Hume v The State of Western Australia

[2017] WASCA 205

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT :   THE COURT OF APPEAL (WA)

CITATION:   HUME -v- THE STATE OF WESTERN AUSTRALIA [2017] WASCA 205

CORAM:   BUSS P

MAZZA JA
PRITCHARD J

HEARD:   9 OCTOBER 2017

DELIVERED          :   9 OCTOBER 2017

PUBLISHED           :  31 OCTOBER 2017

FILE NO/S:   CACR 175 of 2017

BETWEEN:   ANTHONY PAUL HUME

Appellant

AND

THE STATE OF WESTERN AUSTRALIA
Respondent

ON APPEAL FROM:

Jurisdiction              :  DISTRICT COURT OF WESTERN AUSTRALIA

Coram  :STAUDE DCJ

File No  :BUN IND 94 of 2016

Catchwords:

Criminal law - Appeal against sentence - Aggravated home burglary - 18 months' immediate imprisonment - Relevance of time spent on remand for another offence - Whether sentence manifestly excessive - Sentence not plainly unjust or unreasonable

Legislation:

Criminal Code (WA), s 401(2)(a)

Result:

Leave to appeal refused
Appeal dismissed

Category:    B

Representation:

Counsel:

Appellant:     Mr D S Hunter

Respondent:     Mr J A Scholz

Solicitors:

Appellant:     Legal Aid (WA)

Respondent:     Director of Public Prosecutions (WA)

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

Conley v The State of Western Australia [2013] WASCA 95

Dickie v The State of Western Australia [2016] WASCA 88

Gowan v The State of Western Australia [2016] WASCA 98

Hill v The State of Western Australia [2014] WASCA 150

Lowndes v The Queen [1999] HCA 29; (1999) 195 CLR 665

Miles v The State of Western Australia [2013] WASCA 156

Narkle v Hamilton [2008] WASCA 31

Papertalk v The State of Western Australia [2011] WASCA 229

Pham v The State of Western Australia [2013] WASCA 203

Rowsell v The State of Western Australia [2015] WASCA 2

Sartori v The State of Western Australia [2014] WASCA 98

Taylor v The State of Western Australia [2016] WASCA 38

Vagh v The State of Western Australia [2007] WASCA 17

Wilson v The State of Western Australia [2010] WASCA 82

1. JUDGMENT OF THE COURT: This is an appeal against the sentence imposed on the appellant for an offence of aggravated home burglary in a dwelling, contrary to s 401(2)(a) of the Criminal Code (WA) (offence).  The appellant was sentenced to a term of immediate imprisonment of 18 months, and was made eligible for parole. 

2. The appellant was sentenced on 12 June 2017.  The term of imprisonment was backdated to 3 January 2017 to reflect time he had spent in custody in relation to this offence.  Although the appeal was heard on an expedited basis, by the date of the appeal hearing the appellant had already served half of the sentence of imprisonment imposed, but had not been granted parole. 

3. The appellant appeals against the sentence on the basis that it was manifestly excessive, having regard, amongst other factors, to the fact that the appellant spent 11 months in custody awaiting trial for another offence, namely a charge of arson (the arson remand).  He was acquitted of the arson charge shortly before being sentenced for this offence.

4. At the conclusion of the hearing of this appeal, we ordered that leave to appeal be refused and that the appeal would therefore be dismissed, and that we would publish our reasons in due course.  These are those reasons.

The circumstances of this offence

1. The circumstances of the offence, as accepted by the learned sentencing judge, were as follows.  The offence was committed on 7 January 2016, at a unit in a complex in Geographe.  The appellant's mother occupied one of the other units in that complex, and the appellant had been at his mother's unit earlier in the evening on which the offence was committed.  At about 11.00 pm, the appellant opened the roller garage door of the victim's unit and entered the unit through an unlocked internal door.  Once inside, he stole a mobile phone, a carton of soft drink and a suitcase with some clothes in it. 

2. At the time, the 71‑year‑old victim was asleep in the lounge room.  She was disturbed by the appellant, and called out, but there was no confrontation between her and the appellant. 

3. Some, but not all, of the stolen property was recovered after the appellant's arrest. 

The appellant's personal circumstances

1. The appellant is an Aboriginal man who was raised in the south west of Western Australia.  He was 21 years of age when he committed the offence. 

2. The learned sentencing judge accepted that the appellant's background involved considerable deprivation and disadvantage.  The appellant has a family history of mental illness and both his parents have drug and alcohol issues.  He was exposed to domestic violence as a child and his childhood was disrupted by family dysfunction.  He attended a number of different schools.  When the appellant was about 17 years of age, he became homeless, when his mother was forced to leave her home.  Since then, he has lived an unstructured life, without support, homeless and unemployed.

3. The learned sentencing judge found that the appellant suffered from complex mental health problems, including a history of schizophrenia, severe substance abuse disorder, and a probable antisocial personality disorder.  However, the psychiatric evidence produced at the sentencing hearing indicated that the appellant's mental health problems were driven by his substance abuse, his failure to comply with medical advice and to engage with treatment, and his failure to adhere to his prescribed medication. 

The sentence imposed and the reasons given by the learned sentencing judge

1. The learned sentencing judge noted that the offence was, by its nature, very serious. 

2. After referring to the circumstances of the offence, the learned sentencing judge identified the aggravating factors of the offending as the fact that the offence was committed at night, against an elderly victim, that it carried the risk of a confrontation with the victim, which would have increased the distress that she suffered, and that the appellant was on bail when the offence was committed.

3. The learned sentencing judge accepted that there were some mitigating circumstances, including the appellant's youth, and the misfortunes that he had suffered as a child, which reduced his culpability for his offending.  The learned sentencing judge also accepted that the appellant was a young man with considerable potential, who had been described as intelligent and talented in sport.  However, his Honour concluded that although the appellant was young, and lacking in maturity and judgment, he had sufficient experience of the criminal justice system to appreciate the wrongfulness of his actions and their consequences. 

4. The appellant was intoxicated by alcohol, amphetamines and opiates at the time of the offence.  While not a mitigating factor, the learned sentencing judge accepted that the appellant's intoxication provided some explanation for his behaviour.  The appellant's explanation for his offending was that he had long-standing anger management problems and became easily angered and frustrated.  On this occasion, the appellant had become upset and angry with his mother because she would not give him her car keys, and he committed the offence looking for keys with which to steal a vehicle. 

5. The learned sentencing judge found that the appellant's offending was not directly related to his mental illness.  The psychiatric evidence, which his Honour accepted, was that the appellant's offending was driven by impulsivity and poor emotional regulation, rather than by his mental illness.  His Honour found that while the appellant's actions may have been affected by his mental disorders, he was 'not labouring under any delusional beliefs at the time, but [was] merely angry and frustrated'.

6. The appellant had a prior record which included two counts of aggravated unlawful wounding for which he received sentences of imprisonment, and a variety of other offences for which he received non‑custodial sentences.  The learned sentencing judge noted that the appellant's record meant that specific deterrence required careful consideration in the sentence imposed, in addition to the protection of the community from reoffending.

7. The learned sentencing judge noted that the appellant had not previously engaged in rehabilitation but had stated that he wanted to cease using drugs, and realised that to do so he would need to avoid family members who used drugs and who were negative influences.

8. The learned sentencing judge accepted that the appellant entered his plea of guilty at an early stage, though not at the earliest reasonable opportunity, and he reduced the head sentence by 20% to reflect that plea. 

9. The learned sentencing judge took into account the time the appellant had spent in custody in respect of this offence.  He ultimately backdated the sentence to reflect that time in custody.

10. The learned sentencing judge also expressly took into account the fact that following his arrest for this offence, the appellant spent 11 months in custody on the arson remand.  His Honour observed:

    Now, the court can't backdate your sentence, take that time into account, because it was time spent in custody on another charge, but it can take it into account in a general way recognising that, to some extent, the objects of personal deterrence and community protection have been served by the period of time that you've spent in custody in total.

11. After taking into account all mitigating factors, the discount for the appellant's early plea, and the time the appellant spent in custody on the arson remand, the learned sentencing judge imposed a sentence of 18 months' immediate imprisonment for the offence.  He backdated that sentence to commence on 3 January 2017, to take account of the time the appellant spent in custody in respect of this offence.  He ordered that the appellant be eligible for parole.

The ground of appeal

1. There is one ground of appeal, namely that the sentence of 18 months' immediate imprisonment imposed for the offence was 'manifestly excessive, having regard to the 11 months the Appellant spent in custody after being charged with, and then acquitted, of an offence of criminal damage by fire, together with the circumstances of the offence, the range of sentences customarily imposed for offences of this type, the place this offence occupies in the scale of seriousness of offences of this type, and the personal circumstances of the Appellant'.

2. In the course of his submissions, counsel for the appellant also contended that the learned sentencing judge had not sufficiently taken into account the time the appellant spent in custody on the arson remand.[1]  Expressed in those terms, that submission amounted to a contention that the learned sentencing judge had erred in the weight he gave to that time on remand.  A failure to give adequate weight to a relevant sentencing consideration does not, of itself, give rise to an appellable error.  It amounts to an express error only if it amounts to a failure to exercise the discretion actually entrusted to the Court.[2]

   [1] Appellant's submissions [19], [23].

   [2] Vagh v The State of Western Australia [2007] WASCA 17 [76] (McLure JA).

3. The appeal thus falls to be resolved on the question whether the sentence imposed was manifestly excessive. 

Principles in relation to appeals against sentence

1. The relevant sentencing principles are well established.  They were set out by McLure P and Owen JA in Wilson v The State of Western Australia.[3]  It is unnecessary to repeat all of those principles here.  In this case, the appellant did not contend that the learned sentencing judge made an express error.  In order to demonstrate that his Honour made an implied error by imposing a sentence that was manifestly excessive, the appellant had to show that the sentence imposed was plainly unjust or unreasonable.

   [3] Wilson v The State of Western Australia [2010] WASCA 82 [2] (McLure P & Owen JA).

2. In order to ascertain whether a sentence is manifestly excessive, it is necessary to consider the sentence having regard to the maximum penalty available, to the standards of sentencing customarily observed in relation to offences of that character, to the place which the criminal conduct occupies on the scale of seriousness of offences of the same kind, and to the personal circumstances of the offender.[4]  All aggravating and mitigating circumstances must also be taken into account.

   [4] Taylor v The State of Western Australia [2016] WASCA 38 [23] (Buss JA, Mazza JA agreeing).

3. The guidance that comparable cases afford in that exercise is flexible rather than rigid.  That is consistent with the fact that the identification of a sentencing range (if in fact one can be shown to exist for an offence) is merely one of the factors to be taken into account in deciding whether a sentence is manifestly excessive.  Consequently, the mere fact that a sentence is within the range imposed for similar offending does not necessarily establish that there was an appropriate exercise of the sentencing discretion in the particular case.  Similarly, the mere fact that the sentence imposed is outside the range does not necessarily establish that the exercise of the sentencing discretion in the particular case miscarried.[5]  The importance of the discretion conferred on sentencing judges must be kept firmly in mind.  The role of an appellate court is not to substitute its opinion as to sentencing for that of the sentencing judge merely because it would have exercised the discretion in a different manner.[6]

   [5] Taylor v The State of Western Australia [2016] WASCA 38 [24] ‑ [25] (Buss JA, Mazza JA agreeing).

   [6] Lowndes v The Queen [1999] HCA 29; (1999) 195 CLR 665 [15] (Gleeson CJ, Gaudron, McHugh, Gummow, Kirby, Hayne & Callinan JJ).

4. These principles are of particular importance in cases, like this one, where the offence may be committed in a very wide range of circumstances, and with widely differing degrees of culpability.[7] 

   [7] Sartori v The State of Western Australia [2014] WASCA 98 [30] (Martin CJ, Pullin JA & Mazza JA agreeing).

5. In sentencing for an offence, the court has a discretion to take into account time spent in custody on remand for another offence of which an offender was acquitted.  Time spent on remand for another offence may be relevant for a number of reasons.  By way of example, it may suggest that there is a lesser need for personal deterrence than would otherwise have been the case, or it may be relevant to the court's assessment of an offender's prospects of rehabilitation.[8] 

Disposition of the ground of appeal

[8] Narkle v Hamilton [2008] WASCA 31 [39] ‑ [40].

1. The maximum penalty for an offence of aggravated home burglary pursuant to s 401(2)(a) of the Criminal Code is 20 years' imprisonment.

2. Generally speaking, home burglary offences are regarded as particularly serious, and as requiring substantial penalties in order to provide personal and general deterrence.  The sentences imposed for aggravated burglary offences in recent years have increased to reflect the prevalence of this offence and to recognise those considerations.[9] 

   [9] Gowan v The State of Western Australia [2016] WASCA 98 [37] (Corboy J, Buss JA & Mazza JA agreeing) and the cases cited therein.

3. Counsel for the appellant pointed to two cases said to be comparable to the present case, namely Miles v The State of Western Australia[10] and Rowsell v The State of Western Australia.[11]  With respect, neither case demonstrated that the sentence imposed on the appellant was outside the range of sentences for offences of this kind. 

   [10] Miles v The State of Western Australia [2013] WASCA 156.

   [11] Rowsell v The State of Western Australia [2015] WASCA 2.

4. In Miles v The State of Western Australia, the 40‑year‑old female offender climbed a fence to get into the victim's yard before gaining entry to his home by forcing open a window, intending to steal from the house. The offence was committed in the very early hours of the morning, when the 71‑year‑old victim of the offence was at home asleep. He woke up and confronted the offender, before calling the police. The offender made no attempt to escape, and was arrested by the police shortly thereafter. The offender had an extensive record of offences of dishonesty and home burglary, and was a repeat offender under s 401(4) of the Criminal Code, so that a sentence of at least a minimum of 12 months' imprisonment for the aggravated burglary was required.  The offender suffered from mental illness, had a difficult upbringing marred by violence and sexual abuse, and had been a drug user.  Following her arrest she had completed drug rehabilitation and other courses.  She was sentenced to 22 months' imprisonment for the aggravated home burglary, and received cumulative terms of imprisonment for a number of other, less serious, offences, amounting to a total effective sentence of 29 months' imprisonment.  That sentence incorporated credit for five months which the offender had spent in custody on remand.  The offender appealed against the total sentence, on the basis that it infringed the first limb of the totality principle.  The appeal was dismissed. 

5. In Rowsell v The State of Western Australia, the offender used a hammer to smash a kitchen window to gain entry to the victim's unit. The offence was committed in the early evening and the 72‑year‑old female victim was at home at the time. Upon hearing a noise, the victim came into the kitchen to find the offender entering through the window. The offender stole a small amount of cash from the victim's purse before leaving the premises. The 19‑year‑old offender had numerous convictions as a juvenile, but had not previously been convicted of a serious offence as an adult. He was a repeat offender under s 401(4) of the Criminal Code.  He pleaded guilty at the first opportunity but that was not considered to be indicative of any remorse on his part.  The sentencing judge imposed a term of imprisonment of 30 months.  On appeal, that sentence was not regarded as manifestly excessive. 

6. Counsel for the State referred, in his submissions, to a number of other authorities.  It is not necessary to discuss those cases in detail because, as counsel for the State recognised, none of them is directly comparable.  Nevertheless, together with Miles and Rowsell, they demonstrate that a sentence of immediate imprisonment of the length imposed upon the appellant is well within the customary range for the offence of aggravated home burglary (leaving to one side the more serious instances of that offence involving the use of threatened or actual violence).  Of the more recent cases to which counsel referred, in Pham v The State of Western Australia[12] the offender received a sentence of 2 years' imprisonment for an offence of home burglary, in Conley v The State of Western Australia[13] a sentence of 3 years' imprisonment for a single count of home burglary was imposed, while in Hill v The State of Western Australia[14] the offender received concurrent sentences of 3 years' imprisonment for each of two counts of aggravated home burglary.

   [12] Pham v The State of Western Australia [2013] WASCA 203.

   [13] Conley v The State of Western Australia [2013] WASCA 95.

   [14] Hill v The State of Western Australia [2014] WASCA 150.

7. Another more recent example is Dickie v The State of Western Australia[15] where leave to appeal against a sentence of 3 years' imprisonment for an aggravated home burglary by a young offender with an extensive criminal record was refused.

   [15] Dickie v The State of Western Australia [2016] WASCA 88 [10] (McLure P, Mazza JA agreeing).

8. Turning next to the circumstances of this offence, although not the most serious example of offending under s 401(2)(a) of the Criminal Code, the circumstances in which the offence were committed meant that it was nevertheless offending of a serious kind.  The appellant entered the complainant's home at a time, late at night, when it was likely that someone would be home.  He did so in order to steal property.  The victim was a person of advancing years.  Householders are entitled to feel safe in their homes, and this type of offending undermines that feeling of safety.  That is especially so for older people, and for those who live alone.  Although there was no confrontation between the complainant and the appellant in this case, the potential for a physical confrontation, and the possibility of injury or damage to property as a result, is an inevitable risk of offending of this kind.[16] 

   [16] Papertalk v The State of Western Australia [2011] WASCA 229 [29] (Mazza J, McLure P agreeing).

1. Although the appellant was young, and he had experienced misfortune in his childhood, there was little else by way of mitigation.  He committed the offence because he was intoxicated and angry.  Leaving to one side the time the appellant spent in custody on the arson remand, there is no doubt that a sentence of 18 months' imprisonment for the offence in this case would have been well within a sound exercise of the sentencing judge's discretion.  When the time spent in custody on the arson remand is also taken into account, it does not warrant the conclusion that the sentence was manifestly excessive.

2. Counsel for the appellant submitted that '[i]f the one day short of 11 months the Appellant spent in custody [for the arson offence] was added to the 18 months imposed on the Appellant, the Appellant was effectively sentenced to a sentence of 29 months imprisonment'.[17]  That submission was, with respect, misconceived, for three reasons.  First, the contention that the appellant's sentence was manifestly excessive can be advanced only in respect of the sentence of 18 months' imprisonment which was actually imposed.  Secondly, the submission assumes that, contrary to the learned sentencing judge's statement in his sentencing remarks, his Honour did not in fact take into account 'in a general way' the time the appellant had spent in custody on the arson remand.  Thirdly, the submission was premised on the erroneous basis that the learned sentencing judge was obliged to take into account the time spent on remand by giving the appellant credit for the entirety of that time.  That is not so.  If a sentencing judge makes an allowance for the time an offender has spent on remand for another offence which resulted in an acquittal, the judge has a discretion as to the extent of the allowance which is given.  The court does not have to give credit for the whole of the time spent in custody.[18]  In any event, even if it is assumed, for the sake of argument, that an allowance should have been made for the entirety of the time the appellant spent on the arson remand, that does not mean that the sentence of 18 months' imprisonment which was imposed should be regarded as manifestly excessive. 

   [17] Appellant's submissions [24].

   [18] Narkle v Hamilton [2008] WASCA 31 [40].

3. Counsel for the appellant submitted that the time the appellant spent on the arson remand meant that 'personal deterrence had been largely achieved, and progress towards rehabilitation had commenced'.[19]  As the learned sentencing judge recognised, the objects of personal deterrence and protection of the community had to some extent been served by virtue of the time the appellant spent in custody on the arson remand.  However, the time spent on the arson remand did not render those considerations irrelevant.  Although the appellant had expressed a desire to cease his drug use and to avoid negative family and peer influences, the appellant's circumstances, including his unemployment, homelessness, substance abuse, and the challenges he faced in dealing with his mental health issues, were such that his prospects of rehabilitation remained poor. 

   [19] Appellant's submissions [28].

4. Having carefully considered the time the appellant spent in custody on the arson remand, in conjunction with all of the other factors discussed above, and in light of the authorities to which we have referred, we formed the view that the sentence imposed was not one which could be regarded as plainly unjust or unreasonable.  Accordingly, we refused leave to appeal and dismissed the appeal.