood history; unhappy upbringing; the abuse to which she was subjected; the fact that she was dependent upon drugs at the time these offences were committed; and that her "entire life had been shattered to a very large extent by [her] dependency on drugs" (t/s 23).

He accepted Mr Manera's submission that at the time these offences were committed the appellant "had come to the end of [her] tether". She had no money and believed that her property had been stolen, as well as having no prospects and being still heavily dependent on drugs. Muller DCJ said (at t/s 23):
"It was in that context that [the appellant] decided to take the law into [her] own hands."
He also noted the references submitted by Mr Manera and a personal letter from the appellant dated 30 March 2005 and addressed to him personally. This letter commenced with an apology from the appellant "to society and the victims of [her] crimes and also [her] family". It continued:
"My life started to fall apart, and everything slowly unfolded over a period of 2 years. I started to use drugs to mask the depression and trauma of having to re‑live my childhood molestation. My family and I had to travel back to New Zealand for the trial of my father, he received 3 years imprisonment, and from then on everything began to suffer, my relationships with my family, especially my daughter, my business, absolutely everything.
In January 2004, I began to associate my self with people that where down on their luck and with people that had much bigger drug problems than my own and the scene that unfolded unfortunately appears before you daily.
I have never been of criminal mind or nature, but I did make a small mistake early in my years. Unfortunately for me I went from using some drugs to becoming a drug user, my habit increased rapidly, I began to get drugs on credit from outlaw gangs and Asian drug dealers. That's where it really went wrong, I became indebted to these people, they started to demand their money. My life and the life of my partner was threatened even so much as being held up by gunpoint and left stranded in Kings Park in May or June last year. I feared for my partners life as his brother inlaw was murdered by a gang of Asians. The pressure of having to find money to pay them increased so much that I exhausted my own financial resources.
That is where I lost control of my whole life and now I am before you, pleading for my freedom. I would like to apologise in person to the victims of my crimes, I am also willing to attend counselling, urinalyses testing, anything for my freedom.
My family are fully supportive of me and I have their home to return to. My 12 year old daughter is in the care of my mother who is suffering ill health.
Your Honour, I am truly truly sorry for my actions and it is not in my character to have done the things that I have. I have no desire to continue this kind of life style.
Thank you for taking the time to read my plight and I do pray that you will show me the mercy that I am asking." (Reproduced as per the original).
Of course, it is not unusual for an offender to plead for compassion after committing an offence, once the full extent of their actions becomes clear and imprisonment is imminent. Nonetheless, his Honour expressly took the appellant's personal plea into account when imposing sentence.
The appellant's pre‑sentence report gives her account of the offences and background information to those offences. In 2000 the appellant began an escort agency in Bunbury and, at one point, both of the complainants worked for her as prostitutes. The business was running successfully until the appellant became romantically involved with two men, one who physically abused her, and the other who introduced her to heavy amphetamine use. The appellant conceded that she allowed the reins of her business to slip and while she was distracted the complainants ran up large phone bills, used her car without permission, damaged the car and stole valuable property from her.
According to the appellant, in the weeks preceding the offences, she had asked police to retrieve her belongings from both the complainants. However, she was less than satisfied with their efforts as little action was taken. At this time the appellant was dependant upon amphetamines and on the day in question had "topped up" from the day before. She was very angry at what she saw as "a breach of trust, blatant theft and a total disregard for her feelings".
The appellant refuted parts of the Police Statement of Material Facts. She claimed that she did not run inside the first complainant's room but merely walked and that she inflicted lacerations to Ms L's face by striking her with a closed hand, and not by using the table lamp, although she conceded that she struck that complainant's legs with the table lamp. The Judge sentenced her on this basis.
In respect of the second complainant, Mr B, the appellant initially claimed that all of the injuries were inflicted prior to her entering his home and that she did not touch him in any way. She had said that she drove to the complainant's home and her co‑offender jumped out, vaulted a fence and entered the house. By the time the appellant had entered the house the assault was over, although the appellant conceded that she did scream at the complainant about the property he had stolen from her.
In his plea in mitigation, counsel for the appellant told his Honour that the appellant did not take issue with the facts as stated by the prosecution, save for a couple of matters "which should not affect the sentencing process at all". The first was the use of the lamp on the complainant Ms L. The second, counsel said (AB 50):
"… although there's not a suggestion to the contrary but I just want to clarify in relation to that the offender Kerr entered those premises first and began the assault and that my client, Ms Drake, entered the premises shortly thereafter and then joined in. Much of the - my client very frankly - and she's not suggesting to minimise her own involvement in it but she was suggesting that Kerr really did get stuck in, for want of a better word, to Mr [B] on that second occasion."
In his sentencing remarks, his Honour described both offences. He said (AB 63 ‑ 64):
"The maximum sentence for the offence of aggravated burglary is a term of 20 years' imprisonment. The offence of occasioning bodily harm - assault occasioning bodily harm - carries a term of five years' imprisonment. However much [sic] you might have felt aggrieved by the conduct of the two victims, there was absolutely no justification, either moral or legal, for what you subsequently did. Your degree of culpability was particularly high. You went to the hotel unit of the first victim, and the place of residence of the second, with the intention of avenging yourself for what you believed was the wrong they had done to you.
As the prosecutor has emphasised, the offences were clearly premeditated. You probably knew it was safe to assume that each victim would be alone at his or her residence and vulnerable. Nothing, it seems, was left to chance. You went to each place with your partner, knowing the numbers would probably be in your favour and that any resistance could be overcome. Most significantly of all, your intention in going to both places was to attack the occupants and exact retribution.
I now turn to the assaults. The attack on the first complainant was quite savage. The first complainant was lying on her bed when you jumped on her and struck her on the face and body. Not content with using your hands and fists, you also struck her with a bedside lamp, although I do take into consideration your assertion that you only used the weapon to strike her on the leg or body.
Whatever the situation might have been, the fact remains that she sustained a laceration to her left eye which subsequently required to be sutured or in some other way sealed. The victim was powerless to resist. She was taken by surprise and received a severe beating in her own home. Her premises were invaded, and she was subjected to what must have been a terrifying ordeal.
Not content with having assaulted the complainant on the first occasion, you returned to her room after having been removed by your partner and attacked her a second time. Once again you punched her in the face and about the body. Once again you had to be forcibly removed from the unit. This demonstrates, as the prosecutor has said, the persistence of your conduct on this particular occasion."
His Honour then went on to say (AB 65):
"The attack upon the second victim was equally as vicious. On this occasion your co‑offender was a party to the attack. He was the one who struck the complainant in her (sic) face, damaging his nose and perhaps inflicting the other facial injuries which are evident from the photographs and described in the report. The prosecution alleges that both you and your co‑offender then kicked and punched the complainant, and even when he attempted to run into his bedroom to get away from you, continued attacking him.
While your co‑offender may have been the principal offender in this assault, you clearly assisted him and assaulted the victim yourself during that particular episode. Your degree of culpability is only slightly less, if indeed not the same as, that of your co‑offender. The complainant received a laceration to his face and of course a damaged nose. The injuries are outlined in the medical reports placed before the court. When a person's home is invaded by an offender intent upon retribution, and violence takes place, a term of immediate imprisonment is almost inevitable."
His Honour went on to say (ibid):
"The Court of Criminal Appeal has emphasised many times in the past that in the enforcer type of case, which this is, the need for a deterrent sentence leaves little room for personal circumstances to modify what would otherwise be the appropriate punishment. I refer to Tan v R, 960188. Terms of imprisonment between four to seven years are frequently imposed for this type of offence. I refer to Bell v R (2001) WASCA 378 and Palmer v R CCA 182 of 1993."
His Honour said general deterrence was an overriding consideration and that to break into a dwelling house for the purpose of inflicting a beating on the occupant, is a form of home invasion which must lie at the upper end of the scale of seriousness.
In imposing the particular sentences, his Honour said that he considered an appropriate starting point for the three home invasion offences (counts 1, 3 and 4) under the former sentencing laws was a term of 4 years imprisonment. He allowed a discount of 9 months for the appellant's plea of guilty and other mitigating circumstances, in each instance, which produced a term of 3 years 3 months. Schedule 1, cl 2(1) of the Sentencing Legislation Amendment and Repeal Act 2003 (WA) required him to reduce that by one‑third, which he did, resulting in the sentences of 26 months.
In respects of counts 2 and 5, his Honour thought the appropriate starting point under the former sentencing regime was 2 years' imprisonment. He again allowed a discount of 9 months on account of the appellant's pleas of guilty and other mitigating circumstances, reducing the sentences to 15 months, which, then reduced further by the statutory one‑third, produced a sentence of 10 months' imprisonment.
The total sentence, as I have mentioned, his Honour fixed at 32 months' imprisonment, by ordering all the sentences to be served concurrently except to the extent that 6 months of the sentence on count 1 was to be served before that on count 4 would commence.
It is immediately apparent from an examination of other cases, that ground 5 cannot be sustained. The actual sentence which this ground challenges was one of 26 months' imprisonment. That is equivalent to one of 3 years 3 months prior to the Sentencing Act amendments. As the sentencing Judge correctly observed, terms of between 4 to 7 years were frequently imposed for this type of offence. Given his Honour's view of the seriousness of the individual offences here and the overriding effect which had to be given to the need for deterrence - both of which were clearly open to him - the fixed terms for these offences were not outside the range.
His Honour referred to Tan v The Queen, unreported; CCA SCt of WA; Library No 960188; 1 April 1996, as authority for the proposition that in the "enforcer" type of case (which he said this was) the need for a deterrent sentence leaves little room for personal circumstances which would modify what would otherwise be an appropriate sentence.
Tan was a far more serious case than the present. That is reflected in the sentence actually imposed. There the applicant was only 20 years old at the time of the offences. He had not pleaded guilty but was convicted after trial of aggravated burglary in company and assault occasioning bodily harm. He had either purchased some drugs from a dealer or loaned money to another man for that purpose. The drugs proved to be valueless and the applicant sought to recover his money from the complainant, whom he believed had been involved in the transaction in some way. He went to the complainant's house and asked him for the money. The complainant refused. As two other men were present, the applicant left. Sometime later he returned to the complainant's house, taking four other men with him. He forced open the front door and went inside. He had a spanner with him. The complainant grappled with him in the hallway before retreating to the kitchen. There was another man in the house with the complainant but he was told to stay where he was, which he did. The applicant attacked the complainant with the spanner. The complainant tried to protect himself with a broomstick, but the applicant struck him on the left wrist, causing a fracture which subsequently required the insertion of a plate. Shortly afterwards the applicant left the house with his companions.
The sentencing Judge imposed a sentence of 5 years' imprisonment in respect of the first count and 2 years in respect of the second. He directed the terms be served concurrently. He ordered the applicant be eligible for release on parole.
The Court of Criminal Appeal refused leave to appeal. Wallwork J said that the seriousness of the offences were such that the youth and antecedents of the applicant were a secondary consideration when seen against the need for protection of the community and that in the circumstances a deterrent penalty was clearly required. Murray J agreed, stating that the circumstances demanded a deterrent and condigned sentence. In the circumstances of the case the capacity of the applicant's mitigating personal circumstances to reduce or modify what would otherwise have been an appropriate and proportionate punishment was strictly limited.
While the injuries inflicted by the appellant in the instant case were less serious than those in Tan, there were two separate home invasions and the first was notable for the appellant's persistence in continuing the attack.
In Bell v The Queen [2001] WASCA 378, the applicant had been sentenced to a total period of 7 years 6 months' imprisonment, with eligibility for parole. That was in respect of four offences to which he had pleaded guilty and a fifth on which he had been found guilty after trial. The offences to which he pleaded guilty were aggravated burglary, assault with intent to facilitate the commission of a crime, unlawful assault occasioning bodily harm and unlawful detention. He was found guilty of making a threat to kill. He was sentenced to 6 years' imprisonment on the aggravated burglary count, 12 months on the assault with intent to facilitate the commission of a crime, 12 months on the unlawful assault occasioning bodily harm, 18 months' imprisonment on the unlawful detention and 2 years' imprisonment in respect of the threat to kill. All sentences were to be served concurrently except that in respect of the unlawful detention, which was ordered to be served cumulatively. The substance of the offences was that he had broken into the complainant's house at night, while she was asleep. He was armed with a knife. When she awoke, the applicant punched the complainant several times to the head and threw her against a wall. After she had managed to leave her bedroom and flee to another part of the house, he followed her there and attacked her again. Clearly, that was not an "enforcer" type of offence. It was, however, a serious home invasion.
In Palmer v The Queen, unreported; CCA SCt of WA; Library No 940024; 14 January 1994, sentences of 7 years and 6 years' imprisonment for offences of burglary in the night-time and assault occasioning bodily harm were upheld. These offences were akin to "enforcer" cases, involving the invasion of a home by four persons in the early hours of the morning for the specific purpose of a ruthless "bashing" of the male complainant, followed by a cowardly attack on his wife.
Home burglaries (or home invasions) generally are now seen to require substantial penalties aimed at giving priority to considerations of personal and general deterrence (Herbert v The Queen (2003) 27 WAR 330; Heferen (1999) 106 A Crim R 89 at [13] and [35]; Penny v The Queen, unreported; CCA SCt of WA; Library No 990189; 16 April 1999 and Pollock v The State of Western Australia [2004] WASCA 280).
In The State of Western Australia v Sabek [2005] WASCA 207, I observed (at [50]):
"A home invasion which is committed with the intent to intimidate the occupants by threatening them is more serious than a burglary which involves simply an intent to steal (R v Ward (1999) 109 A Crim R 159 per Malcolm CJ (Ipp and White JJ agreeing) at [8])."
In that case I also said (at [54]):
"The offences were such that the principles of just punishment, denunciation and protection of the community by way of both personal and general deterrence completely outweighed the fact that the respondent was a middle‑aged man with a small personal business and no previous convictions."
Accepting that offences of this kind can be, and are, committed in a wide range of circumstances, it is nonetheless apparent that his Honour was correct to perceive that as a general proposition, sentences for offences of this kind had fallen generally within a range of 4 to 7 years' imprisonment. His "starting point" was therefore at the bottom of that range.
Nor is ground 1 made out. As his Honour recognised, these were serious offences. He accurately identified the features which made them so. He acknowledged and took into account all the mitigating factors which had been put to him. It was open to him to take the view that the need for a deterrent sentence left little room to modify what would otherwise have been an appropriate punishment.
I would dismiss grounds 1 and 5.

Ground 2 - "Discount" for pleas of guilty and mitigating circumstances

The first submission advanced here is that the authorities establish that discounts for pleas of guilty in this State will ordinarily range between 25 and 35 per cent. That must be accepted (Little v The Queen [2001] WASCA 87 at [13] per Malcolm CJ, Wallwork and Anderson JJ; Stapleton v The Queen [2004] WASCA 130 at [33] per Malcolm CJ, with whom Wheeler J agreed). Nonetheless, the amount of the reduction is discretionary and sentencing Judges "must be accorded a wide measure of latitude which will be respected by appellate courts" (Postiglione v The Queen (1997) 189 CLR 295 at 336 per Kirby J; Lowndes v The Queen (1999) 195 CLR 665 at 671 ‑ 672).
It was then the submission for the appellant that a 9 month reduction on a sentence of 4 years' imprisonment is only somewhat less than 20 per cent, yet there were fast‑track pleas of guilty, which his Honour accepted entitled the appellant to "a substantial discount" (AB 63). The point is highlighted when it is appreciated that his Honour made the same 9 month reduction in respect of the assault occasioning bodily harm offences, although there of course it represented a percentage reduction of approximately 37 per cent. His Honour gave no explanation for this discrepancy.

It is necessary to be mindful that his Honour characterised the reduction as not referable solely to the plea of guilty, but was to accommodate that and such other mitigating features as there were. Given his view that the latter were not substantial, it is reasonable to conclude his Honour allowed a reduction of around 30 per cent for the pleas of guilty.
If it were to be supposed (as one might reasonably expect) that the same proportionate reduction would have been appropriate in respect of all the offences, applying the 37 per cent to counts 1, 3 and 4 would have meant a reduction on that account in each instance of 18 months. A statutory reduction of one‑third would then have resulted in individual sentences of 12 months' imprisonment.
In my opinion, this substantial and unexplained discrepancy does reveal error. There has been a significant inconsistency in the allowance for the appellant's pleas of guilty. Looked at in a slightly different way, the discrepancy indicates that in respect of the most severe sentences, being those on counts 1, 3 and 4, the sentencing Judge gave inadequate credit for the appellant's pleas of guilty.
I would allow the appeal on this ground. It therefore becomes necessary for this Court to impose the sentences which ought to have been imposed (s 31(4) and s 31(5) of the Criminal Appeals Act 2004 (WA)). Having regard to all the considerations put before the sentencing Judge and before us, including the fact that the appellant was on bail when she committed these offence, that they were the premeditated result of the appellant's anger and that injuries were inflicted on the complainants in their own homes, I would agree that a sentence of 4 years' imprisonment (in pre‑August 2003 terms) is an appropriate starting point. I would allow a reduction of 15 months (approximately 30 per cent) for the plea of guilty and other mitigating factors, giving 33 months, which would then have to be reduced by the statutory one‑third, to a term of 22 months' imprisonment.
It is necessary to deal with ground 3 before turning to the issue of cumulation or concurrency.

Ground 3 - Partly cumulative sentence an error

I would not have upheld the appeal on this ground. It is true that the offences were committed on the same day, but that did not make them part of one transaction. They were deliberate and serious invasions of different interests (Pieri v The Queen [2001] WASCA 357 per Roberts‑Smith J at [14]; R v White [2002] WASCA 112 per McKechnie J at [26]). They were quite different (although similar) incidents, involving offences committed on different people at different locations. In those circumstances, unless the totality principle would require some other approach, the sentences should be cumulative (Ward (1999) 109 A Crim R 159 per Malcolm CJ, Ipp and White JJ agreeing, at [9]). It was a reasonable exercise of his Honour's discretion to order the sentence on count 4 be partly cumulative with that on count 1.
Given the conclusion I have come to in respect of ground 2, however, it would now be necessary for this Court to exercise its own discretion. For the reasons I have briefly expressed above, I consider some degree of cumulation is required. Failing to so order would not adequately reflect the appellant's overall criminality in the commission of these offences.
I would order that the sentence of 22 months' imprisonment on count 4, commence 4 months after commencement of the sentence in respect of count 1, but that the sentences on all counts otherwise be served concurrently. That would make an aggregate sentence of 26 months' imprisonment.

Conclusion

I would reject grounds 1, 3 and 5. I would uphold ground 2 and allow the appeal in respect of counts 1, 3 and 4. I would set aside the sentences on those counts and substitute for them, sentences of 22 months' imprisonment respectively. I would order that the sentence on count 1 commence on 14 December 2004, that the sentence on count 4 not commence until the appellant has served 4 months' imprisonment on count 1, but that otherwise all the sentences be concurrent. I would order that the appellant be eligible for parole. The appellant would accordingly have an aggregate sentence of 26 months' imprisonment to serve and would be eligible for release on parole in respect of these sentences (that is, not including the subsequent s 32 notice sentences and the sentence of imprisonment imposed for non‑payment of fines) after serving 15 months.