Gangemi v The State of Western Australia

[2014] WASCA 39

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT :   THE COURT OF APPEAL (WA)

CITATION:   GANGEMI -v- THE STATE OF WESTERN AUSTRALIA [2014] WASCA 39

CORAM:   McLURE P

NEWNES JA
MAZZA JA

HEARD:   19 DECEMBER 2013

DELIVERED          :   20 FEBRUARY 2014

FILE NO/S:   CACR 120 of 2013

BETWEEN:   MICHAEL PETER GANGEMI

Appellant

AND

THE STATE OF WESTERN AUSTRALIA
Respondent

ON APPEAL FROM:

Jurisdiction              :  DISTRICT COURT OF WESTERN AUSTRALIA

Coram  :BIRMINGHAM DCJ

File No  :IND 291 of 2013

Catchwords:

Criminal law - Sentencing - Appeal against sentence - Burglary of not­for­profit organisation - Criminal Code (WA), s 401(2) - Extensive criminal record - On bail at time of offending - History of drug dependency - High risk of re­offending - Sentence of 4 years' imprisonment

Legislation:

Criminal Code (WA), s 401(2)

Result:

Appeal dismissed

Category:    B

Representation:

Counsel:

Appellant:     Mr S B Watters

Respondent:     Mr J A Scholz

Solicitors:

Appellant:     Fort Legal

Respondent:     Director of Public Prosecutions (WA)

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

Chan v The Queen (1989) 38 A Crim R 337

Main v The State of Western Australia [2010] WASCA 28

Munda v The State of Western Australia [2013] HCA 38; (2013) 302 ALR 207

Ridley v The State of Western Australia [2013] WASCA 45

The State of Western Australia v Akizuki [2008] WASCA 267

The State of Western Australia v Littlefair [2013] WASCA 177

Thompson v The State of Western Australia [2013] WASCA 1

1. McLURE P:  I agree with Newnes JA that the appeal should be dismissed.  I can shortly state my reasons.

2. The sentence of 4 years and 6 months' imprisonment upheld in Ridley v The State of Western Australia [2013] WASCA 45 for a single offence of burglary contrary to s 401(2) of the Criminal Code (WA) is, by a significant margin, the highest sentence upheld by this court or its predecessor, the Court of Criminal Appeal. That remains the case even when sentences for aggravated burglary are included in the survey.

3. The sentence of 4 years and 6 months' imprisonment in Ridley was after trial.  The sentence of 4 years' imprisonment in this case was after a fast‑track plea of guilty.  The circumstances of the offending in Ridley were more serious than in this case.  In Ridley the offence was committed in company and the value of the property stolen was greater, being $48,000 of which only $2,400 was recovered.  The personal antecedents of Ridley and the appellant are very similar.  Both have appallingly lengthy criminal records.  If anything, Ridley's prior criminal history was worse than that of the appellant.  Both Ridley and the appellant committed further offences while on bail for the offence in question.  However, an additional aggravating factor in this case is that the appellant committed the burglary whilst on bail for a large number of other offences.

4. If this were a parity exercise involving co‑offenders, the appellant could legitimately feel a sense of grievance.  But it is not such a parity exercise.

5. The range of sentences customarily imposed is a relevant consideration in determining whether a sentence is manifestly excessive.  The sentence in Ridley currently marks the top end of that range.   Regard is had to sentences customarily imposed to ensure broad consistency in the sentencing of offenders.  However, the range of sentences customarily imposed for an offence does not establish the range of a sound sentencing discretion.  Moreover, the actual sentence imposed in a comparable case does not mean that is the only correct sentence:  The State of Western Australia v Akizuki [2008] WASCA 267 [71]. It is clear from the reasons for decision in Ridley that this court was of the view that the sentence of 4 years 6 months' imprisonment was not at the high end of the sound sentencing range. Indeed it was said that matters personal to Ridley demanded a sentence of at least that [20].

1. The psychological report relating to the appellant provides no cause for any optimism as to the prospects for the appellant's rehabilitation.  It relevantly states:

   Drug addiction appears to be the main criminogenic factor that warrants intensive, long‑term treatment.  However factors associated with [the appellant's] personality functioning indicate that treatment will be challenging and fraught with difficulty.  [The appellant] is likely to prove his own worst enemy and until he can begin to accept responsibility and accountability for his offending behaviour and demonstrate genuine commitment to change he is likely to have ongoing conflict with the law.  [The appellant] also needs to address his tendency to minimize [sic], justify and distort his offending behaviour as this will impact on his thinking and subsequently his actions in the future (6 ‑ 7).

2. The need for personal deterrence and protection of the public clearly weighed very heavily in the sentencing judge's assessment.  In the exceptional circumstances that present themselves, the sentence imposed on the appellant is on the border of the sound discretionary range but is not outside it.

3. NEWNES JA: This is an appeal against sentence. The appellant pleaded guilty in the District Court to one count of burglary, contrary to s 401(2) of the Criminal Code (WA). He was sentenced by Birmingham DCJ to 4 years' immediate imprisonment, with eligibility for parole. The appellant contends that the sentence was manifestly excessive.

4. On 29 June 2013, the appellant was granted leave to appeal on that ground.

The material facts

1. At about 6.00 pm on 18 February 2013, the appellant went to the Scitech Discovery Centre office in the City West complex in West Perth with the intention of stealing items of property to sell in order to purchase drugs.

2. He entered the City West complex through an unlocked automatic sliding door and entered the Scitech office through other unlocked doors.  Once inside the office, the appellant forced open a cupboard and took a number of electronic devices including iPhones, iPads, laptop computers, cameras, a fundraising cashbox and a petty cashbox.  The total value of the property taken was $16,220.

1. The appellant put the items in a box and carried them away.  He was let out of the complex by a cleaner who unlocked a door which had been locked while the appellant was in the building.  The appellant's conduct was recorded by CCTV cameras installed at the premises.

2. The appellant was arrested on 1 March 2013 and made full admissions to police when interviewed.  Property to the value of only $841 has been recovered.

Sentencing remarks

1. The sentencing judge noted that the appellant was 35 years of age.  He had an extensive criminal record, including 18 prior convictions for burglary, and had spent most of his adult life in prison.  Only one of the many community service orders, probation orders and parole orders to which the appellant had been subject over the years had been successfully completed.  The sentencing judge observed that the appellant's repeated offending was associated with a long history of illicit drug abuse.  A number of drug treatment programmes had been tried without success.  His Honour noted that the appellant did not appear to have the alternative social supports which would be necessary in order for him to change his lifestyle.

2. His Honour referred to a psychological report dated 9 January 2013, shortly before this offence was committed, in which the appellant was described as being self‑absorbed with little empathy for others and having engaged in marked minimisation, justification and distortion of the bulk of his offending behaviour.  His Honour noted that the psychologist considered the appellant showed little understanding of the consequences and impact of his offending on others.

3. The only mitigating factor was the appellant's early plea of guilty of which his Honour allowed a discount of 25% on the sentence he would otherwise have imposed.  He sentenced the appellant to 4 years' immediate imprisonment with eligibility for parole.

Ground of appeal

1. The sole ground of appeal is that the sentence of 4 years' immediate imprisonment was manifestly excessive.

Disposition of the appeal

1. The relevant principles can be shortly stated.  When considering whether a sentence is manifestly excessive, it is necessary to view the sentence in light of the maximum sentence prescribed by law for the offence (in this case, 14 years' imprisonment), the standards of sentencing customarily observed with respect to the offence, the place which the criminal conduct occupies on 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; The State of Western Australia v Littlefair [2013] WASCA 177 [61].

2. While for consistency it is necessary to have regard to sentences customarily imposed in cases involving similar offending, the range of sentences that have been imposed in the past does not fix the boundaries within which future judges must, or even ought, to sentence:  see The State of Western Australia v Akizuki [2008] WASCA 267; (2008) 192 A Crim R 373 [3]; Munda v The State of Western Australia [2013] HCA 38; (2013) 302 ALR 207 [39] ‑ [40]. Ordinarily a substantial penalty will be imposed for burglary, but because of the widely differing circumstances in which the offence may be committed there is no tariff: Ridley v The State of Western Australia [2013] WASCA 45 [13].

3. Counsel for the appellant referred for comparative purposes to Main v The State of Western Australia [2010] WASCA 28, Thompson v The State of Western Australia [2013] WASCA 1, and Ridley.  I have also had regard to the cases referred to by the respondent.  I do not consider that Main and Thompson are of any real assistance.

4. In Main, the offender, who was then 25 years old, entered the premises of the Nursing Board in Perth and damaged doors, pulled out drawers and ripped a security camera from the wall.  He was apprehended leaving the building with two bags containing laptops and a projector after triggering an alarm system.  The offender, who had a substantial criminal record, was convicted after trial, among other things, on one count of aggravated burglary and sentenced to 2 years and 8 months' imprisonment for that offence.  An appeal against that sentence was dismissed.

5. In Thompson, the offenders used a stolen motor vehicle in a ram raid at a shopping precinct in an unsuccessful attempt to extract money from an automatic teller machine installed at the front of a shop.  After trial they were sentenced to 3 years and 4 months' imprisonment on one count of aggravated burglary.  An appeal against sentence was dismissed.

6. In Ridley, the offender entered the premises of Coles Express in the early hours of the morning, having gained access through the roof.  Once inside, he dismantled an electrical security system, forced open a safe and stole about $48,000 in cash, some SIM cards, broadband starter kits, mobile telephones, a portable DVD player and a small amount of tobacco.  An amount of $2,400 of the cash was recovered but none of the other property was recovered.  The offender was convicted after trial.  The offender was 35 years of age and had spent a significant part of his adult life in prison.  He had a lengthy history of illicit drug abuse and an extensive criminal record, including 47 prior convictions for burglary.  An application for an extension of time to appeal against a sentence of 4 years 6 months' imprisonment was dismissed.

7. Counsel for the appellant placed considerable reliance on Ridley.  He referred in particular to the fact that the offender in that case was convicted after trial and that he had 47 prior convictions for burglary, whereas the appellant had 18.  There is, however, no necessary mathematical correlation between the sentence which is appropriate for an offence and the number of prior convictions which an offender has for a similar offence.  For present purposes, what is significant is that in both cases there was an extensive history of offending, reflecting a contempt for the law.

8. In this case the offending involved the theft of a substantial quantity of property from a not‑for‑profit organisation.  A relatively negligible amount of the property has been recovered.  The only mitigating factor was the appellant's early plea of guilty, for which the primary judge applied a discount of 25% on the sentence that he would otherwise have imposed.

9. The appellant has an appalling criminal record.  He has offended persistently over many years, amassing more than 100 convictions.  He was convicted as a minor, among other offences, of six burglary offences.  As an adult he has been convicted of 12 burglary offences and 17 offences of stealing or receiving, together with offences of possession of a house breaking implement to commit an offence, possession of a car breaking implement, possession of stolen or unlawfully obtained property, fraud, various drug offences and a variety of traffic and other offences.  He has spent some 12 years of the 17 years of his adult life in prison.

10. As the primary judge noted, apart from one successful parole period in 1997/1998, none of the various community service orders, probation orders and parole orders to which the appellant has been subject over the years have been complied with.

1. It is evident that the appellant has an entrenched drug problem, generally involving the use of opiates, in particular heroin, but on occasions involving the use of amphetamines. Various prison‑based and other drug treatment programmes have been unsuccessful.  The appellant's prospects of turning his life around appear bleak.  The psychological report of 9 January 2013 concluded that the prognosis for change in the appellant's behaviour was poor and without significant intervention by way of treatment to address his drug dependency and antisocial tendencies, his recurrent offending was likely to continue.  That has proved to be prescient.

2. At the time of the offending, the appellant was on bail for a large number of offences committed between June and September 2012.  He had been residing at Bridge House, a residential specialist alcohol and drug treatment facility, but was discharged from that facility on 12 February 2013 after admitting to the use of amphetamines the previous day.  He was due to appear in the Drug Court on 13 February 2013 but failed to attend.  This offence was committed six days after his discharge from Bridge House.  According to the appellant, he traded the stolen property for drugs.

3. In light of the appellant's antecedents, the issues of personal deterrence and protection of the public assume particular importance in this case.  The appellant's continual offending is driven by an entrenched drug dependency and it is clear that he is at a high risk of reoffending.  In the circumstances, whilst the sentence of 4 years' imprisonment is severe, I do not consider that it falls outside a sound discretionary range.

Conclusion

1. The appeal should be dismissed.

2. MAZZA JA:  I agree with Newnes JA.