Geary v Bullen

[2005] WASC 78

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

IN CIVIL

CITATION:   GEARY -v- BULLEN & ANOR [2005] WASC 78

CORAM:   MCKECHNIE J

HEARD:   28 APRIL 2005

DELIVERED          :   28 APRIL 2005

FILE NO/S:   SJA 1004 of 2005

BETWEEN:   DANIEL RAYMOND GEARY

Appellant

AND

PAUL ANTHONY BULLEN
First Respondent

RYAN STEPHEN FONG
Second Respondent

ON APPEAL FROM:

Jurisdiction              :  COURT OF PETTY SESSIONS

Coram  :K T FISHER SM

Citation  :THE POLICE v DANIEL RAYMOND GEARY

File No  :PE 43684 of 2004, BU 4010 of 2004

Catchwords:

Criminal law and procedure - Sentencing - Plea of guilty - necessity to be taken into account - Sentencing Act - Transitional provisions - Whether an error to reduce maximum by one-third rather than actual sentence - Separate offences - Need for proportionate sentence

Legislation:

Sentencing Act 1995 (WA)

Result:

Appeal allowed
Appellant resentenced

Category:    B

Representation:

Counsel:

Appellant:     Mr D S Hunter

First Respondent           :     Mr C G Astill

Second Respondent       :     Mr C G Astill

Solicitors:

Appellant:     Legal Aid of Western Australia

First Respondent           :     State Director of Public Prosecutions

Second Respondent       :     State Director of Public Prosecutions

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

Messiha v Royce [2004] WASCA 290

Pop (2000) 116 A Crim R 398

Radebe (2001) 122 A Crim R 559

Case(s) also cited:

Woods v Cecchele [2004] WASCA 163

1. MCKECHNIE J:  This is an appeal against a decision of the Magistrate made on 3 December 2004 wherein he imposed two sentences, to be served cumulatively, each of 2 years' duration, with a parole eligibility order, backdated to 3 November 2004, in respect of two counts of burglary.

2. The first offence was committed on a business premises in Balcatta.  The appellant and another used a tyre iron to gain entry to the premises and once inside stole a computer monitor, a keyboard, a computer mouse and various computer accessories before leaving.  The offenders were apprehended shortly thereafter and the property found in a vehicle.

3. In due course the appellant, who had apparently committed that offence due to an amphetamine habit and debt, moved to the south-west in order to try and make a break from his offending lifestyle.  However, at about 1.25 am on 5 November 2004 he and another number of others went to a domestic premises and with the aid of one offender, who was also related to the owner of the house, went through the house and removed alcohol, jewellery, electrical items and car stereo equipment.  That offence was committed while the appellant was on bail for the earlier offences.

4. There was some delay before the plea of guilty in relation to the first offence but the second offence was a plea of guilty at the earliest opportunity.  When the Magistrate sentenced he took into account the transitional provisions of the Sentencing Act 1995 (WA) but did not mention the plea of guilty, nor did he appear to give any apparent consideration of the total of the sentence compared with the overall criminality disclosed.

5. It is in those circumstances now that I turn to the grounds of appeal:

   "a)The Learned Magistrate erred in not reducing the sentences imposed on complaints numbers PE 43684/04 & BU 4010/04 by not taking into account in sentencing the Applicant's guilty pleas."

6. There is an obligation on the Magistrate (see Messiha v Royce [2004] WASCA 290) to state that the plea of guilty is taken into account.

7. In this case the Magistrate selected the maximum sentence he could impose, so it is obvious that the plea of guilty was not taken into account and it ought to have been.  Again, for reasons which are expressed in the cases (and I need only refer to Radebe (2001) 122 A Crim R 559) there are reasons of policy why a plea of guilty should always attract some discount.

   "b)The Learned Magistrate incorrectly applied the transitional provisions of the Sentencing Act 1995 in reducing the maximum summary penalties by one‑third before sentencing the Applicant on each of the two complaints, instead of arriving at an appropriate sentence for each complaint and then reducing that sentence by one‑third."

8. The Magistrate said this:

   "By reason of a quirk in the transitional provisions of the law this Court is obliged, until such time as there are other intervening factors, to discount those maximum sentences by a third, which means that, essentially by that quirk in the law, the maximum sentence that can be imposed at this level is in respect of each conduct 2 years' imprisonment.  It doesn't suggest that the conduct itself is deserving of no more than 2 years' imprisonment; what it says is that this Court is empowered to impose upon you 2 years' imprisonment."

9. By focusing on the maximum in that way I think error is apt to occur in the sentencing process.  First of all, it is not a quirk in the transitional provisions.  The purpose of the transitional provisions is to prevent sentences increasing beyond those that were being imposed prior to the transitional provisions and to enable some form of transparency or openness so that it is clear to the offender, and to the public, what the actual time to be spent in custody will be.

10. Previously there had in law been one-third remissions and the effect of the transitional provisions is really to acknowledge that circumstance and to make transparent the actual sentence imposed.

11. It is, I suppose, the case that an incidental result is that the maximum sentences for all offences, as laid down in the Criminal Code and in other statutes, are reduced by one‑third, but that is really not a relevant factor.  The appropriate way to sentence is to determine the proper sentence to be imposed in the particular case and impose it as one would have done and then reduce that sentence by one‑third to take account and make express what had been previously implicit in the law.

12. Having said all that, I disagree with the method that the Magistrate used in this case because in many cases it will lead to appealable error.  However, in the particular circumstances of this case, because the Magistrate decided to impose the maximum that he could impose, it led to no actual error.  But, as I say, it is not a method which should be adopted.

    "c)The Learned Magistrate erred in not imposing proportionate sentences in regard to the difference level of criminality involved in each of the two complaints the Applicant entered pleas of guilty to.

    Particulars

    i)The Learned Magistrate in sentencing did not separately analyse or distinguish the two offences the Applicant pleaded guilty to."

13. While it is true that the Magistrate did not analyse each offence, in my opinion nothing turns on it.  Both offences were serious in different ways.  The Court of Criminal Appeal has repeatedly stressed the need for significant sentences to be imposed for burglaries committed on business premises and for burglaries committed on dwellings.  Each is an invasion of someone else's legally protected interests.  The second offence was committed in circumstances where the appellant, who has an appalling record, was on bail for a burglary offence:  See Pop (2000) 116 A Crim R 398. In my opinion, the Magistrate did not make the error asserted in ground c).

    "d)The Learned Magistrate erred in failing to apply the totality principal [sic].

    Particulars

    i)The sentence of 4 years imprisonment was disproportionate to the overall criminality of the case having regard to the circumstances of the two offences together with the circumstances personal to the offender."

14. The Magistrate said:

    "…your history would suggest, in all the circumstances, that youth is not on your side.  You now should feel the full effect of the law, and I declare that those sentences are to be cumulative one on the other, giving you a total of 4 years' imprisonment."

15. I am not sure that I understand what the Magistrate meant by that phrase because it is always important to sentence for the offences and, having done so, to take a last look, as it is sometimes called, at the sentences to have regard to the proportionality of the total sentence to the overall criminality disclosed in the complaints.

16. To say: "You now should feel the full effect of the law" suggests that that final look or that proportional weighing was not undertaken in this case.  I do consider it was appropriate that the sentences be made cumulative one upon the other.  They were different offences but of serious criminality, occurring in different circumstances and at different times.  Having regard to the totality principle it was still not necessary to make the sentences concurrent with each other.  Having said that, I think there was an error in that the overall sentence of 4 years' imprisonment - even without regard to the error in failing to take account of the guilty plea - was disproportionate to the overall criminality disclosed.

17. As a result, I would allow the appeal.  I set aside the sentence of 24 months imposed on complaint number PE 04/43684 and substitute therefore a sentence of 20 months.  I set aside the sentence of 24 months imposed on complaint number BU 04/4010 and in lieu impose a sentence of 16 months' imprisonment.

18. I direct that each sentence be served cumulatively, making a total sentence of 36 months', or 3 years' imprisonment.  I confirm the parole eligibility order made by the Magistrate and I direct that the sentences I have just imposed are to take effect from 3 November 2004.