Eldridge v The State of Western Australia
[2020] WASCA 66
•30 APRIL 2020
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: ELDRIDGE -v- THE STATE OF WESTERN AUSTRALIA [2020] WASCA 66
CORAM: BUSS P
MAZZA JA
MITCHELL JA
HEARD: 10 SEPTEMBER 2019
DELIVERED : 30 APRIL 2020
FILE NO/S: CACR 1 of 2019
BETWEEN: DANIEL WILLIAM ELDRIDGE
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram: HERRON DCJ
File Number : IND BUN 17 of 2018
Catchwords:
Criminal law - Appeal against sentence - Appellant convicted after trial of one count of home burglary - Whether the sentence of 5 years' immediate imprisonment was manifestly excessive - Appellant a repeat offender under the Code - Mandatory minimum term of 2 years' immediate imprisonment for repeat offenders - Impact on the sentencing process - Correct approach to sentencing an offender for a State offence for which a statutory minimum sentence is prescribed
Legislation:
Criminal Code (WA), s 401A, s 401B, s 401(2)(b), s 401(4)(b), s 401(5)
Criminal Law Amendment (Home Burglary and Other Offences) Act 2015 (WA)
Migration Act 1958 (Cth), s 42(2), s 232A, s 233C
Sentencing Act 1995 (WA), s 4, s 6(1), s 6(2), s 9
Result:
Application for an extension of time granted
Leave to appeal granted
Appeal dismissed
Category: D
Representation:
Counsel:
| Appellant | : | E R Zillessen |
| Respondent | : | R G Wilson |
Solicitors:
| Appellant | : | Legal Aid (WA) |
| Respondent | : | Director of Public Prosecutions (WA) |
Case(s) referred to in decision(s):
Anderson v The State of Western Australia [2014] WASCA 167
Bahar v The Queen [2011] WASCA 249; (2011) 45 WAR 100
Burnes v The State of Western Australia [2017] WASCA 77
Cummins v The State of Western Australia [2017] WASCA 135
Dui Kol v The Queen [2015] NSWCCA 150
Fisher v The Queen [1999] WASCA 122
Harding v The State of Western Australia [2015] WASCA 27
Heferen v The Queen [1999] WASCA 81; (1999) 106 A Crim R 89
Herbert v The Queen [2003] WASCA 61; (2003) 27 WAR 330
Humphreys v The State of Western Australia [2017] WASCA 208
Jackamarra v The State of Western Australia [2019] WASCA 150
Karim v The Queen [2013] NSWCCA 23; (2013) 83 NSWLR 268
Muldrock v The Queen [2011] HCA 39; (2011) 244 CLR 120
Munda v The State of Western Australia [2013] HCA 38; (2013) 249 CLR 600
Newport v The State of Western Australia [2015] WASCA 224
Nguyen v The State of Western Australia [2007] WASCA 114
Pustkuchen v The State of Western Australia [2010] WASCA 11
R v Abbas [2019] WASCA 64
R v Karabi [2012] QCA 47; (2012) 220 A Crim R 338
R v Kilic [2016] HCA 48; (2016) 259 CLR 256
R v Latif; Ex parte Director of Public Prosecutions (Cth) [2012] QCA 278
R v Lawrence (1980) 32 ALR 72
R v Nitu [2012] QCA 224; (2013) 1 Qd R 459
Ryder v The State of Western Australia [2014] WASCA 187
The State of Western Australia v Doyle [2017] WASCA 207
Winmar v The State of Western Australia [2018] WASCA 155
Woods v The State of Western Australia [2017] WASCA 179
JUDGMENT OF THE COURT:
The appellant was convicted after a trial in the District Court of one count of burglary on a place ordinarily used for human habitation, contrary to s 401(2)(b) of the Criminal Code (WA) (the Code), which carries a maximum penalty of 18 years' imprisonment.
On 5 November 2018, Herron DCJ sentenced the appellant to 5 years' immediate imprisonment. The appellant was made eligible for parole and the sentence was backdated to commence on 8 August 2017.
The appellant has appealed to this court against sentence on a single ground which alleges that the sentence was manifestly excessive. The appeal was filed out of time. The delay in filing the appeal is short and the respondent does not oppose the granting of an extension of time. In these circumstances, the extension of time should be granted.
The facts of the offending
The facts of the offending, as found by the sentencing judge, are as follows.[1]
[1] ts 235 - 237.
The house burgled by the appellant is situated at an address in Quindalup. On 11 May 2017, the owner of the house and her family left for a month's holiday. Before doing so, all of the windows and doors of the house were locked and secured.
When the owner returned on 2 June 2017, she found that the driver's window and right rear passenger window of her vehicle, which had been parked in the garage, were smashed. Upon entering the house, she discovered that someone had rummaged through her family's belongings. The safe, which had been hidden behind clothes in a walk‑in robe to the main bedroom, had been exposed and damaged. Various items had been stolen. The value of those items was in excess of $14,000, none of which have been recovered. Among the items stolen were items of sentimental value to the owner.
The appellant entered the house through a laundry window. He did so after breaking the latch and forcing the window open. The appellant's DNA profile matched a DNA profile taken from blood on the windowsill. It is highly likely that the appellant left the house through the garage, along with the items he stole. At some point, the appellant smashed the victim's car windows. It is clear from the damage to the safe that the appellant tried to gain access to it and steal any items secured within it.
On 8 August 2017, the appellant was arrested and interviewed by the police. During the video record of interview, he denied committing the burglary and having been to the house. However, he gave evidence at trial admitting that he lied to the police when he told them he had not been to the house. The appellant testified that he was homeless and living out of his car at the time. While looking for a place to sleep, he went to the victim's house. He noticed that the laundry window was open. He then leant onto the sill and looked into the house. He said that he made a conscious decision not to go into the house because he had previously been convicted of home burglary offences and did not want to take the risk. He then left the house and slept in nearby premises which were under construction. The sentencing judge rejected the appellant's account as inconsistent with the jury's verdict of guilty.
The sentencing judge found that, at the time of committing the offence, the appellant was using methylamphetamine and supporting his habit by breaking into houses and cars. He found that the appellant sold or exchanged the stolen items for illicit drugs.[2]
[2] ts 238.
The appellant's personal circumstances
The appellant was born in New Zealand and was 41 years of age at the time of sentencing. His parents separated when he was a baby and he has had no contact with his natural father. The appellant was brought up in Western Australia by his mother and stepfather. He was raised believing that his stepfather was his biological father and he only became aware of the true position when he was in high school. The realisation that his stepfather was not his biological father, and that his brother and sister were not his biological siblings, left him feeling lonely and alienated. The appellant was the victim of serious forms of abuse as a child.[3]
[3] ts 240.
The appellant completed year 10 in high school. From about the age of 15 years, he has led a dysfunctional and unstable lifestyle and has frequently been homeless. He has also experienced frequent periods in juvenile detention. He has spent much of his adult life in the grips of illicit drug addiction, including heroin and methylamphetamine. As an adult, he has spent more time in prison than in the community. Apart from a period in his early twenties where he worked as a labourer, he has never held any stable or long‑term employment.[4]
[4] ts 241.
In 2007 ‑ 2008, the appellant was involved in two traffic accidents, the second of which left him with ongoing lower back symptoms. The appellant suffers from eczema, for which he has been prescribed steroids.[5]
[5] ts 242.
The appellant has a long criminal history. The appellant has many convictions for burglary, including on places of human habitation.[6] During the trial, the prosecution led as propensity evidence, pursuant to s 31A of the Evidence Act 1906 (WA), prior offences of home burglary committed in 2001, 2002 (twice), 2010 and 2013.[7] The appellant also has many convictions for dishonesty, trespass, damage, possessing property suspected to have been stolen or unlawfully obtained and traffic offences.[8] At the time of committing the present offence, the appellant was a repeat offender and liable, pursuant to s 401(4)(b)(i) of the Code, to a minimum sentence of 2 years' immediate imprisonment. We will say more about this aspect of the case later in these reasons.
[6] ts 242.
[7] ts 239.
[8] ts 242.
Two further observations may be made about the appellant's criminal history. First, many of the offences for which the appellant has been convicted are consistent with illicit drug abuse. Second, since the appellant turned 18 years of age, his offending has continued unabated, save for periods of incarceration.
After the appellant was arrested and remanded in custody in respect of the present offence, his mother, who had previously been living in Canada with her new partner, came to Western Australia and arranged for the appellant to participate in the Whitehaven Clinic's Addiction Recovery Process Program. This program is focused on addressing the underlying causes of the appellant's illicit drug addiction, with the aim of helping the appellant to rebuild his life without illicit drug use. The reports provided to the sentencing judge revealed that:
(1)the appellant had voluntarily completed six 90‑minute sessions with a counsellor;
(2)the appellant had engaged extremely well in counselling and had made excellent progress in developing insight into his behaviour and patterns;
(3)the appellant 'is extremely capable of changing his direction should he choose';
(4)there had been 'a significant change in his demeanour and attitudes towards his own self‑care and self‑determination about remaining drug free';
(5)the appellant's self‑confidence and self‑esteem have increased; and
(6)the appellant had requested ongoing counselling with the Whitehaven Clinic after his sentencing.[9]
[9] ts 243.
The sentencing remarks
After acknowledging the maximum penalty for home burglary, the learned sentencing judge turned to the seriousness of the offence. It is clear that he regarded it as a serious example of its type, noting that:
(a)the appellant stole valuable items worth in excess of $14,000, some of which were of sentimental value;[10]
(b)the appellant had rummaged through the victim's house, damaging her safe and motor vehicle; and
(c)the appellant's actions had caused the victim inconvenience and distress and had no doubt engendered in her a sense that her privacy had been invaded and that it was no longer safe to leave her property vacant.
[10] ts 238 - 239.
The sentencing judge found that the appellant was not remorseful for his offending and continued to deny his guilt.[11]
[11] ts 342.
His Honour described in detail the appellant's personal circumstances. His Honour referred to the report provided by the Whitehaven Clinic and to a court‑ordered psychological report written by Mr Steve Jobson.[12]
[12] ts 243.
His Honour observed that Mr Jobson diagnosed the appellant as suffering from a moderate level of chronic depression, combined with long‑term drug addiction. His Honour further noted Mr Jobson's observations that the appellant suffered from low self‑esteem and had a self‑defeating attitude. His Honour drew attention to two significant factors which Mr Jobson felt influenced the appellant's offending being, first, the appellant's self‑defeating personality and long‑term dysfunctional behaviour and lifestyle and, second, the appellant's lack of purpose and direction over a long period of time and his view of illicit drug use as a form of coping with problematic issues in his life. His Honour noted Mr Jobson's observation that the appellant had completed many treatment programs while in prison and, despite claiming to have benefited from them, he had been unable to cease illicit drug use and his pattern of reoffending.[13]
[13] ts 245.
His Honour noted the appellant's criminal history and, in particular, his prior burglary offences. He observed that the appellant had been sentenced to increasingly lengthy periods of immediate imprisonment for this offending, but had not been deterred from committing the present offence. While the appellant's prior record was not an aggravating factor, it underscored the need to impose a sentence that reflected the sentencing objectives of personal deterrence, punishment and public protection.[14] His Honour also referred to the importance of general deterrence. He observed that a necessary consequence of giving effect to this sentencing consideration is that less weight can be given to mitigating circumstances.[15]
[14] ts 240, 242.
[15] ts 247.
Immediately before announcing the sentence of 5 years' immediate imprisonment, his Honour reiterated that he had taken into account all of the circumstances including the desirability of the appellant's rehabilitation and other matters in mitigation.[16]
[16] ts 248.
Manifest excess - general principles
The general principles governing appeals contending that a sentence is manifestly excessive are well established:
(1)A ground of appeal which alleges that a sentence is manifestly excessive asserts an implied error. It is necessary, in determining whether a sentence is manifestly excessive, to examine it from the perspective of the maximum sentence prescribed by law for the relevant offence, the standards of sentencing customarily observed with respect to that offence, the place which the criminal conduct occupies on the scale of seriousness of offences of the kind in question, and the personal circumstances of the offender.
(2)The discretion conferred on sentencing judges is of fundamental importance and this court may not substitute its opinion as to sentencing for that of the sentencing judge merely because it would have exercised the discretion in a different manner. The appellant must demonstrate that the sentence imposed is unreasonable or plainly unjust.
(3)The guidance afforded by comparable cases is flexible rather than rigid. The mere fact that a sentence is within the range of other sentences imposed for similar offending does not necessarily establish that there was an appropriate exercise of the sentencing discretion in the particular case. Similarly, the mere fact that a sentence is outside the range does not necessarily establish that the exercise of the sentencing discretion in the particular case miscarried.
(4)A sentencing range for comparable offences is merely one of the factors to be taken into account in deciding whether an individual sentence is manifestly excessive. A range of sentences customarily imposed is of significance for the purpose of ensuring broad consistency in the sentencing of offenders in broadly comparable cases. However, a sentencing range for comparable cases does not fix the range of a sound exercise of the sentencing discretion in a particular case.
(5)When an appellate court dismisses an appeal against sentence, and when it allows an appeal against sentence and resentences the offender, the court's decision on the sentencing outcome does not, of itself, fix the upper or lower limit of the range.
If, in a particular case where manifest excess is alleged, there are no directly comparable cases, this court is not precluded from deciding that an individual sentence is or is not manifestly excessive. It merely has the consequence that this court has no directly comparable cases to provide a yardstick against which to assess the sentence. However, previous sentencing ranges are only one pointer to the adequacy of a sentence. See Munda v The State of Western Australia;[17] The State of Western Australia v Doyle.[18]
[17] Munda v The State of Western Australia [2013] HCA 38; (2013) 249 CLR 600 [38] - [39] (French CJ, Hayne, Crennan, Kiefel, Gageler & Keane JJ).
[18] The State of Western Australia v Doyle [2017] WASCA 207 [36] (Buss P, Mazza JA & Hall J).
Appellant's submissions
Counsel for the appellant accepted that the appellant's offending 'required a very firm sentence'.[19] However, she submitted that the sentence of 5 years' immediate imprisonment was plainly unjust and unreasonable, bearing in mind that:
(a)the offence the appellant committed was not an aggravated home burglary which attracts a maximum penalty of 20 years' imprisonment;
(b)the offence did not involve any violence on the part of the appellant;
(c)the comparable cases; and
(d)the positive indicators set out in the Whitehaven Clinic report.
[19] Appeal ts 3.
Correct approach to the mandatory minimum term
At the hearing of the appeal, an issue emerged as to the correct approach to sentencing an offender, such as the appellant, who, under State legislation, is subject to a statutory minimum term of imprisonment. The answer is to be found in the proper construction of s 401(4)(b) of the Code, in the context of s 401A, s 401B and s 401 of the Code as a whole and having regard to the relevant provisions of the Sentencing Act 1995 (WA).
As previously noted, the appellant was charged with an offence of home burglary contrary to s 401(2)(b) of the Code. As the offence was not committed in circumstances of aggravation, the appellant was liable to a maximum penalty of 18 years' imprisonment.
It was conceded that the appellant was a 'repeat offender' as defined in s 401B of the Code. Section 401B(1) relevantly provides that a person being sentenced for a home burglary is a repeat offender if the person has at least three relevant convictions. The term 'relevant conviction' is defined in s 401A of the Code and includes a conviction for a home burglary committed before, on, or after s 19 of the Criminal Law Amendment (Home Burglary and Other Offences) Act 2015 (WA) came into operation on 31 October 2015. It is clear from the appellant's criminal history that he has at least three relevant convictions.
As a repeat offender, by virtue of s 401(4)(b) and s 401(5) of the Code, a court that sentences a repeat offender for an offence of home burglary must impose a term of imprisonment of at least 2 years,[20] and must not suspend that term.[21]
[20] Section 401(4)(b) of the Code.
[21] Section 401(5) of the Code.
Thus, in addition to being subject to a maximum penalty of 18 years' imprisonment, the appellant was subject to a statutory minimum term of 2 years' immediate imprisonment. Apart from observing that the appellant was a repeat offender and that he was required to sentence the appellant to a term of immediate imprisonment of not less than 2 years, his Honour did not, in his sentencing remarks, make any further reference to the statutory minimum sentence or its impact upon the sentencing process.[22]
[22] ts 238.
During the hearing of the appeal, a question was raised as to the significance of the statutory minimum penalty on the imposition of an appropriate sentence for an offence of home burglary committed by a repeat offender.[23] The court drew to counsel's attention the judgment of this court in Bahar v The Queen[24] in which the court considered the proper approach to the sentencing of an offender for a Federal offence for which a statutory minimum term of imprisonment was prescribed. The issue has not previously been considered by this court in the context of State sentencing law. Both counsel for the appellant and counsel for the respondent sought, and were given, the opportunity to file written submissions as to the proper approach to sentencing for an offence of home burglary where the statutory minimum penalty of 2 years' immediate imprisonment applies.[25] The parties have filed, and the court has considered, written submissions in accordance with the court's orders.
[23] Appeal ts 8 - 9.
[24] Bahar v The Queen [2011] WASCA 249; (2011) 45 WAR 100.
[25] Appeal ts 13 - 14.
It appears from these submissions that the parties accept that the reasoning in Bahar, which will be referred to in more detail below, is applicable by analogy to s 401(4)(b) of the Code. On that approach, in essence, the statutory minimum sentence is to be imposed for the least serious category of case. Further, a sentencing judge, when sentencing an offender who is subject to a statutory minimum sentence pursuant to s 401(4)(b) of the Code, is to determine, having regard to all relevant sentencing factors, where the offending falls in the range between the least serious category of offending, for which the statutory minimum is appropriate, and the worst category of offending, for which the maximum sentence is appropriate.
The appellant also submits that, in cases such as his 'in a higher category of offending', the 'sentencing standards informing questions of manifest excess remain unaffected by the mandatory minimum'.[26] We do not accept this submission to the extent that it contends that the prescription and subsequent increase of the mandatory minimum penalty has no impact on the appropriate sentences in cases such as the present. For the reasons explained below, the sentencing court in all cases is to have regard to both the mandatory minimum and maximum penalties, as well as to Parliament's view of the gravity of the offending reflected in the provision for, and the subsequent increase of, the mandatory minimum penalty. Of course, in determining the sentence which is commensurate with the seriousness of the offence, the court is required to have regard to all relevant sentencing considerations, not limited to those affected by the provision of, or an increase in, the mandatory minimum penalty.
Bahar v The Queen and other cases
[26] Appellant's Supplementary Submissions, esp par 83.
In Bahar, the offender was convicted after trial of one count of facilitating the bringing or coming to Australia of a group of five or more people to whom s 42(2) of the Migration Act 1958 (Cth) applied, contrary to s 232A of that Act. The maximum penalty for this offence was 20 years' imprisonment.[27]
[27] Section 232A(1) of the Migration Act.
Section 233C of the Migration Act relevantly provided that a court sentencing an adult offender convicted of an offence contrary to s 232A, and whose conviction was not a repeat offence, must impose a sentence of at least 5 years' imprisonment with a minimum non‑parole period of at least 3 years.
The offender in Bahar was sentenced to the statutory minimum sentence of 5 years' imprisonment with the statutory minimum non‑parole period of 3 years. The Crown appealed against this sentence on two grounds. First, that the sentencing judge had erred in the application of the statutory minimum penalty provisions in s 233C of the Migration Act, and secondly, that the sentence was manifestly inadequate.[28]
[28] Bahar [4].
The issue raised by the first ground of appeal in Bahar was the proper approach to sentencing an offender for a Federal offence where the statutory minimum term of imprisonment was prescribed.
Recently, in R v Abbas,[29] this court (Buss P, Mazza & Beech JJA) analysed in detail the judgment of McLure P in Bahar (with whom Martin CJ & Mazza J agreed). It is convenient to repeat that analysis here:[30]
[29] R v Abbas [2019] WASCA 64.
[30] Abbas [66] - [68].
In Bahar, McLure P explained the correct approach to the mandatory minimum penalty. Her Honour concluded, relevantly, that:
(a)The mandatory minimum penalty, like the maximum penalty, is a legislative direction as to the seriousness of the offence [46].
(b)The observations of Gleeson CJ, Gummow, Hayne and Callinan JJ in Markarian v The Queen, that 'careful attention to maximum penalties will almost always be required, first because the legislature has legislated for them; secondly, because they invite comparison between the worst possible case and the case before the court at the time; and thirdly, because in that regard they do provide, taken and balanced with all the other relevant factors, a yardstick', are, on the face of it, equally applicable to mandatory minimum penalties [48] - [49].
(c)The general sentencing principles in the Crimes Act, as supplemented by common law principles, are framed at a level of generality for application within the boundaries of power established by the maximum penalty and the mandatory minimum penalty [54].
(d)The maximum penalty and the mandatory minimum penalty dictate the seriousness of the offence, for the purposes of s 16A of the Crimes Act, and they are the ceiling and floor respectively within which the sentencing judge has a discretion to which the general sentencing principles are to be applied [54].
(e)The question for the sentencing judge is where, having regard to all relevant sentencing factors, the offending in question falls in the range between the least serious category of offending, for which the mandatory minimum penalty is appropriate, and the worst category of offending, for which the maximum penalty is appropriate [58].
McLure P also noted in Bahar [56] that a mandatory minimum penalty of imprisonment can create complications for reductions in sentence for mitigatory factors. Her Honour elaborated [56] - [57]:
'For example, on occasions it will not be possible to allow a usual discount for a mitigatory factor, such as a plea of guilty: Teakle v The State of Western Australia (2007) 33 WAR 188 [19]. As Wheeler JA explained in Atherden v The State of Western Australia [2010] WASCA 33:
"[I]n relation to at least some offences which fall towards the lower end of the range of culpability, the presence of a minimum term makes it impossible for a sentencing judge to apply the quantum of discount for a plea of guilty which he or she would ordinarily apply, because to do so would mean that the sentence imposed would fall below the statutory minimum. Where an offence is right at the bottom of the range of culpability, it may be that no discount at all can be given, for the same reason.
However, I do not think it follows that the principles governing the awarding of a discount for a plea of guilty cease to apply in cases where there is a statutory minimum term. Rather, the result will be that there is a compression of sentences towards the lower end of the range, with offences at the bottom of the range of culpability treated effectively in the same way as those which are towards the lower end, but not at the extreme lower end, of culpability [42] - [43]."
These considerations will have a flow on effect on the application of the parity principle.'
In Bahar, this court disagreed with the approach to sentencing taken by Riley CJ in R v Pot. That approach involved applying pt 1B of the Crimes Act to arrive at a view as to the appropriate sentence having regard to all the facts and circumstances of the offence. If the sentence arrived at in that manner was less than the mandatory minimum penalty, the sentence would be increased to comply with the mandatory requirements of s 233C.
The court in Abbas noted that the approach taken in Bahar had been approved and followed by the Queensland Court of Appeal in R v Karabi;[31] R v Nitu[32] and R v Latif; Ex parte Director of Public Prosecutions (Cth),[33] and by the New South Wales Court of Criminal Appeal in Karim v The Queen.[34] In Karim, Allsop P articulated an independent reason why he favoured the construction in Bahar over that in Pot:[35]
There is an independent reason that leads me to favour the construction in Bahar. Equal justice inheres in judicial power, the fabric of the law and the basal notion of justice that underpins, informs and binds the legal system. As Gaudron, Gummow and Hayne JJ said in Wong v R [2001] HCA 64; 207 CLR 584 at 608 [65], '[e]qual justice requires identity of outcome in cases that are relevantly identical. It requires different outcomes in cases that are different in some relevant respect' (emphasis in original). To approach the matter as in Pot would see cases of perceived different seriousness by force of statute given the same penalty. Thus, if a judge thought the relevant offending in one case to be of low seriousness and worthy of a sentence of six months, but in another case to be of significant seriousness worthy of imprisonment for five years, she or he would be obliged to revise the first sentence to five, leaving the second sentence at that point also. The statute, and through it the order of the court, would be the instrument of unequal justice and, so, injustice: R v Green [2010] NSWCCA 313; 207 A Crim R 148 at 156 [23]; and Green v R [2011] HCA 49; 244 CLR 462 at 466 [4] and 489 [80]. On the other hand, approaching the matter as in Bahar permits all usual sentencing considerations, including parity, to be accommodated, though in a more compressed range, and with the consequence of a general increase in the levels of sentences.
[31] R v Karabi [2012] QCA 47; (2012) 220 A Crim R 338 [35] (Muir JA, Fraser & Chesterman JJA agreeing).
[32] R v Nitu [2012] QCA 224; (2013) 1 Qd R 459 [34] ‑ [35] (Fraser JA, Holmes JA & Ann Lyons J agreeing).
[33] R v Latif; Ex parte Director of Public Prosecutions (Cth) [2012] QCA 278 [20] - [22] (Fraser JA, Gotterson JA & Mullins J agreeing).
[34] Karim v The Queen [2013] NSWCCA 23; (2013) 83 NSWLR 268 [42] ‑ [45] (Allsop P, Bathurst CJ, Hall & Bellew JJ agreeing).
[35] Karim [45]. In Dui Kol v The Queen [2015] NSWCCA 150, Adams J and McCallum J, in separate judgments, each by way of obiter dictum, expressed disagreement with the approach taken in Bahar and Karim. Hoeben CJ at CL did not associate himself with those views.
The statutory framework analysed by McLure P in Bahar under Federal law is, in substance, closely analogous to the statutory framework under State law applicable in this case.
The proper construction and application of s 401(4)(b) and s 401(5) of the Code
Section 401(4)(b) and s 401(5) of the Code relevantly provide:
(4)Subject to section 401A(4), where a person convicted under this section of a home burglary (the current offence) is a repeat offender, whether or not the conviction for the current offence is a relevant conviction the court sentencing the person for the current offence -
…
(b)if the current offence was committed on or after the commencement day -
(i)if the person is an adult offender, notwithstanding any other written law, must impose a term of imprisonment of at least 2 years[.]
(5)A court must not suspend a term of imprisonment imposed under subsection (4).
The effect of these provisions is clear. Parliament has deprived a court sentencing a repeat offender for an offence contrary to s 401(2)(b) of the Code of the powers to impose a non‑custodial sentence and to impose a sentence of less than 2 years' imprisonment.
Section 401 of the Code was amended by the Criminal Law Amendment (Home Burglary and Other Offences) Act 2015 (WA), with effect from 30 October 2015, to increase the mandatory minimum penalty for 'third‑strike' repeat adult offenders from 12 months' to 2 years' immediate imprisonment.
Between 14 November 1996 and 30 October 2015, the mandatory minimum penalty for 'third‑strike' repeat adult offenders was 12 months' immediate imprisonment.
The policy impetus for the increase in the mandatory minimum penalty from 12 months' to 2 years' immediate imprisonment was explained by the Attorney General in his second reading speech. In particular, the Attorney said that:[36]
(a)the volume of burglaries committed in Western Australia was 'at an unacceptably high level';
(b)home burglaries, particularly in circumstances of aggravation and in the course of which violence may be committed, were 'a major source of worry to the community'; and
(c)the government was determined 'to ensure that burglars who commit numerous home invasions, which can involve serious violent offences, are incarcerated for longer periods; to deter such offenders; to ensure that such offenders are kept out of circulation longer; and to reflect community abhorrence of such offending'.
[36] See Western Australia, Parliamentary Debates, Legislative Council, 24 March 2015, 1917e – 1920a (Mr M Mischin, Attorney General).
The maximum penalty and any mandatory minimum penalty fixed by the Parliament for an offence demonstrate the Parliament's view of the gravity of the offence. They must be taken into account in determining, in a particular case, the appropriate sentence.
If the Parliament, by a legislative amendment, increases the maximum penalty or any mandatory minimum penalty for an offence, the Parliament's new view of the gravity of the offence must be taken into account in deciding upon sentencing outcomes. See R v Lawrence;[37] Heferen v The Queen;[38] Fisher v The Queen;[39] Herbert v The Queen;[40] Nguyen v The State of Western Australia.[41]
[37] R v Lawrence (1980) 32 ALR 72, 110 (Moffitt P).
[38] Heferen v The Queen [1999] WASCA 81; (1999) 106 A Crim R 89 [35] (Anderson J, Pidgeon & Steytler JJ agreeing).
[39] Fisher v The Queen [1999] WASCA 122 [14] (Malcolm CJ, Ipp & Owen JJ agreeing).
[40] Herbert v The Queen [2003] WASCA 61; (2003) 27 WAR 330 [7] (Malcolm CJ).
[41] Nguyen v The State of Western Australia [2007] WASCA 114 [13] (Steytler P, McLure JA & Miller AJA agreeing).
An increase in the maximum penalty or any mandatory minimum penalty is an indication that sentences for the offence in question should be increased. See Muldrock v The Queen.[42]
[42] Muldrock v The Queen [2011] HCA 39; (2011) 244 CLR 120 [31] (French CJ, Gummow, Hayne, Heydon, Crennan, Kiefel & Bell JJ).
Section 6(1) of the Sentencing Act provides that a sentence imposed on an offender must be commensurate with the seriousness of the offence. Pursuant to s 6(2) of the Sentencing Act, the seriousness of an offence must be determined by taking into account, amongst other things, the statutory penalty for the offence. The expression 'statutory penalty' is defined in s 4 of the Sentencing Act to mean, in relation to an offence, the penalty specified by a written law for an offence. Section 9 of the Sentencing Act, which deals with the effect of the statutory penalty, relevantly provides in subsection (3) that:
If the statutory penalty for an offence specifies a minimum and a maximum penalty, the penalty to be imposed for the offence must be at least that minimum and not more than that maximum.
It follows from these provisions that the expression 'statutory penalty' in s 6(2) of the Sentencing Act obliges a sentencer, when ascertaining the seriousness of an offence, to take into account not only the maximum penalty for that offence, but also, if applicable, the minimum penalty. The effect of the minimum penalty and the maximum penalty is that these factors operate as a floor and ceiling within which the sentencing discretion must be exercised.
Subject to s 401(4)(b) and s 401(5) of the Code, the manner in which the sentencing discretion operates within the floor and ceiling is in accordance with the general sentencing principles set out in the Sentencing Act, including the fundamental sentencing principle of proportionality (contained in s 6(1) of the Sentencing Act), as supplemented by the common law.
Thus, as in Bahar, it would be positively inconsistent with the statutory framework which exists under State law for a sentencer to make their own assessment of the seriousness of an offence by ignoring the maximum penalty or the mandatory minimum penalty, then to impose something other than a sentence (whether as to length or type) which was incommensurate with the seriousness of the offence in order to bring it up to the statutory minimum.
A question remains as to the circumstances of an offence which may properly attract the statutory minimum sentence. The approach to this question should be consistent with the reasoning of the High Court in R v Kilic[43] in respect of the maximum sentence for an offence. As the High Court observed in Kilic [18], both the nature of the crime and the circumstances of the offender are to be considered in determining whether the case is of the worst type.
[43] R v Kilic [2016] HCA 48; (2016) 259 CLR 256.
Similarly, both the nature of the crime and the circumstances of the offender are to be considered in determining whether the case is of the least serious type.
Consideration of the nature of the crime and the circumstances of the offender include all aggravating factors and all mitigating factors in the context that the offender will previously have committed at least two home burglaries, in addition to the home burglary for which he or she is to be sentenced.
The statutory minimum sentence may be imposed for an offence contrary to s 401(2)(b), where the offender is a 'repeat offender' as defined in s 401(B) of the Code, if the case is of the least serious type.
Since the mandatory minimum penalty for 'third‑strike' repeat adult offenders was increased in 2015 from 12 months' to 2 years' immediate imprisonment, new sentencing patterns have not been established.
Nevertheless, sentencing patterns for 'third‑strike' repeat adult offenders while the mandatory minimum penalty was 12 months' immediate imprisonment are still of some relevance as reasonably comparable cases. Sentencing patterns for home burglaries where the offender was not a 'third‑strike' repeat adult offender are of lesser and limited relevance.
Disposition
As we have already observed, the maximum penalty for a non‑aggravated home burglary as committed by the appellant is 18 years' imprisonment. It is a substantial maximum penalty which reflects the Parliament's view that a non‑aggravated home burglary is a serious offence.
We will not repeat all of his Honour's findings as to the serious features of the offence committed by the appellant. The appellant broke into an unoccupied house and stole a substantial amount of property, some of which was of sentimental value and therefore irreplaceable. The appellant's actions have had a long‑lasting detrimental effect upon the victim who no longer feels that it is safe to leave her property unoccupied. The appellant rummaged through the house, damaged the victim's property and caused her much distress. Home owners are entitled to feel that if they leave their properties for any period of time, they should return to find them intact.
Counsel for the appellant cited a number of recent decisions of this court which were said to show that persons convicted of non‑aggravated home burglary are generally sentenced to less than 3 years' imprisonment including Woods v The State of Western Australia;[44] Cummins v The State of Western Australia;[45] Burnes v The State of Western Australia;[46] Newport v The State of Western Australia[47] and Harding v The State of Western Australia.[48] Counsel for the appellant also cited cases involving aggravated home burglaries including Winmar v The State of Western Australia;[49] Humphreys v The State of Western Australia;[50] Ryder v The State of Western Australia;[51] Anderson v The State of Western Australia[52] and Pustkuchen v The State of Western Australia.[53] Counsel pointed out that in these cases, including cases that involved the use of violence, sentences were imposed which were less than, and in some cases considerably less than, the sentence that was imposed in this case.
[44] Woods v The State of Western Australia [2017] WASCA 179.
[45] Cummins v The State of Western Australia [2017] WASCA 135.
[46] Burnes v The State of Western Australia [2017] WASCA 77.
[47] Newport v The State of Western Australia [2015] WASCA 224.
[48] Harding v The State of Western Australia [2015] WASCA 27.
[49] Winmar v The State of Western Australia [2018] WASCA 155.
[50] Humphreys v The State of Western Australia [2017] WASCA 208.
[51] Ryder v The State of Western Australia [2014] WASCA 187.
[52] Anderson v The State of Western Australia [2014] WASCA 167.
[53] Pustkuchen v The State of Western Australia [2010] WASCA 11.
Further, counsel contended that 'the high water mark' in cases of non‑aggravated home burglary was the case of Herbert, where the offender was sentenced to 5 years' imprisonment for each of five home burglaries (3 years 4 months post‑transitional).
A more recent decision of this court in relation to the sentencing of a person who was convicted of, amongst other offences, a non‑aggravated burglary is Jackamarra v The State of Western Australia.[54]
[54] Jackamarra v The State of Western Australia [2019] WASCA 150.
It is unnecessary to examine the facts and circumstances of each of the cases referred to by the appellant. The cases illustrate that there is no tariff for home burglary, whether aggravated or non‑aggravated. This is hardly surprising given the vast variation of circumstances in which offences of home burglary are committed and the personal circumstances of those who commit them.
What is clear is that home burglaries are serious offences which are prevalent and which are ordinarily met with terms of imprisonment. There has long been a recognition that sentences for home burglary need to be firmed up. Whether this has in fact happened is debatable.
The sentence imposed upon the appellant in this case was not unreasonable or plainly unjust, bearing in mind: (1) the maximum penalty; (2) the mandatory minimum penalty; (3) the objective seriousness of the offending; (4) the impact of the offending on the victim; (5) the importance of personal and general deterrence; and (6) there was little that could be said in mitigation.
As to the last point, there can be no mitigation for youth or remorse. Nor does the appellant have the mitigation of a guilty plea. The appellant has a very bad criminal history. As a result, his Honour was entirely correct to give emphasis not only to general deterrence, but also to personal deterrence, punishment and public protection. While the appellant's efforts towards rehabilitation are to be encouraged, and constituted perhaps the only real mitigating factor, this factor cannot count for much against the combination of factors mentioned above.
When all relevant sentencing considerations are taken into account, we are satisfied that the sentence imposed was not manifestly excessive.
Orders
The orders we would make are:
1.The application for an extension of time is granted.
2.Leave to appeal is granted.
3.The appeal is dismissed.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
LT
Associate to the Honourable Justice Mazza30 APRIL 2020
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