Grenfell v The State of Western Australia
[2018] WASCA 31
•15 MARCH 2018
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: GRENFELL -v- THE STATE OF WESTERN AUSTRALIA [2018] WASCA 31
CORAM: BUSS P
BEECH JA
HALL J
HEARD: 16 FEBRUARY 2018
DELIVERED : 15 MARCH 2018
FILE NO/S: CACR 115 of 2017
BETWEEN: DAVID WAYNE GRENFELL
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
ON APPEAL FROM:
Jurisdiction : SUPREME COURT OF WESTERN AUSTRALIA
Coram :FIANNACA J
File No :INS 101 of 2016, INS 104 of 2016
Catchwords:
Criminal law and sentencing - Home invasion by six armed offenders intending to steal drugs and cash - Victim shot in leg at close range - Whether total effective sentence of 12 years' imprisonment infringed the first limb of the totality principle
Legislation:
Criminal Code (WA), s 297, s 304, s 393, s 401, s 414, s 444
Result:
Leave to appeal granted
Appeal dismissed
Category: D
Representation:
Counsel:
Appellant: Mr S Rafferty
Respondent: Mr J A Scholz
Solicitors:
Appellant: Seamus Rafferty, Barrister & Solicitor
Respondent: Director of Public Prosecutions (WA)
Case(s) referred to in judgment(s):
Chikonga v The State of Western Australia [2017] WASCA 34
Fernandez v The State of Western Australia [2017] WASCA 223
Gowan v The State of Western Australia [2016] WASCA 98
Kaokula v The State of Western Australia [2016] WASCA 198
McIntyre v The State of Western Australia [2016] WASCA 150
Oxenham v The State of Western Australia [2015] WASCA 30
Slowiak v The Queen [2004] WASCA 112
Stipanich v The State of Western Australia [2005] WASCA 145
The State of Western Australia v Mackey [2017] WASCA 204
The State of Western Australia v BLM [2009] WASCA 88; (2009) 40 WAR 414
The State of Western Australia v Johnston, Grenfell & Bailey [2017] WASCSR 95
Trompler v The State of Western Australia [2008] WASCA 265
JUDGMENT OF THE COURT:
Introduction
The appellant was convicted on his plea of guilty to six offences, five of which were committed in the course of a home invasion involving six armed offenders. The purpose of the home invasion was to steal money and drugs believed to be at the property. During the home invasion an occupant of the home was shot in the leg with a sawn‑off shotgun, as a result of which he lost his lower leg. The sixth offence was a separate offence of receiving.
He was sentenced to a total effective sentence of 12 years' imprisonment. The appellant appeals against his sentence on two grounds: first, an alleged infringement of the first limb of the totality principle; and, secondly, an allegation that the sentencing judge erroneously found that the appellant's criminality was the same as the person who used the firearm during the course of the home invasion.
For the reasons that follow, in our opinion the appeal must be dismissed.
The charges and the sentences imposed
The offences of which the appellant was convicted, and the sentences he received, may be summarised as follows:
| Charge | Sentence imposed | |
| 1 | Aggravated burglary involving the commission of the offence of doing grievous bodily harm in a dwelling while being armed with a weapon and in company. | 3 years' imprisonment |
| 2 | Unlawfully doing an act as a result of which the life, health and safety of [one of the victims] was, or was likely to be, endangered. | 4 years 4 months' imprisonment |
| 3 | Aggravated armed assault with intent to rob. | 7 years' imprisonment |
| 4 | Unlawfully doing grievous bodily harm in circumstances of aggravation in that children were present. | 6 years' imprisonment |
| 5 | Wilfully and unlawfully damaging property, namely a door, windows and a fish tank. | 1 year 6 months' imprisonment |
| Indictment 101 of 2016 | On 11 May 2015, receiving stolen property, namely jewellery the property of Lakeland Holdings Pty Ltd trading as Cash Converters. | 1 year's imprisonment |
The judge ordered that the sentence for count 4 was to commence after the appellant had served 5 years of the sentence for count 3. All other sentences on the main indictment were to be served concurrently with the sentence for count 3.[1] The sentence for the receiving offence was made cumulative on the other sentences, producing a total effective sentence of 12 years' imprisonment.
[1] White AB 38 ‑ 39.
The facts
The facts are not in dispute.[2]
[2] The following summary is taken from the sentencing remarks: The State of Western Australia v Johnston, Grenfell & Bailey [2017] WASCSR 95 [3] ‑ [44].
In the course of 7 April 2015, the appellant organised a number of offenders to join him on a planned home invasion. Tools and other items to be used as weapons, including a hammer and a machete, along with surgical gloves, were distributed to members of the group after they assembled at a house.[3]
[3] Sentencing remarks [8].
While all six offenders were in a four‑wheel drive vehicle, the appellant told the other members of the group that there would be a pound of methylamphetamine at the house they were going to. The appellant said that he would take the drugs, but that the others could keep any cash and any other items they found at the house as their reward for participating.[4]
[4] Sentencing remarks [11].
At about 1.57 am on 8 April 2015, all six members of the group entered the victims' home in Cooloongup. The entry and subsequent exit were captured on CCTV footage by a camera trained on the front‑door area from the porch area outside.[5]
[5] Sentencing remarks [14].
One member of the group, referred to in the sentencing remarks as the shooter, had a sawn‑off shotgun.[6] The appellant and other offenders were sentenced on the basis that they did not know that the shooter was carrying the shotgun until they arrived at the victims' home.[7] His Honour found, and it is not challenged, that given what could be seen on the CCTV footage, the appellant (and other co‑offenders) could see that the shooter was carrying the gun as he made his way towards the front door.[8] Thus, before he entered the house, the appellant was aware that the shooter was carrying the shotgun.
[6] Sentencing remarks [15].
[7] Sentencing remarks [31].
[8] Sentencing remarks [33].
The shooter entered first, kicking the front door open with significant force. The appellant followed immediately after the shooter,[9] then the other offenders, armed with hammers or machetes.[10]
[9] Sentencing remarks [16].
[10] Sentencing remarks [15].
The house was occupied by an adult male, his de facto wife and her three children, then aged 10, 8 and 5.
The shooter discharged the gun in the area where the children were sleeping. The pellets passed a very short distance from where the children were sleeping, penetrating a settee situated on a pool table. That shooting constituted count 2, unlawfully doing an act as a result of which the life, health or safety of a person was, or was likely to be, endangered.[11]
[11] Sentencing remarks [17].
The shooter went down the hallway where he confronted the male adult victim, demanding money and drugs. The victim said there was nothing there. The shooter repeated the demand. That constituted the offence in count 3, aggravated armed assault with intent to rob.[12] The shooter then deliberately discharged the shotgun at point‑blank range at the victim's left lower leg, the shot striking his leg and causing immediate serious injuries. That constituted the offence of count 4, the offence of aggravated grievous bodily harm, being aggravated because of the presence of children.[13]
[12] Sentencing remarks [14].
[13] Sentencing remarks [19].
The appellant and all but one of the other offenders left quickly through the front door after the shooter discharged the shotgun into the victim's leg.[14]
[14] Sentencing remarks [20].
The time on the CCTV footage reveals that just under a minute elapsed from the time the shooter kicked in the door until the main group left the house.[15]
[15] Sentencing remarks [21].
No drugs were located in the house and no property was taken from the house.[16]
[16] Sentencing remarks [25].
The victim suffered horrific injuries to his left leg. He had a large open wound below his left knee on the front of his leg exposing the underlying bone and muscle and his left tibia was fractured in multiple places. Blood flow ceased to the lower left leg, resulting in the left leg 'dying' and requiring amputation. The injury to the artery would have caused severe and life‑threatening bleeding without surgical intervention.[17]
[17] Sentencing remarks [26].
Count 5, the criminal damage offence, concerned the damage to the front door, the windows and a fish tank. The damage to the fish tank was caused when a co‑offender, the last to enter the house, smashed the fish tank situated near the front door.
The sentencing judge accepted that none of the offenders expected children to be in the house, but observed that none withdrew once they became aware of the children, as they would have been as soon as they entered the house. Nor did any of the offenders withdraw once the first shot was fired in the vicinity of the children.[18]
[18] Sentencing remarks [38].
The facts of the receiving offence were as follows.
On 11 May 2015, an armed associate of the appellant entered a Cash Converters store. He stole a number of gold rings, chains, pendants and earrings valued at approximately $53,000. A little later the appellant received the jewellery knowing that it was the property of Cash Converters and that it had been stolen. The appellant's role was to facilitate the sale of the jewellery. He gave it to his brother for safe‑keeping. Between 2 and 3 June 2015, the appellant took the stolen jewellery to a property in Secret Harbour where the occupier was in possession of gold smelting equipment. A significant amount of the jewellery was melted into gold bars with an approximate total weight of 1.1 kg. When police executed a search warrant, the jewellery that had not been smelted was identified as jewellery stolen from Cash Converters on 11 May 2015.[19]
[19] Sentencing remarks [43].
Personal circumstances
When sentenced the appellant was 35 years old. He had been in a relationship with his partner for four years, to whom he was engaged to be married. The appellant has two children with a former partner.
The appellant has supportive parents.
The appellant finished school at the end of first term in year 11. He started an apprenticeship as a spray painter which he completed in 2000. The appellant had also worked as a scaffolder.
The sentencing judge observed that the appellant demonstrated the capacity to be a productive member of the community.[20]
[20] Sentencing remarks [89].
The appellant has abused drugs since he was about 20 years of age. He used methylamphetamine until 2009 when he was sentenced to a term of immediate imprisonment. When he was released in 2013 he commenced a cocaine habit, using large quantities on a daily basis.[21]
[21] Sentencing remarks [90].
The appellant was previously a member of an organisation under whose direction he said he was acting in committing these offences.[22] That has given rise to issues leading to him being incarcerated in a regional prison for his own protection. The appellant plans to leave Western Australia upon release and commence a new life in another State.[23]
[22] Sentencing remarks [46].
[23] Sentencing remarks [91].
The appellant has an extensive criminal record, including driving offences, drug offences, burglary, criminal damage and an offence of armed robbery. The sentencing judge observed that the appellant's record suggested a risk of reoffending and the need for personal deterrence.[24]
[24] Sentencing remarks [92].
Sentencing remarks
The judge sentenced two of the appellant's co‑offenders at the same time he sentenced the appellant. It is necessary to outline only some aspects of the sentencing judge's comprehensive remarks.
The seriousness of the offending
His Honour made a number of observations as to the seriousness of the appellant's offending, none of which is challenged on appeal. His Honour observed that the offending was of a very grave nature which would appall right‑minded people in the community. It was a horrifying, traumatic ordeal for all victims, in particular for the children.[25] He identified the following aggravating features of the appellant's offending:
1.The lasting physical injury caused to the adult male victim, who lost his lower leg and whose life was threatened.[26]
2.The fact that the objective was an unlawful enterprise, to obtain drugs, and was an attempt by the appellant's organisation to claim the turf and warn off the male adult victim.[27]
3.The number of persons involved, increasing the level of fear intended to be conveyed.[28]
4.The use of a shotgun. While the use of the shotgun was not part of the plan, and the appellant was not aware of it until he arrived at the premises, as they moved towards the house it was clear that the shooter had the shotgun ready to be used.[29]
5.The use of other weapons capable of doing serious injury, including the machetes which were weapons which could cause severe harm.[30]
6.The persistence of the offending when it was obvious there were children present.[31]
The role of the offenders
[25] Sentencing remarks [53].
[26] Sentencing remarks [53].
[27] Sentencing remarks [55].
[28] Sentencing remarks [58].
[29] Sentencing remarks [59].
[30] Sentencing remarks [60].
[31] Sentencing remarks [61].
Because the judge's findings as to the appellant's role is the subject of ground 2 of the appeal, we will set out in full what his Honour said.
First, Mr Grenfell, it seems to me that, of the offenders I am dealing with, you are at the top of that hierarchy. You arranged for other co-offenders to become involved in the enterprise that ultimately resulted in the commission of the offences at the Cooloongup address. In particular, you advised a co-offender, Mr Webber, that you would forgive a $2,000 drug debt owed to you, if he came with you and 'watched your back' during the home invasion. Further, at a meeting of the whole group, if not before, then at least once you were in the cars, you provided or arranged for the provision of hammers, machetes and other items, including disposable surgical gloves, obviously to avoid forensic evidence being left behind. So, there was a degree of planning - in fact, one might say a significant degree of planning. You were involved in that planning, and you were the one who said that you would take the drugs while the others could have any cash. It was submitted on your behalf that I should regard you as being higher in the hierarchy than Mr Johnston and Mr Bailey, but lower in the hierarchy than the shooter. That is not apparent on the evidence before me. In fact, it seems to me that the only thing that suggests the shooter was at the same level as you was because he was first to go through the door. He was the one who kicked in the front door. It seems to me that there is nothing before me that would differentiate your roles. True it is that he may have taken matters into his own hands, as to what he would do in terms of the use of a weapon, but as I have already said, it appears that his conduct did not cause you to withdraw, once you became aware that he was armed with a shotgun.
In any event, the shooter has not been convicted. That is, no one has been convicted who has been identified as the shooter, so there is no basis upon which I could draw any comparison for the purposes of sentencing you. I will need to make my own assessment of the criminality of your conduct and what punishment it deserves.[32]
Pleas of guilty and other mitigating factors
[32] Sentencing remarks [65] ‑ [66].
The sentencing judge found that the pleas of guilty were not entered at the earliest reasonable opportunity, but that it was appropriate that the appellant be given a discount of 10% on account of the pleas.[33]
[33] Sentencing remarks [107] ‑ [108].
His Honour remarked, without challenge on appeal, that the only significant mitigating factor was that each had entered a plea of guilty.[34] His Honour observed that any remorse on the part of the appellant (and other offenders) had come only very late in the piece.[35]
Parity
[34] Sentencing remarks [104].
[35] Sentencing remarks [110].
His Honour referred to co‑offenders who had been sentenced by Jenkins J at earlier stages.[36] It is not necessary to detail what his Honour said. In the course of doing this, his Honour observed that the aggravated grievous bodily harm offence was towards the very upper end of that type of offence.[37]
Standards of sentencing
[36] Sentencing remarks [122] ‑ [129].
[37] Sentencing remarks [128].
His Honour observed that in relation to aggravated burglary offences, the circumstances of such offences are so varied that there is no tariff or range of appropriate sentences. However, the most significant sentencing consideration for such offences is general deterrence, particularly when the place that was broken into is a home. His Honour observed that people are entitled to feel safe in their homes, and when they are subjected to ordeals of this kind, the community properly expects that the court will impose condign punishment, which will deter others from behaviour of that kind.[38]
[38] Sentencing remarks [113].
The judge observed that no range of sentences has emerged in relation to offences of armed assault with intent to rob. The maximum penalty for that offence is the same as armed robbery, reflecting that whether the offender actually succeeds in stealing the property will, in many cases, not be important. That is because the aggravated armed assault with intent to rob is the means by which an attempt is made to steal property.[39] His Honour referred to the range of sentences of 4 to 6 years' imprisonment for armed robberies, observing, correctly, that this court has made clear that that does not set a limit either at the top or bottom end of what might be an appropriate sentence in a particular case.[40]
[39] Sentencing remarks [50], [114].
[40] Sentencing remarks [114].
His Honour found that the offence in this case was particularly serious because of the weapons used - in particular, the use of the shotgun - the fact that it was committed in somebody's home and the fact that there were children in the vicinity.[41]
Sentencing disposition
[41] Sentencing remarks [115].
The judge concluded that, as compared to the other offenders whom he was sentencing, the appellant should be regarded as being more criminally responsible as the person who organised or was one of the organisers of the criminal enterprise, and because he involved the others in the offending.[42]
[42] Sentencing remarks [137].
His Honour observed that it was important that the appellant not be punished twice for the grievous bodily harm aspect of the aggravated burglary.[43] His Honour imposed a sentence of 3 years on count 1.
[43] Sentencing remarks [128], [138].
In relation to count 2, his Honour took into account that the appellant was distributing weapons and thus intending the weapons would be available to be used, so that the fact that a different kind of weapon was produced by the shooter did not detract from the responsibility that the appellant must bear for that offence. His Honour characterised it as a very serious example of that kind of offence and imposed a sentence of 4 years and 4 months' imprisonment.[44]
[44] Sentencing remarks [139].
As to count 3, his Honour referred to the earlier observations as to why sentences for this kind of offence, which carries a maximum term of life imprisonment, can sometimes be at the same level of criminality as an offence of armed robbery. His Honour characterised the offence as 'at the very upper end'.[45] His Honour imposed a sentence of 7 years' imprisonment.
[45] Sentencing remarks [140].
In determining the sentence for count 4, his Honour again took into account the fact that the appellant was the person who organised the use of weapons. His Honour imposed a sentence of 6 years' imprisonment.[46]
[46] Sentencing remarks [141].
As to count 5, criminal damage, the sentence was 1 year and 6 months.
The judge characterised the receiving charge as a very serious case of receiving because of the amount of property received, the appellant knew where it came from, and the fact that it was being converted into some other form in order for it to be disposed of.[47] Having regard to the totality principle, the judge determined that it was appropriate that there be a cumulative sentence for the receiving offence, but that it should be reduced to one of 12 months' imprisonment to be served cumulatively.[48]
[47] Sentencing remarks [148].
[48] Sentencing remarks [149] ‑ [150].
His Honour ordered that the appellant be eligible for parole.[49]
[49] Sentencing remarks [151].
Grounds of appeal
The appellant advances two grounds of appeal, to the following effect:
1.The total effective sentence of 12 years' imprisonment offends the first limb of the totality principle.
2.The sentencing judge erred in finding that the appellant's criminality was the same as the person who used the firearm during the course of the offending behaviour.
On 13 August 2017, leave to appeal on ground 2 was granted and the application for leave to appeal on ground 1 was referred to the hearing of the appeal.[50]
[50] Order of Mazza JA, 13 August 2017.
We commence with ground 2, as it alleges express error.
Ground 2: comparison of roles
The appellant submits that the sentencing judge found that the appellant's criminality was the same as the person who used the firearm during the course of the offending behaviour.[51] The appellant further submits that his Honour erred in so doing in that the firearm was brought to the house without the knowledge of the appellant, who only saw the firearm shortly before entering the house.[52]
[51] Appellant's submissions [29]; appeal ts 2 ‑ 3, 9.
[52] Appellant's submissions [34]; appeal ts 4 ‑ 7.
In our opinion, for the reasons that follow, the sentencing judge did not find that the appellant's criminality was the same as the person his Honour described as the shooter.
His Honour observed, correctly and without challenge on appeal, that of the offenders he was dealing with, the appellant was at the top of the hierarchy.[53] While his Honour then made some observations as to the relative position in the hierarchy of the shooter and the appellant,[54] those observations were made in response to submissions made to his Honour by counsel for the appellant to the effect that the appellant was lower in the hierarchy than the shooter. The judge concluded that the material before him did not establish that to be so. We are not persuaded that the judge's observations about the shooter and the appellant reflect or reveal a finding, for the purposes of determining the sentence to be imposed on the appellant, that the appellant's criminality was the same as that of the shooter.
[53] Sentencing remarks [65] (emphasis added).
[54] Sentencing remarks [65].
In circumstances where the shooter had not been sentenced and was not before his Honour for sentencing, there is no apparent purpose to be served in a comparison of the criminality of the shooter and of the appellant. A comparison with the criminality of a co‑offender whose sentence is unascertained provides no assistance for the judge's task of arriving at a sentence for the person who is to be sentenced that is commensurate with the seriousness of the offence.[55]
[55] In accordance with s 6 of the Sentencing Act 1995 (WA).
When his Honour's sentencing remarks are read as a whole, it is apparent that the judge did not proceed to assess the appellant's criminality by comparing it to the shooter's criminality. The judge expressly stated that 'No one has been convicted who has been identified as the shooter, so there is no basis upon which [the judge] could draw any comparison for the purposes of sentencing [the appellant]'.[56] His Honour observed that he would need to make his own assessment of the criminality of the appellant's conduct and assess the punishment that conduct deserved.[57] Consideration of his Honour's sentencing remarks as a whole indicates that this is what he did. In determining the appropriate sentence for the appellant, his Honour did not bring to bear any comparison between the criminality of the shooter and that of the appellant.
[56] Sentencing remarks [66].
[57] Sentencing remarks [66].
For these reasons, ground 2 fails.
Ground 1: totality
Appellant's submissions
The appellant accepts that the offences of which he was convicted were very serious and included a number of aggravating features.[58] The appellant emphasises that the offending occurred over a very short period and that the appellant was unaware that another offender was armed with a firearm until shortly before going into the house.[59] Further, the appellant points out, correctly, that he did not use any actual violence.[60]
[58] Appellant's submissions [13].
[59] Appellant's submissions [14] ‑ [15].
[60] Appellant's submissions [26(f)].
The appellant referred to three cases concerning the broad category of 'home invasion' offences, namely Stipanich v The State of Western Australia;[61] Slowiak v The Queen[62] and Gowan v The State of Western Australia.[63]
[61] Stipanich v The State of Western Australia [2005] WASCA 145.
[62] Slowiak v The Queen [2004] WASCA 112.
[63] Gowan v The State of Western Australia [2016] WASCA 98.
The appellant submits that, in all the circumstances, the aggregate sentence of 12 years' imprisonment did not bear a proper relationship to the overall criminality of the appellant's conduct.[64]
Appeals against sentence: general principles
[64] Appellant's submissions [27].
The following principles are well established:
(1)Sentencing is a discretionary exercise. An appellate court can intervene only if the appellant demonstrates either an express or implied material error. Express error involves acting on a wrong principle, for example by mistaking the law or facts or taking into account an irrelevant matter. Implied error arises where the end result is so unreasonable or unjust that the court must conclude that a substantial wrong has occurred. Thus, an appellate court cannot substitute its own opinion for that of the sentencing court merely because the appellate court would have exercised a sentencing discretion differently.
(2)The first limb of the totality principle requires that the total effective sentence imposed on an offender who has committed multiple offences bears a proper relationship to the overall criminality involved in all of the offences (including those, if any, in respect of which the offender is still serving or is yet to serve a term of imprisonment), viewed in their entirety, having regard to all relevant facts and circumstances, including those referable to the offender personally (including, for example, the desirability of accommodating any wish to rehabilitate), all relevant sentencing factors and the total effective sentences imposed in comparable cases.
(3)The range of sentences customarily imposed for a crime does not establish the range of a sound exercise of the sentencing discretion. Sentences customarily imposed in comparable cases provide a yardstick or reference point for ensuring broad consistency in sentencing, bearing in mind the scope for significant variations in relevant sentencing factors, and that there is no single correct sentence. What is important is the unifying principles which sentences imposed in comparable cases reveal and reflect.
(4)When this court dismisses an appeal against sentence and when it resentences on a successful appeal, its decision does not fix the upper or lower limit of the range.
(5)Where there is a challenge on totality grounds, the severity of a sentence imposed on an individual count (which is not manifestly excessive) generally falls to be assessed in light of the sentences imposed in respect of the other counts and its contribution to the total effective sentence. A heavy individual sentence (which is not manifestly excessive) may be softened by an order that it be served concurrently with sentences imposed in relation to the other counts. A relatively light sentence (which is not manifestly inadequate) may, as a practical matter, have increased severity if it is ordered to be served cumulatively. The real question is whether the total effective sentence is outside the available sentencing range.
In sentencing for an offence of unlawfully doing grievous bodily harm, among the relevant factors are: the nature of the harm caused; the nature of the act causing the injury; and the background to and circumstances of the offence.[65] The post‑transitional range for offences of unlawfully doing grievous bodily harm which are towards the upper end of the range of seriousness, but not of the most serious kind, is between 3 to 5 years' imprisonment.[66]
[65] Trompler v The State of Western Australia [2008] WASCA 265 [9] ‑ [11].
[66] Trompler v The State of Western Australia [19], applied in many cases in this court. See The State of Western Australia v Mackey [2017] WASCA 204 [42].
The appellant's offence in this case was one of aggravated grievous bodily harm, for which the maximum sentence is 14 years' imprisonment.
For offences of unlawfully doing grievous bodily harm with intent,[67] cases not falling within the worst category commonly lead to sentences within the range of 4 1/2 to 8 years' imprisonment.[68]
[67] For which the maximum is 20 years' imprisonment.
[68] Oxenham v The State of Western Australia [2015] WASCA 30 [37]; Fernandez v The State of Western Australia [2017] WASCA 223 [162].
For offences under s 304(1), the nature and seriousness of the offender's act and the severity and other circumstances of the endangering of the victim's life, health or safety will be relevant to an assessment of the offender's criminality, as will the potential consequences of the offender's conduct.[69]
[69] See, by analogy, cases concerned with s 304(2), The State of Western Australia v BLM [2009] WASCA 88; (2009) 40 WAR 414 [134] ‑ [137]; Kaokula v The State of Western Australia [2016] WASCA 198 [63]; Chikonga v The State of Western Australia [2017] WASCA 34 [24].
As to burglary offences, we adopt the observations of this court in McIntyre v The State of Western Australia:[70]
The circumstances of burglary offences can vary widely and attract a wide range of sentences. Home burglaries are viewed as being particularly serious offences, and are generally seen as requiring substantial penalties in order to recognise considerations of personal and general deterrence, and reflect the prevalence of the offence. Home invasions, which involve forcible entry into residential premises known or suspected to be occupied at the time accompanied by threatened or actual violence, are significantly more serious than home burglaries which lack those characteristics. A home invasion which is committed with intent to intimidate the occupants is more serious than a burglary which involves simply an intention to steal.
Ground 1: disposition
[70] McIntyre v The State of Western Australia [2016] WASCA 150 [15].
The appellant's offending had a number of serious features:
1.The burglary was a home invasion committed with an intent to intimidate the occupants (or at least one of them).[71]
[71] See the observations in McIntyre quoted at [64] above.
2.The appellant was part of a group of six persons who entered the house together. The number of people was calculated to increase the level of fear and intimidation.
3.The appellant recruited several, at least, of the members of the group. He offered to forgive a drug debt owed to him by one of the co‑offenders. He arranged for the distribution to the others of weapons and surgical gloves to avoid detection. The appellant was in charge of organising the home invasion, dictating that he would keep the drugs and that others could keep any cash or other goods they found.
4.The purposes of the home invasion were drug‑related and unlawful. The immediate purpose was to steal drugs expected to be in the possession of the male occupant of the house, together with any cash. The further purpose was to intimidate the occupant into withdrawing from the drug trade in that area. In effect, the raid was an attempt to intimidate the occupant in a 'turf war' between rival drug dealers or groups of drug dealers.
5.The invasion occurred in the early hours of the morning, when the occupants could be expected to be asleep and thus vulnerable to being taken by surprise.
6.The offence under s 304(1) involved the discharge of a shotgun in close proximity to sleeping children. There were thus serious risks to the life and safety of the children in the house.
7.The use of the shotgun was an aggravating feature of both the aggravated armed assault with intent to rob and the offence of unlawfully doing grievous bodily harm.
8.While the appellant only became aware of the shotgun as he walked towards the front door, he persisted after becoming aware of it. Moreover, the appellant had distributed other weapons and so can be taken to have contemplated the use of weapons. The weapons he distributed, including a machete and a hammer, were themselves capable of inflicting serious harm and endangering life, health or safety.
9.The adult male victim suffered lasting physical injuries, including the loss of his lower leg.
10.The offences were committed in the presence of, or in close proximity to, children. While the appellant was not expecting children to be present, he did not withdraw when, as soon as he entered the house, he saw children.
11.The receiving offence was a serious example of the offence of receiving. A large amount of property was received and it was converted into another form in order to be disposed of without detection. But for totality considerations, the receiving offence warranted significantly more than the term of 12 months' imprisonment imposed.
The only mitigating factor of any significance was the appellant's plea of guilty, for which he was given a discount of 10% on the sentences for the individual offences.
Comparison with other cases does not support a conclusion that the total effective sentence infringed the first limb of the totality principle. The different combination of offences and aggravating features in this case means that none of the cases to which the appellant points is of any significant assistance as comparators.
Taking into account:
(1)the circumstances and criminality of the appellant's offending, including the serious features to which we have referred [65];
(2)the appellant's personal circumstances;
(3)all relevant sentencing factors; and
(4)to the extent that they provide assistance, the total effective sentences imposed in other comparable cases;
we are not persuaded that the total effective sentence offends the first limb of the totality principle. In our opinion, while the sentence of 12 years' imprisonment can properly be described as high, it bears a proper relationship to the overall criminality involved in the appellant's offending viewed in its circumstances as a whole. Error cannot be inferred from the outcome.
For these reasons, while we would grant leave on ground 1, we would dismiss the ground.
Conclusion
For the reasons we have given, we would make the following orders:
1.leave to appeal on ground 1 be granted;
2.the appeal be dismissed.
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