Gowan v The State of Western Australia
[2016] WASCA 98
•15 JUNE 2016
GOWAN -v- THE STATE OF WESTERN AUSTRALIA [2016] WASCA 98
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2016] WASCA 98 | |
| THE COURT OF APPEAL (WA) | |||
| Case No: | CACR:31/2015 | 18 FEBRUARY 2016 | |
| Coram: | BUSS JA MAZZA JA CORBOY J | 15/06/16 | |
| 17 | Judgment Part: | 1 of 1 | |
| Result: | Appeal dismissed | ||
| B | |||
| PDF Version |
| Parties: | SCOTT CRAIG GOWAN THE STATE OF WESTERN AUSTRALIA ADRIAN MARK BURNSIDE |
Catchwords: | Criminal law Appeal against sentence Aggravated burglary, grievous bodily harm and criminal damage Double punishment Totality principle One transaction rule |
Legislation: | Criminal Code (WA), s 297(1), s 401(1), s 444(1) |
Case References: | Barbaro v The Queen [2014] HCA 2; (2014) 253 CLR 58 Butler v The State of Western Australia [2012] WASCA 249 Buxton v The State of Western Australia [2009] WASCA 6 Cotterill v The State of Western Australia [2013] WASCA 52 Dos Santos v The State of Western Australia [2016] WASCA 46 Drake v The State of Western Australia [2006] WASCA 209 Edmonds v The State of Western Australia [2013] WASCA 250 Eves v The State of Western Australia [2008] WASCA 7; (2008) 49 MVR 259 Gillespie v The State of Western Australia [2013] WASCA 149; (2013) 45 WAR 207 Harrison v The State of Western Australia [2009] WASCA 58 Henderson v The State of Western Australia [2007] WASCA 198 Hunter-Aragu v The State of Western Australia [2015] WASCA 80 Jarvis v The Queen (1993) 20 WAR 201 Johnson v The Queen [2004] HCA 15; (2004) 78 ALJR 616 Knight v The State of Western Australia [2014] WASCA 217 Le v The State of Western Australia [2014] WASCA 120 Longbottom v The State of Western Australia [2008] WASCA 203 Miller v The State of Western Australia [2013] WASCA 84 Mippy v The State of Western Australia [2012] WASCA 254 Moody-Jackamarra v The State of Western Australia [2007] WASCA 7 Papas v The State of Western Australia [2011] WASCA 3 Pearce v The Queen [1998] HCA 57; (1998) 194 CLR 610 Postiglione v The Queen [1997] HCA 26; (1997) 189 CLR 295 R v Faithfull [2004] WASCA 39 R v Ward [1999] WASCA 157; (1999) 109 A Crim R 159 Roffey v The State of Western Australia [2007] WASCA 246 Rolfe v The State of Western Australia [2012] WASCA 169 Sartori v The State of Western Australia [2014] WASCA 98 Stokke v The State of Western Australia [2015] WASCA 131 The State of Western Australia v Sabek [2005] WASCA 207 Trompler v The State of Western Australia [2008] WASCA 265 Wilson v The State of Western Australia [2010] WASCA 82 Wragg v The State of Western Australia [2013] WASCA 198; (2013) 234 A Crim R 380 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : GOWAN -v- THE STATE OF WESTERN AUSTRALIA [2016] WASCA 98 CORAM : BUSS JA
- MAZZA JA
CORBOY J
- Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
- Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram : BIRMINGHAM DCJ
File No : IND 593 of 2014
Catchwords:
Criminal law - Appeal against sentence - Aggravated burglary, grievous bodily harm and criminal damage - Double punishment - Totality principle - One transaction rule
Legislation:
Criminal Code (WA), s 297(1), s 401(1), s 444(1)
Result:
Appeal dismissed
Category: B
Representation:
CACR 31 of 2015
Counsel:
Appellant : Mr T F Percy QC & Ms S V Jessup
Respondent : Mr J A Scholz
Solicitors:
Appellant : Timpano Legal
Respondent : Director of Public Prosecutions (WA)
CACR 45 of 2015
Counsel:
Appellant : Mr S D Freitag
Respondent : Mr J A Scholz
Solicitors:
Appellant : Legal Aid (WA)
Respondent : Director of Public Prosecutions (WA)
Case(s) referred to in judgment(s):
Barbaro v The Queen [2014] HCA 2; (2014) 253 CLR 58
Butler v The State of Western Australia [2012] WASCA 249
Buxton v The State of Western Australia [2009] WASCA 6
Cotterill v The State of Western Australia [2013] WASCA 52
Dos Santos v The State of Western Australia [2016] WASCA 46
Drake v The State of Western Australia [2006] WASCA 209
Edmonds v The State of Western Australia [2013] WASCA 250
Eves v The State of Western Australia [2008] WASCA 7; (2008) 49 MVR 259
Gillespie v The State of Western Australia [2013] WASCA 149; (2013) 45 WAR 207
Harrison v The State of Western Australia [2009] WASCA 58
Henderson v The State of Western Australia [2007] WASCA 198
Hunter-Aragu v The State of Western Australia [2015] WASCA 80
Jarvis v The Queen (1993) 20 WAR 201
Johnson v The Queen [2004] HCA 15; (2004) 78 ALJR 616
Knight v The State of Western Australia [2014] WASCA 217
Le v The State of Western Australia [2014] WASCA 120
Longbottom v The State of Western Australia [2008] WASCA 203
Miller v The State of Western Australia [2013] WASCA 84
Mippy v The State of Western Australia [2012] WASCA 254
Moody-Jackamarra v The State of Western Australia [2007] WASCA 7
Papas v The State of Western Australia [2011] WASCA 3
Pearce v The Queen [1998] HCA 57; (1998) 194 CLR 610
Postiglione v The Queen [1997] HCA 26; (1997) 189 CLR 295
R v Faithfull [2004] WASCA 39
R v Ward [1999] WASCA 157; (1999) 109 A Crim R 159
Roffey v The State of Western Australia [2007] WASCA 246
Rolfe v The State of Western Australia [2012] WASCA 169
Sartori v The State of Western Australia [2014] WASCA 98
Stokke v The State of Western Australia [2015] WASCA 131
The State of Western Australia v Sabek [2005] WASCA 207
Trompler v The State of Western Australia [2008] WASCA 265
Wilson v The State of Western Australia [2010] WASCA 82
Wragg v The State of Western Australia [2013] WASCA 198; (2013) 234 A Crim R 380
1 BUSS JA: I agree with Corboy J.
2 MAZZA JA: I agree with Corboy J.
3 CORBOY J: The appellants were convicted following a trial of two counts of aggravated burglary (counts 1 and 4), two counts of unlawfully doing grievous bodily harm (counts 2 and 5) and one count of criminal damage (count 3). They were each sentenced to a total effective sentence of 9 years' imprisonment.
4 The appellants appeal against sentence on the ground that the total effective sentences infringed the first limb of the totality principle. They were granted leave to appeal on that ground by an order made on 28 May 2015.
5 Mr Gowan also alleges that the sentencing judge erred by imposing individual sentences that punished him twice for the aggravated burglary and grievous bodily harm offences. His application for leave to appeal on that ground was referred to the hearing of the appeal.
6 I would dismiss the appeals for the reasons that follow.
The facts and circumstances of the offending
7 There was no challenge to the findings of fact made for the purpose of sentencing the appellants.
8 Mr Gowan alleged that the victim of counts 1 - 3 owed him money for drugs. Early in the morning of 19 August 2013, the appellants forcibly entered a house in Middle Swan occupied by the victim. Mr Gowan was armed with a pick or axe handle and Mr Burnside carried the wooden handle from a wheelbarrow. The victim was not known to Mr Burnside. The sentencing judge described the purpose of Mr Burnside's presence as 'to effectively give muscle' to the invasion of the victim's property.
9 The appellants repeatedly struck the victim about the head, face, upper arms and legs. Mr Burnside also smashed a television and damaged compact discs and a Foxtel unit.
10 The victim's leg was fractured as the result of a blow struck by Mr Burnside. The victim also suffered lacerations to his legs and head that required suturing and bruising and swelling to his ankles, knees, thighs, head, upper arms and back. He spent some weeks in hospital recovering from his injuries.
11 The victim of counts 1 - 3 agreed to pay Mr Gowan money from his next pay cheque.
12 The appellants then left and travelled to a house in Osborne Park occupied by the victim of counts 4 and 5. The appellants did not know him. Rather, they had gone to the wrong address in search of a person who they believed was associated with the first victim.
13 Mr Gowan went to the rear door of the house in Osborne Park, called out the name of the person that he was searching for and was told that nobody of that name lived at the house. Nevertheless, he forced his way into the house and repeatedly assaulted the victim by punching him. Each of the appellants also struck the victim with wooden implements.
14 The victim suffered an injury to the tear duct canal of his left eye that required surgery. He also sustained bruising and swelling injuries to his face. He spent several days away from work as a result of his injuries and was left with feelings of anger, mistrust and vulnerability as a consequence of his traumatic experience.
The appellants' personal circumstances
15 Mr Gowan was 33 years of age at the time that he committed the offences. He was born and raised in England and first came to Australia in 2002. He had no criminal history and a good employment record. However, he had commenced using methamphetamine in 2011 and his consumption had escalated until he ceased in April 2014.
16 The sentencing judge noted that the court had received character references that described Mr Gowan as a responsible, competent and trustworthy employee.
17 Mr Burnside was 30 years of age at the time that the offences were committed. He has twin daughters from a long-standing relationship. His partner has two older children from a prior relationship. The children regard Mr Burnside as their father. He had two prior convictions for offences committed in January 2010 (possessing an article with intent to cause fear contrary to s 8(1)(b) of the Weapons Act 1999 (WA)and disorderly behaviour in public contrary to s 74A(2)(a) of the Criminal Code). He was fined for each offence. He had a good employment record and the sentencing material included a reference from a person who had employed him as a casual subcontractor for 9 years.
The sentences
18 The appellants were each sentenced to the following terms of imprisonment:
(a) 4 years on count 1 (head sentence);
(b) 2 years 6 months on count 2 (concurrent);
(c) 12 months on count 3 (cumulative);
(d) 4 years on count 4 (cumulative);
(e) 2 years on count 5 (concurrent).
19 The maximum penalty for aggravated burglary is 20 years' imprisonment and the maximum penalty for causing grievous bodily harm is 10 years' imprisonment.
20 It is not necessary to summarise the detail of the sentencing judge's remarks; it is sufficient to note that his Honour referred to all of the matters that he was required to consider under s 6 of the Sentencing Act 1995 (WA). In particular, his Honour fully considered the appellants' personal circumstances and it is not contended that any mitigating factor was overlooked.
21 The sentencing judge characterised the offences committed by the appellants as 'most serious', noting that they were planned and involved persistent assaults upon the victims and the use of weapons. Further, the appellants had continued to assault the victim of counts 4 and 5, notwithstanding that they did not know him and the victim told them repeatedly that they had the wrong house.
22 The sentencing judge identified three factors that he was required to consider in determining the sentences to be imposed for the grievous bodily harm offences: the nature of the harm inflicted; the nature of the act that caused the injury to each victim and the background and circumstances of the offending. His Honour characterised the injuries received by each of the victims as serious, although 'not as serious as frequently encountered' for the offence of doing grievous bodily harm' (ts 425). The injuries were inflicted by 'deliberate repeated violence with use of weapons in sustained violent attacks upon the victims' (ts 424 - 425). The attack on each victim was for personal advantage and out of revenge and a demand for money.
The principles to be applied
23 This court can only intervene in an appeal against sentence if the sentencing judge has made a material error of fact or law. The court may allow the appeal if, in its opinion, a different sentence should have been imposed: s 31(4)(a) of the Criminal Appeals Act 2004 (WA). The principles to be applied by the court in forming its opinion were summarised by McLure P and Owen JA in Wilson v The State of Western Australia [2010] WASCA 82 [2]. They reflect the discretionary nature of sentencing.
Totality
24 The appellants contend that the total effective sentence that they each received was contrary to the first limb of the totality principle. That 'requires a judge who is sentencing an offender for a number of offences to ensure that the aggregation of the sentences appropriate for each offence is a just and appropriate measure of the total criminality involved': Postiglione v The Queen [1997] HCA 26; (1997) 189 CLR 295, 307 - 308 (McHugh J). The principle is expressly recognised in the Sentencing Act: s 6(1), read with s 6(3)(b). The total effective sentence imposed must bear a proper relationship to the overall criminality involved in all the offences for which an offender is to be sentenced, viewed in their entirety and having regard to the circumstances of the case, including those referable to the offender personally: Roffey v The State of Western Australia [2007] WASCA 246 [24]. However, it is of little importance how the ultimate aggregate is made up where considerations of totality apply: Roffey [26]. The total sentence imposed should reflect the reality that the severity of a sentence will increase exponentially as the length of the sentence increases: Jarvis v The Queen (1993) 20 WAR 201, 207 (Ipp J); Miller v The State of Western Australia [2013] WASCA 84 [30] (Mazza JA, with whom Buss JA agreed).
25 An allegation that the aggregate sentence imposed infringed the totality principle is an allegation of implied error. Accordingly, the sentence must be unreasonable or plainly unjust before it can be disturbed by an appellate court: Barbaro v The Queen [2014] HCA 2; (2014) 253 CLR 58 [26]; Stokke v The State of Western Australia [2015] WASCA 131 [63].
26 The question of whether a sentence offends the totality principle is not answered simply by reference to other cases. As Buss JA observed in Le v The State of Western Australia [2014] WASCA 120:
The guidance afforded by comparable cases is flexible rather than rigid. The mere fact 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 a sentence is outside the range does not necessarily establish that the exercise of the sentencing discretion in the particular case miscarried.
A sentencing range for comparable offences is merely one of the factors to be taken into account in deciding whether a 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 [37] - [38].
Double punishment
27 In Pearce v The Queen [1998] HCA 57; (1998) 194 CLR 610 it was held that:
To the extent to which two offences of which an offender stands convicted contain common elements, it would be wrong to punish that offender twice for the commission of the elements that are common. No doubt that general principle must yield to any contrary legislative intention, but the punishment to be exacted should reflect what an offender has done; it should not be affected by the way in which the boundaries of particular offences are drawn. Often those boundaries will be drawn in a way that means that offences overlap. To punish an offender twice if conduct falls in that area of overlap would be to punish offenders according to the accidents of legislative history, rather than according to their just deserts [40] (McHugh, Hayne and Callinan JJ).
28 That principle is not in doubt. It was subsequently affirmed in Johnson v The Queen [2004] HCA 15; (2004) 78 ALJR 616. However, there has been some controversy regarding the steps to be taken in sentencing where there is a risk of double punishment: see, for example, Eves v The State of Western Australia [2008] WASCA 7; (2008) 49 MVR 259 and Longbottom v The State of Western Australia [2008] WASCA 203.
29 The offender in Cotterill v The State of Western Australia [2013] WASCA 52 was convicted of one count of armed assault with intent to rob (count 1) and two counts of doing grievous bodily harm (counts 2 and 3). He was sentenced to 8 years' imprisonment on count 1; 5 years' imprisonment on count 2 and 3 years 6 months' imprisonment on count 3. The sentencing judge ordered that the sentences imposed on counts 2 and 3 be served cumulatively, with the sentence on count 1 to be served concurrently.
30 The offender and two others entered a hardware store in Broome with the intention of stealing cash. The offender struck an employee and a customer in the store several times with a maglite torch. The blows caused significant injuries to both victims.
31 The respondent accepted that all of the circumstances of the offending relating to counts 2 and 3 overlapped with the circumstances relevant to the sentencing on count 1. McLure P (with whom Buss and Mazza JJA agreed) considered that the sentence imposed on count 1 would have been manifestly excessive if it had excluded any of the circumstances of the offending that were the subject of counts 2 and 3 and the sentence on count 3 would also have been manifestly excessive if all of the circumstances relating to count 1 had been ignored. There had also been a significant commonality in the relevant circumstances informing the appropriate sentence to be imposed on counts 2 and 3. Her Honour concluded:
What emerges from this analysis is that very significant care had to be taken to avoid any double (or more) punishment in sentencing for these offences. There is no single correct mechanism for avoiding double punishment. It may be done, for example, by reducing the otherwise appropriate term or ordering partial or total concurrency …
I would infer from the length of the individual sentences that none was reduced to reflect all of the factual overlap. I am satisfied that the individual sentences imposed on the appellant reflect a level of double punishment that is impermissibly carried over in the total sentence by the order for cumulation [27] - [28]. (emphasis added)
32 In Hunter-Aragu v The State of Western Australia [2015] WASCA 80, Buss JA summarised the effect of the observations by McLure P in Cotterill with the proposition that 'where an offender is to be sentenced for multiple offences which involve a significant commonality of relevant facts and circumstances, significant care must be taken to avoid any double (or more) punishment' [33].
33 The offender in Hunter-Aragu had been convicted of aggravated armed robbery (a circumstance of aggravation being the doing of bodily harm to the victim) and unlawfully doing grievous bodily harm (the grievous bodily harm being also the bodily harm that was a circumstance of aggravation for the robbery). Buss JA (with whom McLure P and Mazza JA agreed) concluded that the appellant had been doubly punished as it was to be inferred that the sentencing judge had taken into account in imposing the sentence for the aggravated armed robbery at least some of the grievous bodily harm suffered by the victim. That is, the appellant had been doubly punished for causing bodily harm to the victim. See also Dos Santos v The State of Western Australia [2016] WASCA 46 (in which the appellant was not doubly punished when terms of imprisonment imposed for committing the offence of aggravated assault occasioning bodily harm while in the victim's place without her consent and unlawfully assaulting the victim and thereby doing her bodily harm were ordered to be served concurrently).
The one transaction rule
34 Mr Gowan contended in his written submissions that the sentencing judge had erred by failing to apply the one transaction rule. The contention formed part of Mr Gowan's submissions on whether the sentences imposed infringed the totality principle.
35 The one transaction rule is said to apply 'when a number of offences "arise out of substantially the same act, circumstances or series of occurrences" ... or when there is "one multi-faceted course of criminal conduct ... or if they are considered to be "manifestations of the one criminal enterprise, transaction or episode''': R v Faithfull [2004] WASCA 39 [26] (McLure J, with whom Malcolm CJ and Wheeler J agreed) (citations omitted). However, the rule is only a 'rule of thumb': Butler v The State of Western Australia [2012] WASCA 249, in which Mazza JA (with whom McLure P and Buss JA agreed) noted that:
As this court has pointed out on many occasions, the one transaction rule is merely a rule of thumb designed to assist judges to ensure that the total sentence imposed for offences which occur close together in time or in a spree is proportionate to the offender's overall criminality. It will sometimes be the case that cumulative sentences are justified to properly reflect an offender's overall criminality: Lesay v The State of Western Australia [2011] WASCA 154 ... [53].
36 Accordingly, it is not a principle of sentencing law that concurrent terms must be imposed for multiple offences constituting one transaction or a continuing episode. There may be circumstances in which wholly concurrent terms of imprisonment will not reflect the total criminality involved even though the offending occurred during a single episode. In R v Faithfull, McLure J (as her Honour then was) considered that the circumstances in Pearce v The Queen provided an example of where accumulation was required to reflect the total criminality involved (the offender was convicted of maliciously inflicting grievous bodily harm with intent to do grievous bodily harm and breaking and entering a dwelling and inflicting grievous bodily harm on the victim while in the dwelling) [28].
Sentencing for aggravated burglary
37 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, the following propositions are generally relevant to sentencing for the offence:
(a) Home burglaries are regarded as particularly serious offences: Moody-Jackamarra v The State of Western Australia [2007] WASCA 7. The sentences imposed for aggravated burglary have in recent years increased to reflect the prevalence of the offence and to provide proper personal and general deterrence: Butler [40] (Mazza JA). Home burglaries are generally seen as requiring substantial penalties in order to recognise those considerations: Wragg v The State of Western Australia [2013] WASCA 198; (2013) 234 A Crim R 380 [44] (Hall J, with whom McLure P and Buss JA agreed).
(b) A home invasion that is committed with the intention of intimidating the occupants by threats is more serious than a burglary that involves only an intent to steal: R v Ward [1999] WASCA 157; (1999) 109 A Crim R 159 [8] (Malcolm CJ); The State of Western Australia v Sabek [2005] WASCA 207 [50] (Roberts-Smith JA).
(c) Accepting that aggravated burglary/home invasion offences are committed in a wide variety of circumstances, sentences for the offences have been generally with a range of 4 - 7 years' imprisonment (pre-transitional): Drake v The State of Western Australia [2006] WASCA 209 [63] (Roberts-Smith JA). Hall J reviewed a number of cases involving a single count for aggravated burglary in Wragg. The sentences imposed in those cases ranged between 2 years and 4 years 6 months' imprisonment.
Sentencing for grievous bodily harm offences
38 In Trompler v The State of Western Australia [2008] WASCA 265, Wheeler JA (with whom Buss JA agreed) noted that three matters were generally of significance in assessing the criminality involved in an offence of doing grievous bodily harm: first, the nature of the harm that results (it may range from a permanent injury which the victim is able to accommodate to a severe and life-threatening injury resulting in serious permanent disability); second, the nature of the act that caused the injury (for example, whether the violence was repetitive or comprised only a single act and whether the offence involved a deliberate decision to use a weapon) and, third, the background to and circumstances of the offence (for example, a deliberate attack carried out in order to obtain some personal advantage or for revenge would place the conduct towards the upper end of the scale of seriousness as would random and senseless violence or aggression, whether fuelled by alcohol or other drugs or not).
39 McLure JA (as her Honour then was) noted in the same appeal that sentences actually imposed for unlawfully doing grievous bodily harm had a post-transitional range of 8 months to 5 years 4 months: see also, Cotterill [21] (McLure P).
Comparative cases
40 Counsel for the appellants referred to a number of cases that they submitted provided guidance in determining whether the total effective sentences that had been imposed offended the first limb of the totality principle. The cases involved aggravated burglaries accompanied by assaults. Harrison v The State of Western Australia [2009] WASCA 58; Papas v The State of Western Australia [2011] WASCA 3; Gillespie v The State of Western Australia [2013] WASCA 149; (2013) 45 WAR 207 and Drake were cases in which the offender was convicted of multiple counts of aggravated burglary. The remaining cases involved a single count of aggravated burglary: Knight v The State of Western Australia [2014] WASCA 217; Rolfe v The State of Western Australia [2012] WASCA 169; Butler; Miller; Mippy v The State of Western Australia [2012] WASCA 254; Edmonds v The State of Western Australia [2013] WASCA 250; Sartori v The State of Western Australia [2014] WASCA 98; Buxton v The State of Western Australia [2009] WASCA 6 and Henderson v The State of Western Australia [2007] WASCA 198.
41 The offenders in Papas and Harrison were each convicted on fast-track pleas of two counts of aggravated burglary. The offender in Papas was also convicted of one count of assault occasioning bodily harm, one count of criminal damage, one count of obstructing a public officer and one count of breaching protective bail. A total effective sentence of 12 months' immediate imprisonment was imposed. On appeal, it was contended that the sentence was manifestly excessive, having regard to the offender's mental health problems and his early pleas of guilty. An application for leave to appeal was refused.
42 The offenders in Harrison invaded two houses in the same night looking for persons who they believed had previously broken into the house of one of the offenders. They damaged property during the home invasions but their victims were not assaulted. The offenders were each sentenced to 2 years' immediate imprisonment. On appeal, they contended that their terms of imprisonment ought to have been suspended having regard to their age, lack of prior convictions for similar offences, their early pleas of guilty and their expressions of remorse. Leave to appeal was refused.
43 The offender in Gillespie was convicted of numerous offences including three counts of aggravated burglary (home invasions), armed robbery and stealing. A total effective sentence of 8 years' imprisonment was imposed. An assault occurred during one home invasion in which the victim received a serious injury to her wrist that required surgery and resulted in a loss of function. The other home invasions involved threats to kill the occupants, property damage and theft of valuable items and motor vehicles. The offender pleaded guilty at the earliest reasonable opportunity and cooperated with the police, including by providing information that assisted in identifying his co-offenders. On appeal, the individual sentences of 3 years' imprisonment for the aggravated burglary offences were considered to be 'well within range' and the total effective sentence was said to be 'if anything, at the lower end of the range of sentences' that would appropriately reflect the offender's culpability.
44 The offender in Drake was convicted of three counts of aggravated burglary and two counts of assault occasioning bodily harm. The charges arose from two incidents that occurred on the same day. Two of the counts for aggravated burglary involved her twice entering the same motel unit as part of a single episode. The assaults involved punching and kicking the victims, who received cuts and bruising. The offender claimed that the victims owed her money and she did not consider that the police had taken sufficient action on complaints that she had made about the victims. She was sentenced to a total of 32 months' immediate imprisonment and, on appeal, it was held that the sentencing judge had erred in calculating the discount for each offence on account of the offender's pleas of guilty and other mitigating factors. The sentence was reduced to a total effective sentence of 26 months' immediate imprisonment. It should be noted that Roberts-Smith JA (with whom Martin CJ agreed) considered that the appropriate starting point for the aggravated burglary offences was 4 years' imprisonment.
45 As to the cases concerning a single aggravated burglary offence accompanied by an assault, counsel for Mr Burnside made particular reference to Knight and Wragg. The offender in Knight was convicted of one count of unlawfully doing grievous bodily harm and two counts of assault causing bodily harm in addition to aggravated burglary. He and three others went to a house armed with a baseball bat and a wooden picket and with intention of assaulting the occupants. One victim suffered a left tension pneumothorax (which affected his breathing for some months), bruising to his right ankle and shin, and a laceration to his right knee. Another complainant suffered a fractured right ankle and bad bruising and swelling to the thigh. The offender had a good work record but had a history of cannabis and amphetamine use.
46 It was held on appeal that it was not reasonably arguable that the total effective sentence of 5 years' immediate imprisonment infringed the totality principle. Mazza JA (with whom Hall J agreed) noted that the offences were self-evidently serious; the burglary was planned; violence was contemplated; the offender was armed, acted out of revenge and inflicted grievous bodily harm on one victim and significant bodily harm on another victim; the offender's personal circumstances were unfavourable and he did not have the mitigating benefit of a plea of guilty or remorse.
47 In Wragg, an appeal from a sentence of 4 years 6 months' immediate imprisonment was dismissed. The victim was assaulted during a home invasion but it was not alleged that the offender was actually responsible for the assault. The offender was 26 years of age and was on bail at the time that he committed the offence. He had a good employment record but a history of substance abuse, and had been previously convicted of offences involving violence. He was convicted following trial.
48 It is not necessary to discuss in detail the remaining cases to which counsel for the appellants referred. It is sufficient to note that the sentences imposed in those cases ranged between 20 months' imprisonment (Henderson) and 3 years 6 months' imprisonment (Butler, Miller, Mippy and Edmonds).
Double punishment
49 The sentencing judge did not expressly refer to the need to avoid double punishment in sentencing the appellants for the aggravated burglary and grievous bodily harm offences. However, it was submitted that his Honour was required to have ensured that Mr Gowan was not doubly punished as the acts of inflicting harm upon the victims were both aggravating factors and circumstances of aggravation for the aggravated burglary offences and the subject of the grievous bodily harm offences.
50 An assault was an element of each of the offences committed by the offender in Cotterill. The same harm was alleged for each of the offences committed by the offender in Hunter-Aragu. Consequently, there was a risk of double punishment in each of those cases. However, the appellants in this case repeatedly assaulted their victims in the course of the aggravated burglaries. Some of the assaults caused bodily harm to the victim; one or more blows inflicted a much more serious injury. It is not apparent whether the acts and resulting harm alleged as a circumstance of aggravation for the aggravated burglary offences are the same acts and resulting harm alleged for the grievous bodily harm offences.
51 In this case, it is not necessary to reach a concluded view on this issue as the individual sentences imposed for the related aggravated burglary and grievous bodily harm offences were ordered to be served concurrently. There is no complaint about the sentences imposed for the individual offences apart from the assertion that Mr Gowan was doubly punished. Consequently, there was no basis for concluding that the individual sentences imposed reflected a level of double punishment that was impermissibly carried over into the total effective sentences for the related aggravated burglary and grievous bodily harm offences or the overall total effective sentences.
Totality
52 I accept that the total effective sentences imposed by the sentencing judge were high. I also accept that the appellants' personal circumstances were unusually favourable for this type of offending. However, I do not consider that the sentences were unreasonable or plainly unjust. I have reached that conclusion for the following reasons.
53 First, the appellants' offending was very serious. It involved two home invasions in company that were planned, undertaken at night and were for the purpose of enforcing a debt. The appellants were armed with weapons. They repeatedly assaulted their victims and the violence involved was significant and gratuitous. They persisted in attacking the victim of counts 4 and 5 even after they must have realised he was not the person that they had been seeking.
54 Second, the offences that constituted counts 1 - 3 occurred at a different time and place to the offences alleged by counts 4 and 5. Although the home invasions occurred on the same night, they did not form part of a single criminal episode. The sentences imposed for the related aggravated burglary and grievous bodily harm offences were ordered to be served concurrently. In my view, it was appropriate to accumulate the sentences for each home invasion and for the criminal damage offence. The home invasion offences were separate offences and the criminal damage offence involved separate acts and damage of a different kind to the assaults that occurred during the first home invasion.
55 Third, the appellants stressed that they were very remorseful for their criminal conduct. However, they were convicted following trial. Further, the nature and seriousness of the offences that they committed meant that only limited weight could be given to their personal circumstances as a mitigating factor.
56 Fourth, the comparative cases cited by counsel for the appellants are of only limited assistance in establishing an appropriate sentencing range. There are significant differences in the facts and circumstances of the cases to which counsel referred. In particular, the sentencing considerations in Papas and Henderson were markedly different. The offender in Gillespie committed three aggravated burglaries and an armed robbery. However, he pleaded guilty, co-operated with the police in identifying his co-offenders and received a sentence that was regarded by this court as being towards the lower end of the appropriate range. The offender in Drake was convicted on fast-track pleas of guilty and the assaults that she committed were less serious than those committed by the appellants. Further, the sentences imposed on the appellants are broadly consistent with the sentences upheld in Knight and Wragg given that those cases only involved a single aggravated burglary.
57 A review of the cases to which counsel referred indicates that the total effective sentences imposed by the sentencing judge are at the top end of the range of sentences that have been imposed, in reasonably comparable circumstances, for home invasions involving serious assaults. However, in my view, error should not be implied in the present case from the sentencing outcome.
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