Jackamarra v The State of Western Australia
[2019] WASCA 150
•26 SEPTEMBER 2019
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: JACKAMARRA -v- THE STATE OF WESTERN AUSTRALIA [2019] WASCA 150
CORAM: MURPHY JA
MAZZA JA
MITCHELL JA
HEARD: 12 SEPTEMBER 2019
DELIVERED : 26 SEPTEMBER 2019
FILE NO/S: CACR 186 of 2018
BETWEEN: DARRYL JAMES JACKAMARRA
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram: GOETZE DCJ
File Number : IND 1885 of 2017
Catchwords:
Criminal law - Appeal against sentence - Express error of law - Whether error material - Implied error - Totality principle - Offences committed while on conditional release
Legislation:
Criminal Code (WA), s 401(2)
Result:
Leave to appeal granted
Appeal dismissed
Category: D
Representation:
Counsel:
| Appellant | : | Mr J Gullaci & Ms A A Woldan |
| Respondent | : | Mr B M Murray |
Solicitors:
| Appellant | : | Aboriginal Legal Service (WA) |
| Respondent | : | Director of Public Prosecutions (WA) |
Case(s) referred to in decision(s):
Anderson v The State of Western Australia [2014] WASCA 167
Chadd v The State of Western Australia [2013] WASCA 99
Harding v The State of Western Australia [2015] WASCA 27
Kabambi v The State of Western Australia [2019] WASCA 44
Nolan v The State of Western Australia [2013] WASC 235
Pennetta v The State of Western Australia [2013] WASCA 234
QJS v The State of Western Australia [2015] WASCA 9
Roffey v The State of Western Australia [2007] WASCA 246
Wellstead v The State of Western Australia [2019] WASCA 130
Winmar v The State of Western Australia [2016] WASCA 184
Woods v The State of Western Australia [2017] WASCA 179
JUDGMENT OF THE COURT:
Summary
The appellant was sentenced to a total effective sentence of 6 years' immediate imprisonment, in respect of the following offences:
Sentences on indictment 1885 of 2017
Count (Charge No)
Offence
Date of offence
Maximum (Minimum) sentence
Sentence imposed
Cum/conc
1
(28130/16)
Burglary and commit offence (stealing) in dwelling (Code s 401(2))
11/4/16
18 years
(2 years)
3 years
Head sentence
2
(49560/16)
Aggravated burglary (in company) and commit offence (stealing) in dwelling (Code s 401(2)(a))
30/4/16
20 years
(2 years)
2 years 6 months
Concurrent
3
(49561/16)
Stealing (grounding offence for count 2) (Code s 378)
30/4/16
7 years
No penalty
N/A
Sentences on s 32 Sentencing Act notice
(60623/15)
Stealing (grounding offence for charge 60624/15) (Code s 378)
4/11/15
7 years
No penalty
N/A
(60624/15)
Burglary and commit offence (stealing) in dwelling (Code s 401(2)(b))
4/11/15
18 years
(2 years)
20 months
Concurrent
(60625/15)
Aggravated burglary (in company) and commit offence (stealing) in dwelling (Code s 401(2)(a))
15/9/15
20 years
(1 year)
20 months
Concurrent
(60626/15)
Stealing (grounding offence for charge 60625/15) (Code s 378)
15/9/15
7 years
No penalty
N/A
(49552/16)
Burglary with intent in dwelling (Code s 401(1)(b))
13/3/16
18 years
(2 years)
12 months
Concurrent
(49567/16)
Burglary and commit offence (stealing) in dwelling (Code s 401(2)(b))
7/5/16
18 years
(2 years)
3 years
Cumulative
(49568/16)
Stealing (grounding offence for charge 49567/16) (Code s 378)
7/5/16
7 years
No penalty
N/A
Breach offences (in respect of 8 month community based order made on 20 September 2015)
(32129/15)
Stealing (Code s 378)
13/5/15
7 years
12 months
Concurrent
(45826/15)
Breach of bail (s 51(1) Bail Act 1982)
13/7/15
3 years and/or $10,000 fine
3 months
Concurrent
Total effective sentence
6 years
The appellant appeals against his sentence on two grounds. Ground 1 contends, in effect, that the total effective sentence infringed the first limb of the totality principle. Ground 2 contends that the sentencing judge erred in fact in finding that some of the appellant's offending was committed while he was on parole.
The sentencing judge's statement that the appellant was on parole when some of the offending occurred was incorrect. However, in the circumstances of this case, it was not a material error capable of affecting the sentences imposed. Further, the total effective sentence of 6 years' imprisonment, while high in the circumstances, was not unreasonable or plainly unjust. An implied infringement of the first limb of the totality principle has not been established.
Leave to appeal has been granted on ground 2. While we would also grant leave to appeal on ground 1, in our view the appeal should be dismissed.
Circumstances of offending and bail history
The prosecutor summarised the circumstances of the appellant's offending in the sentencing proceedings,[1] in terms the appellant's sentencing counsel accepted.[2] Those facts were consistent with the sentencing judge's findings.[3] The appellant's custody and bail history is apparent from a combination of his criminal record, the committal reports on the indictment and on the notice under s 32 of the Sentencing Act 1995 (WA) and correspondence the appellant obtained from the Supervised Release Review Board. The appellant referred to the correspondence without objection from the State.
[1] Primary ts 17 - 21.
[2] Primary ts 22.
[3] Primary ts 34 - 36.
The relevant events are summarised in chronological order below.
Detention and supervised release under the Young Offenders Act
Although the sentences are not the subject of this appeal, it is relevant to note that, on 4 November 2013, the appellant was sentenced in the Children's Court of Western Australia to 15 months' detention. The offences for which he was sentenced to detention included two counts of aggravated robbery and one count of home burglary. The 15 month sentence was backdated to commence on 27 August 2013.
The appellant was subject to supervised release on two occasions while subject to the above sentence. On each occasion, the supervised release was cancelled and the appellant returned to custody.[4] The times of the appellant's detention and release on supervised release were as follows:
[4] AB 93 - 94.
(1)27 August 2013 - 11 July 2014: in custody on detention.
(2)11 July 2014 - 22 October 2014: on supervised release.
(3)22 October 2014: supervision order cancelled and warrant issued.
(4)3 December 2014 - 2 April 2015: in custody on detention.
(5)2 April 2015 - 20 May 2015: on supervised release.
(6)20 May 2015: supervision order cancelled and warrant issued.
(7)22 May 2015 - 9 July 2015: in custody on detention.
Stealing on 13 May 2015 (breach of community based order offence)
On 13 May 2015, the appellant's girlfriend stole the complainant's handbag and gave it to the appellant, who rode away on a bicycle. The appellant took $300 from the purse, and threw it away.[5] The sentencing judge resentenced the appellant for this offence (and the offence described at [12] below) as the community based order imposed in respect of these offences was breached.[6]
[5] Primary ts 36.
[6] See Sentencing Act 1995 (WA), s 130.
The appellant was subject to supervised release when the offence of 13 May 2015 was committed. As noted above, he was in the community subject to a supervision order from 2 April 2015 to 20 May 2015.
Release from detention on 9 July 2015
The appellant was unconditionally released from detention on 9 July 2015, having completed the sentences imposed on 4 November 2013.
Breach of bail on 13 July 2015 (breach of community based order offence)
On 13 July 2015 (4 days after his release from detention), the appellant failed to attend court, in breach of his bail, for the charge of stealing committed on 13 May 2015.
Aggravated burglary and stealing on 15 September 2015 (Section 32 notice charges 60625 and 60626/15)
Between 9.30 am and 10.30 am on 15 September 2015, the appellant went to a house in Thornlie with the intention of breaking into the premises to search for items to steal. He was in company with an unidentified co-offender, who kicked open the front door and went inside. Once inside the premises, the co-offender rummaged through the master bedroom, opening a safe and stealing jewellery from inside. The co-offender stole items to the value of $3,100 while the appellant stood outside as a lookout.[7]
[7] Primary ts 20, 35.
A security system installed at the house was activated when the door was kicked open. The appellant and his co-offender were disturbed by a neighbour investigating the alarm. The neighbour chased them from the address.[8]
[8] Primary ts 20.
When committing this offence, the appellant was either on bail or at large having breached his bail.
Community based order imposed on 20 September 2015
On 20 September 2015, the Magistrates Court imposed a community based order for the offences committed on 13 May and 13 July 2015. The order expired after 8 months, on 19 May 2016. The offending referred to below breached that community based order.
Commencement date of 'repeat offender' amendments: 31 October 2015
The 'commencement day' referred to in s 401(4) of the Criminal Code was on 31 October 2015. Home burglary offences committed by a 'repeat offender' after this date are subject to a minimum penalty of 2 years immediate imprisonment. Prior to that date the minimum penalty was 12 months' immediate imprisonment.
Burglary and stealing on 4 November 2015 (Section 32 notice charges 60623 and 60624/15)
Between 10.00 am and 11.15 am on 4 November 2015, the appellant went to a unit in Innaloo with the intention of breaking into the premises to search for items to steal. He entered without the complainant's consent by climbing the rear fence and walking through the unlocked back door. Once inside, he stole the complainant's handbag containing her purse and other personal items from the kitchen counter, stole jewellery from the drawers in the master bedroom, and left the premises.
The appellant's fingerprints were found on the fence capping, and on jewellery boxes in the master bedroom.
At the time of this offending, the appellant was subject to the community based order referred to at [16] above.
Bail for 15 September 2015 and 4 November 2015 offences[9]
[9] See section 32 notice committal report.
On 11 December 2015, the appellant appeared in the Magistrates Court in Perth on charges which included the burglary and stealing offences committed on 15 September 2015 and 4 November 2015. He was remanded in custody on various appearances until a bail hearing on 9 February 2016.
On 9 February 2016, the appellant was granted bail for a mention in the Magistrates Court at Perth on 29 March 2016.
Burglary on 13 March 2016 (Section 32 notice charge 49552/16)
Between 9.00 am and 1.40 pm on 13 March 2016, the appellant was in a street in Carey Park with the intention of breaking into premises. He jumped the perimeter fence and entered the complainant's house by a bedroom window. While inside, he rummaged through several rooms, but did not take any items. He then left the house by the same bedroom window.[10]
[10] Primary ts 20.
The appellant was identified from a forensic examination. The appellant admitted the offending in a recorded interview with police conducted on 13 July 2016.
The appellant was subject to the community based order referred to at [16] above, and on the bail referred to at [22] above, when he committed this offence.
Breach of bail on 29 March 2016
The appellant did not appear at the Magistrates Court mention on 29 March 2016, and a warrant was issued for his arrest.[11] (This was not one of the offences for which the appellant was sentenced by the sentencing judge).
Burglary on 11 April 2016 (Indictment count 1)
[11] Section 32 notice committal report.
Between 7.45 am and 5.40 pm on 11 April 2016, the appellant entered the complainant's Victoria Park house without her consent. He entered the house by kicking open the front door, causing the frame of the door to splinter. He also opened the electricity box which was about 2 metres from the front door.[12]
[12] Primary ts 17.
The appellant stole six World War II memorabilia replica firearms from a display case in the hall, a computer, a safe and its contents and a jewellery box and its contents. The total value of the stolen property was $21,509. None of the property was recovered. The appellant's fingerprint was found on a watch box on the floor of a spare room.[13]
[13] Primary ts 17.
The appellant was subject to the community based order referred to at [16] above, and at large having breached the bail referred to at [22] and [26] above, when he committed this offence.
Aggravated Burglary and stealing on 30 April 2016 (Indictment counts 2 and 3)
Between 9.00 pm on 30 April 2016 and 6.00 am on 1 May 2016, the appellant and an unidentified co-offender attended the complainant's residence in Padbury. The co-offender entered in through an unlocked laundry door. The appellant stood outside and kept watch.
The complainant woke up to go to the toilet. She got out of bed and saw the co-offender standing next to her dressing table. The complainant asked him what he wanted. He put his hand out and rubbed his fingers together. The complainant took that to mean he wanted money. The complainant replied:
To[o] bad, brother, because my daughter did my shopping today and spent it all.
The co-offender kept going through the complainant's dressing table drawers. The co-offender put items from her drawers into a bag he was carrying. The bag was one of the complainant's bags. He continued to search the house while the complainant looked on. The co-offender stole several items, including a purse, jewellery and money. The co‑offender took the complainant's hand and looked at the rings on it. He dropped her hand without taking anything and left. None of the stolen property was recovered.[14]
[14] Primary ts 18.
When the police attended the complainant's premises a few days later, they found a yellow drawstring bag that had the complainant's name on it. It was found outside her house. The appellant's DNA profile matched a DNA profile from the swab taken from the yellow drawstring bag.[15]
[15] Primary ts 19.
The appellant participated in an electronically recorded interview. He admitted that he had committed plenty of burglaries, but could not specifically remember whether he had committed a burglary on the complainant's Padbury house. The appellant said that he had not seen the yellow drawstring bag before.[16]
[16] Primary ts 19.
The appellant was subject to the community based order referred to at [16] above, and at large having breached the bail referred to at [22] and [26] above, when he committed these offences.
Burglary and stealing on 7 May 2016 (Section 32 notice charges 49567 and 49568/16)
Between 11.00 am and 2.30 pm on 7 May 2016, the appellant was at a street in Byford with the intention of breaking into premises to steal items. He entered into the complainant's premises by smashing the glass dining room door with a hammer, which he then put on the kitchen bench.[17]
[17] Primary ts 21.
The appellant entered all rooms of the house and upturned a large amount of property. While inside, he tried to gain entry to a gun safe by using the complainant's axe. The gun safe came away from the wall but, because it was bolted to the ground, the appellant was unable to remove it. The appellant then took property from the house, including electronic devices, vehicle keys, jewellery and a handbag. He then left the house by way of a bedroom window.[18]
[18] Primary ts 21.
The appellant was identified from a forensic examination. The appellant admitted the offending in a recorded interview with police conducted on 13 July 2016.[19]
[19] Primary ts 21.
The appellant was subject to the community based order referred to at [16] above, and at large having breached the bail referred to at [22] and [26] above, when he committed this offence.
Arrest on 19 May 2016
The appellant was arrested on the remand warrant and appeared in the Magistrates Court at Perth on 19 May 2016.[20] He was remanded in custody thereafter, until his sentence.
[20] Section 32 notice committal report.
Personal circumstances
The appellant was 22 years old at the date of sentence. He grew up in a home where alcohol and physical violence were prevalent. The appellant's family moved frequently, which resulted in the appellant attending a number of different primary schools. He required educational support at primary school. The appellant attended Cannington High School irregularly between years 8 and 10. He has trouble reading and writing.[21]
[21] Primary ts 26 - 27, 36.
The appellant had used cannabis and methylamphetamine from the age of 14 years, and had used alcohol from age 15.[22]
[22] Primary ts 36.
The appellant has a significant criminal record in the Children's Court, which showed he has been an offender since a young age. The offences include a number of aggravated burglaries on dwellings and places as well as other serious offending such as stealing, possession of drugs and aggravated robbery.[23]
[23] Primary ts 36.
The appellant was released from juvenile detention in 2015. He went to his mother's place to live. He engaged with Outcare and worked in landscaping and paving. After a time he was re-introduced to methylamphetamine and became a heavy daily user of that drug.[24]
[24] Primary ts 36 - 37.
The appellant pleaded guilty to the offences at the first reasonable opportunity, and received a 25% discount under s 9AA of the Sentencing Act 1995.[25] The sentencing judge accepted that the appellant was remorseful.[26]
[25] Primary ts 38.
[26] Primary ts 38.
The sentencing judge recognised that the appellant had been engaged in work and education programs in the prison system. He had been playing football, and been an umpire, in the prison system and wanted to get back into football, which he had shown promise at before his incarceration. The sentencing judge concluded that the appellant had good prospects of rehabilitation.[27]
[27] Primary ts 38 - 39.
We note that, when he was granted bail on 9 February 2016, a pre‑sentence report and neuropsychological report were ordered and the appellant was referred to the Intellectual Disability Diversion Team. The appellant did not attend any of his appointments, so none of this was progressed. There was no material before the sentencing judge, and there is no material before this court, suggesting that the appellant suffers from a significant disability. At the hearing of the appeal, the appellant's counsel indicated that these matters had been considered, but no point was being raised in relation to the issue on appeal.[28]
[28] Appeal ts 26.
Victim impact
The sentencing judge was provided with a victim impact statement by the complainant in relation to the burglary committed on 11 April 2016. She indicated that she was shocked by the offending. She regarded her house as her safe haven, and her sanctuary. She feels violated, and afraid of being at home alone in case another burglary occurs. She worries what might have happened to her had she been at home and confronted the appellant. She lost family heirlooms of enormous sentimental value in the burglary.
Ground 2: express error
It is convenient to begin by considering ground 2, which alleges express error.
Ground 2 raises an alleged express error by the sentencing judge, when his Honour said:[29]
Now, I won't go through it all, but some of your offending has occurred at night time, some when you were on parole, and some when you were subject to a community based order. So you've breached orders, and that makes your offending more serious. (emphasis added)
[29] Primary ts 38.
The sentencing judge's statement that the appellant committed some of the offences while on parole was not correct. The appellant had never previously been sentenced to a term of adult imprisonment, and so had never been on parole.
The question then arises as to whether this express error is material. As Mazza JA (Hall J agreeing) observed in Harding v The State of Western Australia:[30]
It is important to appreciate that not all errors made in the sentencing of an offender vitiate the exercise of the sentencing discretion and enliven this court's jurisdiction to intervene. The nature of the error which enlivens this court's jurisdiction to intervene was described by Dixon, Evatt and McTiernan JJ in House v The King (1936) 55 CLR 499, 504 ‑ 505. The error must be in the exercise of the sentencing discretion at first instance. An express error which is not material to the exercise of the sentencing discretion, that is, one that did not affect or was incapable of affecting the sentence imposed, is not an error of the type described in House v The King and does not enliven this court's jurisdiction. Whether a particular express error is material will depend upon a consideration of the circumstances of the particular case, but it is as well to appreciate that combing through sentencing remarks on the hunt for some minor express error will be unproductive unless it can be shown to be material to the exercise of the sentencing discretion.
Once an express error of the type described in House v The King has been demonstrated, the appellate court does not assess whether and to what degree the error influenced the outcome. In such a case, the sentencing discretion has miscarried and it is the duty of the appellate court to exercise the discretion for itself afresh.
(some citations omitted)
[30] Harding v The State of Western Australia [2015] WASCA 27 [73] - [74].
In the present case, the better view is that the sentencing judge simply misspoke when delivering his oral sentencing remarks, referring to 'parole' when he meant 'bail'. There was no suggestion in any of the material or submissions before the sentencing judge that the appellant had ever been subject to a term of adult imprisonment that might be the subject of a parole eligibility order. The sentencing judge expressly recognised this when his Honour referred to the appellant's prior criminal record. The sentencing judge said that the appellant's record was 'all from the Children's Court' and that the appellant was released from 'juvenile detention in 2015'.[31] Further, if the sentencing judge had subjectively thought that the appellant had breached parole, it would be expected that his Honour would have enquired as to the period which the appellant would have 'owed' the Parole Board as a result of the breach. This did not occur.
[31] Primary ts 36.
On the other hand, the prosecutor's submissions on sentence had noted that:[32]
The [appellant] was on bail for the offences committed on 15 September 2015 and 4 November 2015 when he committed the offences on 13 March and 7 May 2016. This is an aggravating factor to be taken into account [and] given the [appropriate] weight in the mix of factors to be considered.
In his sentencing remarks, the sentencing judge made no reference to the appellant being on bail during the offending (other than noting the breach of bail offence).
[32] Primary ts 33.
In all the circumstances, the proper inference to be drawn is that the sentencing judge referred to some of the appellant's offending being committed while he was on 'parole', when his Honour meant to say that some of the offending occurred while the appellant was on 'bail'. The appellant's appeal counsel accepted that there would have been no error if the sentencing judge had said 'bail' rather than 'parole' in the impugned passage of his Honour's sentencing remarks.[33]
[33] Appeal ts 21.
In any event, as the summary above indicates, the appellant was subject to some form of conditional release at the time of committing all of the offences which are the subject of this appeal. The appellant was on a conditional release order at the time of committing all of the current offences other than the stealing committed on 13 May 2015, the breach of bail on 13 July 2015 and the burglary committed on 15 September 2015. The appellant was subject to supervised release when he committed the stealing offence on 13 May 2015. He was on bail, or at large having breached bail, when offending on 15 September 2015. The appellant was also on bail at the time of the commission of the offence on 13 March 2016. The appellant was at large, and subject to an arrest warrant for breach of bail, when he offended on 11 and 30 April 2016 and on 7 May 2016.
The fact that he was subject to the kinds of conditional release noted above was an aggravating factor. That the conditional release was pursuant to a bail order, a conditional release order or a supervised release order, as opposed to a parole order, did not reduce the seriousness of the offending.
Hall J (Mazza JA agreeing) summarised the principle that applies to sentencing for offences committed while on some form of conditional release from custody in QJS v The State of Western Australia:[34]
It has long been recognised that the commission of offences whilst on bail on charges of a similar nature is an aggravating factor. The reasons for that are that it shows that the person has little regard for the law and is prepared to offend notwithstanding that he or she has been granted liberty upon a condition of being of good behaviour pending trial. That principle has been consistently applied in this court: The principle has also been applied in the analogous context of an offender who commits offences whilst on parole.
The rationale for treating offending whilst on bail or parole as being an aggravating factor applies equally where a person commits offences whilst on some other form of conditional release, such as an intensive supervision order. An ISO permits the release of an offender into the community on conditions and subject to a proviso that if the offender commits another offence he or she can be sentenced again for the offence for which the ISO was imposed. The commission of an offence whilst on an ISO not only exposes the offender to resentencing for the original offence, it is a factor relevant to the sentencing for the breaching offences. This is not to impose double punishment or to treat the prior offence as an aggravating factor. What is aggravating is not the fact that the offender has committed a prior offence. Rather it is aggravating that the offender committed the offence whilst subject to a court order that placed upon him a particular obligation to be of good behaviour. To commit an offence in those circumstances displays contempt for the law. This is relevant in itself and also because it enhances the need for personal deterrence.
(emphasis added) (citations omitted)
[34] QJS v The State of Western Australia [2015] WASCA 9 [35] - [36].
As this passage indicates, the same principle applies irrespective of whether the offender has been released on bail, parole or some other form of conditional release. We do not accept the appellant's submissions that offending on parole aggravates offending to a greater extent than offending on bail.[35] The extent of disregard for the law is no less.
[35] Appeal ts 21 - 22.
The appellant's submissions also suggest that offending while on parole might show an additional need for personal deterrence, due to the lack of success of past (proximate) imprisonment. However, even if that is so in some cases, in the present case the appellant had previously been sentenced to detention for a large number of offences, including burglary offences. That detention had been served at a time proximate to the current offending. At least in those circumstances, the significance of personal deterrence as a sentencing consideration is not less than would have been the case if the appellant were instead subject to parole.
In our view, the statement that some of the offending occurred on parole was an error that did not affect, and was incapable of affecting, the sentences the sentencing judge imposed on the appellant. The error was not material, and does not enliven the jurisdiction of this court to resentence the appellant.[36]
[36] As to which, see Wellstead v The State of Western Australia [2019] WASCA 130 [87] - [90].
Ground 1: inferred error
Ground 1 in effect contends that the total effective sentence imposed on the appellant infringed the first limb of the totality principle. The appellant's appeal counsel indicated that no challenge was made to any of the individual sentences.
General principles
McLure JA (Steytler P and Miller JA agreeing) summarised the totality principle in Roffey v The State of Western Australia:[37]
The legal principles relevant to the disposition of this appeal are not in dispute. An appellate court is not entitled to intervene merely because it would have exercised the sentencing discretion in a manner different than the sentencing judge. It can only intervene if the sentencing judge has made an express or implied material error of fact or law.
The appellant relies on the totality principle which comprises two limbs. The first limb is that the total effective sentence must bear a proper relationship to the overall criminality involved in all the offences, viewed in their entirety and having regard to the circumstances of the case, including those referable to the offender personally.
The second limb is that the court should not impose a 'crushing' sentence. The word crushing in this context connotes the destruction of any reasonable expectation of a useful life after release. An aggregate sentence may be inappropriately long under the first limb even if it cannot be described as crushing.
The practical effect of the totality principle is ordinarily to arrive at an aggregate sentence that is less than that which would be arrived at by simply adding up all the terms appropriate for the individual offences. A rationale for the totality principle is that there is assumed rehabilitation and reduced demand for retribution after the initial sentences have been served. Where the principle of totality comes into effect, it is of little importance how the ultimate aggregate is made up.
(citations omitted)
[37] Roffey v The State of Western Australia [2007] WASCA 246 [23] - [26].
The following general principles are also well established:[38]
(1)Sentencing is a discretionary exercise. An appellate court can intervene only if the appellant demonstrates either an express or implied material error. Express error involves acting on a wrong principle, for example by mistaking the law or facts or taking into account an irrelevant matter. Implied error arises where the end result is so unreasonable or unjust that the court must conclude that a substantial wrong has occurred. Thus, 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.
(2)The range of sentences customarily imposed for a crime does not establish the range of a sound exercise of the sentencing discretion. Sentences customarily imposed in comparable cases provide a yardstick or reference point for ensuring broad consistency in sentencing, bearing in mind the scope for significant variations in relevant sentencing factors, and that there is no single correct sentence. What is important is the unifying principles which sentences imposed in comparable cases reveal and reflect.
(3)When this court dismisses an appeal against sentence and when it resentences on a successful appeal, its decision does not fix the upper or lower limit of the range.
(4)The real question is whether the total effective sentence imposed on the offender is unreasonable or plainly unjust.
Parties' submissions
[38] See, for example, Kabambi v The State of Western Australia [2019] WASCA 44 [21].
The appellant refers to a number of decisions of this court which have considered appeals relating to total effective sentences for offences which include multiple burglary offences.[39] However, in referring to those cases the appellant's written and oral submissions properly recognise the limits of the utility of other cases in considering issues of totality. The appellant cites Mazza JA's observation in Chadd v The State of Western Australia that:[40]
It is relevant to refer to comparable cases when considering whether the totality principle has been infringed. However, their utility is limited. They may provide broad guidance, but it must be borne in mind that there will often be significant differences in the circumstances of the offending and the offenders. In the end, each case must be determined having regard to its own particular circumstances.
[39] Woods v The State of Western Australia [2017] WASCA 179; Anderson v The State of Western Australia [2014] WASCA 167; Winmar v The State of Western Australia [2016] WASCA 184; Pennetta v The State of Western Australia [2013] WASCA 234 and Nolan v The State of Western Australia [2013] WASC 235.
[40] Chadd v The State of Western Australia [2013] WASCA 99 [45].
The State refers to Hall J's similar observation in Pennetta:[41]
Comparisons with sentences imposed in other cases is necessary where it is claimed that the sentence for an offence is manifestly excessive. In such a case the comparison is undertaken because one of the factors that is relevant is whether the sentences are consistent with those commonly imposed for offences of that type. Where, however, it is only claimed that there has been a breach of the totality principle and no challenge is made to the individual sentences the utility in comparing the total effective sentence with total sentences in other cases is more limited. This is because the total effective sentence is not one imposed for a single offence. It is often difficult enough to compare sentences imposed in different cases with different factual circumstances and different personal circumstances where the offences relates only to a single offence. The fact that different offenders may have received different total effective sentences in respect of different groupings of sentences adds a level of complexity that makes comparisons difficult. Nonetheless it is important to ensure that there is broad consistency in sentences.
[41] Pennetta [39].
Recognising this approach, the parties' submissions are properly focussed on the aggravating and mitigating features of the offending in this particular case.
The appellant's counsel, while recognising the serious nature of the appellant's offences,[42] emphasises the following mitigating factors found by the sentencing judge:[43]
(1)The appellant was a very immature adult male of about 19 - 20 years of age at the time of the offending.
(2)All of the appellant's prior convictions were in the Children's Court and he had not previously been sentenced to adult imprisonment.
(3)The appellant had pleaded guilty at the first reasonable opportunity.
(4)The appellant was remorseful.
(5)The appellant had co-operated with police, answering their questions and making admissions to the best of his ability (given his inability to recall certain particular offences).
(6)The appellant's childhood background of deprivation and denigration, in which he was exposed to alcohol abuse and violence at home.
(7)While he has a drug addiction, on release from detention in July 2015 the appellant had tried to remain drug-free, albeit that the endeavour was ultimately 'spectacularly unsuccessful'.[44]
(8)The appellant had 'good prospects of rehabilitation',[45] and the fact that the appellant had failed on his first attempt to break his drug habit did not make it inevitable that he would continue to fail.[46]
[42] Appeal ts 28.
[43] Appeal ts 29 - 32; Amended appellant's submissions, par 18.
[44] Appeal ts 29.
[45] Referring to the sentencing judge's finding at primary ts 38.
[46] Appeal ts 29.
Counsel for the State emphasises:[47]
(1)The serious nature of the burglaries, both in terms of the intrusion into the victims' homes and the value of property taken, which was never recovered.
(2)The large number of burglaries in which the appellant was involved over a short period.
(3)The multiple prior opportunities for rehabilitation of which the appellant has not taken advantage.
(4)The elevated need for personal deterrence and community protection apparent from the appellant's past risk of offending.
(5)The significance of general deterrence as a sentencing consideration for this kind of offending.
[47] Appeal ts 36 - 39; Respondent's submissions par 24 - par 30.
Some of the appellant's oral submissions focussed on the decision to accumulate the individual sentences for the burglaries committed on 13 March 2016 and 11 April 2016.[48] However, as the State's counsel points out[49] and as is recognised in the passage from Roffey quoted at [63] above, where the principle of totality comes into effect it is of little importance how the ultimate aggregate is made up.
Disposition
[48] Appeal ts 27 - 28, 32.
[49] Appeal ts 36.
Some of the offences the appellant committed were subject to mandatory minimum penalties of 1 or 2 years' immediate imprisonment. A term of immediate imprisonment was the only available sentencing option. Given the number of offences the appellant committed, and the different times and locations at which they were committed, some degree of accumulation of individual sentences of immediate imprisonment was inevitable. There is, and could be, no complaint about the decision to impose terms of immediate imprisonment and accumulate some of those terms.
The critical issue in this case is whether the length of the total effective sentence of 6 years' immediate imprisonment is disproportionate to the overall criminality of the appellant's offending, having regard to the circumstances of the case, including those referable to the appellant personally, so as to be unreasonable or plainly unjust.
While not in the worst category, a number of the burglary offences summarised above were very serious. The offence of 15 September 2015 involved the appellant being in company, the kicking open of a front door and stealing $3,100 worth of property. The offending on 11 April 2016 involved the appellant kicking open a front door and stealing property worth $21,509, much of which was also of significant sentimental value to the householder. The burglary on 30 April 2016 was again in company, and involved the co-offender entering an occupied house and interacting with the complainant. The burglary on 7 May 2016 involved upturning a large amount of property, causing damage to a gun safe and attempting to obtain firearms. The overall criminality involved in all of this offending was high.
It was also a significant aggravating feature of the appellant's offending that the offences were committed while the appellant was subject to the forms of conditional release noted above. Further, the entrenched nature of the appellant's offending conduct, reflected in the persistence displayed over the period of September 2015 to May 2016 and the appellant's prior antecedents, have to be taken into account. Notwithstanding the finding as to the appellant's prospects for rehabilitation, personal deterrence appropriately remained a significant sentencing factor in the exercise of the judge's sentencing discretion.
Having regard to the mitigating factors referred to by the appellant's counsel, the total effective sentence of 6 years' immediate imprisonment must be regarded as high. It was significant that the appellant was very young at the time of offending, had not previously been sentenced to imprisonment, showed remorse and had good prospects of rehabilitation. However, those mitigating factors must be balanced against the features of the offending noted above.
There are some similarities and a number of significant differences between the present case and the authorities to which the appellant has referred. Having regard to those similarities and differences, the total effective sentence imposed in this case is broadly consistent with those upheld in the other cases.
In the end, we are not satisfied that the total effective sentence of 6 years' immediate imprisonment was unreasonable or plainly unjust, so that error is to be inferred from the outcome of the exercise of the sentencing discretion. In our view, the total effective sentence bore a proper relationship to the overall criminality involved in all the offences, viewed in their entirety and having regard to the circumstances of the case, including those referable to the appellant personally.
For the above reasons ground 1, while arguable, is not established.
Other matters
We note two other matters, which were discussed in the course of submissions.
First, the burglary offences committed on 4 November 2015 and 13 March 2016 were subject to a minimum mandatory penalty of 2 years' imprisonment. The sentencing judge imposed a sentence of 20 months and 12 months' imprisonment respectively for those offences. This was an error in the appellant's favour. Understandably, the appellant does not advance any ground of appeal raising this error.[50] There is no State appeal against those individual sentences. If either or both grounds 1 and/or 2 had been established, it would have been necessary for this court on resentencing to impose at least the mandatory minimum sentence of 2 years' immediate imprisonment in respect of those individual offences. However, as none of the appellant's grounds are established, this court has no power to interfere in the absence of a State appeal against the individual sentences.
[50] See appeal ts 27.
Secondly, the sentencing judge said that the maximum penalty for the burglary offence of 11 April 2016, charged as count 1 in the indictment, was 20 years' imprisonment.[51] In fact, count 1 did not plead any of the circumstances of aggravation specified in the definition of that term in s 400(1) of the Criminal Code. In these circumstances, the maximum penalty for the offence charged in count 1 was only 18 years' imprisonment.[52] However, when the court raised this issue with the appellant's appeal counsel, counsel indicated that the point was not being pursued.[53] Counsel did not seek to amend the grounds of appeal to allege this error. That was a reasonable course for counsel to adopt. The decision of this court in Harding strongly suggests that the error was not material in the present circumstances.[54]
[51] Primary ts 34.
[52] Section 401(1)(b) of the Criminal Code.
[53] Appeal ts 26 - 27.
[54] See Harding [41] - [49], [76] and [87].
Orders
For the above reasons, we would make the following orders in this appeal:
(1)Leave to appeal is granted on ground 1.
(2)The appeal is dismissed.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
ZMM
Research Associate/Orderly to the Honourable Justice Mitchell26 SEPTEMBER 2019
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