Humphreys v The State of Western Australia
[2017] WASCA 208
•9 NOVEMBER 2017
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: HUMPHREYS -v- THE STATE OF WESTERN AUSTRALIA [2017] WASCA 208
CORAM: MARTIN CJ
MAZZA JA
MITCHELL JA
HEARD: 2 NOVEMBER 2017
DELIVERED : 9 NOVEMBER 2017
FILE NO/S: CACR 87 of 2017
BETWEEN: MICHAEL DEAN HUMPHREYS
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram :BIRMINGHAM DCJ
File No :IND BUN 155 of 2016
Catchwords:
Criminal law - Appeal against sentence - Aggravated burglary - Whether sentence of 3 years 6 months' imprisonment for aggravated burglary manifestly excessive
Legislation:
Criminal Code (WA), s 401(2)(a)
Result:
Leave granted
Appeal allowed
Category: D
Representation:
Counsel:
Appellant: Mr D Hunter
Respondent: Mr J A Scholz
Solicitors:
Appellant: Legal Aid (WA)
Respondent: Director of Public Prosecutions (WA)
Case(s) referred to in judgment(s):
Barbaro v The Queen [2014] HCA 2; (2014) 253 CLR 58
Boddington v The State of Western Australia [2013] WASCA 179
Dickie v The State of Western Australia [2016] WASCA 88
Director of Public Prosecutions (Vic) v Dalgliesh (a pseudonym) [2017] HCA 41
Drake v The State of Western Australia [2006] WASCA 209
Harrison v The State of Western Australia [2009] WASCA 58
Hume v The State of Western Australia [2017] WASCA 205
Jolly v The State of Western Australia [2017] WASCA 181
Knight v The State of Western Australia [2014] WASCA 217
McIntyre v The State of Western Australia [2016] WASCA 150
Mippy v The State of Western Australia [2012] WASCA 254
R v Pham [2015] HCA 39; (2015) 256 CLR 550
Rowsell v The State of Western Australia [2015] WASCA 2
Smith v The State of Western Australia [2015] WASCA 234
The State of Western Australia v Peacock [2013] WASCA 248
The State of Western Australia v Sabek [2005] WASCA 207
Wragg v The State of Western Australia [2013] WASCA 198; (2013) 234 A Crim R 380
JUDGMENT OF THE COURT: On 20 March 2017, the appellant was convicted in the District Court on his fast‑track plea of guilty of one offence of aggravated burglary contrary to s 401(2)(a) of the Criminal Code (WA), which read:
On 17 September 2016 at Collie [the appellant] while in the place of [RML] without her consent, committed the offence of aggravated common assault.
And that immediately before the commission of the offence [the appellant] knew or ought to have known that there was another person in the place.
And that the place was ordinarily used for human habitation.[1]
[1] Appeal book page 40.
The appellant was also convicted on his plea of guilty of an offence contained in a notice pursuant to s 32 of the Sentencing Act 1995 (WA) being one count of aggravated common assault contrary to s 313(1)(a) of the Criminal Code. This was the same aggravated common assault referred to in the aggravated burglary charge.
At the time the appellant committed the aggravated burglary, he was subject to a 6‑month intensive supervision order (ISO) made by the Bunbury Magistrates Court on 4 April 2016, which was imposed for a breach of an earlier 12‑month ISO.[2] Both the aggravated burglary and the aggravated common assault convictions breached the ISO and enlivened the court's power to resentence the appellant for the offences the subject of the order, being two counts of breaching a violence restraining order contrary to s 61(1) of the Restraining Orders Act 1997 (WA) and one count of damaging property contrary to s 445 of the Criminal Code.[3]
[2] ts 2.
[3] Section 130(1)(b) Sentencing Act.
The appellant was sentenced by Birmingham DCJ as follows:
1.aggravated burglary - 3 years and 6 months' immediate imprisonment;
2.aggravated common assault - no penalty pursuant to s 11 of the Sentencing Act;
3.breach of violence restraining order (Bunbury charge number 4003 of 2014) - 3 months' immediate imprisonment;
4.breach of violence restraining order (Bunbury charge number 4006 of 2014) - 3 months' immediate imprisonment;
5.damaging property (Bunbury charge number 4005 of 2014) - 3 months' immediate imprisonment.
His Honour ordered that the sentence for one of the breach of the violence restraining order offences (Bunbury charge number 4003 of 2014) be served cumulatively with the sentence for the aggravated burglary. All of the other sentences of imprisonment were ordered to be served concurrently with each other and concurrently with the sentence for the aggravated burglary. Thus the total effective sentence is 3 years and 9 months' imprisonment with eligibility for parole. His Honour ordered that the total effective sentence commence on 20 September 2016.[4]
[4] ts 24.
The appellant does not challenge the sentences that were imposed for the offences of breaching the violence restraining order and damaging property or the orders for cumulacy. The only sentence under challenge in this appeal is the sentence of 3 years and 6 months' immediate imprisonment imposed for the aggravated burglary. The appellant alleges that this sentence is manifestly excessive. The question of leave to appeal on this ground was referred to the hearing of the appeal.[5]
[5] Appeal book page 5.
The facts
The facts of the aggravated burglary offence are not in dispute.
At the time of the offence, the victim, RML, lived in a house situated in Collie with her two children aged 4 and 9. On 17 September 2016, the appellant, who was under the influence of methylamphetamine, went to the house, intending to collect a small amount of money which was apparently owed to him by the victim's ex‑partner arising out of a drug transaction.
The appellant knocked at the front door. The victim opened the door without detaching the security chain. The appellant demanded money from the victim and verbally abused her. She told him to leave or she would call the police. The appellant threw the can of Jim Beam and cola that he was drinking in the direction of the victim. The can hit the front door and spilt on the ground. As the appellant walked away, the victim detached the security chain and attempted to close the door. As she did so, the appellant forced entry into the house by, as the victim put it, 'body slamming' the front door.[6] In the process he smashed the bottom glass panel of the front door. He then grabbed the victim by the neck with both hands. She called out to her daughter, who was nearby, and told her to get her brother and leave the house. The victim temporarily broke the appellant's grip on her neck, but he grabbed her again by the throat with both hands and demanded money from her. The victim broke away and ran out of the house into a rear laneway where she met her children and telephoned the police. The appellant left the scene.
[6] Police statement of RML, 17 September 2016.
On 20 September 2016, the appellant was arrested and he was taken to the Collie police station. There he participated in an electronically recorded interview in which he partially admitted the offence and expressed remorse.
The victim sustained a small amount of bruising to either side of her neck.
The appellant's antecedents
At the time of committing the offence, the appellant was 33 years of age. He had a difficult childhood. He left school at year 11. He began using illicit substances at a young age. He was a daily user of methylamphetamine by the time he was 17.
Over the years, the appellant has engaged in residential drug rehabilitation at Bridge House on at least three occasions. However, he has not been able to rid himself of his drug addiction.
The appellant has a lengthy record of prior convictions, including for aggravated burglary. Despite the length and seriousness of his criminal history, the appellant had not previously been sentenced to a term of immediate imprisonment.
The sentencing remarks
Given that no issue is taken with anything said by his Honour in the sentencing remarks, there is no need to canvass them in detail.
It is enough to make the following observations:
(a)His Honour described the aggravated burglary as 'a very serious offence' by reason of the appellant's use of actual violence against a vulnerable victim whose children were present.[7]
(b)There was no mitigation to be found in the purpose for the appellant's visit to the house or in the fact that he was under the influence of drugs at the time.
(c)The appellant's personal circumstances were unfavourable. His prior criminal history showed a continuing disobedience of the law and that the offence was not an uncharacteristic aberration.
(d)Personal and general deterrence were matters of importance.
(e)There were matters of mitigation, in particular, the appellant's plea of guilty, which attracted a discount of 25% pursuant to s 9AA of the Sentencing Act, the appellant's expressions of remorse and the steps that he had taken towards his rehabilitation.
[7] ts 19.
Appellate principles
The general principles applicable to this appeal are settled. Sentencing is a discretionary exercise. An appellate court can intervene only if the appellant demonstrates either an express or implied material error. The proposed ground of appeal in this case alleges implied error. Such an error arises where the end result is so unreasonable or unjust that the court must conclude that a substantial wrong has occurred. An appellate court cannot substitute its own opinion for that of the sentencing court merely because the appellate court would have exercised a sentencing discretion differently.
It has been said on many occasions by this court and its predecessor that the orthodox approach to an allegation of manifest excess in respect of a sentence is to view that sentence in light of the maximum sentence prescribed by the law for the crime (in this case 20 years' imprisonment), the standards of sentencing customarily imposed with respect to it, the place that the criminal conduct occupies in the scale of seriousness of offences of that type and the offender's personal circumstances.
As will be seen, the submissions of the parties relied in part upon cases said to be comparable to this case. The examination of sentences imposed in comparable cases may inform the task of sentencing. It is relevant to consider the degree to which the impugned sentence differs from sentences that have been imposed in comparable cases. However, the outcomes in comparable cases do not fix the upper and lower limits within which a sentence could properly have been imposed and do not, as a matter of practical reality, bind a court.[8]
[8] See Barbaro v The Queen [2014] HCA 2; (2014) 253 CLR 58 [27]; R v Pham [2015] HCA 39; (2015) 256 CLR 550 [29]; Director of Public Prosecutions (Vic) v Dalgliesh (a pseudonym) [2017] HCA 41 [83].
Submissions
The appellant submitted that the sentence that was imposed for the aggravated burglary offence was manifestly excessive because it was not as serious as other offences of its kind. It was not premeditated and was committed impulsively over a short period of time. The appellant did not go to the house to physically confront the victim. It was not committed at night or in company, nor was any weapon used. Counsel emphasised that the appellant entered a fast‑track plea of guilty to the offence, was remorseful and had not previously been sentenced to an immediate term of imprisonment. The appellant pointed to a number of cases said to be factually more serious than the present case which resulted in a less severe sentence than the one imposed here. See Drake v The State of Western Australia;[9] Mippy v The State of Western Australia;[10] Harrison v The State of Western Australia;[11] The State of Western Australia v Peacock;[12] Smith v The State of Western Australia[13] and McIntyre v The State of Western Australia.[14]
[9] Drake v The State of Western Australia [2006] WASCA 209.
[10] Mippy v The State of Western Australia [2012] WASCA 254.
[11] Harrison v The State of Western Australia [2009] WASCA 58.
[12] The State of Western Australia v Peacock [2013] WASCA 248.
[13] Smith v The State of Western Australia [2015] WASCA 234.
[14] McIntyre v The State of Western Australia [2016] WASCA 150.
The appellant referred to the review of cases undertaken by Hall J in Wragg v The State of Western Australia.[15]
[15] Wragg v The State of Western Australia [2013] WASCA 198; (2013) 234 A Crim R 380.
On behalf of the respondent it was accepted that the sentence imposed upon the appellant was 'high'.[16] It was also conceded that the appellant's act of aggravated burglary was 'not the most serious offence of its kind', acknowledging that it did not involve the use of a weapon, was not committed in company or at night and did not involve the extreme violence seen in some other cases.[17]
[16] Respondent's submissions, par 36.
[17] Respondent's submissions, par 26.
Nevertheless, it was submitted by the respondent that the sentence that was imposed should not be disturbed, having regard to the maximum penalty for the offence, the circumstances of the offence, including the violence that was perpetrated upon a vulnerable woman in her own home in the presence of her children and the need for a strong element of personal deterrence, bearing in mind the appellant's criminal history. The respondent drew the court's attention to the outcomes in Rowsell v The State of Western Australia;[18] Boddington v The State of Western Australia[19] and Dickie v The State of Western Australia[20] to support its case. The respondent submitted that having regard to all relevant sentencing considerations, the sentence that was imposed was not manifestly excessive.
[18] Rowsell v The State of Western Australia [2015] WASCA 2.
[19] Boddington v The State of Western Australia [2013] WASCA 179.
[20] Dickie v The State of Western Australia [2016] WASCA 88.
Disposition
As we have already acknowledged, the maximum penalty for the commission of an aggravated home burglary is 20 years' imprisonment.
Home burglary offences are generally regarded as particularly serious and require substantial penalties to reflect general and personal deterrence and the prevalence of the offence. In recent years, sentences have tended to increase. Burglaries involving the use of threatened or actual violence are usually more serious than those offences that involve simply the intended theft or theft of property.[21]
[21] Jolly v The State of Western Australia [2017] WASCA 181 [40] and The State of Western Australia v Sabek [2005] WASCA 207 [50].
There is no tariff for burglary offences. The circumstances in which offences occur and those of offenders vary widely. Accordingly, the offence attracts a wide range of sentences.
We have had regard to the authorities cited by the parties, some of which were examined by Hall J in Wragg. In that case, his Honour carried out a comprehensive review of burglary offences including those that involved threatened or actual violence. It is unnecessary to repeat that review.
Among the cases examined were a number of cases in which individual sentences of between 3 years 6 months' and 4 years 6 months' immediate imprisonment were imposed. Sentences of that length were imposed in factually more serious offences than the present case. Most, but not all, were imposed after trial. We have also had regard to cases decided since Wragg, including Knight v The State of Western Australia;[22] McIntyre and, most recently, Hume v The State of Western Australia.[23]
[22] Knight v The State of Western Australia [2014] WASCA 217.
[23] Hume v The State of Western Australia [2017] WASCA 205.
The offence committed by the appellant did not have features seen in the more serious cases. The offence was not premeditated and occurred at the spur of the moment. It did not involve the use of a weapon or occur at night and the appellant was not in company. The level of violence used by the appellant was not as extreme as the violence perpetrated in the more serious cases.
None of this detracts from the conclusion that the circumstances of the offence committed by the appellant were plainly serious enough to warrant the imposition of a substantial term of immediate imprisonment. The victim was vulnerable and the offence was committed with young children present. It must have been a terrifying experience for all of them. It cannot be overlooked that the appellant was subject to an intensive supervision order at the time of the offence and it could not be said that the appellant was of good character.
Against all of this must be weighed his fast‑track plea of guilty, his remorse and the steps he had taken towards his rehabilitation.
His Honour was right to recognise the need for both general and personal deterrence. With respect to the latter, we note that the appellant had, by the time he was sentenced, spent 6 months in custody and that he was being sentenced to a term of immediate imprisonment for the first time.
Having considered all of the relevant circumstances and all relevant sentencing factors, we have been persuaded that the sentence that was imposed was more than merely 'high'. With great respect to his Honour, it was manifestly excessive, that is, it was unreasonable or plainly unjust. In our opinion, the length of the sentence was more consistent with one that may have been imposed after trial. This court's jurisdiction to resentence the appellant has been enlivened. In this regard, the court has all the materials it needs to carry out that task.
Resentence
We have evaluated for ourselves all of the relevant facts and circumstances of the case. The appellant's fast‑track plea of guilty warrants a reduction of 25% pursuant to s 9AA of the Sentencing Act. We would impose a sentence of 2 years 3 months' immediate imprisonment with eligibility for parole backdated to commence on 20 September 2016. We would not interfere with the other sentences that were imposed by his Honour or with the order for cumulacy in respect of Bunbury charge number 4003 of 2013. Thus, the total effective sentence now to be served by the appellant is 2 years and 6 months' imprisonment, commencing on 20 September 2016, with eligibility for parole.
Orders
The orders we would make are:
1.Leave to appeal is granted.
2.The appeal is allowed.
3.The sentence imposed by Birmingham DCJ on the charge of aggravated burglary in indictment BUN 155 of 2016 is set aside and in lieu thereof the appellant is sentenced to 2 years and 3 months' immediate imprisonment, commencing on 20 September 2016, with eligibility for parole.
4.All of the other sentences imposed by Birmingham DCJ on 20 March 2017 stand.
5.The total effective sentence to be served by the appellant is now 2 years 6 months' immediate imprisonment, backdated to commence on 20 September 2016, with eligibility for parole.
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