Egan v The State of Western Australia - [2007] WASCA 182

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT : THE COURT OF APPEAL (WA)

CITATION: EGAN -v- THE STATE OF WESTERN AUSTRALIA [2007] WASCA 182

CORAM: WHEELER JA
PULLIN JA
BUSS JA

HEARD: 7 AUGUST 2007

DELIVERED : 5 SEPTEMBER 2007

FILE NO/S: CACR 50 of 2007

BETWEEN: ANDREE ERICA EGAN
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent

ON APPEAL FROM:
Jurisdiction              :  DISTRICT COURT OF WESTERN AUSTRALIA
Coram  :YEATS DCJ
File No  :IND BUS 9 of 2007

Catchwords:

Criminal law - Sentencing - New material - Turns on own facts

Legislation:

Sentencing Act 1995 (WA), s 82(2), s 84A

Result:

Appeal allowed
Appellant resentenced

Category: B

Representation:

Counsel:

Appellant: Mr M R Gunning
Respondent: Ms J D Whitbread

Solicitors:

Appellant: Wylie & Associates
Respondent: State Director of Public Prosecutions

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

Nil

WHEELER JA: On 2 April 2007, the appellant pleaded guilty to one count of aggravated burglary and one count of wilful and unlawful damage. She was sentenced to 2 years' imprisonment in relation to the first count and 18 months in relation to the second, ordered to be served concurrently, which gave a total effective sentence of 2 years' imprisonment. There was an order for eligibility for parole.
The facts stated by the State were that in the early hours of 12 October 2006, the appellant and her 20‑year‑old co‑offender "formed a plan" to visit the complainant's house to speak to him about the recent suicide of the appellant's "half‑sister" [sic stepsister]. Both co‑offenders believed that the complainant had some role in relation to the stepsister's unfortunate death, as he had allegedly been supplying her with amphetamines. The appellant is a former girlfriend of the complainant.
Shortly after 5 am, the offenders arrived at the complainant's premises, armed, it was said, with "cricket bats" (although it appears from other materials that there was only one bat, that it may have been a baseball bat, and that it was held by the appellant at the time they walked up to the house). The co‑offenders parked in the driveway, walked up to the house, and the appellant yelled out, "Good morning". It was said that both of them then smashed a glass pane at the front of the house, using the bat. The complainant woke up, ran to the front door and saw the offenders, and ran away.
Both offenders then entered the house. The appellant felt the bed where the complainant had been sleeping and noted that he must have just left. Both of them then picked up "every piece of moveable property they could find", and threw it around, causing damage to that property, to the internal walls and to the windows. At some time during these events, the co‑offender cut his hand, and flicked blood over the walls and floor. Both of them then drove back to Margaret River.
At 7 am, police located both offenders, arrested them and took them to Margaret River police station. The co‑offender, Sykes, was interviewed on video and made admissions. The appellant was interviewed on video, but at that stage did not make admissions and was uncooperative and hostile. She was, it seems, still intoxicated at the time. Damage to the premises was estimated at $20,000.
The appellant at the time of sentencing was 35 years of age and a single mother of two children aged 6 and 15. Her previous relationship with the complainant had ended acrimoniously approximately two years previously, after a number of incidents of domestic violence, one of which resulted in her sustaining a broken right ankle. It was said that the complainant also owed her money. Her stepsister had apparently committed suicide by hanging herself some weeks before the offending, and the appellant was the person who was responsible for informing her 8‑year‑old nephew of his mother's death, and for caring for him for some time afterwards. Once she no longer had the care of that child, she drank to excess for a time, in order to cope with her emotional difficulties. She had only one previous conviction, for drink driving. By the time of sentencing for the offences the subject of this appeal, she had expressed shame and remorse for her actions. It was accepted that the offending was out of character and that she was normally neither violent nor destructive.
It is fair to say that the learned sentencing Judge was offered little assistance in relation to the situation of the appellant's children. All that her Honour was really told was that it was unlikely that family members would be able to take care of the children during any lengthy period of imprisonment, and that they may end up in foster care for a time. Her Honour thought there was a possibility that the older girl would be able to stay with the families of friends.
So far as the facts were concerned, in the plea in mitigation, made by counsel who represented both offenders, it was asserted that Sykes was a close friend of the appellant's older daughter. He and the appellant had, on this occasion, come to be drinking together in the early hours of the morning. He had not met the complainant, but knew of him, and had formed an unfavourable impression of him. It was said that the appellant, in discussing her stepsister's death with Sykes, had become very emotional, was crying, and that Sykes felt for her. She talked about wanting to "front the complainant" to "find out answers" and it was said that, at some point, Sykes had said to her something like, "Okay, let's do it. Let's go over to his place". It was asserted that neither of them had given much thought to what they would do when they got there. It was asserted on Sykes' behalf that he "probably" went with the appellant out of a sense of wishing to support and protect her.
The co‑offender Sykes was sentenced to a total of 21 months' imprisonment, suspended for 18 months on condition that he be under supervision for that time and that he undergo programmes such as alcohol abuse and anger management programmes, as required. So far as the appellant was concerned, her Honour said:
"I am required to consider again all of the matters in mitigation to determine whether despite the seriousness of the offending this is nonetheless a case where it is not necessary that the sentences be immediately served.
I have taken time to very carefully consider the matters in mitigation in relation to each offender. I do not find them to be equally culpable in this offending. I consider the [appellant] to be more culpable than the [co‑offender]. Primarily because of his youth, and also because of the fact that he was talked into this at the urging of [the appellant], taking account of the various matters personal to himself, I do consider in the case of [the co‑offender] the sentences I impose should be suspended …
In the case of [the appellant], the factors are somewhat different. She is a mature woman who should not have been enticing or enlisting a young person in her vendetta against the complainant. That aspect is particularly serious in her case, taking the law into her own hands and justifying herself for doing so.
At the request of counsel for [the appellant], I have this morning listened to further submissions particularly concerning her children, and I accept that that factor requires careful consideration in her case, the effect that any sentence of imprisonment will have on her dependent children. The girls are aged 15 and six. The offender is their sole carer. I accept that there are no relatives living in Western Australia, and it's unclear in any case whether there are any relatives in an appropriate position to care for her children.
I have reviewed a number of authorities in the Court of Criminal Appeal concerning this issue, that is, the question of how a sentencing court deals with the impact of imprisonment on the dependent children of an offender …
…
This is a case where the predominant sentencing consideration is general deterrence. The court has a great deal of compassion and sympathy for the [appellant] and the position she finds herself in as a result of her offending, but there is nothing in the hardship she and her daughters will suffer which takes this case into the category of truly exceptional circumstances so as to have a marked effect on her sentence. The hardship her children will suffer is, however, a factor that I have taken into account in my reconsideration of all the matters that mitigate [sic militate] in [the appellant's] favour." (Emphasis supplied)
Originally, there was effectively one ground of appeal, alleging that the learned sentencing Judge erred in failing to give sufficient weight to a number of factors, including the appellant's very minor criminal record, the effect that imprisonment would have on her children, and the circumstances of the offending, and therefore imposed a sentence which was manifestly excessive. In developing that ground, in oral submissions, it was emphasised that the effect on the children should have been viewed as an exceptional circumstance which, in itself, would justify suspension of the sentence. In support of that submission, the appellant sought to place before us a considerable amount of material which was not before the learned sentencing Judge, and which is relevant to the welfare of the children.
That material is in two affidavits of the appellant, sworn 22 May 2007 and 4 July 2007 respectively, setting out a variety of matters which plainly should have been before the sentencing Judge, and, in addition, a report of a psychologist dated 6 July 2007. The gist of these, so far as the children are concerned, is that they make it clear that there are no family members who can care for the children on a medium, or long‑term, basis. They also set out, in some detail, the circumstances of the elder child, who had been in a rebellious and difficult phase, which involved such things as dropping out of school, staying away from home on occasion, and consuming alcohol to excess. The appellant had worked hard during that time to maintain her relationship with her elder daughter, whose behaviour had gradually improved. However, subsequent to her mother's imprisonment, she had taken to sleeping odd nights at different friends' places, had been very emotional, had again started drinking heavily and had, on one occasion, consumed so much alcohol that she had to be taken to the emergency department of the local hospital.
Save for the last incident involving hospitalisation, much of the other material was known at the time at which the appellant was sentenced, and should have been placed before the learned sentencing Judge if it was to be given any weight. The State accepts that it would be relevant for us to have regard to this material if we had otherwise found error, and were to resentence the appellant. If no such error is found, it is submitted that most of the material is neither new nor fresh, and is not of that exceptional character which would suggest that it should be received on appeal. I accept that submission.
So far as the original ground of appeal is concerned, to the extent that it really seeks to rely upon the circumstances of the children, I would not uphold it. Her Honour considered and applied the principles appropriate to the sentencing of offenders with the care of dependent children. While a different approach may have been open, no error has been demonstrated in that respect.
However, during the course of argument, the Court drew attention to certain aspects of the submissions on behalf of the appellant which were not reflected in the grounds of appeal, but which, it seemed to us, really complained of an error in her Honour's characterisation of the appellant's role and culpability in the offending. The State did not object to the appellant's counsel amending the grounds of appeal so as to raise that issue.
There are two aspects to the error identified by the new ground. First, it is submitted that her Honour was wrong in fact when she described Sykes as being "talked into this" at the urging of the appellant, and when she described the appellant as "enticing or enlisting a young person in her vendetta against the complainant". In addition, it is submitted that her Honour erred in not affording the appellant's counsel an opportunity to make submissions in relation to the aspect of the appellant's "enticing or enlisting" the co‑offender.
The latter submission arises because it is said, in my view accurately, that the State in its submissions did not attempt to distinguish between the two offenders in terms of culpability, and the submissions made on behalf of the two co‑offenders also did not distinguish between them in that respect. It is, of course, always open to a sentencing judge to form his or her own view of the relevant facts. A judge is not bound by submissions made by the State. However, if a sentencing judge proposes to take a more serious view of the facts than is urged by submissions, it is obviously important, where that view is likely to have any significant effect upon the sentence, to afford the offender an opportunity of dealing with the issue.
There was, in my view, nothing in the material facts read out to her Honour, the statement of the complainant, or the pre‑sentence reports, which would have enabled her to distinguish between the offenders in the way in which she did. The account which was put forward on behalf of both offenders by their counsel was simply that the appellant was obviously upset and had expressed a desire to confront the complainant and to find "answers". There is nothing in those bare facts that suggests that she, at that time, expressed a desire to behave aggressively or violently towards him. So far as one can tell from the submissions made on behalf of both co‑offenders, it was Sykes' idea to go and see the complainant at that particular time, when both offenders were intoxicated. There is nothing I am able to discern in the material facts which would justify characterising the appellant's role as being the type of sustained persuasion which is I think indicated by the words "enticing or enlisting".
Additionally, it does not appear to me that it is appropriate to describe her conduct as carrying out a "vendetta". On the contrary, the evidence suggests that, despite provocation over many years, in the form of the prior domestic violence and the debt allegedly owed, the appellant had left the complainant alone. There is nothing to indicate that this offence involved more premeditation than was involved in obtaining the bat (from where is not indicated) and travelling to the complainant's house.
It is my view, therefore, that error has been established in relation to her Honour's characterisation of the appellant's role in the offending. While it was plainly a revenge attack, and involved that degree of premeditation to which I have referred and was on that basis deplorable conduct, it was, nevertheless, not to be regarded as being in effect the culmination of a plan by the appellant to enlist another person, after lengthy premeditation, in harming the complainant.
Further, so far as the personal circumstances of Sykes and the appellant are concerned, it appears to me that there is something of a parity issue. While it is true that Sykes was quite young, being 20 years of age, and while it is clear that the appellant accepted, as the writer of her pre‑sentence report indicated, that, as the older of the two, she should have thought more before acting, there were also considerable mitigating factors on the appellant's side. Despite somewhat traumatic personal circumstances which were outlined in the pre‑sentence report, she had committed no relevant offences in her 35 years, had been working and studying until the time of her stepsister's death, and, as I have noted, had the care of two children, one of them relatively young and the other somewhat troubled.
Since, in my view, her Honour did err in her characterisation of the role of the appellant relative to that of Sykes, it is necessary to consider whether a different sentence should have been imposed, and, in performing that task, it is appropriate to have regard to the much fuller material concerning the circumstances of the appellant's children which has been placed before us. I have already outlined that material so far as it concerns the unavailability of other carers and the situation of the older child. I would add only that the psychologist's report indicates that the younger girl is, as one would expect, very seriously affected and distressed by her mother's imprisonment. In my view, the entirety of the appellant's personal circumstances, including the situation particularly of her older daughter, are sufficiently exceptional to require the suspension

of the sentence of imprisonment which, it is accepted on all sides, must be imposed in relation to an offence of this seriousness.

I would impose a sentence of 21 months' imprisonment in relation to the aggravated burglary and 18 months in relation to the criminal damage, to be served concurrently with each other. I would have suspended that sentence for a period of 18 months, had I been imposing it immediately following conviction. Having regard to s 82(2) of the Sentencing Act1995 (WA), I would now suspend it for 13 months. Having regard to the role which alcohol played in this offending, I would impose, in addition to the standard requirements of a conditional suspended sentence of imprisonment, a condition that the appellant undergo such alcohol abuse programmes as are required, pursuant to s 84A of the Sentencing Act1995.
PULLIN JA: I agree with Wheeler JA.
BUSS JA: I agree with Wheeler JA.