Hayward v The Queen - [2000] WASCA 237

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT : COURT OF CRIMINAL APPEAL

CITATION: HAYWARD -v- THE QUEEN [2000] WASCA 237

CORAM: IPP J
WALLWORK J
PARKER J

HEARD: 3 AUGUST 2000

DELIVERED : 3 AUGUST 2000

FILE NO/S: CCA 108 of 2000

BETWEEN: DANIEL TROY HAYWARD
Applicant
AND
THE QUEEN
Respondent

Catchwords:

Criminal law and procedure - Sentence appeal - Aggravated burglary of commercial premises - Whether sentence of 2-1/2 years' imprisonment is manifestly excessive in the circumstances - Turns on own facts

Legislation:

Criminal Code Amendment (No 2) Act 1996

Result:

Application dismissed

Representation:

Counsel:

Applicant: Mr C L J Miocevich
Respondent: Mr E Balodis

Solicitors:

Applicant: Aboriginal Legal Service
Respondent: State Director of Public Prosecutions

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

Lowndes v The Queen (1998) 195 CLR 665
Veen v The Queen (No. 2) (1988) 164 CLR 465
Wroblewski v R, unreported; CCA SCt of WA; Library 990135; 17 February 1999

Case(s) also cited:

Bates v Wheatley [2000] WASCA 38
Jarvis v R (1993) 20 WAR 201
Little v R, unreported; CCA SCt of WA; Library No 970041; 3 February 1997
R v Thompson, unreported; CCA SCt of WA; Library No 940311; 21 June 1994

IPP J: This is an application for leave to appeal against sentence. On 12 April 2000, the applicant was convicted on his own plea of guilty to one count of aggravated burglary committed on 27 August 1998. When he was so sentenced, the applicant was in prison serving a sentence of 18 months' imprisonment imposed on 9 February 2000 for counts involving stealing a motor vehicle and driving dangerously and refusing a breath test in breach of a community‑based order. On 28 April 2000, the applicant was sentenced in regard to the charge of aggravated burglary.
The learned sentencing Judge was informed that the applicant, who had been declared eligible for parole for the sentences imposed on 9 February 2000, was due for release on 7 February 2001, subject to him indeed being granted parole. His Honour imposed a sentence of 2‑1/2 years' imprisonment on the applicant and ordered that that term of imprisonment be served cumulatively upon the term of 18 months' imprisonment imposed on 9 February 2000.
The sole ground of appeal asserts that the sentence of 2‑1/2 years' imprisonment was manifestly excessive.
The facts relating to the offence are relatively straightforward. At about 12.23 am on 27 August 1998, the applicant, in company with his cousin and another, smashed a large glass panel window at the side of the front lounge bar of the Lakers Tavern, Thornlie. They did this to gain entry to the tavern. The alarm system was activated. The applicant and the co‑offender entered the premises and stole 11 bottles of spirits valued at $330 from the bar. The police arrived and saw the applicant running from the tavern carrying the bottles. He was heard shouting to his cousin, who was driving a motor vehicle parked nearby, to "Go, go, go". As the applicant ran towards the vehicle some of the bottles in his hand dropped and broke. The applicant entered the rear of the vehicle and placed the remaining bottles on the floor. The police stopped the vehicle from leaving the tavern carpark and spoke to the applicant. He claimed he was not responsible for the burglary. He said that another man, whom he named as "Peter" was the offender. The police recovered seven of the bottles.
The applicant was aged 26 years 11 months at the time of this offence. His criminal record was rightly described by the learned Judge as extensive. It includes breaches of community orders and several offences of breaking and entering, stealing, assault and unauthorised use of a motor vehicle. His offending commenced in 1981, when he was 9 years of age. He has committed offences of violence and dishonesty at frequent and regular intervals since then.
The applicant's plea of guilty was made not at the first opportunity but upon the case being listed for trial. The case against the applicant was very strong and it was not submitted to the learned sentencing Judge that the plea of guilty emanated from any sense of remorse. The learned sentencing Judge's sentencing remarks were brief, but he expressly took account of the plea of guilty. His Honour stated:
"You have had many convictions in the Children's Court and as an adult for dishonesty and violence. I don't need to specify those. You have breached a number and variety of community based orders. This offence calls for a gaol sentence and, in the light of your record, a severe one. I will bear in mind your earliest date of release and your plea of guilty and the other mitigating factors. The term of 3 years that was going to be imposed will be reduced to 2 and a half years."
It is not clear to what "other mitigating factors" his Honour was referring. According to his counsel who appeared at the sentencing hearing, the applicant committed the offence of aggravated burglary on the spur of the moment after having been drinking. Additionally, by reason of the totality principle, regard had to be had to the period of imprisonment the applicant was serving for the offences for which he was sentenced on 9 February 2000. There is little else that could be said to mitigate the criminality involved.
The maximum sentence for the offence of aggravated burglary is 20 years' imprisonment, this having been increased from 14 years' imprisonment by the Criminal Code Amendment (No. 2) Act 1996. This is an indication of Parliament's view as to the seriousness to be attributed to offences of this kind and the Court is duty bound to have regard to that.
The principal argument advanced on the applicant's behalf on appeal was that the learned Judge erred in fixing a starting point of 3 years for this particular offence and this resulted in a manifestly excessive sentence. The points made succinctly on the applicant's behalf were as follows. This was not a domestic burglary, but a burglary of commercial premises. The circumstances of aggravation were that it was in company, and there were no allegations of threats or violence. The offence was not in any way sophisticated and was opportunistic in nature. The value of the property taken was relatively low.
The applicant relied on Wroblewski v R, unreported; CCA SCt of WA; Library 990135; 17 February 1999. The applicant in that case was a 23‑year‑old man who was convicted of one count of aggravated burglary and a number of other less serious charges. In regard to the offence of aggravated burglary, the applicant was placed on a community‑based order for a period of 24 months. Thereafter, the applicant breached the community‑based order by stealing and by failing to contact his community corrections officer. When he was brought before the learned District Court Judge to be dealt with as a re‑offender, he was sentenced to 3 years' imprisonment with eligibility for parole. The applicant appealed on the ground that the sentence was manifestly excessive. Anderson J (with whom Malcolm CJ and Pidgeon J agreed) said:
"As to the gravity of the offence, this was not a domestic burglary but a burglary of commercial premises not involving violence or threats to or intimidation of any person. There was minor damage to the premises. The property stolen was valued at only $5,750 and all but $30 was recovered. There seems to have been little professional planning, either in the execution of the burglary or in the escape. The offence was not accompanied by vandalism. It was a burglary at the lower end of the range of seriousness and, even allowing for the fact that sentences for burglary have been firmed up since a range of 12 to 18 months was mentioned in Cheshire v R, unreported; CCA SCt of WA; Library No 79247; November 1989, I am of the opinion that a starting‑point of no more than 2‑1/2 years was appropriate. In my opinion, the applicant remained entitled to have his fast‑track plea of guilty taken into account … The applicant was entitled to some consideration for his comparatively young age. As to his antecedents … it had to be recognised that the applicant had not previously committed a serious offence. Importantly, this was his first prison sentence. The applicant was entitled to have these matters go in mitigation of sentence."
The Court of Criminal Appeal reduced the sentence of 3 years' imprisonment to 18 months' imprisonment.
Counsel for the present applicant emphasised the starting point of 2‑1/2 years referred to by Anderson J in Wroblewski and contrasted that with the period of 3 years as a starting point taken by the learned sentencing Judge in this case. As I understand Anderson J's reasons in Wroblewski, the starting point of 2 1/2 years assumed by his Honour was intended to be no more than an expression of opinion that 2‑1/2 years'

imprisonment was an appropriate starting point in the particular circumstances of that case.

There are significant differences between the applicant in this case and the applicant in Wroblewski v R. Wroblewski pleaded guilty on the fast‑track basis, while the applicant in this case pleaded guilty in the circumstances I have described. Nevertheless, the applicant is entitled to some reduction for his plea (although not as much as Wroblewski), having regard to the saving in court time and the savings generally to the administration of justice. The applicant in the present case has an extensive criminal record. This is to be contrasted with Wroblewski, who "had not previously committed a serious offence" and who was being required to serve his first prison sentence. Additionally, it is apparent from the applicant's lengthy criminal record that he knew precisely what he was doing when he committed the offence. He knew very well that he was doing something fundamentally wrong, and apparently did not care. He proceeded to commit the offence knowing full well the consequences that were likely to follow. Furthermore, the applicant was a significantly older and more mature individual than Wroblewski, and this has a bearing on the considerations I have just mentioned.
Taking into account all the circumstances, including the totality principle, I consider that this court should not intervene in the sentence imposed. I accept that the sentence is at the high end of the scale, but any reduction in sentence could only involve a matter of a few months and would involve a tinkering with the sentence that this court should not indulge in. I would grant the application for leave to appeal but would dismiss the appeal.
WALLWORK J: I agree with the reasons for judgment of Ipp J, but I would like to add two things: first of all, the High Court, as recently as the decision in Lowndes v The Queen (1998) 195 CLR 665, has emphasised the importance which is to be given to the discretion of the sentencing Judge in a case like this, where that Judge has imposed a sentence which is well within the permissible range.
I would also like to refer to the reasons of Mason CJ and Brennan, Dawson and Toohey JJ in Veen v The Queen (No. 2) (1988) 164 CLR 465 at 477 ‑ 478 where their Honours said:
"There are two subsidiary principles which should be mentioned. The first is that the antecedent criminal history of an offender is a factor which may be taken into account in determining the sentence to be imposed, but it cannot be given

such weight as to lead to the imposition of a penalty which is disproportionate to the gravity of the instant offence. To do so would be to impose a fresh penalty for past offences: Director of Public Prosecutions v Ottewell [1970] AC 642. The antecedent criminal history is relevant, however, to show whether the instant offence is an uncharacteristic aberration or whether the offender has manifested in his commission of the instant offence a continuing attitude of disobedience of the law. In the latter case, retribution, deterrence and protection of society may all indicate that a more severe penalty is warranted. It is legitimate to take account of the antecedent criminal history when it illuminates the moral culpability of the offender in the instant case, or shows his dangerous propensity or shows a need to impose condign punishment to deter the offender and other offenders from committing further offences of a like kind. Counsel for the applicant submitted that antecedent criminal history was relevant only to a prisoner's claim for leniency. That is not and has never been the approach of the courts in this country and it would be at odds with the community's understanding of what is relevant to the assessment of criminal penalties."

In my view, it was a relevant consideration in this case, when fixing the so‑called starting‑point of the term to be imposed, that this offender did have a very extensive criminal history. I do not wish to say anything else.
PARKER J: I agree and respectfully adopt the reasons that have been given by each of the presiding Judge and Wallwork J.