Hansen v Pikkert
[2012] WASC 424
•19 OCTOBER 2012
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL
CITATION: HANSEN -v- PIKKERT [2012] WASC 424
CORAM: HALL J
HEARD: 19 OCTOBER 2012
DELIVERED : 19 OCTOBER 2012
FILE NO/S: SJA 1066 of 2012
BETWEEN: JARRED JERMAINE HANSEN
Appellant
AND
MARCEL BERTUS PIKKERT
Respondent
ON APPEAL FROM:
Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram :MAGISTRATE P M HEANEY
File No :PE 28329 of 2011, PE 28330 of 2011, PE 28331 of 2011, PE 28332 of 2011, PE 28333 of 2011, PE 28334 of 2011, PE 28336 of 2011, PE 28337 of 2011, PE 28338 of 2011, PE 28339 of 2011, PE 28340 of 2011, PE 28341 of 2011, PE 28342 of 2011, PE 28343 of 2011, PE 28344 of 2011, PE 28345 of 2011, PE 28346 of 2011
Catchwords:
Criminal law - Appeal against sentence - Whether total effective sentence disproportionate to criminality - Whether sentences imposed in Magistrates Court should have been made wholly concurrent on District Court sentence
Legislation:
Nil
Result:
Leave to appeal refused
Appeal dismissed
Category: B
Representation:
Counsel:
Appellant: Ms N R Sinton
Respondent: Mr L M Fox
Solicitors:
Appellant: Legal Aid (WA)
Respondent: Director of Public Prosecutions (WA)
Case(s) referred to in judgment(s):
Ashworth v The State of Western Australia [2006] WASCA 36
Downey v The State of Western Australia [2012] WASCA 55
Hume v The Queen [2000] WASCA 306
Mill v The Queen (1988) 166 CLR 59
Moody‑Jackamara v The State of Western Australia [2011] WASCA 229
Nguyen v The State of Western Australia [2007] WASCA 114
R v Faithfull [2004] WASCA 39
HALL J:
(These reasons were delivered orally and have been edited from the transcript).
This is an appeal against an effective total sentence of 18 months' imprisonment imposed in the Magistrates Court on 24 April 2012. That sentence was imposed for 17 offences as set out in the following table:
| Charge | Offence | Maximum penalty | Sentence Imposed |
| 28329/11 | Aggravated burglary in dwelling s 401(2)(a) Code (Offence date: 18.2.2011) | SCP: 3yrs/$36,000 Indictable: 7 yrs | 12 mths cumulative |
| 28330/11 | Stealing property - value $5,100 s 378 Code (Offence date: 18.5.2011) | SCP: 2yrs/$24,000 Indictable: 7 yrs | No penalty - s 11 |
| 28331/11 | Aggravated burglary in dwelling s 401(2)(a) Code (Offence date: 18.5.2011) | SCP: 3yrs/$36,000 Indictable: 20 yrs | 12 mths concurrent |
| 28332/11 | Stealing property - value $3,920 s 378 Code (Offence date: 18.5.2011) | SCP: 2yrs/$24,000 Indictable: 7 yrs | No penalty - s 11 |
| 28333/11 | Aggravated burglary in dwelling s 401(2)(a) Code (Offence date: 18‑19.2.2011) | SCP: 3yrs/$36,000 Indictable: 20 yrs | 12 mths concurrent |
| 28334/11 | Stealing property - value $6,040 s 378 Code (Offence date: 18‑19.5.2011) | SCP: 2yrs/$24,000 Indictable: 7 yrs | No penalty - s 11 |
| 28336/11 | Stealing property - value $5,200 s 378 Code (Offence date: 19.5.2011) | SCP: 2yrs/$24,000 Indictable: 7 yrs | No penalty - s 11 |
| 28337/11 | Steal motor vehicle s 378 Code (Offence date: 18.5.2011) | SCP: 2yrs/$24,000 Indictable: 7 yrs | 6 mths concurrent |
| 28338/11 | No authority to drive (fines suspended) s 49(1)(a) and (3)(d) RTA (Offence date: 18.5.2011) | Fine $200 - $1500 and 12 mths | 3 mths concurrent |
| 28339/11 | Aggravated burglary in dwelling s 401(2)(a) Code (Offence date: 3.6.2011) | SCP: 3yrs/$36,000 Indictable: 20 yrs | 12 mths concurrent |
| 28340/11 | Stealing property - valued $100 s 378 Code (Offence date: 3.6.2011) | SCP: Fine $6,000 Indictable: 7 yrs | No penalty - s 11 |
| 28341/11 | Steal motor vehicle s 378 Code (Offence date: 3.6.2011) | SCP: 2yrs/$24,000 Indictable: 7 yrs | 6 mths concurrent |
| 28342/11 | Steal motor vehicle and drive recklessly s 378(2)(a) Code (Offence date: 3.6.2011) | SCP: 2yrs/$24,000 Indictable: 8 yrs | 6 mths cumulative |
| 28343/11 | Fail to stop s 53(1)(b) RTA (Offence date: 3.6.2011) | 1st offence: $300 Subsequent: $600 | $400 fine |
| 28344/11 | No authority to drive (fines suspended) s 49(1)(a) and (3)(d) RTA (Offence date: 3.6.2011) | SCP: 2yrs/$24,000 Indictable: 7 yrs | 6 mths concurrent |
| 28345/11 | Steal motor vehicle s 378 Code (Offence date: 24.5.2011) | SCP: 2yrs/$24,000 Indictable: 7 yrs | 6 mths concurrent |
| 28346/11 | No authority to drive (fines suspended) s 49(1)(a) and (3)(d) RTA (Offence date: 24.5.2011) | Fine $200 - $1500 and 12 mths | 3 mths concurrent |
| TES: 18 mths imprisonment cumulative With parole eligibility | |||
The effective total sentence of 18 months was ordered to be cumulative on a 28 month sentence imposed on the appellant in the District Court on 20 April 2012. That sentence was imposed for one offence of burglary in a dwelling, contrary to s 401(2) of the Criminal Code (WA) and one offence of aggravated burglary in a dwelling, contrary to s 401(2)(a). The District Court imposed sentences of 14 months on each charge cumulative on each other.
The first ground of appeal is that the magistrate erred by ordering that the 18 month sentence be served cumulatively on the District Court sentences. It is said that the effect was to produce a total term of 3 years and 10 months and that that outcome infringed the totality principle because it was a sentence that was disproportionate when viewed in the light of the total criminality of all of the appellant's offending.
The second ground is that the magistrate erred by failing to take into account the appellant's plea of guilty.
The facts of the Magistrates Court offences are as follows. On 18 May 2011 the appellant was in company with others when he broke into a house in Yokine. The offenders first checked that nobody was home. They then obtained entry by kicking the front door. A security alarm was activated and the offenders quickly stole laptop computers and cameras with a total value of $5,100. The offenders then fled the scene in a waiting vehicle (charges PE 28329 to PE 28330 of 2011).
Later the same day the appellant and his associates broke into another house in Maylands. Entry was again effected by forcing open the front door. Two laptop computers, a clock radio, a Sony playstation and a Mimco ladies purse with a total value of $3,920 were stolen.
Later again on the same day or the next day the appellant and his associates broke into a third house in Riverton. Entry was effected by kicking open the front door. Jewellery, cameras, musical equipment, clothing, shoes, binoculars, picture frames and electrical equipment to a total value of $6,040 were stolen (charges PE 28333 to PE 28334 of 2011).
Also on 18 May 2011 the appellant and his associates travelled in a Honda CRV motor vehicle which was stolen. Throughout the day the appellant and his associates took turns driving the vehicle knowing that it was stolen. At the time the appellant held only a learners class driver's licence which was subject to fine suspension (charges PE 28337 to PE 28338 of 2011).
On the morning of 24 May 2011 the appellant drove a Ford XR8 utility motor vehicle to a McDonalds Restaurant in Forrestfield. He was captured on security footage in the drive‑thru area. The appellant drove the vehicle knowing it to be stolen. At the time he drove it he held only a learners motor driver's licence that was subject to fine suspension (charges PE 28345 to PE 28346 of 2011).
On 3 June 2011 the appellant and an associate attended a house in Beechboro in a stolen motor vehicle. The associate obtained entry to the house by way of an unlocked sliding door. The associate stole a white leather handbag containing cash, a mobile telephone and various cards with an approximately value of $150 before fleeing the scene after disturbing a dog. A short time later the appellant was driving the stolen motor vehicle when it was involved in a pursuit by police. The appellant abandoned the vehicle and ran off into bushland. A search of the vehicle located items of property stolen from the house in Beechboro. The appellant was arrested a short time later and was found in possession of other stolen property from the Beechboro house. The high speed pursuit involved reckless driving by the appellant including driving at speed, contravening red traffic lights and crossing onto the incorrect side of a road causing oncoming traffic to take evasive action to avoid a collision (charges PE 28339 to PE 38244 of 2011).
Those facts have been drawn from the statements of material facts. The facts appear not to have been read out in the Magistrates Court, but no issue is taken with this and it is not contested that the magistrate made any error in this regard or that the facts were not admitted.
The facts of the District Court sentence need to be considered because to some extent the appellant's argument is that those offences were part of the same course of conduct and that this was relevant to whether a cumulative or concurrent sentence was appropriate. Those facts are as follows.
On 9 May 2011 the appellant was at a house in Morley. He entered the house by forcing open the front door. Once inside he stole items including three wedding rings, two bracelets, two DVD players, an X box 360 game console, three wrist watches, an iPod, items of clothing and other electrical items with a total value of $13,803.
On 19 May 2011 the appellant attended a unit in Maylands. He gained access to the unit by removing a flyscreen to a side window. Once inside he stole property including two laptop computers, a mobile telephone, shoes, audio recording earphones and other electrical items to a total value of $5,200.
One of the charges dealt with in the Magistrates Court (charge PE 28336 of 2011) was a charge of stealing the property worth $5,200 that was the subject of the aggravated burglary of 19 May 2011 dealt with in the District Court. No penalty was imposed for the stealing offence in the Magistrates Court. This was the extent of any overlap between the District Court charges and the Magistrates Court charges.
The appellant's personal circumstances were that he was 23 years of age at the time of the offences. He had a supportive family and had been employed prior to being imprisoned. Prior to being dealt with in the District Court the appellant had no previous convictions for burglary, however he did have convictions for damage, stealing and receiving. He had previously been placed on community based orders which he had failed to successfully complete. On 23 November 2010 the appellant had been placed on a suspended imprisonment order in the Magistrates Court for an offence of wilful and unlawful damage. That was a sentence of 6 months and 1 day imposed in the Magistrates Court and suspended for 6 months. Accordingly the offences dealt with in the District Court and a number of those dealt with in the Magistrates Court were in breach of that suspended sentence. It would appear that the breach was not dealt with in the Magistrates Court on 24 April 2012 but the fact that the appellant committed offences during the term of a suspended sentence was an aggravating feature.
The magistrate in sentencing made reference to the existence of the District Court sentence which had been imposed a month before the appellant came to be sentenced in the Magistrates Court. He referred to the totality principle and to what he described as a convention to make sentences imposed for Magistrates Court offences concurrent with those imposed in the District Court where they arise out of the same set of broad facts. In sentencing the magistrate stated:
Mr Hawkins suggests that I should bear in mind the fact that he got 28 months' imprisonment in the District Court for two burglaries, that the principal of 'enough is enough' has been reached and, if not, then perhaps Mr Hawkins suggests another six months should be enough.
I'm aware of the convention and I apply it wherever possible, and if someone gets sentenced in the District Court and they have charges in this court, generally those charges and sentences are made concurrent with the District Court sentence, but there are rare cases, and this is one of them, where the offences in the Magistrates Court in totality are far more serious than the offences that one gets dealt with in the District court, and this is the case here because Mr Hansen, having been dealt with for two burglaries in the District Court is now before me to be sentenced on four burglaries, four stealing motor vehicles, and a stealing motor vehicle and reckless driving (ts 4).
The magistrate, as will be evident from that extract, indicated that his Honour considered this to be an exception to the general rule because the offences before him were serious; indeed he considered them to be more serious than those that were before the District Court and were deserving of a cumulative sentence, or at least some of them were.
An argument that the totality principle has been infringed may be either an express error because the principle was misstated or misapplied or an implied error because the outcome is said to be crushing or disproportionate to the total criminality. In this case the appellant asserts implied error.
Where implied error is raised, it must be established that the outcome is one that could not be reached in the proper exercise of the sentencing discretion; that is to say, the result is one, though no express error is apparent, that indicates that an error must have occurred.
This is not a case in which it is suggested that any of the individual sentences were manifestly excessive in themselves. It is accepted that the individual sentences are within the appropriate range for offences of this type. That must be the case when regard is had to cases relating to offences of this type that indicate the appropriate range for burglary offences and offences in relation to stealing and reckless driving of motor vehicles: aggravated burglary - Ashworth v The State of Western Australia [2006] WASCA 36, Nguyen v The State of Western Australia [2007] WASCA 114, Moody‑Jackamara v The State of Western Australia [2011] WASCA 229 and Downey v The State of Western Australia [2012] WASCA 55; stealing motor vehicle and reckless driving - Hume v The Queen [2000] WASCA 306.
The totality principle of course does not require that sentences that arise out of the same set of facts must always be concurrent. The task of a sentencing court in every case is to consider whether the total effective sentence results in an appropriate sentence having regard to the total criminality. There is no bulk discount that is available where a large number of offences are committed.
In this case there has been some reference in submissions to the one transaction rule. That of course is not a rule at all. It is simply a convenient label that has been used to recognise that in cases where a number of offences arise out of the same set of facts if cumulative penalties are imposed for all of the offences then a sentence may be produced which would be excessive. Thus in order to properly reflect the criminality, concurrency or some concurrency will often be appropriate: R v Faithfull [2004] WASCA 39 [25] ‑ [28].
The magistrate in this case recognised that the totality principle applied and took into account the sentence that had been imposed in the District Court. The offences in this case were committed reasonably close in time to those that were the subject of the District Court sentences. It is certainly the case that where two sentencing judicial officers are imposing sentences that arise out of the same set of facts, regard should be had to the total effective sentence that is produced. The totality principle applies in such cases as if the same judicial officer were sentencing for all of the offences: Mill v The Queen (1988) 166 CLR 59.
The offences for which the sentences in the Magistrates Court were imposed were serious of their type. The burglaries were committed at separate dwellings over several weeks. This is conduct that when viewed in totality was extremely serious and constituted a sustained course of conduct. It has been described as a crime spree and I would not disagree with that description.
There were thefts involving property worth thousands of dollars. A number of cars were stolen and in one case there was a car chase that involved such seriously reckless driving that a police pursuit had to be abandoned.
The Magistrates Court charges were, it must be said, serious charges of their type and cumulative sentences were entirely justified. The charges dealt with in the District Court were only a small part of the criminal conduct and the sentence imposed in that court did not take into account the whole of the conduct. The end result in the Magistrates Court was a sentence mitigated by the fact that some offences attracted wholly concurrent sentences but all of the offending, not just the offences that attracted cumulative sentences, must be considered. When all of that offending is taken into account the end result, in my view, is not one that is disproportionate to the total criminality. For that reason ground 1 must fail.
As to ground 2, it is correct that there was no specific reference by the magistrate to the fact that the appellant had pleaded guilty. Section 8 of the Sentencing Act 1995 (WA) requires that the fact that a person has pleaded guilty be taken into account in sentencing. However, the fact that there was no reference does not mean that proper regard was not had to this fact.
It must be noted that the pleas of guilty had been entered before the same magistrate and when the whole of the transcript is read, it could hardly be doubted that this was a sentencing that was following from pleas of guilty. The real issue is whether the outcome is one that cannot be reconciled with a proper discount for the plea of guilty having been accorded to the appellant.
The appellant had entered a plea of guilty before the magistrate approximately six weeks earlier. It was not an early plea, but it was certainly one that was deserving of some discount on the sentence. The question then is: was an effective sentence of 18 months one that can be said to have properly taken into account the plea of guilty? In all the circumstances, I am unable to conclude that it did not and in those circumstances ground 2 must fail.
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