JKL v The State of Western Australia
[2012] WASCA 215
•29 OCTOBER 2012
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: JKL -v- THE STATE OF WESTERN AUSTRALIA [2012] WASCA 215
CORAM: BUSS JA
MURPHY JA
MAZZA JA
HEARD: 20 JUNE 2012
DELIVERED : 29 OCTOBER 2012
FILE NO/S: CACR 153 of 2011
BETWEEN: JKL
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
ON APPEAL FROM:
Jurisdiction : SUPREME COURT OF WESTERN AUSTRALIA
Coram :MURRAY J
File No :INS of 2011
Catchwords:
Criminal law - Appeal against sentence - Offences of aggravated burglary, stealing motor vehicle, stealing and criminal damage by fire - Whether total effective sentence of 4 years' imprisonment offended totality principle - Whether individual sentences manifestly excessive - Cooperation with law enforcement agencies after sentencing - Discount for cooperation - Appellant resentenced - turns on own facts
Legislation:
Criminal Code (WA), s 371A, s 378, s 401(1), s 444(1)
Result:
Appeal allowed
Appellant resentenced
Category: D
Representation:
Counsel:
Appellant: Mr S D Freitag
Respondent: Mr J McGrath SC
Solicitors:
Appellant: Simon Freitag
Respondent: Director of Public Prosecutions (WA)
Case(s) referred to in judgment(s):
A Child v The State of Western Australia [2007] WASCA 285
Bazzi v The State of Western Australia [2007] WASCA 195
Chan v The Queen (1989) 38 A Crim R 337
Colwell v The State of Western Australia [No 2] [2012] WASCA 196
Dunks v The State of Western Australia [2009] WASCA 82; (2009) 195 A Crim R 130
Hapke v The State of Western Australia [2006] WASCA 188
Hayes v The Queen [1981] WAR 252
Heferen v The Queen [1999] WASCA 81; (1999) 106 A Crim R 89
Herbert v The Queen [2003] WASCA 61; (2003) 27 WAR 330
House v The King [1936] HCA 40; (1936) 55 CLR 499
Karolides v The State of Western Australia [2006] WASCA 240
Lowndes v The Queen [1999] HCA 29; (1999) 195 CLR 665
Ly v The Queen [2007] NSWCCA 28
McLaughlin v The State of Western Australia [2012] WASCA 204
Moreton v The State of Western Australia [2011] WASCA 258
Muldrock v The Queen [2011] HCA 39; (2011) 244 CLR 120
MXP v The State of Western Australia [2010] WASCA 215; (2010) 41 WAR 149
Nannup v The State of Western Australia [2011] WASCA 257
Newton v The State of Western Australia [2006] WASCA 247
R v Baldock [2010] WASCA 170; (2010) 269 ALR 674
R v Catts (1996) 85 A Crim R 171
R v Gallagher (1991) 23 NSWLR 220
Reid v The State of Western Australia [2010] WASCA 70
Samuels v The State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473
Stavrianakos v The State of Western Australia [2011] WASCA 130
The State of Western Australia v Bennett [2009] WASCA 93; (2009) 194 A Crim R 137
The State of Western Australia v BLM [2009] WASCA 88; (2009) 40 WAR 414
The State of Western Australia v Diek [2011] WASCSR 126
The State of Western Australia v Viskari [2008] WASCA 143
The State of Western Australia v Wallam [2008] WASCA 117; (2008) 185 A Crim R 116
TXT v The State of Western Australia [2012] WASCA 28
Ugle v The State of Western Australia [2012] WASCA 104
Wilson v The State of Western Australia [2010] WASCA 82
Wright v The State of Western Australia [2010] WASCA 14
BUSS JA: The appellant appeals to this court against sentence.
He was convicted, on his pleas of guilty before Murray J in the Supreme Court, on 11 counts in an indictment.
The offences comprised four counts of aggravated burglary (counts 1, 3, 6 and 8); one count of stealing (count 10); five counts of stealing a motor vehicle (counts 2, 4, 5, 7 and 9); and one count of criminal damage by fire (count 11).
Counts 1 and 2 (being one count of aggravated burglary and one count of stealing a motor vehicle) were committed at about 12.30 am on 6 June 2011. Counts 3, 4 and 5 (being one count of aggravated burglary and two counts of stealing a motor vehicle) were committed at about 12.30 am on 9 June 2011. Counts 6 and 7 (being one count of aggravated burglary and one count of stealing a motor vehicle) were committed at about 1.30 am on 9 June 2011. Count 8 (being one count of aggravated burglary) was committed at about 2.30 am on 9 June 2011.
On 9 June 2011, the police apprehended the appellant and his co‑offenders. On that date the appellant made admissions, in the course of a video‑recorded interview with the police, in relation to counts 1 ‑ 8 which, as I have mentioned, were committed between 6 and 9 June 2011. The appellant was charged with those offences and released on conditional bail.
On 2 July 2011, the appellant, while on bail, committed counts 9, 10 and 11 (being one count of stealing a motor vehicle, one count of stealing and one count of criminal damage by fire).
On 4 July 2011, the police apprehended the appellant. On that date he admitted, in the course of a video‑recorded interview with the police, that he had committed counts 9, 10 and 11. The appellant was charged with those offences. His conditional bail was revoked. He was remanded in custody between 4 July 2011 and 1 September 2011, when he was sentenced.
The sentencing judge imposed individual sentences of immediate imprisonment, as follows:
(a)on each of the aggravated burglary counts, 2 years 6 months, with the sentences to be served concurrently with each other;
(b)on each of the stealing and the stealing a motor vehicle counts, 18 months, with the sentences to be served concurrently with each other, but cumulatively on the sentences for the aggravated burglary counts; and
(c)on the criminal damage by fire count, 4 years, to be served concurrently with the other sentences.
The total effective sentence was therefore 4 years' imprisonment. That sentence was back‑dated to 4 July 2011. A parole eligibility order was made.
The facts and circumstances of the offending and the appellant's personal circumstances
The facts and circumstances of the offending and the appellant's personal circumstances are set out in the confidential schedule to the reasons of Murphy JA.
The appellant's applications for leave to adduce additional evidence in the appeal
The appellant has filed applications for leave to adduce additional evidence in the appeal. One application is dated 27 November 2011 and the other 14 February 2012. The applications are supported by affidavits sworn by his lawyer, Simon Dieter Freitag. The additional evidence relates to the appellant's cooperation with law enforcement authorities. Details of this cooperation are set out in the confidential schedule to the reasons of Murphy JA. The cooperation was provided by the appellant after the sentencing judge imposed sentence. It does not now include an offer to provide assistance to the authorities in the future. It is past cooperation.
On 24 January 2012 and 15 February 2012, Mazza JA referred the applications for leave to adduce additional evidence to the hearing of the appeal.
The grounds of appeal
The appellant relies on four grounds of appeal.
Ground 1 alleges, in substance, that the total effective sentence infringed the first limb of the totality principle.
Ground 2 alleges that the individual sentence for the criminal damage by fire count was manifestly excessive.
Ground 3 alleges that the individual sentences for the stealing and the stealing a motor vehicle counts were manifestly excessive.
Ground 4, without the supporting particulars, alleges:
The Appellant's sentence ought to be revisited in light of the fresh evidence available to the Court that supports the Appellant's submission that he was prepared to provide a statement against the co‑accused and give evidence against him.
On 24 January 2012, Mazza JA granted leave to appeal on ground 4 and referred the application for leave to appeal on grounds 1, 2 and 3 to the hearing of the appeal.
Ground 2
It is convenient, first, to consider ground 2.
Ground 2 contends that the individual sentence of 4 years' immediate imprisonment imposed by the sentencing judge for the offence of criminal damage by fire (count 11) was manifestly excessive.
A ground of appeal which asserts that a sentence is manifestly excessive asserts the existence of an implied error. It is necessary, in determining whether a sentence is manifestly excessive, to examine it from the perspective of the maximum sentence prescribed by law for the relevant offence, the standards of sentencing customarily observed with respect to that offence, the place which the criminal conduct occupies on the scale of seriousness of offences of the kind in question, and the personal circumstances of the offender.
Sentencing ranges can provide only general guidance. The limits of the guidance afforded by comparable cases are flexible rather than rigid. A sentencing range is merely one of the factors to be taken into account in deciding whether a sentence is manifestly excessive. The mere fact that a sentence is within the range of other sentences imposed for similar offences does not necessarily establish that there was an appropriate exercise of the sentencing discretion in the particular case. Similarly, the mere fact that a sentence is outside that range does not necessarily establish that the exercise of the sentencing discretion in the particular case miscarried.
Section 444(1)(a) of the Criminal Code (WA) (the Code) provides (and, at the material time, provided) that any person who wilfully and unlawfully destroys or damages any property is guilty of a crime and is liable, if the property is destroyed or damaged by fire, to life imprisonment.
Prior to the commencement of the Arson Legislation Amendment Act 2009 (WA) on 19 December 2009, the maximum penalty for this offence was 14 years' imprisonment or, if the offence was committed in 'circumstances of racial aggravation' (as defined in s 80I of the Code), 20 years' imprisonment.
In McLaughlin v The State of Western Australia [2012] WASCA 204, I examined:
(a)the amendments made by the Arson Legislation Amendment Act;
(b)the sentencing patterns prior to the commencement of the Arson Legislation Amendment Act for the offence of wilfully and unlawfully destroying or damaging property by fire, contrary to s 444(a) of the Code, as then enacted; and
(c)the impact on those sentencing patterns of the increase in the maximum penalty after the commencement of the Arson Legislation Amendment Act.
It is unnecessary to reproduce my observations in McLaughlin on these issues.
The appellant's offending in relation to count 11 was serious.
Counts 9, 10 and 11 were related offences. All of them occurred within a relatively short time on 2 July 2011.
Count 9 alleged that the appellant stole the motor vehicle in question. Count 10 alleged that he stole a car stereo system from the vehicle. Count 11 alleged that he wilfully and unlawfully destroyed the vehicle by fire.
The appellant intentionally set fire to the stolen motor vehicle. The vehicle was destroyed. He destroyed the vehicle with the intention of concealing any forensic evidence that might implicate him in the stealing offences.
On 4 July 2011, the appellant was arrested. He participated in a video‑recorded interview with the police and made full admissions.
When the appellant committed counts 9, 10 and 11 he was on bail for counts 1 ‑ 8. His continued offending reveals a blatant disregard for the law and underscores the need for personal deterrence, even though the counts for which he was on bail did not include an arson offence. See, generally, Moreton v The State of Western Australia [2011] WASCA 258 [47(d)].
The degree of seriousness of the appellant's offending in relation to count 11 must be assessed by having regard not only to the facts and circumstances of the offence, but also to the absence of a number of aggravating factors which are sometimes encountered with arson offences. In particular:
(a)the offence did not endanger human life;
(b)no-one other than the appellant and his co‑offender was in the vicinity when the fire was started;
(c)no dwellings or business premises were endangered;
(d)the property damaged by the fire was confined in essence to the vehicle;
(e)the fire was not part of an insurance or other fraud; and
(f)the fire was not started for the purpose of revenge or to intimidate others.
At the time of the offending the appellant was aged 21. He had the mitigation of youth. As I observed in Ugle v The State of Western Australia [2012] WASCA 104:
Ordinarily, an offender's youth is a significant mitigating factor. This reflects the view that the interests of the community are best served by determined efforts to rehabilitate a youthful offender (including a very young adult). A very young adult may be impressionable, impulsive and less cognisant of the seriousness of particular offending than an older person. Also, a lengthy term of imprisonment will ordinarily be a heavier burden on a very young adult. However, youth must be weighed against the facts and circumstances of the offences which have been committed. A substantial custodial sentence may be required in an appropriate case, despite the offender's youth, in order properly to reflect the need to protect the public or a section of it, and the need for personal and general deterrence. See Ainsworth v D (a child) (1992) 7 WAR 102, 117 (Malcolm CJ, Franklyn & White JJ agreeing) [71].
The appellant cooperated with the police and the processes of the court. He entered early pleas of guilty. The sentencing judge found that he was genuinely remorseful [20].
The appellant had a prior criminal record before he committed counts 1 ‑ 11 between 6 June 2011 and 2 July 2011. However, the prior record related to a relatively short period from September 2009 to May 2011. It mainly involved traffic offences. The penalties imposed were limited to fines and driver's licence disqualifications. The appellant had not previously been imprisoned or detained.
Counts 1 ‑ 11 represented a significant escalation in the appellant's offending. Although he admitted to illicit drug and alcohol use, this does not appear to have been a material factor in his offending. The appellant expressed a wish to rehabilitate himself. He told the author of the pre‑sentence report that he is easily influenced by others. The appellant attributed the escalation in his offending to his association with a co‑offender with whom he was living at the time. He has ceased associating with this co‑offender and has refused visits from him. The appellant intends to return to his family home after his release from custody. His parents support him.
The offending in relation to count 11 was too serious to permit any other sentencing disposition than a term of immediate imprisonment. The appropriate course was to reflect the matters of mitigation in the length of the term.
In my opinion, when all of the relevant facts and circumstances are examined and weighed from the perspective of the maximum penalty (life imprisonment), the objective seriousness of the offending, the sentencing dispositions in comparable cases (but bearing in mind the increase in the maximum penalty pursuant to the Arson Legislation Amendment Act), the mitigating factors and the appellant's personal circumstances, the individual sentence of 4 years' immediate imprisonment for count 11 was unreasonable or plainly unjust.
Ground 2 has been made out.
Ground 3
I turn to ground 3.
Ground 3 contends that the individual sentences for the stealing and the stealing a motor vehicle counts were manifestly excessive.
The maximum penalty for the offence of stealing (count 10), contrary to s 378 of the Code, is 7 years' imprisonment.
The maximum penalty for each of the offences of stealing a motor vehicle (counts 2, 4, 5, 7 and 9), contrary to s 371A read with s 378 of the Code, is also 7 years' imprisonment.
These offences were committed in darkness during the early hours of the morning. The offending was not impulsive. It was premeditated and planned.
The appellant committed the stealing and the stealing a motor vehicle counts (except for the stealing a motor vehicle offence in count 9) in company with a co‑offender or co‑offenders. Their intention was that the stolen property would be sold and the proceeds divided among them.
The appellant told the author of the pre‑sentence report:
[The appellant] acknowledged that his behaviour was ... motivated by the prospects of financial gain. He admitted he had outstanding loans, which were placing him under pressure and to some degree he indicated he was also jealous of the co‑offender's possessions, which included a high performance vehicle and motorbikes ... that had apparently been purchased with the proceeds of crime.
Fortunately, most of the stolen motor vehicles were recovered. The appellant assisted the police in recovering them.
The stealing count (count 10) involved stealing a car stereo system which was fitted to the motor vehicle, the subject of count 9, that was destroyed by fire. The prosecution notice stated that the system had a value of $500. It is not apparent whether the property was recovered.
The facts and circumstances relating to the stealing of the car stereo system did not (when viewed in the context of the maximum penalty, the objective seriousness of the offending (including the value of the property), established sentencing patterns, the mitigating factors and the appellant's personal circumstances) justify a sentence of 18 months' immediate imprisonment. I am satisfied that this sentence was manifestly excessive.
The stealing a motor vehicle counts involved stealing three off‑road motor cycles (counts 2, 4 and 5), one motor cycle (count 7) and one motor vehicle sedan (count 9).
I have had regard to the sentences for stealing a motor vehicle referred to in such cases as Karolides v The State of Western Australia [2006] WASCA 240, The State of Western Australia v Viskari [2008] WASCA 143, Dunks v The State of Western Australia [2009] WASCA 82; (2009) 195 A Crim R 130 and Nannup v The State of Western Australia [2011] WASCA 257.
Like the offending in relation to count 11, the stealing a motor vehicle counts were too serious to permit any other sentencing disposition than a term of immediate imprisonment. As with count 11, the appropriate course was to reflect the matters of mitigation in the length of the terms.
Although the individual sentences imposed in the present case for the stealing a motor vehicle counts were high, I am not persuaded that they were manifestly excessive. The terms of 18 months' immediate imprisonment were not unreasonable or plainly unjust in the context of the maximum penalty (7 years' imprisonment), established sentencing patterns, the nature and circumstances of the offending (including the premeditation, planning and motive), the mitigating factors and the appellant's personal circumstances.
Ground 3 succeeds in part.
Ground 1
I turn to ground 1.
Ground 1 contends that the total effective sentence of 4 years' immediate imprisonment infringed the first limb of the totality principle.
A complaint that a sentencing judge has infringed the totality principle involves an allegation of inferred error. The first limb of this principle requires that the total effective sentence imposed on an offender who has committed multiple offences must bear a proper relationship to the overall criminality involved in all of the offences (including those, if any, in respect of which the offender is still serving a term of imprisonment), viewed in their entirety, having regard to all relevant circumstances including those referable to the offender personally (and including, for example, the desirability of accommodating any wish to rehabilitate).
The appellant's overall offending was, no doubt, serious. It included four separate aggravated burglaries (in company). These burglaries were committed at night against residential premises that were occupied when the offending occurred. The motive for the burglaries was financial gain. There was premeditation and planning.
It is readily apparent from the relevant facts and circumstances that the other offending was also serious.
The appellant committed counts 9, 10 and 11 while he was on bail. This was an aggravating factor. Some accumulation of the individual sentences was necessary.
It is true that there were some significant mitigating features. I note, in particular, the appellant was cooperative with the police before he was sentenced by the sentencing judge; he entered pleas of guilty; he expressed genuine remorse; he is youthful; his prior criminal offences were relatively minor; he had not previously been sentenced to imprisonment or juvenile detention; he appears to have gained some insight into his offending and has expressed an apparently sincere wish to rehabilitate himself; and his prospects of rehabilitation have been enhanced by his ceasing to associate with the co‑offender who appears to have influenced him and by the support of his parents.
In the end, I am not persuaded that the total effective sentence of 4 years' immediate imprisonment infringed the first limb of the totality principle. I am satisfied, upon evaluating all of the relevant facts and circumstances from the perspective of the maximum penalties, the objective seriousness of the overall offending, the sentencing dispositions in comparable cases, the appellant having committed counts 9, 10 and 11 while on bail, the significant mitigating features and the appellant's personal circumstances, that the total effective sentence was not disproportionate to his overall criminality.
Ground 1 fails.
Ground 4
It is unnecessary to consider ground 4 in the context of deciding whether the appeal should be allowed. I merely note that it should not be assumed that the ground reveals an appealable error of fact or law or an appealable miscarriage of justice.
The result of the appeal and the re‑sentencing of the appellant
I would grant leave to appeal on grounds 1, 2 and 3. The errors that have been established in the context of ground 2 and, in part, ground 3 enliven this court's power to intervene. The appeal should be allowed and the sentencing decision of the sentencing judge should be set aside. This court has the materials necessary to re‑sentence the appellant.
I will deal, first, with the appellant's applications for leave to adduce additional evidence in the appeal.
Section 41(4) of the Criminal Appeals Act2004 (WA) reads:
The appeal court deciding an appeal that does or may require it to impose a sentence, or to vary a sentence imposed, on a person for an offence (whether the appeal was commenced by the person or by the prosecutor) ‑
(a)may take into account any matter, including any material change to the person's circumstances, relevant to the sentence that has occurred between when the lower court dealt with the person and when the appeal is heard; but
(b)despite paragraph (a), must not take into account the fact that the court's decision may mean that the person is again sentenced for the offence. (emphasis added)
Section 41(4) applies where an appeal court is deciding an appeal against sentence that:
(a)does require it to impose a sentence, or to vary a sentence imposed, on a person for an offence; or
(b)may require it to impose a sentence, or to vary a sentence imposed, on a person for an offence.
It is unnecessary, in this appeal, to explore any limits upon or pre-conditions to the exercise of the power conferred by s 41(4)(a), or the interaction or relationship between 41(4)(a) and s 39 of the Criminal Appeals Act or the more general powers under s 40 of that Act. I merely note that in The State of Western Australia v Wallam [2008] WASCA 117; (2008) 185 A Crim R 116, McLure JA stated that s 41(4) applies where an appealable error has been established [27].
In the present case, for the reasons I have given, an appealable error has been established, namely, the error alleged in ground 2 and, in part, the error alleged in ground 3. As I have mentioned, the additional evidence sought to be adduced by the appellant relates to cooperation with law enforcement authorities provided by the appellant after the sentencing judge imposed sentence. The cooperation does not now include an undertaking to assist the authorities in the future. It comprises past cooperation. An appealable error having been established and it being necessary to re‑sentence the appellant, the additional evidence should be received in the appeal pursuant to s 41(4)(a). It is not rendered inadmissible by s 41(4)(b). The evidence is relevant to the re‑sentencing. I would grant leave to adduce it.
The principles to be applied in determining the nature, extent and value of an offender's past and promised future cooperation with law enforcement agencies, and the appropriate level of any discount on his or her sentence, were examined by this court in MXP v The State of Western Australia [2010] WASCA 215; (2010) 41 WAR 149.
The rationale for allowing a sentencing discount for cooperation with law enforcement agencies is the demonstration of genuine remorse and apparent rehabilitation and, also, the public interest in the detection and successful prosecution of crime. See TXT v The State of Western Australia [2012] WASCA 28 [28] (Buss JA, Mazza JA agreeing).
After taking into account the maximum penalties and all other relevant facts, circumstances and sentencing factors (and reducing, on account of the early pleas of guilty, the cooperation with the law enforcement authorities and the other mitigating factors I have listed at [62] above, the sentences I would otherwise have imposed), I would re‑sentence the appellant, as follows:
(a)2 years 3 months' immediate imprisonment on each of the aggravated burglary counts (counts 1, 3, 6 and 8), with the sentences to be served concurrently with each other;
(b)16 months' immediate imprisonment on each of the stealing a motor vehicle counts (counts 2, 4, 5, 7 and 9), with the sentences to be served concurrently with each other;
(c)2 months' immediate imprisonment on the stealing count (count 10); and
(d)2 years 8 months' immediate imprisonment on the criminal damage by fire count (count 11).
The individual sentence for count 11 (2 years 8 months) should be served partly concurrently with the individual sentence for count 1 (2 years 3 months). Seven months of the individual sentence for count 1 is to be served before the individual sentence for count 11 begins. See s 88(4) of the Sentencing Act 1995 (WA). All of the other individual sentences are to be served concurrently with the individual sentence for count 1.
The total effective sentence is therefore 3 years 3 months' immediate imprisonment. The total criminality of all of the appellant's offending is properly marked, and all relevant sentencing principles are satisfied, by a total effective sentence of this length. I have taken into account matters of mitigation, including the appellant's cooperation with the law enforcement authorities.
The new total effective sentence should be taken to have taken effect on 4 July 2011.
The appellant should remain eligible for parole.
MURPHY JA:
Introduction
This is an appeal against sentence. The appellant had pleaded guilty to eleven counts on the indictment.
The appellant was sentenced on 1 September 2011 to a total effective sentence of 4 years' imprisonment in respect of four counts of aggravated burglary, five counts of stealing a motor vehicle, one count of stealing, and one count of criminal damage by fire (arson). The offences relate to five separate incidents. The fifth incident occurred when the appellant was on bail for the offences with respect to the first four incidents.
The total effective sentence was structured as follows:
| Incident | Count | Offence | Criminal Code Provisions | Maximum sentence | Sentence | Concurrent/ Cumulative |
| 1. | (1) | Aggravated Burglary | s 401(1) | 20 years | 2 years 6 months | |
| (2) | Steal Motor Vehicle | s 371A, s 378 | 7 years | 1 year 6 months | Concurrent on each stealing charge but cumulative on aggravated burglary charges | |
| 2. | (3) | Aggravated Burglary | s 401(1) | 20 years | 2 years 6 months | Concurrent |
| (4) | Steal Motor Vehicle | s 371A, s 378 | 7 years | 1 year 6 months | Concurrent on each stealing charge but cumulative on aggravated burglary charges | |
| (5) | Steal Motor Vehicle | s 371A, s 378 | 7 years | 1 year 6 months | Concurrent on each stealing charge but cumulative on aggravated burglary charges | |
| 3. | (6) | Aggravated Burglary | s 401(1) | 20 years | 2 years 6 months | Concurrent |
| (7) | Steal Motor Vehicle | s 371A, s 378 | 7 years | 1 year 6 months | Concurrent on each stealing charge but cumulative on aggravated burglary charges | |
| 4. | (8) | Aggravated Burglary | s 401(1) | 20 years | 2 years 6 months | Concurrent |
| 5. | (9) | Steal Motor Vehicle | s 371A, s 378 | 7 years | 1 year 6 months | Concurrent on each stealing charge but cumulative on aggravated burglary charges | |
| (10) | Stealing | s 378 | 7 years | 1 year 6 months | Concurrent on each stealing charge but cumulative on aggravated burglary charges | ||
| (11) | Criminal Damage by Fire | s 444(1) | Life imprisonment | 4 years | Concurrent | ||
| Total term of imprisonment | 4 years | ||||||
The background facts and circumstances of the offending, the sentencing remarks of the primary judge and the details of the appellant's co‑operation with authorities are set out in the schedule of these reasons. The schedule will be the subject of a confidentiality order. It will not be published except to the appellant and the State and their respective legal representatives.
Grounds of appeal
There are four grounds of appeal, which are in the following terms:
1.The total sentence imposed was manifestly excessive having regard to the personal circumstances of the Appellant and the circumstances of the offences.
Particulars
a)The Appellant pleaded guilty to all matters and demonstrated remorse;
b)The offending, while serious, was confined to a relatively short period of time;
c)The Appellant made significant admissions to Police, and cooperated with them in the recovery of a large amount of the property; and
d)The Appellant's stated offer of co‑operation against co‑accused.
2.The sentence imposed for the Criminal Damage by Fire matter was manifestly excessive given personal circumstances of the Applicant as particularised in ground 1.
3.The sentences imposed for Stealing and Steal Motor Vehicle matters were manifestly excessive given the client's personal circumstances as particularised in ground 1.
4.The Appellant's sentence ought to be revisited in light of the fresh evidence available to the Court that supports the Appellant's submission that he was prepared to provide a statement against the co‑accused and give evidence against him.
Particulars
a)A letter dated the 9th of November 2011 from the Appellant's Counsel to the Rockingham detectives office and the Appeals Team at the State DPP
The grounds of appeal were filed on 21 November 2011. On 7 December 2011, the appellant filed an application and supporting affidavit, sworn by his counsel, seeking leave to admit further evidence in relation to the co‑operation with authorities after sentencing.
On 24 January 2012, the appellant was granted leave to appeal in relation to ground 4. The application for leave to appeal on grounds 1, 2, 3 and the application to admit further evidence were referred to the hearing of the appeal.
On 14 February 2012, the appellant filed a further application and supporting affidavit, sworn by his counsel, for leave to admit additional evidence in relation to evidence that was provided by the appellant against the co‑accused. On 17 February 2012, the appellant's application for leave to rely on the additional evidence dated 14 February 2012 was referred to the hearing of the appeal.
After outlining the relevant principles, these reasons will deal with the second and third grounds concerning manifest excess. For the reasons outlined later, it will be unnecessary to address ground 1, concerning the totality principle. Finally, ground 4 will be addressed.
Principles
Appellate review generally
The relevant principles governing an appellate court's review of sentencing were outlined by McLure P and Owen JA in Wilson v The State of Western Australia [2010] WASCA 82 [2]:
The relevant principles on which an appellate court operates are dictated by the Criminal Appeals Act 2004 (WA) and by previous decisions of the High Court and of this court that we are bound to follow or that represent persuasive authority. Those principles include the following.
1.The imposition of a sentence involves the exercise of a discretion. An appellate court can only intervene if the appellant demonstrates that the judge erred in exercising the discretion in one of two ways. The first is called express error and it involves acting on a wrong principle, for example, by mistaking the law, mistaking the facts, taking into account an irrelevant matter or failing to take into account a relevant consideration. The second is referred to as implied or inferred error. It arises where, although it is not possible to discover the exact nature of the error, the end result is so unreasonable or unjust that the court must conclude that a substantial wrong has occurred: House v The King [1936] HCA 40; (1936) 55 CLR 499, 505. In most instances a challenge based on implied error will involve the contention that an individual sentence is manifestly excessive (or inadequate) and (or) that the total effective term imposed for all charges offends the totality principle.
2.It follows that the appeal court will not intervene simply because the members of the court, had they been sentencing the offender at the original hearing, might have imposed a different sentence: House (505).
3.Even if error is demonstrated the appellate court can intervene only if it is satisfied that a different sentence should have been imposed at the original hearing: Criminal Appeals Act s 31(4)(a).
4.An appellant must obtain leave to appeal on each ground that she or he wishes to advance in support of the appeal and the court must not grant leave unless it is satisfied that the ground has a reasonable prospect of succeeding: Criminal Appeals Act s 27(1) and (2).
5.To have a reasonable prospect of succeeding, a ground must have a rational and logical prospect of succeeding, or a real prospect of success: Samuels v The State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473 [25] ‑ [61], especially [56].
In Lowndes v The Queen [1999] HCA 29; (1999) 195 CLR 665, the full bench of the High Court said [15]:
[A] court of criminal appeal may not substitute its own opinion for that of the sentencing judge merely because the appellate court would have exercised its discretion in a manner different from the manner in which the sentencing judge exercised his or her discretion. This is basic. The discretion which the law commits to sentencing judges is of vital importance in the administration of our system of criminal justice. (footnotes omitted).
Manifest excess
In order to determine whether a sentence is manifestly excessive it is necessary to view it from the perspective of the maximum sentence prescribed by law for the offence, the standards of sentencing customarily observed with respect to that offence, the place which the criminal conduct occupies in the scale of seriousness of offences of that type, and the personal circumstances of the offender: Chan v The Queen (1989) 38 A Crim R 337, 342.
Ground 2 - Criminal damage by fire - whether sentence manifestly excessive
In relation to the charge of criminal damage by fire, the appellant was sentenced to 4 years' imprisonment to be served concurrently with the sentences in relation to stealing and aggravated burglary. The appellant submits that the sentence of four years was manifestly excessive given the mitigatory factors personal to the appellant and the circumstances of the offending.
The appellant says it is significant that the offence did not entail any immediate danger to life; that it was not part of an insurance or other fraud; and that it was not done to intimidate others or for revenge.
The appellant also submits that there were a large number of mitigatory factors, being: the pleas of guilt; the remorse; the admissions and co‑operation that the appellant had offered; the appellant's lack of any previous serious or relevant record; the appellant's young age; the time already spent in custody (approximately two months at the time of sentencing); and the appellant's strong family support.
The judge observed (at [11] ‑ [12]) that the maximum penalty for arson was life imprisonment. He recorded that he was told that the vehicle was of considerable value, and he said in effect that it was a particularly serious offence, done with a view to destroying evidence, and that its seriousness had been increased by reason of the offence having been committed while the appellant was on bail.
Maximum sentence for arson
Section 444 of the Criminal Code (WA) provides:
444.Criminal damage
(1)Any person who wilfully and unlawfully destroys or damages any property is guilty of a crime and is liable ‑
(a)if the property is destroyed or damaged by fire, to life imprisonment; or
(b)if the property is not destroyed or damaged by fire, to imprisonment for 10 years or, if the offence is committed in circumstances of racial aggravation, to imprisonment for 14 years.
Alternative offence: s. 445.
Summary conviction penalty: for an offence where ‑
(a)the property is not destroyed or damaged by fire; and
(b)the amount of the injury done does not exceed $25 000,
imprisonment for 3 years and a fine of $36 000.
(2)Property that is capable of being destroyed or damaged by fire includes vegetation.
Prior to the Arson Legislation Amendment Act 2009 (WA), the maximum penalty for criminal damage by fire (except in circumstances of racial aggravation) was 14 years. Where the offence was committed in circumstances of racial aggravation, the maximum penalty for criminal damage by fire was 20 years. Following the Arson Legislation Amendment Act 2009 (s 11), the maximum penalty for criminal damage by fire (whether in circumstances of racial aggravation or otherwise) was increased to life imprisonment. The amendment, s 2, applies to offences committed after 19 December 2009: Western Australia, Government Gazette, No 238 (18 December 2009) 5167. A review of the arson offences in Western Australia was conducted following the serious Victorian bushfires in February 2009, and the increased maximum penalty was one of a number of amendments in relation to fire offences effected in consequence of that review. In the Second Reading Speech on 14 October 2009 the Attorney General said:
The Arson Legislation Amendment Bill 2009 will strengthen protection to persons and property provided by arson‑related offences in the Criminal Code and the Bush Fires Act 1954. It will introduce a new bushfires offence into the Criminal Code, clarify the applicability of existing offences against the person to harm caused by fire, and increase the maximum penalties available under existing offences.
Following the tragic events in Victoria in February 2009, the government undertook a review of arson offences in Western Australia. The review focused on whether or not, given comparative offences and penalties in other Australian jurisdictions, the criminal law in Western Australia was adequate. The findings of this review, relevant parts of the Model Criminal Code and the views of the Standing Committee of Attorneys General form the basis for the Arson Legislation Amendment Bill 2009.
The increase in the maximum penalty in relation to s 444 offences was designed to bring it into line with the majority of other Australian jurisdictions: Explanatory Memorandum, Arson Legislation Amendment Bill 2009 (WA) cl 11.
An increase in the maximum penalty for an offence is an indication that sentences for that offence should be increased: Muldrock v The Queen [2011] HCA 39; (2011) 244 CLR 120 [31]; Herbert v The Queen [2003] WASCA 61; (2003) 27 WAR 330 [133]; Sentencing Act 1995 (WA), s 6(2)(a). It requires the court to regard offences of that kind more seriously in the future: The State of Western Australia v BLM [2009] WASCA 88; (2009) 40 WAR 414 [35]. It is the duty of the court to give effect to the policy behind the change: Heferen v The Queen [1999] WASCA 81; (1999) 106 A Crim R 89 at [35].
Standards of sentencing and general principles
In The State of Western Australia v Bennett [2009] WASCA 93; (2009) 194 A Crim R 137 [48], Miller JA (Owen & Buss JJA agreeing) outlined a range of sentences that arson offences commonly attracted. His Honour said that in 'pre‑transitional terms', the offence commonly attracted sentences within a range of 4 to 7 years in 'very serious cases', and 3 to 5 years in 'less serious cases'. This range was converted into 'post‑transitional' terms in Wright v The State of Western Australia [2010] WASCA 14. In Wright v The State of Western Australia, Owen JA (McLure P agreeing, Wheeler JA dissenting on a different point) said [54]:
Identifying an appropriate range is not a science. The range is merely a guideline and does not establish an immutable rule about the adequacy of sentences either within or outside the range ... Bennett stands as authority for three propositions:
(a)the dominant sentencing consideration in cases of arson is general deterrence;
(b)the personal circumstances of an offender carry less weight in cases of arson than they might otherwise do; and
(c)there is no tariff for the offence of arson, but in 'post-transitional' terms the offence commonly attracts sentences within a range of 2 years and 8 months and 4 years and 8 months in very serious cases and 2 years to 3 years and 4 months in less serious cases.
Owen JA added [55] that:
For present purposes it can be accepted that the range refers to cases in which the offender has pleaded guilty.
The fact that a sentence is outside the range of other sentences imposed for similar offences does not of itself establish that the exercise of the sentencing discretion in the particular case miscarried: Ly vThe Queen [2007] NSWCCA 28 [20]; R v Baldock [2010] WASCA 170; (2010) 269 ALR 674 [147].
The dominant sentencing consideration in relation to arson offences is general deterrence as these offences are relatively easy to commit while the consequences can often be extremely destructive: R v Catts (1996) 85 A Crim R 171, 176 per Anderson J (Rowland & Ipp JJ agreeing).
Some relevant factors to be taken into account in determining the seriousness of an offence of arson are motive; the extent of the damage; the nature of the property damaged (eg, whether it is a residential dwelling); and the extent to which the offence endangered human life: Newton v The State of Western Australia [2006] WASCA 247 [13].
The cases canvassed by the parties in submissions
Each of the following appellate cases relate to offences which occurred before the Arson Amendment Act came into force, on 19 December 2009.
The State of Western Australia v Bennett [2009] WASCA 93 - Sentence for arson: 4 years
This case involved a State appeal on the grounds that the sentences imposed on the respondent, both individually and in aggregate, did not reflect the seriousness of the offending and were so inadequate as to indicate implied error. The offender was sentenced by the primary judge to a total effective sentence of 15 months' imprisonment for the offences of threatening to kill, stealing a motor vehicle and arson. The individual sentence in respect of the arson was 15 months. The other terms were ordered to be served concurrently.
The offender was living in a house owned by his estranged partner. In the week leading up to the arson, the offender had threatened to kill his partner, and had also threatened to destroy the contents of her home and to burn the house down.
The offender, while intoxicated, stole a car from a petrol station, drove the car 50 m to the house and crashed into a brick wall at the front of the house. He then obtained a 20‑litre jerry can of petrol and proceeded to spread petrol throughout the house. He ignited the fuel, causing a substantial fire. The house was seriously damaged by the fire and required demolition and rebuilding.
The offender had a serious record of prior criminal convictions.
The Court of Appeal allowed the appeal and found that the sentence in relation to the arson charge was manifestly inadequate. It set aside the sentence and replaced it with one of 4 years' imprisonment. The sentence in relation to the offence of threatening to kill was ordered to be served cumulatively on the sentence for the arson. The total effective sentence was 4 years 9 months' imprisonment.
It is to be observed that in Bennett the offending was of a more serious nature than the appellant's offending in this case, and the accused in Bennett, unlike the appellant, had a significant criminal record.
Wright v The State of Western Australia [2010] WASCA 14 - Sentences for arson: 3 years 3 months (one count) and 2 years (another count - not appealed)
The appellant was sentenced to a total term of 6 years and 3 months' imprisonment for a string of offences which included burglary, armed robbery, stealing motor vehicles and arson. The single ground of appeal related to whether the individual sentence of 3 years and 3 months imposed in relation to the arson offence was manifestly excessive. The basic facts of that offence were that the appellant, in company, had broken into business premises and searched an office trying to find money. Combustible material on a shelf was ignited resulting in significant damage to the premises. The damage to the property was in excess of $100,000. The appellant said that someone else had lit the fire, but he admitted to being present at the time. There were considerable mitigating factors which included the appellant's age, plea of guilty, health problems and voluntary disclosures.
Owen JA enunciated the propositions referred to in [99] above.
Owen JA noted that although the offending in relation to the charge of arson was serious, it lacked a number of features that were often present in very serious examples of arson. His Honour said that, for example, there was no evidence that anyone other than the offender (or offenders) was present; there was no immediate danger to life; the fire was not part of a fraud; and it was not started for revenge or to intimidate others [56].
The sentence of 3 years and 3 months was described as being 'at the high end of the range of sentences in the less serious category and at the low end of the more serious category' [57]. Although Owen JA noted that the sentence was 'very high given that it falls in the less serious category', his Honour found that the sentence was not 'so out of kilter' with other sentences commonly imposed in relation to this type of offending to demonstrate manifest excess [58] (McLure P agreed with Owen JA). The application for an extension of time was refused and the appeal against sentence was dismissed.
Wheeler JA dissented. Her Honour considered that the sentence in respect of the arson was 'out of kilter' given the strong mitigatory circumstances surrounding the offending, and would have reduced the sentence in relation to the individual charge by 12 months [63]. However, her Honour noted that the change in the individual sentence would not affect the total effective sentence that was originally imposed, as a shorter total effective term would not adequately reflect the appellant's overall criminality [64].
In Wright, the appellant had also pleaded guilty to a separate charge of criminal damage by fire, the sentence of which was not under appeal. In relation to that incident, the appellant had stolen a car. He picked up a friend and drove the car around for a while. It was then agreed that they should burn the car so as not to be identified as the offenders. The appellant then drove the car to an intersection, set the car alight and left it to burn at the intersection. The fire was started by igniting paper that was in the rear seat with the vehicle's cigarette lighter. The appellant was sentenced to 2 years' imprisonment in respect of this charge, which was ordered to be served concurrently.
As noted later in these reasons, the respondent in this appeal submits (correctly, in my view) that the appellant's offending in the present case was more in the nature of the second offence of criminal damage by fire in Wright (2 years' imprisonment imposed) than the offence under appeal in Wright (3 years and 3 months' imprisonment imposed).
Pustkuchen v The State of Western Australia [2010] WASCA 11 - Sentence for arson: 5 years
The appellant in company of another broke into a residential house when no-one was present and stole various items contained in the house. The appellant then set fire to the house in order to destroy any forensic evidence that may have been left behind. The value of the property and contents that was destroyed was approximately $400,000.
The appellant pleaded guilty to the charge of stealing, but pleaded not guilty to the charge of criminal damage by fire, suggesting that the fire in the premises may have been ignited by a discarded cigarette butt. The appellant was convicted of the charge of arson and sentenced to 5 years' imprisonment in respect of that individual charge.
The single ground of appeal related to whether the total effective sentence of 7 years, which included an additional year in relation to a previous sentence that had been suspended, infringed the totality principle. The appellant had long‑standing drug abuse problems, a lengthy criminal record and had spent much of his adult life in prison. The sentence was found not to offend the totality principle and the appeal was dismissed.
It is to be noted that the arson offence in Pustkuchen was clearly of a more serious nature than the offence the subject of this appeal, and the offender there had a long criminal record and had pleaded not guilty to the arson charge.
Lesay v The State of Western Australia [2011] WASCA 154 - Sentence for arson: 12 months
The appellant pleaded guilty to a number of offences that included criminal damage, arson and fraud. In relation to the charges of criminal damage and arson, the facts are as follows. The appellant and his fifteen year old son drove a stolen vehicle to two shopping centres in the early hours of the morning and attempted to break into ATMs using a crowbar and explosives. After the attempts proved unsuccessful, they drove the stolen vehicle into bushland, poured petrol on it and set the vehicle alight to avoid detection in relation to the other offences. The vehicle was valued at approximately $10,000. In relation to the arson offence, the appellant was sentenced to 12 months' imprisonment to be served cumulatively with the other sentences. The total effective sentence (which included 12 months' imprisonment for the fraud) was 4½ years. Leave to appeal against sentence on totality grounds was refused and the appeal was dismissed.
It is to be noted that the arson in Lesay involved, as in this case, the setting alight of a stolen car to avoid detection.
Evans v The State of Western Australia [2012] WASCA 13 - Sentence for arson: 4 years
The appellant had pleaded not guilty to charges of burglary and arson. After trial, the appellant was convicted of both charges and sentenced to a total of 7 years' imprisonment (including cumulated sentences in respect of a number of other offences to which the appellant had earlier pleaded guilty). In relation to the charge of arson, the appellant was sentenced to 4 years' imprisonment. The facts are as follows. The appellant was in a relationship with a woman who worked as a receptionist at a business. The woman had fraudulently taken tens of thousands of dollars from the business. The appellant agreed to burn down the premises so as to destroy any evidence that linked the woman with the fraud. He obtained a sledge hammer, a balaclava, and a jerry can of fuel. He was given by the woman the key and alarm code for the business premises, which he used to gain entry to the premises. To make it look like the premises had been forcibly entered, he smashed the glass panel to the front door. The appellant poured fuel over the area where the financial records were kept and set it alight. The resultant fire caused approximately $420,000 worth of damage. The appellant was 32 years of age and had a lengthy criminal history, including multiple convictions for burglary, stealing, fraud, and assaults. There was no evidence of any remorse. The appellant applied for leave to appeal against sentence on totality grounds and on the basis that the 4 years' imprisonment for arson was manifestly excessive. Leave to appeal was refused and the appeal was dismissed.
It is to be noted that the criminality involved in the arson offence in Evans was substantially more serious than the criminality involved in the appellant's offence in this case. Also, unlike the appellant in this case, the offender in Evans pleaded not guilty, had a lengthy criminal record and had shown no remorse.
The parties also referred to a number of single judge decisions, but they are not particularly helpful in the disposition of this appeal.
The respondent's contentions
The respondent, in this appeal (written submissions pars 22 ‑ 23), accepts that the offence in question did not fall within the 'very serious category' of offence of the kind in Bennett (in which a sentence of 4 years was imposed by this court). In this regard, the respondent submits that the arson offence in this case is factually similar to the arson sentence that was not under appeal in Wright (2 years' imprisonment concurrent with other sentences) and the arson charge in Lesay (12 months' imprisonment cumulative on other sentences) as both involved stolen motor vehicles being deliberately destroyed by fire in order to avoid detection of other offences. The respondent, nevertheless, contends that these sentences were arguably lenient and at the bottom end of the common range identified for less serious cases. For that reason, the respondent argues that these cases ought to be regarded as of limited value for comparison purposes. The respondent further contends that the aggravating features of the offending in the present case, particularly the fact that the arson offence was committed whilst the appellant was on bail, and the increased maximum penalty for arson, indicate that a term of 4 years' imprisonment was within a sound discretionary range.
Disposition
Although the arson was not part of an insurance fraud, a significant aggravating factor is that it was done to conceal other offences committed with a view to profit. The fact that the appellant was on bail is also an important aggravating factor, as it shows a blatant disregard of the law: see Moreton v The State of Western Australia [2011] WASCA 258 [47] and the cases there cited. Nevertheless, as the respondent accepts, the appellant's offence was still not in the very serious category for this type of offence. In this regard, it is to be noted that there was no immediate danger to life; the fire was not started for revenge and it was not calculated to intimidate others; the offence was limited in scale and in its disruptive effects; and the property damage was confined to a car - it did not, for example, involve public infrastructure or residential or commercial premises. Viewed overall, the offending is properly regarded as one toward the higher end of the range of seriousness within the less serious category of arson offences referred to in Wright.
Mitigatory factors also require consideration. Although general deterrence is the dominant sentencing consideration, it is not the sole or exclusive consideration. In this case, it was appropriate to take into account other considerations which, when combined, were of significant mitigatory effect. These were the appellant's admissions to the police; his assistance in helping police recover certain property; his early plea of guilt; his young age; his remorse; his lack of any material record; the fact of no prior imprisonment; and his strong family support in rehabilitation.
In the course of my review of the authorities referred to earlier, I have identified what I consider to be the points of distinction or commonality with the case under appeal. Bearing in mind the considerations discussed above, a period of imprisonment of 4 years is, in my view, significantly 'out of kilter' with the sentences commonly imposed, subject to the question of the 2009 amendment.
Whilst sentences may be expected to increase generally in response to the increase in maximum penalty to life after the introduction of the Arson Legislation Amendment Act 2009, it is to be expected that, generally speaking, the level of increase will be seen at its greatest in respect of offences in the most serious category of cases, of which this is not one. In the particular circumstances of this case, some level of increase would be expected, albeit relatively modest.
When some allowance is properly made for the statutory increase in the maximum sentence, a sentence of 4 years' imprisonment is, nevertheless, in the circumstances of this case, one which falls outside a sound discretionary range. In my view, implied error has been established.
Ground 3 - Stealing sentences - whether manifestly excessive
The appellant contends in the third ground of appeal that the individual sentences imposed for the stealing and steal motor vehicle charges were manifestly excessive. The appellant did not refer to any authorities in support of that contention.
Stealing car stereo
The appellant pleaded guilty to a charge on the indictment of stealing a car stereo which was valued at $500. The maximum sentence for stealing contrary to s 378 of the Criminal Code is 7 years' imprisonment. He was sentenced to 18 months' imprisonment.
The offence was committed in company with a co‑offender and while the appellant was released on bail for other serious offences. Committing offences on bail is a significant aggravating feature as it shows blatant disregard for the law (see [128] above). Despite this, and having regard to the mitigatory circumstances discussed above at [129], the sentence is manifestly excessive and demonstrates implied error.
Stealing motor vehicles
The appellant was convicted on his own plea of guilty of five counts of stealing a motor vehicle. The maximum sentence for stealing a motor vehicle contrary to s 371A and s 378 of the Criminal Code is 7 years' imprisonment.
In relation to each of the five counts of stealing a motor vehicle, the appellant was sentenced to 18 months' imprisonment. There is no doubt that this sentence is at the high end, however similar length terms for the offence of stealing a motor vehicle can be found in Hapke v The State of Western Australia [2006] WASCA 188; Karolides v The State of Western Australia [2006] WASCA 240; Reid v The State of Western Australia [2010] WASCA 70.
The offences were committed in the company of a co‑offender or co‑offenders, with the exception of count 9, which was committed while the appellant was on bail for other serious offences. The offences were premeditated. They were committed for the purpose of profit. It is of some mitigatory weight that the majority of the stolen property was recovered. The mitigatory factors discussed earlier are also relevant.
In these circumstances, and bearing in mind that the appellant has not pointed to any authority in support of the proposition that the sentences were outside a sound range, I am not persuaded that the sentences imposed in relation to stealing motor vehicles are so manifestly excessive as to demonstrate error.
Ground 1 and the need for resentencing
The sentence imposed by the sentencing judge in relation to ground 2 and in part, ground 3, demonstrated implied error, and in my view, in each case a different sentence should have been imposed. Accordingly, I would allow the appeal: s 31(4)(a) Criminal Appeals Act 2004 (WA).
Where a court allows an appeal against sentence, it must set aside the sentence and impose a new sentence or may send the charge back to the court that imposed the sentence to be dealt with further: s 31(5) Criminal Appeals Act 2004. There are sufficient materials to enable the court to resentence the appellant. As discussed below, these include the materials the subject of ground 4. In these circumstances, it is not necessary to consider totality under ground 1 prior to the exercise of resentencing. I now turn to ground 4.
Ground 4 and the application to admit additional evidence in relation to co‑operation
The appellant applied to adduce additional evidence in relation to his co‑operation with law enforcement agencies following sentencing by the primary judge.
Error having been established under grounds 2 and 3 as indicated above, the evidence may, and in my view should, be admitted pursuant to s 41(4) of the Criminal Appeals Act 2004 (WA). In this regard, s 41(4) of the Criminal Appeals Act 'applies where an appealable error has been established': The State of Western Australia v Wallam [2008] WASCA 117; (2008) 185 A Crim R 116 [27].
Section 41(4) provides:
The appeal court deciding an appeal that does or may require it to impose a sentence, or to vary a sentence imposed, on a person for an offence (whether the appeal was commenced by the person or by the prosecutor) ‑
(a)may take into account any matter, including any material change to the person's circumstances, relevant to the sentence that has occurred between when the lower court dealt with the person and when the appeal is heard; but
(b)despite paragraph (a), must not take into account the fact that the court's decision may mean that the person is again sentenced for the offence.
It is, accordingly, unnecessary to consider the discretionary considerations which would be relevant where no error has been established and the court is asked to exercise the power available to it pursuant to the operation of s 39(1), s 39(3) and s 40(1)(e) of the Criminal Appeals Act - as to which see, for example, Stavrianakos v The State of Western Australia [2011] WASCA 130 [27] ‑ [28].
The details of the appellant's co‑operation with authorities are set out in the confidential schedule of these reasons.
Disposition - discount for co‑operation
For present purposes, it is sufficient to note that ordinarily, a discount should be allowed to an offender who has given or promised some material information or assistance. Where an offender has given past or promised future co‑operation, the focus of attention, in relation to sentencing, must be on the nature, extent and value of this co operation: Nannup v The State of Western Australia [2011] WASCA 257 [64] (Buss JA, McLure P & Mazza J agreeing).
The relevant factors include (TLM v The State of Western Australia [2009] WASCA 106 [16]):
(a)whether the assistance demonstrates genuine remorse or contrition;
(b)whether the assistance is potentially useful to the authorities. (The usefulness may be tested by reference to whether it assists or is likely to assist in bringing about the apprehension or conviction of another offender and by considering the seriousness of the offence committed by the other offender); and
(c)the extent of the likely danger or hardship which the person assisting authorities may be placed in or may undergo as a result of the cooperation.
In A Child v The State of Western Australia [2007] WASCA 285, Wheeler and McLure JJA observed that the giving of a discount reflects two underlying principles [12]:
One is that assistance to the authorities, and the offer of future assistance, may be one of the most unequivocal and practical demonstrations of genuine remorse and rehabilitation. The other is that there is a clear public interest in giving a significant discount, since it is to the advantage of ordinary law‑abiding citizens that crime should be detected and successfully prosecuted.
There is no 'tariff' discount for co‑operation with law enforcement agencies; whether and to what extent there is a discount depends on all the circumstances of the particular case, and the resulting discount may be small or large: MXP v The State of Western Australia [2010] WASCA 215; (2010) 41 WAR 149 [54]; A Child v The State of Western Australia [13]; Bazzi v The State of Western Australia [2007] WASCA 195 [26]; R v Gallagher (1991) 23 NSWLR 220, 234. A 'pragmatic case by case approach' has been adopted: Hayes v The Queen [1981] WAR 252, 253 (Burt CJ, Wickham & Kennedy JJ agreeing).
In my view, in re‑sentencing the appellant, some discount for the appellant's co‑operation with the police is warranted.
I would take into account that, on the one hand, the appellant's assistance did prove to be of material value to the police in preferring charges against one of the appellant's co‑offenders. Also, although the police officer considered that there was sufficient evidence to prove all the charges against another co‑offender without the appellant's assistance, it is apparent from the chronological narrative of the emails referred to in the confidential schedule, that it was only after the appellant had provided a written statement to the police and it was forwarded to the solicitor for the other co‑offender, that there emerged a formal acknowledgment in writing that the other co‑offender would be pleading guilty. The proper inference to be drawn is that the appellant's assistance also made some contribution, albeit somewhat limited, to the formal pleas of guilt by the other co‑offender.
On the other hand, there is the fact that the assistance only came after the appellant was sentenced. This tends to indicate that the provision of co‑operation arose out of self‑interest, and possibly from a sense of grievance that the others involved should also be punished, rather than any remorse beyond that which the sentencing judge acknowledged in his original sentencing. There is no evidence, one way or another, as to whether the assistance has placed the appellant in any danger or hardship and, accordingly, that is not a factor which can be brought to account.
Conclusion and re‑sentencing
In light of the foregoing, there should be leave to appeal with respect to grounds 2 and 3. Leave should also be granted in relation to the applications to admit further evidence the subject of the affidavits dated 7 December 2011 and 14 February 2012. The appeal should be allowed with respect to grounds 2, 3 (in part) and 4. The sentences imposed by the sentencing judge should be set aside.
Taking into account all the various matters referred to earlier, including some limited discount for co‑operation, the factors in mitigation, and the aggravating fact of his reoffending on bail, the appellant should be resentenced to a total effective sentence of 3 years' imprisonment as follows:
•2 years 2 months' imprisonment in respect of each count of aggravated burglary (counts 1, 3, 6 and 8);
•15 months' imprisonment in respect of each count of stealing a motor vehicle (counts 2, 4, 5, 7 and 9);
•3 months' imprisonment in respect of the count of stealing (count 10);
•3 years' imprisonment in respect of the charge of criminal damage by fire (count 11).
Having regard to considerations of totality, it is unnecessary to make orders under s 88(3) of the Sentencing Act, and pursuant to s 88(2) all the terms will be served concurrently.
The total effective sentence of 3 years' imprisonment should be backdated to 4 July 2011. The appellant should remain eligible for parole.
MAZZA JA: I have read in draft the separate reasons of Buss and Murphy JJA.
I gratefully adopt Murphy JA's description of the facts and circumstances of the appellant's offending, his antecedents, the reports before the primary judge, the primary judge's sentencing remarks and the particulars of the appellant's post‑sentencing cooperation, all of which are contained in the confidential memorandum. The grounds of appeal are reproduced in Murphy JA's reasons and do not require repetition.
I agree for the reasons given by Buss and Murphy JJA that the individual sentences imposed for the offences of stealing a motor vehicle (counts 2, 4, 5, 7 and 9) were not manifestly excessive, but the sentence imposed for the offence of stealing a car stereo (count 10) was manifestly excessive. Ground 3 should be upheld in part.
I agree for the reasons given by Buss JA that the sentence imposed for the offence of arson of the motor vehicle (count 11) was manifestly excessive. Ground 2 should be upheld.
Notwithstanding the manifestly excessive sentences and leaving to one side the appellant's post‑sentencing cooperation, I would not have interfered with the total effective sentence of 4 years' imprisonment. Consequently I would not have upheld ground 1 as framed. Counts 10 and 11 were not committed in isolation. The appellant's other offending must also be taken into account. That offending was very serious, even when viewed against the substantial mitigating factors of youth, the early pleas of guilty and the ongoing support of the appellant's family.
Although the individual sentences in respect of counts 10 and 11 would be reduced, the total effective sentence of 4 years' imprisonment would remain a just reflection of the appellant's overall criminality in all the circumstances.
To my mind, the real question in this appeal is whether, and to what extent, material error having been established in respect of the individual sentences on counts 10 and 11, the court may take into account the appellant's post‑sentencing cooperation.
There are two provisions in the Criminal Appeals Act 2004 (WA) which are relevant to the consideration of this question.
The first is s 41(2) which reads:
If under this Act an appeal court varies or sets aside a sentence (sentence A), it may vary any other sentence -
(a)that was imposed at or after the time when sentence A was imposed; and
(b)that took into account sentence A.
This subsection gives this court a discretion when it sets aside or varies a sentence on appeal to vary any other sentence which was imposed at the time or after the sentence the subject of the appeal was imposed. The power is conditional upon the other sentence (or sentences) taking into account the sentence varied or set aside on appeal.
There are a number of circumstances to which s 41(2) could apply. One circumstance that comes to mind is that very frequently when a court sentences an offender for multiple offences considerations of totality apply. If one or more sentences are varied or set aside on appeal it may be appropriate to vary some or all of the other sentences. I emphasise the word 'may' in the previous sentence. It will not invariably be the case that other sentences will have to be varied. Much turns on the particular case and such factors as the seriousness of the other offending and the extent to which the other sentences took account of the sentence the subject of the appeal.
The second provision is s 41(4) of the Criminal Appeals Act. The terms of this subsection are set out in the reasons of both Buss and Murphy JJA at [68] and [144] respectively.
It is plain from its text that when this court is deciding an appeal against sentence and it is required or may be required to vary a sentence, it may take into account any relevant matter which has occurred between the sentencing before the primary judge and the hearing of the appeal.
In my opinion s 41(4) applies whenever this court does or may be required to vary an erroneous sentence or 'any other sentence' to which s 41(2) applies.
In the present case, error has been established in respect of the sentences imposed on counts 10 and 11. The sentences imposed on these counts must be varied. The sentence on count 11 was substantially longer than any of the other individual sentences imposed by the primary judge. It is clear that the other sentences took into account this erroneous sentence. The discretion of this court to vary the other sentences has been enlivened.
As this court is required or may be required to vary the sentences imposed by the primary judge it is now open to it to take into account the appellant's cooperation after he was sentenced. That cooperation has been analysed by Murphy JA.
I wish to make it clear that, in the absence of material error, I would not have admitted the evidence of the appellant's post‑sentencing cooperation pursuant to s 40(1)(e) of the Criminal Appeals Act and I would not have upheld ground 4. This is not a case where insufficient or inaccurate information was given to the primary judge about the appellant's cooperation. Nor can it be said that there was a failure to appreciate the facts which were relevant to sentence. At the time of sentencing no cooperation had been given and his counsel conceded that there was no material upon which the primary judge could discount the sentence. The appellant could have given cooperation prior to being sentenced but did not do so. The cooperation that he gave occurred well after he filed his notice of appeal. Any question of a reduction would have been a matter for the Executive to decide: see Colwell v The State of Western Australia [No 2] [2012] WASCA 196 [28] ‑ [30].
In my view leave to appeal should be given in respect of grounds 1, 2 and 3. I would uphold ground 2 in whole and ground 3 in part. I would resentence the appellant as proposed by Murphy JA in [155] and [157] of his reasons.
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