Heferen v The Queen - [1999] WASCA 81

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT : COURT OF CRIMINAL APPEAL

CITATION: HEFEREN -v- R [1999] WASCA 81

CORAM: PIDGEON J
ANDERSON J
STEYTLER J

HEARD: 8 JUNE 1999

DELIVERED : 25 JUNE 1999

FILE NO/S: CCA 104 of 1998

BETWEEN: MARK ALLEN HEFEREN
Applicant
AND
THE QUEEN
Respondent

Catchwords:

Criminal law and procedure - Sentencing - Domestic burglaries - Receiving burgled goods - Multiple offences - Bad criminal record - Effect of amendments to Criminal Code increasing maximum penalties - Duty of court to give effect to legislative policy - Head sentence of 8 and a half years not manifestly excessive

Legislation:

Sentencing Act s 6(2)(a)

Criminal Code s 401(2)(b), s 414

Result:

Leave to appeal granted

Appeal dismissed

Representation:

Counsel:

Applicant: In person
Respondent: Mr R E Cock QC & Ms V R Campbell

Solicitors:

Applicant: In person
Respondent: Acting State Director of Public Prosecutions

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

Pezzino (1997) 92 A Crim R 135
R v O'Neil, unreported; CCA SCt of WA; Library No 960172; 29 March 1996
R v Peterson [1984] WAR 329
Veen v R (No 2) (1988) 77 ALR 385

Case(s) also cited:

Nil

PIDGEON J: I have read in draft the reasons to be published by Anderson J. I agree with those reasons and orders proposed.
ANDERSON J: The applicant seeks leave to appeal against prison sentences handed down by H H Jackson DCJ in the District Court on 20 July 1998 on the applicant's plea of guilty to six counts of burglary, one count of stealing, seven counts of receiving, two counts of stealing a motor vehicle and one count of stealing a motor vehicle and driving it recklessly. The sentences ranged from 6 months to 18 months and were structured so as to produce an aggregate head sentence of 8 years and 6 months. There was also a driver's licence disqualification for a period of 3 years, orders for return of property and an order for compensation in the sum of $400.
The applicant appeared before this Court unrepresented. He informed the Court that he had been represented until recently by a practitioner who had been lately suspended from practice. The applicant was offered an adjournment, but declined that offer. He informed the Court that he did not want any more adjournments and wished to proceed in person. He then addressed the Court at some length and in a competent manner and the Court also had the benefit of extensive written submissions which had been prepared by the practitioner who had intended to appear for the applicant.
The applicant made it clear to the Court that he believed the head sentence was too long and that there were four main reasons why he should have received a lesser sentence. In summary, these were that (i) he received no or an inadequate discount for his pleas of guilty; (ii) whereas count 1 on the indictment was a count of receiving, the learned sentencing Judge in his sentencing remarks referred to it as a count of burglary and therefore sentenced him for an offence with which he had not been charged; (iii) the value of the property said to have been lost was substantially over‑stated to the sentencing court, and (iv) no adequate discount had been given for the remorse expressed and actually demonstrated by the applicant.
The matter has rather a long history. The offences were committed between 12 February 1997 and 17 June 1997. It is not entirely clear from the papers exactly when the applicant was first arrested, but it would appear to have been on 18 or 19 June 1997 and he has been in custody since then. He had, therefore, been in custody for a little more than a year by the time he came to be sentenced and has now been in custody for more than 2 years.

Concerning the question whether the applicant was entitled to a substantial discount because of his guilty pleas, the relevant history is that he did not enter guilty pleas until 24 June 1998. It was submitted to the sentencing court and to us that this was largely due to difficulties and misunderstandings concerning legal representation and that if it had not been for those difficulties and misunderstandings, early pleas of guilty would have been entered; and that from an early date, the applicant had intimated a willingness to plead guilty either to lesser charges or to a lesser number of charges.
I do not think much weight can be given to these submissions. There were difficulties in regard to legal representation which do appear to have delayed the progress of the matter and it may be that, had these difficulties not occurred, pleas of guilty may have been entered earlier. However, the difficulties appear to have been mostly of the applicant's making. When the applicant first appeared in the District Court on 2 December 1997, he was represented by counsel, Mr P J Vincent. He pleaded not guilty to all charges on the indictment, which then numbered 26. There was no qualification to these pleas. There was no intimation of any willingness to plead guilty to lesser charges or to an amended indictment containing fewer charges. Mr Vincent again appeared for the applicant on 24 December 1997 on a bail application. One of the matters put forward by Mr Vincent in support of bail was that it would be some time before the matters could be brought to trial. Mr Vincent said:
"It is obvious, your Honour, that these matters won't be finalised for some long time. There are quite a few counts - pleas of not guilty."
So, the applicant was maintaining an unqualified not guilty plea in respect to all 26 charges on the indictment. Whilst Mr Vincent did inform the Court "that there is some negotiation with the Crown about the nature of the charges and so forth", the Court was not informed that these negotiations were with a view to a change of plea.
The application for bail was unsuccessful. On 28 January 1998, the applicant, still in custody, was presented at a status conference, this time unrepresented. Questioned about this, he informed the Court that he had "recently withdrawn my lawyers from the case as I have been unsatisfied with them". He informed the Court that he had instructed "Melbourne lawyers to come over". He named the Melbourne lawyers as "Defteros", which the Judge took to be a reference to the firm Pryles & Defteros. He requested, and was granted, a three‑week adjournment of the status conference and the bail application. He did not intimate that there was a prospect of a change to his pleas in respect to any of the charges. On the contrary, his stance was that he had arranged for Melbourne lawyers to represent him in the defence of all charges.
On 19 February 1998, the applicant, still in custody, was presented at his status conference, still unrepresented. Questioned again about this, the applicant did not give a clear account. He did not on this occasion mention Pryles & Defteros. The transcript records that he informed the Court that he had been in touch with another lawyer, but did not know whether she had agreed to represent him. Questioned about legal aid, the applicant informed the Court that he thought he had been refused legal aid. Asked whether he had appealed against the refusal of legal aid, he informed the Court that he thought he had been "actually granted legal aid on some of the cases but refused on others". He then informed the Court for the first time that he was prepared "to plead guilty to some of the charges but of a lesser charge", that he wished to "dispute of the charges" on the existing indictment and that was why "I have got to defend all the charges".
The learned Judge, Muller DCJ, adjourned the application to the next day so that the position with respect to legal aid could be investigated. On that day, 20 February 1998, the applicant appeared again unrepresented. On this occasion the Court was informed that legal aid had been granted as long ago as 27 July 1997 and that the applicant had always been and remained fully legally aided. It seems that it was the solicitor who had been assigned to him under the Legal Aid Scheme whom he had dismissed, or with whom he refused to deal and the applicant had not asked for a transfer of the legal aid certificate to another solicitor. When he was informed of this, Muller DCJ told the applicant "this matter is going to be listed for trial and it's going to go to trial. No further excuses from you will be accepted". Questioned about his attitude to the charges, the applicant once again indicated that he wanted to plead "guilty to some of the charges, but lesser charges, but I think I'm going to have to go to trial on everything and plead not guilty and let the jury decide whether I would be accepted as a lesser charge". The learned Judge remanded the applicant in custody to stand trial on 11 May 1998 and told the applicant that he would arrange a lawyer from the Fremantle Legal Aid office to attend on the applicant at the remand centre so that such steps as were necessary could be taken to ensure that the applicant took advantage of the legal aid which had been granted to him. The trial did not proceed on 11 May. Instead, the applicant appeared before H H Jackson DCJ on 24 June represented by Ms T R Watt. A fresh indictment containing only 17 counts had been prepared and was presented on the basis that the applicant would plead guilty to all 17 counts, which he then did.
Early pleas of guilty and co‑operation by a defendant in getting a criminal matter dealt with are usually rewarded by generous discounts of the sentence that would otherwise be imposed. The courts encourage such conduct on the part of defendants because of the benefit to the community through the saving of public resources. In this case, there was practically no early co‑operation on the part of the applicant. He gave no co‑operation during his record of interview. He declined to assist the police by admitting his involvement in any of the offences. He did not provide the police with any names. For many months he maintained the stance that he intended to defend all charges, with the result that the prosecution had to be managed over that time on the basis that there would be a full defence. The late intimation of a willingness to plead guilty to "lesser charges" was vague and non‑specific. This was not due to the fact that he did not have legal aid. He was fully legally‑aided throughout, but simply refused to participate properly in the legal aid scheme. Accepting that he was justified in being dissatisfied with the practitioner assigned to him, he was not justified in simply dismissing that practitioner and then doing nothing to have his certificate transferred to another practitioner.
Still, in the end, there were pleas of guilty to an amended indictment and some discount was appropriate. The pleas were offered early enough to at least save the time and cost of final preparations for trial.
The other basis upon which a plea of guilty may justify a discount is if the plea can be regarded as a sign of remorse. Where the prosecution case is strong and a conviction is inevitable, a plea of guilty is not generally regarded as a significant indication of remorse. I have read the depositions tendered as part of the hand‑up brief and I have come to the conclusion that the prosecution case was very strong in respect to most of the charges and, no doubt, the learned sentencing Judge came to the same conclusion. There was identification evidence and objective evidence linking the applicant to quite a large quantity of the stolen property. The applicant was found in possession of some items of stolen property. Amongst the depositions tendered to the sentencing court was the deposition of one Ellis, in whose home a large quantity of the stolen property was located upon the exercise of a search warrant. In that deposition, Ellis states that he acquired all of the property from the applicant. Ellis also states that, following the execution of the search warrant, the applicant came to his home "and told me to keep my mouth shut or I'll get my legs broken".
All in all, therefore, this was a case in which some discount was appropriate for the pleas of guilty but the discount could not be substantial.
Before turning to the other matters which the applicant contends ought to have weighed more heavily in his favour with the sentencing court, something must be said about the applicant himself, his antecedents and the offences which are the subject of the sentences appealed from.
The applicant is now aged 29 years. He has lived most of his life in New South Wales, where he has a long history of offending. The sentencing court was provided with a criminal history, compiled by the New South Wales police service, which is not in dispute and which shows that the applicant received his first convictions on 12 January 1983 in respect to charges laid on 7 December 1982, when the applicant had just turned 13. The charges were two of breaking and entering with intent and two of breaking, entering and stealing. The criminal history indicates that between then and April 1992, the applicant was charged in various New South Wales courts on 72 separate occasions and on most of these occasions multiple charges were preferred. The charges reveal a pattern of quite serious offending involving drugs, unlawful use of motor vehicles, stealing, breaking and entering, possession of weapons and breaking implements, use of weapons, absconding from custody, assault and the like. The record also indicates that the applicant was given to using aliases. There are 23 aliases listed on his New South Wales criminal history. So far as appears from the New South Wales history, he was sentenced on 11 June 1993 to a minimum term of 3 years' imprisonment on an indictment charging him with two counts of breaking, entering and stealing, one count of larceny of a motor vehicle, one count of use of an offensive weapon with intent to prevent investigation and one count of possessing a prohibited weapon. The sentence was directed to commence from the date upon which he was charged with those offences, ie, 24 December 1991. In a letter which the applicant wrote to the sentencing court on 6 June 1998, the applicant informed the Court to the effect that, on release from prison in New South Wales (which would have been in 1994), he was required to serve 2 years on parole.
He was then in a relationship with a woman, by whom he had two children. She was profoundly addicted to heroin. So far as appears, the applicant was not a heroin addict. The woman, Ms Spinner, is now in gaol in Thailand. Much was made of the difficulties which the applicant was facing at the time of his offending in this State by reason of the condition and behaviour of Ms Spinner. The precise sequence of events is a little unclear, but, speaking broadly, it seems that after his release from prison in 1994 and after making some efforts to settle down with Ms Spinner and his children in New South Wales, he decided it was best for them all if they came to Western Australia to make a new start. He commenced an electrical business in Rockingham, which got into financial difficulties. He could not get Ms Spinner off heroin and sent her back to New South Wales to her family. Later he learned that she had been arrested in Thailand and charged with attempting to smuggle heroin out of that country. He then travelled to and from Thailand in efforts to ensure that Ms Spinner was properly represented in the courts and to give evidence on her behalf. Ms Spinner eventually was convicted and received a very long sentence. It was the need for funds to assist Ms Spinner that is said to have occasioned the offending with which this Court is now concerned.
However, his Western Australian criminal history, which appears not to be in dispute, commences in August 1995, which could not have been very long after his arrival here and while he was still on parole. He was sentenced in the District Court at Perth to 9 months' imprisonment in August 1995 on a charge of attempting to defeat or pervert the course of justice. We have no details of the circumstances of that offence. He appeared in the District Court again on 29 September 1995 on charges of possessing a firearm and six counts of receiving. It would appear that he was using his electrical appliance business in Rockingham to receive and on‑sell stolen electrical goods. In respect to the six charges of receiving, he was sentenced to an aggregate period of 9 months' imprisonment, cumulative upon the sentence he had received for attempting to defeat the course of justice. On the charge of possessing the firearm, he was sentenced to 1 month's imprisonment, concurrent. Therefore, he received an aggregate prison sentence of 18 months' imprisonment. All of this happened before he learned that Ms Spinner had been arrested in Thailand. His release date is not noted, but on 18 February 1997 he appeared again in the District Court charged with two counts of stealing in respect to which he was fined. There are several subsequent charges of motor vehicle offences and cannabis offences, for which he received fines and a driving disqualification.
The applicant therefore presented to the sentencing court, not as someone who had suddenly gone off the rails due to the misfortune of his partner, but as a persistent repeat offender, whose criminal behaviour had become entrenched over some 15 years. This, alone, would justify the sentencing court paying little regard to the submission that the applicant's criminal behaviour was induced by some temporary personal difficulty and a need to assist others.
As to the offences which we are looking at, they include a string of burglaries of homes in the southern suburbs from Applecross to Rockingham between March and June 1997. Many of these offences were committed by the applicant acting alone, but there was an accomplice somewhere in the background. The applicant himself admitted that he had been at the premises referred to in count 1 on the indictment from which goods had been stolen by others who he declined to name. The charges of receiving arise out of dealing by the applicant in goods which were probably stolen by an accomplice or by associates. The motor vehicle thefts were connected to the offending in that the vehicles were used in the perpetration of the thefts. The goods involved were mainly electrical goods, but also jewellery, money and personal effects. A number of the victims were elderly people. The charge involving the driving of a stolen vehicle in a reckless manner relates to an incident when the applicant was seen driving the stolen vehicle by a police officer. To avoid being apprehended, the applicant drove off at high speed and in a manner that placed other road users in danger. The vehicle was found abandoned in bush area, containing a large quantity of stolen goods the subject of three of the counts on the indictment. Also located in the vehicle were papers belonging to the applicant and bearing his name.
Victim impact statements were presented to the sentencing court, including an oral statement by a Mr Darcy, the complainant in respect to count 1 on the indictment. The statements spoke of the very considerable trauma suffered by the victims and their sense of outrage and loss, and continuing distress and feelings of insecurity.
It is convenient here to deal with another point sought to be made by and on behalf of the applicant concerning his remorse. At the conclusion of the pleas in mitigation and after hearing Mr Darcy's oral victim impact statement, the learned sentencing Judge announced that he would adjourn the matter to consider the submissions that had been made to him and, before rising, he said this to the applicant:
" … I make orders for return of all recovered property to the owners. I propose in due course to make compensation orders … Let me just say, before you stand down, that obviously with property type offences, the more that is recovered, the better for both the victims from which it was originally stolen and the offender who is ultimately apprehended, and so if you have any information which might assist the authorities or the victims as to whether any of the property as yet unrecovered might still be recovered, you should let people know … you have heard Mr Darcy say what he wanted to say about his position. I don't know whether there is any further property that can be recovered that hasn't been. All I'm saying is that because I'm going to remand you for a couple of weeks anyway, that might be an opportunity for you to think about that."

The court then adjourned and reconvened on 14 July 1998 and on that occasion, Ms Watt appeared for the applicant and sought an adjournment for, as she put it, "the purpose of returning some of the goods that have now been located, particularly in relation to Mr Darcy, to him. I am expecting those goods to reach my office today or, at latest, tomorrow, and therefore I seek a short adjournment so that they can be returned". That adjournment was granted and the court reconvened on 20 July and the court was informed that some, but not by any means all, of the items of sentimental value which had been stolen from Mr Darcy's home had been recovered and returned to Mr Darcy. Two World War I medals of particular sentimental value to Mr Darcy had not been recovered.
In his appearance before us and in the written submissions prepared on his behalf, the applicant placed particular reliance on the recovery of that which had been recovered, and its return to Mr Darcy. In essence, the submissions were to the effect that this conduct was real evidence of remorse.
It may be accepted that it was, indeed, conduct which was to the credit of the applicant and deserving of consideration in the sentencing process. There are, however, two things which must be said. In the first place, his Honour did not leave it out of account. As he said in his sentencing remarks, "I take into account also the plea of guilty which, whilst it may not have come at the earliest opportunity, still has to be acknowledged, and the return of some property".
Secondly, in the context of the totality of the applicant's offending as reflected in the 17 counts on the indictment, the return of some but not all of Mr Darcy's memorabilia is hardly indicative of the kind of remorse and genuine desire to reform which sentencing courts will take into account. As has already been pointed out, the applicant presented to the sentencing court as a persistent repeat offender with an entrenched criminal disposition. The sentencing court was entitled to treat mere expressions of remorse with scepticism and to treat the return of a few articles, of mostly sentimental value, as a mere expedient. The applicant's recidivist characteristics as revealed in his criminal history and recent criminal behaviour provided no ground for confidence that the applicant had much capacity for true remorse. His history shows that he has made no real attempt to lead a law‑abiding life and mere asseverations that he intends to do so cannot count for much.
The applicant was facing an application on the part of the prosecution that an indefinite term of imprisonment should be imposed upon him in view of his antecedents and a submission by the Crown that he be denied eligibility for parole. His Honour decided not to impose an indefinite sentence and did grant eligibility for parole and it is apparent that he was influenced to do so by the applicant's positive response to the suggestion from his Honour that he make an effort to get back as much of the stolen property as he could.
As to the sentences themselves, there were, as I have said, six counts of burglary. By s 401(2)(b) of the Criminal Code it is provided that burglary of a domestic residence (or, "place … ordinarily used for human habitation") carries a maximum penalty of 18 years' imprisonment. Each of the seven charges of receiving were charges of receiving goods obtained by means of burglary and, by s 414 of the Criminal Code, it is provided that the maximum penalty for receiving goods obtained by means of a burglary is the same as the maximum penalty for burglary itself. Hence, the maximum penalty for each of the offences of burglary and receiving was 18 years' imprisonment. There were 13 such offences. The three charges of stealing a motor vehicle and the charge of stealing contained in count 15 (that is, stealing a wallet and contents) each carry a maximum term of 7 years' imprisonment.
Dealing with the applicant's complaint that the learned sentencing Judge referred to the charge contained in count 1 as a charge of "burglary", it is true that he did so, but it obviously was merely a slip and did not affect the length of the sentences imposed. In structuring the aggregate sentence his Honour consistently nominated the same sentence for the receiving offences as he nominated for the burglary offences. If it had been drawn to his attention that he had misdescribed count 1 as a count of burglary instead of receiving, it would have made no difference. The sentence of 1 year's imprisonment would have been the same. It was, in any event, well within the range of a sound exercise of discretion to impose a sentence of 1 year's imprisonment for that particular receiving offence. The applicant admitted going to Mr Darcy's premises and knocking on the door. So, it would appear that he played some part at least in the burglary, if only in the targeting of the premises.
As to the complaint by the applicant that the value of the property lost by reason of his criminal activities was over‑stated to the sentencing court, the applicant's main complaint is that, in respect to property taken from the premises not the subject of burglary charges against the applicant, the Court was told the value of that property; ie, the property taken, rather than the value of the property received by the applicant. This made it appear, so the applicant submits, that he received all of the property taken from all the premises in question. He would say that there is no evidence that this was so. This submission must be accepted. Quite a lot of the stolen property was recovered in the possession of Ellis. Now, some of this property may have been property burgled by the applicant and kept at Ellis' house, but some of it may also have been property neither burgled by the applicant nor received by him.
The other complaint made by the applicant is that the full value of the motor vehicles appears to have been lumped in to the calculation of the value of stolen property. As the applicant points out, the stolen vehicles were recovered, although perhaps damaged.
Accepting all this to be so, I am not persuaded that it has resulted in any error in the sentencing process. Although his Honour did make an enquiry of prosecuting counsel as to the value of property, the material given to his Honour really was quite vague. Although the way in which the prosecutor expressed herself concerning the value of the property involved in the charges against the applicant did have the potential to mislead or confuse his Honour, there is no indication that his Honour was misled or confused about it. His Honour's final sentencing remarks make no reference to valuations or estimations of the value of lost property. The impression to be gained from reading his sentencing remarks as a whole is that he placed no particular significance upon the Crown's assertions as to value in working out his sentence. Nor was he obliged to do so. As Franklyn J pointed out in Pezzino (1997) 92 A Crim R 135 at 138:
"The invasion of the privacy of the home has its own impact on the victims .. the value of the goods taken in most cases will be of only limited relevance. The offender takes either what he came specifically to take or what he can find and, in the particular circumstances, chooses or is able to remove."
It is apparent from the tenor of the submissions made by the applicant in person and from the submissions prepared on his behalf by his solicitor that, when all is said and done, the real complaint is that a sentence of 8½ years' imprisonment for this string of offences was too long, having regard for the nature of the offences themselves. The impression to be gained from the written submissions is that the proposition underlying the appeal is that none of these offences, individually, were serious offences of their kind such as to warrant an aggregate of 8½ years' imprisonment for the string of them.
I do not consider it is open to the courts now to regard home burglaries as anything but very serious offences. The courts in this State have recognised for some time now that the offence has become prevalent and is causing considerable community concern. Quite apart from that, which would in itself be a reason for the courts to continue to firm‑up sentences in home burglary cases, parliament has recently singled out the offence for special treatment. Prior to 1996, the maximum penalty for burglary was 14 years' imprisonment. In 1996, amendments were made which increased the maximum penalty for domestic burglaries by 28.5% from 14 years to 18 years. It is, of course, the duty of the courts to give effect to the policy behind this change: R v Peterson [1984] WAR 329 per Burt CJ at 334; R v O'Neil, unreported; CCA SCt of WA; Library No 960172; 29 March 1996; Sentencing Act 1995 s 6(2)(a).
Having regard for this and the number of offences committed by the applicant and the period of time over which they were committed, and having regard for the applicant's moral culpability as revealed by his antecedent criminal history (as to which see Veen v R (No 2) (1988) 77 ALR 385 at 393), I am not persuaded that an aggregate head sentence of 8½ years was manifestly excessive, even after giving to the applicant all appropriate credits and discounts for such mitigatory matters as were present in his case.
The time had come when the court was obliged to deal with him severely. Youth is no longer on his side. He has already spent lengthy periods in custody for similar types of offences and those sentences had not deterred him. The history shows that he twice commenced re‑offending soon after being released from prison. In the first instance, he was still on parole. It can fairly be said that he is a person from whom the public needs protection. These matters had to be put into the scales, together with the legislative policy to which I have referred, especially the imperative need to impose penalties which will have a deterrent effect.

It must be remembered that the principles upon which an appellate court will intervene in the exercise of a sentencing discretion require error to be established. It must be shown that the sentencing court failed to properly exercise its discretion. It is not sufficient that an appellate court may simply take a different view of the sentence.
I would grant leave to appeal, but dismiss the appeal.
STEYTLER J: I have had the advantage of reading the reasons for decision proposed to be published by Anderson J. I agree with them and with his Honour's conclusions. I have nothing to add.