Fullgrabe v The State of Western Australia
[2013] WASCA 130
•23 MAY 2013
FULLGRABE -v- THE STATE OF WESTERN AUSTRALIA [2013] WASCA 130
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2013] WASCA 130 | |
| THE COURT OF APPEAL (WA) | |||
| Case No: | CACR:198/2012 | 18 APRIL 2013 | |
| Coram: | McLURE P BUSS JA MAZZA JA | 23/05/13 | |
| 9 | Judgment Part: | 1 of 1 | |
| Result: | Leave to appeal refused Appeal dismissed | ||
| B | |||
| PDF Version |
| Parties: | GUY STEPHEN FULLGRABE THE STATE OF WESTERN AUSTRALIA |
Catchwords: | Criminal law Appeal against sentence Manifest excess Totality principle Aggravated burglary Burglary Stealing |
Legislation: | Criminal Code (WA), s 401(1), s 401(2)(b), s 378 |
Case References: | Ashworth v The State of Western Australia [2006] WASCA 36 Butler v The State of Western Australia [2012] WASCA 249 Buxton v The State of Western Australia [2009] WASCA 6 Chan v The Queen (1989) 38 A Crim R 337 Cockie v The State of Western Australia [2006] WASCA 66 Drake v The State of Western Australia [2006] WASCA 209 Dunks v The State of Western Australia [2009] WASCA 82; (2009) 195 A Crim R 130 Herbert v The Queen [2003] WASCA 61; (2003) 27 WAR 330 Howorth v The State of Western Australia [2007] WASCA 78 Michael v The Queen [2004] WASCA 4 Mippy v The State of Western Australia [2012] WASCA 254 Nannup v The State of Western Australia [2011] WASCA 257 Nguyen v The State of Western Australia [2007] WASCA 114 Roffey v The State of Western Australia [2007] WASCA 246 Slater v The State of Western Australia [2006] WASCA 206 Spry v The State of Western Australia [2013] WASCA 68 Veen v The Queen (No 2) [1988] HCA 14; (1988) 164 CLR 465 Woodley v The State of Western Australia [2008] WASCA 92 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : FULLGRABE -v- THE STATE OF WESTERN AUSTRALIA [2013] WASCA 130 CORAM : McLURE P
- BUSS JA
MAZZA JA
- Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
ON APPEAL FROM:
Jurisdiction : SUPREME COURT OF WESTERN AUSTRALIA
Coram : EDELMAN J
File No : INS 221 of 2011
Catchwords:
Criminal law - Appeal against sentence - Manifest excess - Totality principle - Aggravated burglary - Burglary - Stealing
(Page 2)
Legislation:
Criminal Code (WA), s 401(1), s 401(2)(b), s 378
Result:
Leave to appeal refused
Appeal dismissed
Category: B
Representation:
Counsel:
Appellant : In person
Respondent : No appearance
Solicitors:
Appellant : In person
Respondent : Director of Public Prosecutions (WA)
Case(s) referred to in judgment(s):
Ashworth v The State of Western Australia [2006] WASCA 36
Butler v The State of Western Australia [2012] WASCA 249
Buxton v The State of Western Australia [2009] WASCA 6
Chan v The Queen (1989) 38 A Crim R 337
Cockie v The State of Western Australia [2006] WASCA 66
Drake v The State of Western Australia [2006] WASCA 209
Dunks v The State of Western Australia [2009] WASCA 82; (2009) 195 A Crim R 130
Herbert v The Queen [2003] WASCA 61; (2003) 27 WAR 330
Howorth v The State of Western Australia [2007] WASCA 78
Michael v The Queen [2004] WASCA 4
Mippy v The State of Western Australia [2012] WASCA 254
Nannup v The State of Western Australia [2011] WASCA 257
Nguyen v The State of Western Australia [2007] WASCA 114
Roffey v The State of Western Australia [2007] WASCA 246
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Slater v The State of Western Australia [2006] WASCA 206
Spry v The State of Western Australia [2013] WASCA 68
Veen v The Queen (No 2) [1988] HCA 14; (1988) 164 CLR 465
Woodley v The State of Western Australia [2008] WASCA 92
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1 McLURE P: I agree with Mazza JA.
2 BUSS JA: I agree with Mazza JA.
3 MAZZA JA: This is an application for leave to appeal against sentence.
4 The appellant was convicted after trial of one count of aggravated burglary, contrary to s 401(1) of the Criminal Code (WA). This offence carries a maximum penalty of 20 years' imprisonment. The appellant has sought leave to appeal against this conviction. This application has been referred to a hearing at a later date. The sentence appeal is to be determined on the facts as found by the sentencing judge. However, if the appeal against conviction is upheld, the sentence for the offence must also be set aside.
5 After the trial, the appellant pleaded guilty to offences set out in a notice pursuant to s 32 of the Sentencing Act 1995 (WA) of burglary of a house, contrary to s 401(2)(b) of the Criminal Code, stealing items belonging to the householder and stealing a motor vehicle, contrary to s 378 of the Criminal Code. The maximum penalty for the home burglary is 18 years' imprisonment and for the stealing offences 7 years' imprisonment.
6 On 2 October 2012, Edelman J sentenced the appellant as follows:
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7 The sentences for the burglary offences were ordered to be served cumulatively and the other sentences were ordered to be served concurrently. Thus the total effective sentence imposed upon the appellant was 4 years 7 months' imprisonment. His Honour ordered that the appellant be eligible for parole and that the sentence commence from 15 November 2011.
8 The appellant does not allege that his Honour made any express error of law or fact. His proposed ground of appeal makes two complaints of
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- implied error. First, the sentence of 3 years 6 months' imprisonment for the aggravated burglary was manifestly excessive. Second, that the total effective sentence infringed the first limb of the totality principle.
9 For the reasons that follow, neither complaint has a reasonable prospect of succeeding and the appeal must be dismissed: s 27(2) and (3) of the Criminal Appeals Act 2004 (WA).
The facts found by the sentencing judge
(i) The aggravated burglary
10 At about 9 pm on 6 August 2011, the appellant went to a house in Manning occupied by Ms Figen Aydin, her partner Mohammed Zreik and their baby. He was, at the time, armed with an electronic shock device, which was described during the trial as a taser, and his face was covered in an attempt to disguise his identity. The appellant kicked the front door down and yelled to Ms Aydin and Mr Zreik to, 'Get down. Get down.' Although the appellant did not use the taser on the occupants, it was making a buzzing sound and it was brandished in such a way as to intimidate them. At one point, the appellant's disguise slipped and he was recognised by Mr Zreik, with whom he had spent some time in prison. An altercation ensued, during which the appellant threw a smoking implement at Mr Zreik. Eventually the appellant ran from the premises. As it turned out, the appellant did not steal any property. However, as his Honour found, the appellant broke into the house when it must have been apparent to him that people would be at home and violated their sense of security as well as intimidating and terrifying the occupants.
(ii) The s 32 notice offences
11 During the morning of 25 October 2011, the appellant, in company with others, went to a house in Lesmurdie with the intention of stealing property. The appellant gained entry into the house by smashing some glass at the rear. In the process he cut his hand. Once inside, the co-offenders searched the house, removing a number of items which they loaded into the householder's vehicle parked at the rear of the property. The keys to the vehicle were located and the vehicle was driven to the side of the property with the intention of leaving via an electronically controlled gate. While opening the gate, the police arrived. The appellant and his co-offenders ran off. The police found property in the victim's car valued at approximately $8,000. Other stolen property to the value of $7,200 was not recovered. DNA discovered by police at the scene linked the appellant to the offences.
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The appellant's antecedents
12 The appellant was 36 years of age at the time he was sentenced. The appellant has, to use his words, 'an appalling record' of convictions (appeal ts 39). His offending commenced when he was only 10 years old. He has been convicted of a great number of traffic offences and other more serious offences, including stealing, stealing a motor vehicle, burglary, aggravated burglary and armed robbery in company. It is true, as the appellant pointed out in his oral submissions, that his offending has not been as prolific since 2005, and I also observe that he has not been convicted of any burglary offence since 2003 and no aggravated burglary offence since 1998. However, it is clear from the most recent offences that he has not been rehabilitated. While his criminal history is not an aggravating circumstance, it shows that the present offending is hardly an aberration and it underscores the need for personal deterrence and public protection: Veen v The Queen (No 2) [1988] HCA 14; (1988) 164 CLR 465 [14].
13 The appellant has a long-standing history of substance abuse which has been a driver of much of his past and present offending. Despite participating in programs designed to address this issue, he has failed to rid himself of this problem.
14 The appellant has, in the last few years, obtained a rigger's ticket and become a crane operator. He was at the time of his conviction in a stable relationship and had the full-time custody of a child from a former relationship.
His Honour's sentencing remarks
15 As the appellant alleges implied error, it is unnecessary to summarise his Honour's sentencing remarks in any detail. His Honour said that the only substantial mitigating factor was the appellant's early pleas of guilty in respect of the offences in the s 32 notice. He had regard to the relevant sentencing decisions of this court, in particular Nannup v The State of Western Australia [2011] WASCA 257. He gave emphasis to personal and general deterrence. He expressly applied the first limb of the totality principle. He reduced the sentences for the s 32 notice offences for this reason.
Disposition
16 I will deal first with the claim that the sentence of 3 years 6 months' imprisonment for the aggravated burglary was manifestly excessive.
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17 To determine whether a sentence is excessive it is necessary to view it in the perspective of the maximum sentence for the offence, the standards of sentencing customarily observed, the place which the criminal conduct occupies in the scale of seriousness of offences of that type and the personal circumstances of the offender: Chan v The Queen (1989) 38 A Crim R 337, 342.
18 As I have already observed, the maximum penalty for aggravated burglary is 20 years' imprisonment.
19 There is no tariff for the offence of aggravated burglary because of the wide range of circumstances in which the offence can be committed. However, in recent years, sentences for home burglary have increased to reflect the prevalence of the offence and to provide proper personal and general deterrence: Herbert v The Queen [2003] WASCA 61; (2003) 27 WAR 330, Buxton v The State of Western Australia [2009] WASCA 6 [17] and Butler v The State of Western Australia [2012] WASCA 249.
20 I have undertaken a review of sentencing cases decided since 2003 with respect to home burglary offences across a range of circumstances, including Herbert, Ashworth v The State of Western Australia [2006] WASCA 36, Drake v The State of Western Australia [2006] WASCA 209, Nguyen v The State of Western Australia [2007] WASCA 114, Woodley v The State of Western Australia [2008] WASCA 92, Nannup, Butler and Mippy v The State of Western Australia[2012] WASCA 254. This list is not intended to be exhaustive. In all of the cases I have mentioned, save Woodley and Butler, the sentences imposed were discounted by reason of a guilty plea. Bearing in mind that the appellant did not have the advantage of a guilty plea, the cases do not support the proposition that the sentence imposed upon the appellant was manifestly excessive.
21 There can be no doubt that the offence committed by the appellant was a serious instance of its type. The appellant forced his way into the complainants' home at night, armed with a weapon, with the intention to steal property. He threatened the occupants and intimidated them. There is no evidence of remorse. His personal circumstances were, on the whole, unfavourable.
22 Paying particular regard to the seriousness of the offence and the need to provide specific and general deterrence, the sentence was plainly within a sound range of sentencing discretion. There is no reasonable
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- prospect of the appellant establishing that the sentence for the aggravated burglary was plainly unjust or unreasonable.
23 I now turn to the argument that the total effective sentence was excessive.
24 The totality principle is described in Roffey v The State of Western Australia [2007] WASCA 246. The first limb of the totality principle provides that the total effective sentence must bear a proper relationship to the overall criminality involved in all the offences, viewed in their entirety and having regard to the circumstances of the case, including those referable to the offender personally [24].
25 The appellant's principal argument is that the total effective sentence imposed upon him was too much, having regard to other cases where offenders have committed more burglaries than he did. In support of this proposition, the appellant cited Michael v The Queen [2004] WASCA 4, Cockie v The State of Western Australia [2006] WASCA 66, Slater v The State of Western Australia [2006] WASCA 206 and Nguyen.
26 It is unnecessary to analyse these cases in detail. The appellant's choice of cases is selective. A broader analysis of the cases involving multiple counts of burglary and aggravated burglary shows that each case differs markedly from the next. As the court in Howorth v The State of Western Australia [2007] WASCA 78 pointed out after examining a number of cases involving multiple counts of burglary and aggravated burglary:
There are no hard and fast rules in relation to sentencing for multiple offending of this kind. Having regard to the very great variations in the number of possible offences, and in the possible combinations of offences, comparison is difficult [30].
27 See also Dunks v The State of Western Australia [2009] WASCA 82; (2009) 195 A Crim R 130 [30] - [40] (Buss JA) and Spry v The State of Western Australia [2013] WASCA 68 [39] and [40].
28 I will not repeat what I have already said about the seriousness of the aggravated burglary. The offending the subject of the s 32 notice was also serious. The appellant and the co-offenders broke into a house and stole a substantial amount of property, some of which was not recovered. They then stole the occupier's vehicle, but were thwarted by the intervention of the police. The commission of these offences was entirely separate to the aggravated burglary the subject of the indictment and required additional
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- punishment. The only mitigating factor was the appellant's pleas of guilty. The sentence imposed for the home burglary was reduced to ensure compliance with the totality principle.
29 In my opinion, the total effective sentence imposed upon the appellant of 4 years and 7 months' imprisonment was a proper reflection of the appellant's overall criminality, having regard to all of the circumstances of the offences, including the appellant's personal circumstances. Any argument to the contrary has no reasonable prospect of succeeding.
Conclusion and orders
30 There is no merit in the appellant's appeal against sentence. His complaints do not have any reasonable prospect of succeeding. The appeal must be dismissed.
31 The orders I would make are:
1. Leave to appeal is refused.
2. The appeal is dismissed.
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