Hewins v The State of Western Australia - [2023] WASCA 2

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT :   THE COURT OF APPEAL (WA)
CITATION:   HEWINS -v- THE STATE OF WESTERN AUSTRALIA [2023] WASCA 2
CORAM:   BUSS P
MAZZA JA

HEARD:   26 AUGUST 2022
DELIVERED          :   5 JANUARY 2023
FILE NO/S:   CACR 36 of 2022
BETWEEN:   BENJAMIN MICHAEL HEWINS
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent

ON APPEAL FROM:
Jurisdiction              :   DISTRICT COURT OF WESTERN AUSTRALIA
Coram:   PETRUSA DCJ
File Number            :   IND 536 of 2020

Catchwords:

Criminal law - Application for leave to appeal against sentence - Appellant convicted of two counts of aggravated burglary, one count of doing an act causing bodily harm and one count of criminal damage - Whether sentence of 5 years 2 months' imprisonment on count 1 manifestly excessive - Whether total effective sentence of 8 years 2 months' imprisonment infringed first limb of totality principle

Legislation:

Criminal Code (WA), s 304(2), s 401(1)(a), s 401(2)(a), s 444(1)(b)

Result:

Appeal dismissed

Category: B

Representation:

Counsel:

Appellant	:	In person
Respondent	:	No appearance

Solicitors:

Appellant	:	In person
Respondent	:	Director of Public Prosecutions (WA)

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

Brindley v The State of Western Australia [2019] WASCA 153
Kabambi v The State of Western Australia [2019] WASCA 44

JUDGMENT OF THE COURT:

The appellant, who is self‑represented, seeks leave to appeal in respect of sentences imposed upon him in the District Court by Petrusa DCJ on 30 March 2022. The appellant filed his appeal notice 12 days out of time. Given that the appellant is acting in person and that the delay in filing the appeal notice was short, an extension of time should be granted.
The appellant and two of his brothers, Samuel Michael Hewins and Thomas Michael Hewins, were charged on indictment with a number of offences which were committed on 10 March 2019 at a house at Golden Bay. Relevantly to the appellant, he was charged, along with Samuel and Thomas Hewins, with an aggravated burglary of the house occupied by Dylan Gornall and Jaxon Smith (count 1). Count 1 alleged seven circumstances of aggravation, being that:
(a)the appellant and his brothers were in company with each other;
(b)the appellant and his brothers did bodily harm to Mr Smith;
(c)the appellant and his brothers were armed with an offensive weapon, namely a baseball bat;
(d)the appellant and his brothers were armed or pretended to be armed with a dangerous weapon, namely a firearm;
(e)the appellant and his brothers threatened to injure Mr Smith;
(f)immediately before the commission of the offence the appellant and his brothers knew or ought to have known that there was another person in the place; and
(g)the place was ordinarily used for human habitation.
Count 2 alleged that the appellant and his brothers, with intent to harm Mr Smith, did an act as a result of which bodily harm was caused to Mr Smith.
Count 3 alleged that the appellant and his brothers wilfully and unlawfully damaged property.
Count 4 alleged, in substance, that, also on 10 March 2019, the appellant and his brothers again committed an aggravated burglary on the house in the following circumstances of aggravation:
(a)the appellant and his brothers were in company with each other;
(b)the appellant and his brothers did bodily harm to Mr Smith (this circumstance was discontinued on 16 January 2021);
(c)the appellant and his brothers were armed, or pretended to be armed, with a dangerous weapon, namely a firearm;
(d)the appellant and his brothers were armed with an offensive weapon, namely a baseball bat;
(e)the appellant and his brothers were armed with an offensive weapon, namely a taser;
(f)immediately before the commission of the offence, the appellant and his brothers knew, or ought to have known, that there was another person in the place; and
(g)the place was ordinarily used for human habitation.
There was a fifth count on the indictment which only concerned Thomas Hewins. This count alleged that Thomas Hewins unlawfully assaulted Mr Smith and thereby did him bodily harm.
Count 1 is contrary to s 401(2)(a) of the Criminal Code (the Code) and carries a maximum penalty of 20 years' imprisonment. Count 2 is contrary to s 304(2) of the Code and carries a maximum penalty of 20 years' imprisonment. Count 3 is contrary to s 444(1)(b) of the Code and carries a maximum penalty of 10 years' imprisonment. Count 4 is contrary to s 401(1)(a) of the Code and carries a maximum penalty of 20 years' imprisonment.
On 4 November 2021, the first day of the trial of the appellant and his brothers, the appellant pleaded guilty to count 1 and some, but not all, of the circumstances of aggravation in respect of that count and to counts 2 and 3. He pleaded not guilty to count 4.
On 19 November 2021, the jury returned verdicts of guilty in respect of the disputed circumstances of aggravation in count 1 and, in respect of count 4, the jury found the appellant guilty save for the circumstance of aggravation which alleged that he was armed with a baseball bat. In respect of this circumstance of aggravation he was found not guilty.
On 30 March 2022, her Honour imposed the following sentences of imprisonment on the appellant:
Count 1:5 years 2 months (reduced for totality from 5 years 6 months)
Count 2:3 years
Count 3:2 years
Count 4:3 years (reduced from 4 years 2 months for totality)[1]
[1] See ts 1375 to 1378 and the certificate of final outcome.

Her Honour ordered that the sentences on counts 1 and 4 be served cumulatively and that the sentences on counts 2 and 3 be served concurrently. Thus, the total effective sentence was 8 years 2 months' imprisonment. The appellant was made eligible for parole and the total effective sentence was backdated to commence on 4 March 2022.
The appellant seeks leave to appeal against sentence on two grounds. Ground 1 alleges the sentence on count 1 was manifestly excessive. Ground 2 alleges that the total effective sentence infringed the first limb of the totality principle. For the reasons that follow, we would refuse leave to appeal on both grounds and dismiss the appeal against sentence.

The facts

Her Honour made detailed findings of fact as to the circumstances of the offences which the appellant does not dispute on appeal. The facts of the offences may be summarised as follows.
In March 2019, Mr Gornall, who was then aged 20 years, and Mr Smith, who was then aged 18 years, were sharing a house at an address in Golden Bay. Mr Gornall rented the house from his mother and sublet rooms in the house to other people including Mr Smith who, at the time of the offences, had been living in the house for six to eight weeks. Through various connections, the appellant and his brothers knew Mr Gornall and Mr Smith and had visited the house at Golden Bay.
On the night of Saturday, 9 March 2019, the appellant and his brothers went to the Metropolis Nightclub in Fremantle. Also at the Metropolis Nightclub were Mr Gornall and others including Ms Makayla Bartlett. The appellant had been pursuing a romantic relationship with Ms Bartlett for a couple of weeks and hoped it would develop into something longer‑term.
In the nightclub, the appellant perceived that Mr Gornall and Ms Bartlett were flirting with each other. The appellant became angry and, despite reassurances from Ms Bartlett, he confronted Mr Gornall, head‑butting him on the staircase in the nightclub. As a result, the appellant was evicted from the premises. The appellant's brothers left the nightclub with the appellant.
Samuel Hewins persuaded Mr Gornall to come outside to speak with the appellant. Once outside, the appellant and Jacob Hewins had an argument with Mr Gornall. Eventually the appellant and his brothers left the scene. Mr Gornall went inside where he remained for some time.
Meanwhile, Mr Smith stayed home that night in Golden Bay. He smoked approximately 20 cones of cannabis before going to bed at about 11.30 pm. Some hours later, early on Sunday 10 March 2019, he awoke to find four men in his bedroom. Three of those men physically assaulted him. Two of them punched him repeatedly while the third struck him with a baseball bat. A fourth man stood near the doorway of his bedroom pointing a gun at him.
Her Honour found that the assault on Mr Smith was sustained and involved multiple blows from each of the three participants. Mr Smith estimated that he was punched five or six times by each man and struck with the baseball bat about five times. As he was being struck Mr Smith screamed out in pain. After the assault, which Mr Smith estimated lasted between five and six minutes, the man with the gun told him that if he said anything they would be back. After the three men left the room the man with the gun yelled, 'Should I just shoot him so he doesn't say anything?'. One of the men that had left the room said something like, 'No, let's just go'. The man with the gun then left the room and Mr Smith heard the men move towards the back door and, shortly after, he heard the sound of a vehicle leaving.
Mr Smith waited five to ten minutes before leaving his bedroom. When he did, he found that the house and some of its contents had been extensively damaged. The rear glass sliding door was smashed, furniture in the living area, kitchen and bedrooms had been upended, doors had holes in them and the bathroom door was broken in two. Windows were broken and two fridges upended and a television knocked over.
Mr Smith took a photograph of his injuries and sent it to Mr Gornall with a message, 'Come home because something is - is just happened.' Mr Smith called the police. Initially he said that he did not know who his attackers were. At trial, Mr Smith identified the men in his room as the appellant, Samuel Hewins and Thomas Hewins. Mr Smith identified the fourth man as Jacob Hewins, another of the appellant's brothers. A DNA analysis of swabs taken by police from the house and items located in it incriminated the appellant. A DNA profile matching that of the appellant was found on a swab taken from the bathroom door. The baseball bat that was used in the assault was ultimately located at the appellant's sister's house. A mixed DNA profile consistent with coming from four people was found on the hand grip of that bat and Jacob Hewins was found to be a contributor to this DNA profile. Police also located on 11 March 2019 a .22 calibre round of ammunition locked in a box in Jacob Hewins' room.
Her Honour found that the appellant was one of those who punched Mr Smith repeatedly as he lay on the bed. She found that Samuel Hewins was the man with the gun. She found that the appellant and Samuel Hewins caused damage to the house which cost $20,342.84 to repair. This sum, her Honour observed, did not take into account the work that was necessary to restore good order to the house or the value of the furnishings that were damaged, but not replaced.
Mr Smith suffered bleeding and swelling to his nose, face and chest. He experienced difficulty breathing through his nose for a number of weeks. He suffered soreness and stiffness to his chest and ribs for about two weeks. For a period of time after the incident Mr Smith suffered migraine headaches and had issues with his balance.
Mr Gornall and Mr Smith were unable to return to their home until about 4.00 pm on 10 March 2019. A group of about 10 or 11 people came to the house to help them clean up, including Ms Bartlett. At about 6.30 pm or 7.00 pm, after they had finished cleaning up, the group was sitting in the living area of the house when they heard yelling and screaming outside the front of the house. It became evident that the appellant, Thomas Hewins and Jacob Hewins had returned to the house looking for Mr Gornall. The appellant and his brothers were accompanied by others and brought with them a taser and a firearm. Her Honour found that the appellant and the others in his group were there to confront Mr Gornall with force.
The appellant, accompanied by his brothers Thomas Hewins and Jacob Hewins, entered the house through the open front door. Jacob Hewins pointed a gun at one of the women inside and said that if she or anyone recorded the events she would be shot. Jacob Hewins used the taser on two men who were in the house. Jacob Hewins was heard to yell the words, 'What's this about death threats?' and, 'You've messed with the wrong mob'. The appellant and Thomas Hewins were also heard to angrily say things about death threats being made or who had made death threats.
Mr Gornall and one of his cousins immediately ran from the house. The appellant pursued them. Her Honour accepted that the appellant was not inside the house when the firearm was pointed or the taser used. However, her Honour found that the appellant was aware that the two weapons had been brought to the house with the real possibility that they would be used as part of a joint plan to confront and punish Mr Gornall.
Mr Smith, who had been in the house, ran into a garage. While inside the garage, Thomas Hewins assaulted him. The appellant was not charged with this offence (count 5 on the indictment). This assault caused Mr Smith considerable pain and aggravated the injuries he had suffered from the attack the subject of the earlier charges.
On the morning of 11 March 2019, the appellant was interviewed by police. While he admitted knowing Mr Gornall and that he had become angry with him at the Metropolis Nightclub, he denied going to the house at Golden Bay in the early hours of 10 March 2019. He further denied returning to the house later that afternoon. In other words, the appellant denied that he went to the house in Golden Bay at any time on 10 March 2019 and denied any wrongdoing.

Impact on the victims

Both Mr Gornall and Mr Smith provided victim impact statements.
Although Mr Gornall was not a victim of any physical assault, the home invasions have left him with feelings of anxiety and fear. As a result, he has moved away from the Perth metropolitan area and re‑established his life elsewhere. This has caused difficulties for him in obtaining housing and employment. His relationship with his mother has been adversely affected which has resulted in great distress to him.
With respect to Mr Smith, in addition to the physical injuries that have already been described, he has been psychologically affected. As a result of the loss of balance he has experienced, he was no longer able to pursue work as a roof tiler and was unemployed for several months. He now suffers from extreme anxiety and has become reclusive. His sleep is disturbed. Raised voices and loud noises trigger fear and anxiety in him.

The appellant's personal circumstances

At the time of the offences the appellant was 20 years of age. He was 23 when he was sentenced. The appellant and Thomas Hewins are twins. Samuel and Jacob Hewins are also twins. The appellant and his siblings were born in the United Kingdom and came to Australia in 2002. He was brought up in a loving and supportive family. The appellant attended school until year 10. Since leaving school he has been employed in a number of occupations. The appellant has a minor criminal history comprising three convictions. The second was recorded on 27 April 2018 at the Rockingham Magistrates Court for an offence of common assault and the third was a conviction for obstructing a public officer on 11 June 2019 in the Perth Magistrates Court. He was fined for the third offence and given a spent conviction order for the second.
The pre-sentence report provided to her Honour revealed that the appellant's criminogenic needs are identified in the areas of substance use, negative peer association and attitudes that appear to support the use of violence. At the time of the commission of the offences the appellant was under the influence of ecstasy and alcohol.
After the commission of the offences, while on bail, the appellant abstained from illicit drug use and from alcohol. He was on bail for a period of three years without offending and in that time he has become the father of a young child.

The sentencing judge's approach

Her Honour described the offences as 'very serious'.[2]
[2] See ts 1364.
Her Honour found that the appellant's grievance against Mr Gornall was the motive for the commission of the offences and that the appellant instigated both aggravated burglaries.[3] Her Honour said that the appellant's conduct on both the occasions he went to the house in Golden Bay was premeditated and that he went to the house on these occasions with his brothers as 'back up', taking weapons and intending to inflict harm, which is what occurred.
[3] ts 1368.
Her Honour said that the appellant's conduct was further aggravated by the fact that he participated in both aggravated burglaries within a short period of time, that he personally used violence in the first aggravated burglary in circumstances where he was part of a group attack upon an innocent third party (Mr Smith) that involved the use of a weapon and in circumstances where a gun was pointed.
Her Honour said that the seriousness of the appellant's conduct was not reduced by the fact that he was not personally armed in either aggravated burglary. This is because the appellant knew of the existence of the weapons carried by others and that they would be used during the first aggravated burglary. She also found that the appellant could reasonably have anticipated that the weapons would be taken to the house on the second occasion and would be used, particularly given that there was a group of people at the house when he arrived. Her Honour characterised the appellant's criminal culpability for both aggravated burglaries as 'extremely high'.[4]
[4] ts 1369.
Her Honour said that while it might be true that, at the time of the first aggravated burglary, the appellant was to some extent under the influence of alcohol and/or drugs, the same could not be said about the second aggravated burglary. In any event, her Honour (correctly) noted that the presence of drugs and alcohol, while providing an explanation for the appellant's criminal conduct, could not excuse it. Her Honour observed that despite the appellant having the opportunity after the first aggravated burglary to reflect on his behaviour and conduct, he nevertheless went ahead and committed the second aggravated burglary.
Her Honour had regard to the pre-sentence report. She noted the opinion of the author of the pre-sentence report that the appellant refuted aspects of the offending and appeared to minimise his level of participation. Further, her Honour noted the observation in the report that the appellant lacked insight with regard to victim empathy and that the appellant was more concerned about the disruption that had been caused to him.
Her Honour gave a reduction of 3% for the pleas of guilty which were entered on the first day of the trial on counts 1, 2 and 3. She did so, noting that they were entered late and the appellant did so on a factual basis which denied that Mr Smith was attacked in his bedroom and claimed, in fact, that Mr Smith brandished the baseball bat and engaged in provocative conduct which led to injuries suffered by Mr Smith and the damage to the house. Her Honour found that the appellant's pleas of guilty did not reflect an acceptance of criminal responsibility to the facts as her Honour found them to be and that the utilitarian value of the pleas was reduced because there would otherwise have had to be a trial of the issues which would have a resulted in a significant proportion of the evidence led at trial being adduced.
Her Honour took into account the matters referred to in [34] above, which she said 'speak to [the appellant's] good prospects of rehabilitation'.[5]
[5] ts 1367.

Her Honour recognised that the appellant was a youthful offender and that it is a serious matter to send a young person to prison for the first time. However, her Honour said that the seriousness of the offending was such that only a significant custodial penalty was appropriate.
Her Honour noted that the offending involved two separate instances of serious offending and that some degree of accumulation was required. Her Honour also had regard to the totality principle and made the adjustments to the individual sentences we have already indicated to take into account this sentencing principle.

General appellate principles

Both grounds of appeal allege implied error on the part of the sentencing judge. The relevant principles with respect to allegation of implied error are well established and were summarised in Kabambi v The State of Western Australia.[6] We incorporate into these reasons, without repeating, that statement of principle. It is enough for present purposes to say that the ultimate issue is whether error is to be inferred on the basis that the sentence on count 1 and/or the total effective sentence is unreasonable or plainly unjust.
[6] Kabambi v The State of Western Australia [2019] WASCA 44 [21].

The appellant's submissions

The appellant emphasised that at the time of the offences he was only 20 years of age and had a limited criminal history which disclosed no entrenched pattern of offending behaviour. He also emphasised that in the long period of time that he was on bail pending trial he remained drug and alcohol free and was consistently employed. By the time he was sentenced he had become the father of a young child and his prospects for rehabilitation were favourable.

Ground 1 - disposition

The maximum penalty for an offence of aggravated burglary is 20 years' imprisonment.
There is no tariff for aggravated home burglary, but there can be no doubt that it is a serious offence which is prevalent and ordinarily met with a term of immediate imprisonment. It has been recognised that sentences for home burglary need to be firmed up. This process is ongoing.
Aggravated home burglaries which (as in this case) involve the forcible entry into residential premises, known or suspected to be occupied at the time, and accompanied with threatened or actual violence are generally significantly more serious than home burglaries which lack these characteristics.[7]
[7] See Brindley v The State of Western Australia [2019] WASCA 153 [39].
Her Honour characterised the appellant's culpability for each aggravated burglary as 'extremely high'. Relevantly to count 1, this characterisation was entirely justified having regard to the facts and circumstances of the offence and the effect that the offending had on Mr Gornall and, most significantly, upon Mr Smith.
The appellant instigated the offence and was motivated by a totally unreasonable sense of grievance against Mr Gornall. The offence was premeditated and was committed at night-time. The appellant and his brothers went to the house intending to inflict physical harm. While the appellant himself was not armed he knew that his co‑offenders were carrying weapons, which would be used.
The appellant and his co‑offenders took part in a group attack upon Mr Smith who was an entirely innocent party. He was senselessly assaulted, including with weapons, and his life was threatened by one of the appellant's co‑offenders pointing a gun at him. To make matters worse the house and its contents were significantly damaged.
The most important mitigating factor available to the appellant was his youth. He also has the benefit of a loving and supportive family. Since the commission of the offences the appellant has abstained from illicit drug use and from alcohol and was on bail for a lengthy period without offending during which time he had fathered a young child. He has a minor criminal history.
It is of concern that the appellant does not fully accept responsibility for his actions, lacks insight as to the effect the offending has had upon his victims and was more concerned with how the offences had disrupted his life than on the consequences of what he had done.
The appellant pleaded guilty to count 1 on the first day of the trial and received only a small reduction, 3%, for the plea of guilty pursuant to s 9AA of the Sentencing Act. As a result of his late plea he was not entitled to any greater reduction.
General deterrence was an important sentencing consideration in the imposition of an appropriate sentence for count 1. Persons who engage in premeditated home invasions at night, motivated by a senseless grievance, that cause injury and terror to the vulnerable occupants must be met with significant penalties.
When all of the relevant facts and circumstances are considered in respect of count 1, including all of those which are favourable to the appellant, and bearing in mind the maximum penalty, it cannot reasonably be contended that the sentence imposed was manifestly excessive. It was not unreasonable or plainly unjust. Implied error has not arguably been established.

Ground 2 - disposition

We now turn to the second ground of appeal which alleges that the total effective sentence imposed upon the appellant infringed the first limb of the totality principle.
There can be no doubt that the appellant's overall criminality, having regard to the facts and circumstances of all of the offences, was very high. Having, in the early hours of 10 March 2019, committed counts 1, 2 and 3, the appellant and two of his brothers returned to the house later that day at between 6.30 pm and 7.00 pm and committed another violent home burglary, terrorising Mr Gornall and those who had come to clean up after the earlier offences.
Again, the offending was premeditated, violent and terrifying. Her Honour was correct to note that the offending the subject of count 4 was a second separate instance of serious offending that justified some degree of accumulation.
Again, in considering whether the total effective sentence of 8 years 2 months' imprisonment was erroneous, it is necessary to emphasise the importance of general deterrence.
We note that the appellant went to trial on count 4. Consequently, he was not entitled to the mitigation that a plea of guilty would have brought.
Having regard to all of the relevant facts and circumstances, including the mitigating factors which have already been identified, it is not reasonably arguable that the total effective sentence of 8 years 2 months' imprisonment infringed the first limb of the totality principle. Having regard to the extremely serious nature of the offending, the sentence properly reflected the overall criminality of all of the offences after taking into account all relevant sentencing principles and factors, including the mitigating factors. The total effective sentence was not unreasonable or plainly unjust. Implied error has not arguably been established.

Conclusion and orders

Neither ground of appeal has a reasonable prospect of success. Leave to appeal should be refused. The appeal must be dismissed.
The orders that we would make are as follows:
(1)The application for an extension of time is granted.
(2)Leave to appeal is refused on grounds 1 and 2.
(3)The appeal is dismissed.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
TDSM
Associate to the Honourable Justice Mazza
5 JANUARY 2023