Hansen v The State of Western Australia
[2013] WASC 205
•10 JUNE 2013
HANSEN -v- THE STATE OF WESTERN AUSTRALIA [2013] WASC 205
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2013] WASC 205 | |
| 10/06/2013 | |||
| Case No: | SJA:1121/2012 | 14 MARCH 2013 | |
| Coram: | JENKINS J | 14/03/13 | |
| 16 | Judgment Part: | 1 of 1 | |
| Result: | Application for leave to appeal refused Appeal dismissed | ||
| B | |||
| PDF Version |
| Parties: | LAWRENCE ARNOLD HANSEN THE STATE OF WESTERN AUSTRALIA |
Catchwords: | Criminal law Appeal against sentence Offences of burglary, stealing and escaping from custody Totality |
Legislation: | Community Protection (Offender Reporting) Act 2004 (WA) Sentencing Act 1995 (WA) |
Case References: | Downey v the State of Western Australia [2012] WASCA 55 Main v The State of Western Australia [2010] WASCA 28 Roffey v The State of Western Australia [2007] WASCA 246 Veen v The Queen (No 2) (1988) 164 CLR 465 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CRIMINAL
- Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
ON APPEAL FROM:
Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram : MAGISTRATE G N CALDER
File No : PE 28612 of 2012, PE 28613 of 2012, PE 28614 of 2012, PE 28615 of 2012, PE 28616 of 2012, PE 28617 of 2012, PE 28618 of 2012, PE 28619 of 2012, PE 28620 of 2012, PE 28621 of 2012, PE 28622 of 2012, MI 9728 of 2012
(Page 2)
Catchwords:
Criminal law - Appeal against sentence - Offences of burglary, stealing and escaping from custody - Totality
Legislation:
Community Protection (Offender Reporting) Act 2004 (WA)
Sentencing Act 1995 (WA)
Result:
Application for leave to appeal refused
Appeal dismissed
Category: B
Representation:
Counsel:
Appellant : Ms M R Barone
Respondent : Ms G M Cleary
Solicitors:
Appellant : Barone Criminal Lawyers Pty Ltd
Respondent : Director of Public Prosecutions (WA)
Case(s) referred to in judgment(s):
Downey v the State of Western Australia [2012] WASCA 55
Main v The State of Western Australia [2010] WASCA 28
Roffey v The State of Western Australia [2007] WASCA 246
Veen v The Queen (No 2) (1988) 164 CLR 465
(Page 3)
- JENKINS J:
(These reasons were delivered orally and have been edited from the transcript).
1 On 14 September 2012 in the Magistrates Court at Perth, the applicant pleaded guilty to a group of offences, which included three counts of stealing motor vehicles, one count of burglary, one count of aggravated burglary and one count of escaping from lawful custody. In respect of those offences the magistrate imposed differing terms of imprisonment. Ultimately, a total sentence of 3 years' imprisonment was imposed in respect of them. Fines were imposed for other offences dealt with at the same time.
Ground of appeal
2 The applicant appeals against the sentences of imprisonment imposed, on the basis that the total sentence was too long. The amended ground of appeal is:
That the learned sentencing Magistrate erred in law by imposing a total sentence that did not bear a proper relationship to the overall criminality and/or was crushing in all of the circumstances.
Details of charges and proceedings
|
|
|
|
|
12/9728 |
|
|
|
|
12/28612 |
|
|
|
|
|
|
|
| |
12/28614 |
|
|
|
|
(Page 4)
|
|
|
|
|
|
|
|
| |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
| |
|
|
| ||
|
|
| ||
|
|
| ||
|
Imprisonment: 3 years backdated to 4.6.12 Eligible for parole |
(Page 5)
The facts
4 The facts which were presented to the court are in respect of the charge PE 28612 of 2012, that on 29 or 30 April 2012 the applicant was with a group of friends. He left them for a short while. Later he saw two motor vehicles being reversed from an address and driven away by his friends. Sometime later that night the applicant was picked up by his friends in one of the stolen vehicles, which was a Nissan Tiida. He took control of the vehicle and drove it around the general area. He later abandoned the car and it was recovered by the police. The applicant's fingerprints were located on the vehicle. When spoken to by the police in respect of that offence and in respect of all offences, the applicant admitted the facts.
5 In respect of the next two offences, being PE 28613 of 2012 and PE 28614 of 2012, on 3 May 2012 the applicant went to some units in Balga. He approached one of the units and removed the flyscreen from an unlocked ground floor bedroom window. He then stole a handbag containing a Nokia mobile phone, a wallet and an assortment of gold jewellery from the bedroom of the unit. It was not alleged that he had fully entered the unit, only that he had placed his hand through the open window into the room and thereby removed the items from a ledge near the window. The involvement of the applicant in that offence was ascertained when his fingerprint was found on the metal edge of the window. None of the stolen property was recovered. There was a request for restitution of $1,000.
6 In relation to the fourth charge, which was the stealing of a motor vehicle, being charge MI 9728 of 2012, it was alleged that on the evening of 30 May 2012 the victim's Honda Accord was stolen from his address in Beechboro during a burglary. It was recovered on 4 June near Alexander Heights. The applicant's DNA was located on the steering wheel of the vehicle. He admitted to the police that he had been driving the Honda around various locations for two days, knowing that it had been stolen by another person.
7 In respect to the fourth group of offences, which involve charges PE 28615 of 2012, PE 28616 of 2012 and PE 28617 of 2012, on the morning of 3 June 2012 the applicant and his partner went to a home in Alexander Heights. They had formed the intention of committing a burglary at the house and stealing a motor vehicle from it. They jumped a fence into the rear yard of the home. The applicant stood by as his partner went into the house through a side door in the carport. The partner stole
(Page 6)
- two sets of keys, an immobiliser and, it is said, remote buttons which I infer as being remote controls for the garage. These were stolen from the kitchen bench.
8 The partner then left the house and joined up with the applicant. The applicant took the two car keys from his partner and they both entered the garage. It was the applicant who opened the garage door with the stolen garage door remote control. He then stole the victim's MG ZT sedan. Both the offenders drove the car for a period of time. The vehicle was finally located in Bayswater at 7.40 pm that evening. The vehicle was recovered undamaged and all the keys were recovered.
9 When the police found the applicant, they saw the stolen car parked in the driveway of the house where the applicant was at that time. The police surrounded the house. They could hear noises coming from inside the roof area of the house. The police gained entry to the house. The applicant was located inside the roof cavity. He put his head through the roof tiles in order to escape police apprehension. He then dropped back into the cavity when he saw that the police had surrounded the house. The police, who by that time were on the roof, yelled into the roof cavity and advised the applicant that he was under arrest on suspicion of burglary and stealing a motor vehicle. He refused to come out of the roof.
10 The police canine handler then entered into the roof cavity, advised the applicant that he was under arrest and instructed him to surrender or a dog, would be deployed. The applicant then kicked his way through more roof tiles and escaped through a hole in the roof. He jumped from roof to roof of the units of a nearby retirement village before hiding in a nearby shed. He was eventually captured by the police. When he was spoken to by the police, he said that he had panicked when he was told that a police dog would be deployed if he did not surrender and that was why he had escaped from legal custody.
11 The final charge PE 33639 of 2012 which, as I have said, plays very little if any role in this appeal, is a charge of failing to comply with reporting conditions under the Community Protection (Offender Reporting) Act 2004 (WA). The facts in respect of it are that on 24 March 2012 the applicant was served with a notice of reporting obligations pursuant to that Act. He was required to report to the Sex Offender Management Squad on or before 31 March 2012. Knowing that he was obliged to report, he failed to do so. When interviewed he provided no reasonable excuse for failing to attend.
(Page 7)
Consideration of ground of appeal
12 The principles applicable to appeals against sentence are well-known. An appellate court may not allow an appeal and resentence an appellant merely because it would have exercised the sentencing discretion in a different manner to that of the original court. Where an express error is not alleged, as in this case, an appellate court may only interfere if the sentence is manifestly excessive. An allegation of manifest excess relies on the implication of error from an individual sentence or from the total sentence imposed.
13 In this case what is sought to be shown is that the total sentence was outside the range of a sound exercise of the sentencing discretion having regard to the circumstances of the offending and the offender's personal circumstances.
14 It is not suggested that an individual sentence passed for a particular offence is manifestly excessive. What is suggested by the amended ground of appeal is that the total sentence did not bear a proper relationship to the overall criminality and/or it was crushing in all of the circumstances.
15 The amended ground of appeal relies on the totality principle. The totality principle has been said to comprise two limbs. In Roffey v The State of Western Australia [2007] WASCA 246 [24] - [26], McLure J (as she then was), with Steytler P and Miller J agreeing, said:
The appellant relies on the totality principle which comprises two limbs. The first limb is that the total effective sentence must bear a proper relationship to the overall criminality involved in all the offences, viewed in their entirety and having regard to the circumstances of the case, including those referable to the offender personally: Woods v The Queen (1994) 14 WAR 341.
The second limb is that the court should not impose a 'crushing' sentence. The word crushing in this context connotes the destruction of any reasonable expectation of a useful life after release: Martino v The State of Western Australia [2006] WASCA 78 [16]. An aggregate sentence may be inappropriately long under the first limb even if it cannot be described as crushing: Jarvis v The Queen (1998) 20 WAR 201, 216 (Anderson J).
The practical effect of the totality principle is ordinarily to arrive at an aggregate sentence that is less than that which would be arrived at by simply adding up all the terms appropriate for the individual offences: R v Holder [1983] 3 NSWLR 245, 260 (Street CJ). A rationale for the totality principle is that there is assumed rehabilitation and reduced demand for
(Page 8)
- retribution after the initial sentences have been served. Where the principle of totality comes into effect, it is of little importance how the ultimate aggregate is made up: R v Holder (260).
16 Before the applicant was sentenced, his counsel made a plea in mitigation. The pertinent matters referred to by counsel were:
(1) An acknowledgement that the applicant had an appalling criminal record.
(2) The applicant had been released from custody in March 2012 with no support and no direction in life.
(3) He committed this series of offences under the influence of amphetamines.
(4) He could not remember much about the offences because he was under the influence of drugs and motivated to fund his drug habit.
(5) The applicant's father had died in November 2011 and he was dealing with his grief by consuming drugs.
(6) The applicant was feeling remorse for committing the offences. He accepted that he should not have committed them.
(7) The series of offences were committed soon after release from custody and were a repetition of a cycle which had occurred previously in the applicant's past.
(8) This was the first time that the applicant had taken amphetamines.
(9) While the pre-sentence report said that the applicant did not have insight into the effect of the offences, he had told his counsel that he knew that the victims would have felt very annoyed about the fact that their property had been burgled or stolen.
(10) In respect to the escape from lawful custody, the applicant admitted that he was trying to hide from the police but said that he was scared that he was going to be attacked by the police dogs.
(11) The psychologist did not perform personality testing on the applicant due to him being unable to comprehend the written test material. That fact indicated the applicant's low level of education. His mother had taught him how to write but the applicant did not received little formal education.
(Page 9)
- (12) The applicant had had a poor start in life. He was raised by his mother, but he had an unstable childhood because they were often homeless.
(13) When the applicant was 10 years old he spent two years at Lake Jasper in Busselton. He had received harsh punishment from the person in charge of that institution.
(14) The applicant had returned to his mother's care when he was approximately 12 years old. He fell into the company of negative peers who knew how to steal cars.
(15) There had been some intervention from Community Corrections but the majority of the applicant's offending had been dealt with by way of detention and custody.
(16) The reports suggested that the applicant may have been institutionalised, and his counsel submitted that the applicant was in fact institutionalised.
(17) Although the starting point would be one of a sentence of imprisonment, the court was invited to give the applicant the opportunity to address his offending in the community, with a structured program that he could follow to address his offending behaviour.
(18) It was acknowledged that such a community based order would have to also be accompanied by a suspended imprisonment order imposed for other offences.
(19) The applicant made full admissions to the police and was cooperative when he was arrested.
(20) The applicant had been in custody since 3 June 2011.
17 After the plea in mitigation there was an exchange between the magistrate and counsel about whether the applicant was subject to 'the three strikes rule' applicable to burglary offences. His Honour was of the view that he was. As has been acknowledged by the applicant, even accepting that this was a mistake, that view in the end result played no role in the sentences imposed by the court and so it is not a separate ground of appeal.
(Page 10)
18 The magistrate then gave the following reasons for sentence:
(1) Whether or not the applicant's Children's Court convictions were to be treated as convictions for 'the three strike rule', his antecedents as a juvenile were that he had committed 15 home burglaries, 12 offences of stealing of motor vehicles, numerous offences of damage and stealing, and four robbery offences. As an adult he had two convictions for robbery, one conviction for home burglary, eight convictions for stealing or attempted stealing, trespass convictions, and one conviction for stealing a motor vehicle.
(2) The applicant is an unfortunate person who has had a very difficult background, as indicated in the material before the magistrate.
(3) As a consequence the applicant has a number of significant risk factors present in his make-up.
(4) The applicant is not considered suitable for a community based disposition in the judgment of the pre-sentence report writer.
(5) The pre-sentence report notes that the applicant's illicit substance misuse remains unaddressed and there appear to be no protective factors in place.
(6) It is significant that the applicant was released in March 2012 from a term of imprisonment and by 29 April 2012 had committed his first stealing of a motor vehicle, being charge PE 28612 of 2012.
(7) On 30 May 2012, only a couple of months after his release, he stole another motor vehicle; earlier that month he had committed his second burglary as an adult; and then on 3 June 2012 he had committed his third home burglary as an adult. On the same date there was his fourth offence of stealing a motor vehicle as an adult.
(8) In the magistrate's view the applicant would not succeed if given a community based disposition.
(9) The offences were also too serious for the applicant to be given a community based order, given his background.
(10) The magistrate was of the view that the applicant was most likely to reoffend.
(Page 11)
- (11) It was acknowledged that the applicant had become involved with amphetamine use after his release from prison. Unfortunately, he did not have the self-control or the personal resources or support from the community to resist that temptation.
(12) There was a significant need for the community to be protected from the applicant's ongoing offending.
(13) The applicant's record as a child commenced in 2003 and continued almost unabated up to 2008.
19 The magistrate also had before him a pre-sentence report and a psychological report. The magistrate then imposed the sentences which I have already referred to.
20 When his Honour imposed the 2-year term of imprisonment on charge PE 28615 of 2012, he ordered that that sentence was to commence after the applicant had served 12 months on charge PE 28614 of 2012. He noted that the total term imposed was one of 3 years' imprisonment.
21 Today, the applicant does not suggest that he should have been given a form of a community based order. Rather, he says that all his sentences should have been ordered to be served concurrently, making a total sentence of 2 years' imprisonment.
22 I do not intend to go through the applicant's prior criminal record in a great deal of detail, but it does disclose that his offending commenced in mid-2003. I note that the applicant was initially given a number of youth community based dispositions and he was repeatedly given the opportunity to serve his sentences in the community. For example, on 16 April 2004 he was convicted of six counts of indecent dealing with a child under the age of 14 years. He was sentenced to a 9-month intensive youth supervision order and 30 hours community service work. He was also convicted on 16 April 2004 of two counts of aggravated robbery and again was given a 9-month intensive youth supervision order for those offences.
23 He has shown repeatedly that he has not been capable of complying with community based dispositions. On 5 July 2004 he appeared for breaching the intensive youth supervision order and was again given a further 9-month intensive youth supervision order, this time with 40 hours community service work.
(Page 12)
24 His juvenile record is very long. It contains a lot of burglary offences, as the magistrate pointed out, and offences of stealing motor vehicles, as well as other less serious offences.
25 Eventually he was given periods of detention. For example, on 7 November 2005 the applicant appeared in the Perth Children's Court charged with six counts of aggravated home burglary, one count of aggravated burglary and one count of attempted aggravated home burglary. He was sentenced to a total of 6 months' detention, and on 29 June 2006 he was sentenced to a total of 4 months' detention for four offences relating to stealing motor vehicles. Even after that, he was given community based dispositions. For example, on 14 September 2006 he was given a youth conditional release order in respect of multiple offences of stealing motor vehicles and one offence of home burglary, but on 12 February 2007 he appeared in the Children's Court having breached that order and another youth community based order. He was again given youth conditional release orders.
26 As the magistrate noted, the applicant's offending continued unabated until he became an adult. At times he received short periods of detention and at other times he was given some form of youth community based disposition. It does not appear that he satisfactorily completed any such community order, although I think the pre-sentence report notes that he has completed one community based order in his life.
27 What is apparent from a review of the applicant's juvenile record is that he has been a chronic offender since he was approximately 14 years of age. He has been given multiple opportunities to deal with his offending under supervision in the community. He did not take advantage of any of those opportunities and continued to offend, despite appropriate leniency being shown to him because of his age and background.
28 It is also notable that his offending was not confined to nuisance-type offences. His juvenile record primarily contains convictions for offences such as stealing motor vehicles and burglary. It also contains a more serious conviction for robbery. The applicant's adult record commences on 3 April 2009 when he appeared in the Perth Magistrates Court and was dealt with for street offences.
29 For the first 10 convictions as an adult, the appellant was given fines. Then on 2 November 2010 he appeared in the District Court and was sentenced to a total of 2 years' imprisonment for 16 offences, which ranged from minor offences such as trespass, to property offences such as
(Page 13)
- stealing, stealing motor vehicles and burglary, and then to violence offences such as common assault and threats to injure. It was apparently on his release from his sentence in March 2012, after he had served all of that sentence, that the offences the subject of this appeal were committed.
30 As I have noted, there were five separate occasions on which the applicant had offended. The first was on 29 April 2012 when he committed the offence of stealing the Nissan motor vehicle and then the last was on 3 June 2012 when he committed the offences of aggravated home burglary and other offences. These separate incidents disclose entirely distinct conduct, which should normally attract cumulative punishment, although, as the magistrate did acknowledge, the multiple offences committed during each incident should have sentences imposed which should be ordered to be served concurrently.
31 If the magistrate had simply totalled the terms of imprisonment imposed for separate incidents, the applicant would have been ordered to serve 6 years' imprisonment. The fact that the magistrate ordered partial cumulacy indicates that his Honour was mindful of the totality principle although he did not specifically refer to it.
32 The applicant says that the sentence of 3 years' imprisonment is crushing because it has the tendency to snuff out any glimmer of hope that he will be motivated to rehabilitate himself on his ultimate release. The respondent, on the other hand, says that the magistrate was entitled to take the view that a personally deterrent sentence was required; also, that a sentence which protected the community was required.
33 The question of whether the ultimate sentence of 3 years' imprisonment is crushing has to be considered in light of the meaning that the law gives to the word 'crushing'. As I have pointed out by referring to the case of Roffey, the word 'crushing' has a particular meaning in this context. It refers to the destruction of any reasonable expectation of a useful life after release.
34 In my opinion, it cannot be said that a 3-year sentence imposed on a man who was not yet then 22 years of age is relevantly a crushing sentence. He will be, even if he does the full three years, less than 25 years of age when he is released from that sentence. At 25, it simply cannot be said that he has no reasonable expectation of a useful life after his release.
35 On his behalf it is said that a 3-year sentence may, as I have said, snuff out the glimmer of hope that there is that he is motivated to
(Page 14)
- rehabilitate himself. I think that that is a speculative submission. There is also the chance that after three years he will have matured and that if released then there will be a greater chance of him leaving prison with a reasonable expectation that he will have a useful life.
36 It is very clear that the applicant requires intensive support in the community whenever he is released. Whether he receives a sentence of 3 years or 2 years' imprisonment will not affect whether he gets that support. As I have said, it is speculative to suggest that his insight into his need to change which is referred to in the psychological report would be snuffed out or crushed by a 3-year sentence but not a 2-year sentence.
37 For these reasons, I reject the submission that the total effective sentence of 3 years' imprisonment is crushing. The applicant is now only 22 years of age. Should he serve the whole of the 3-year sentence, he will still be a young man when he is released from prison. Thus, when the word 'crushing' is given its appropriate connotation, it is obvious that this sentence is not crushing.
38 In respect to whether the 3-year sentence contravenes the other limb of the totality principle - that is, whether it bears a proper relationship to the overall criminality involved in all of the offences viewed in their entirety and having regard to the circumstances of the case and the circumstances of the offender - it is relevant to note that the applicant was dealt with for two separate burglary offences. The first on 3 May 2012 might be regarded as a less serious example of the offence of burglary. Nevertheless, it did involve the applicant removing a flyscreen from a bedroom window and then putting his arm through the window so as to steal valuable items of property which have not been recovered.
39 In respect of the second offence, which occurred a month later, I acknowledge that the applicant did not enter the house at all but was the accomplice who stood by whilst his partner entered the house and stole car keys and other items which enabled the applicant to then steal a motor vehicle from the garage. This was a serious example of a home burglary even if the applicant did not enter the home.
40 As has been pointed out by the respondent, offences of burglary, home burglary and aggravated burglary ordinarily attract terms of immediate imprisonment: Downey v the State of Western Australia [2012] WASCA 55 [22]. In respect of the range of sentences which are imposed, in Main v The State of Western Australia [2010] WASCA 28 [36], the Court of Appeal observed that it was apparent from the
(Page 15)
- authorities that sentences ranging from between 8 months to at least 4 years in relation to the more serious examples of aggravated burglary had been imposed. Thus, the sentence of 2 years imposed for the burglary offence was not excessive.
41 It must not be forgotten that the applicant also fell to be dealt with for two other counts of stealing motor vehicles which occurred on different days. I acknowledge that they were not the most serious examples of the stealing of motor vehicles.
42 The applicant also had his early plea of guilty, his youth and his disadvantaged background in his favour. However, the magistrate was entitled to take the view that a personally deterrent sentence and a sentence which protected the community was required. The applicant's overall criminality was and is to be determined by taking into account that the applicant was committing multiple property crimes to support his drug habit. He appeared to be stealing cars simply to give himself transport from A to B. Individually, whilst the offences may not be regarded as being the most serious examples of their type, they are a group of offences committed by a young drug user over a period of five weeks simply to further his own ends.
43 It also had to be taken into account, as it was by the magistrate, that the applicant could not receive credit for being of good character. Further, his record of multiple convictions of stealing motor vehicles and burglaries indicated that a personally deterrent sentence was required. The magistrate was also entitled to take into account that there was a need to protect the community from the applicant's offending. Thus, a more severe sentence was entitled to be imposed on the applicant than would be imposed on someone with the applicant's background but without his record of offending: Veen v The Queen (No 2) (1988) 164 CLR 465. It is a very sad thing to have to say this about someone who is so young, but that is the reality.
44 The applicant says finally that not enough weight was put on his personal circumstances. The fact is that the magistrate did take those circumstances into account but, rather than seeing them as leading at this stage to a conclusion that a lenient sentence should be imposed on the applicant, he saw those factors as leading to a conclusion that a deterrent sentence was required. In my view, the magistrate was well entitled to take this view.
(Page 16)
45 It should be clear from these reasons that I have decided not to grant leave to appeal and not to allow the appeal. However, I say this, and I hope that it is of some importance in the ultimate decision as to whether the applicant is given parole: what is abundantly clear is that it is vital for the applicant's future and for the protection of the community that when he is ultimately released from this sentence he has support in the community.
46 The only way this young man is going to have that support is if he is released on parole. I would urge the parole authorities to give serious consideration to giving him parole even though his offending background might be such that he would not ordinarily get that parole. This is not only, as I have said, for his future but actually for the protection of the community in the future.
47 For these reasons, as I have said, the application for leave to appeal is denied and the appeal is dismissed.
2
8
2