Jolly v The State of Western Australia

[2017] WASCA 181

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT :   THE COURT OF APPEAL (WA)

CITATION:   JOLLY -v- THE STATE OF WESTERN AUSTRALIA [2017] WASCA 181

CORAM:   BUSS P

MAZZA JA

HEARD:   5 OCTOBER 2017

DELIVERED          :   12 OCTOBER 2017

FILE NO/S:   CACR 120 of 2017

BETWEEN:   DALE STUART JOLLY

Appellant

AND

THE STATE OF WESTERN AUSTRALIA
Respondent

ON APPEAL FROM:

Jurisdiction              :  DISTRICT COURT OF WESTERN AUSTRALIA

Coram  :TROY DCJ

File No  :IND 28 of 2016

Catchwords:

Criminal law - Application for extension of time to appeal against sentence - Criminal damage - Aggravated burglary - Discount for guilty plea - Whether sentence manifestly excessive - Whether total effective sentence of 5 years' imprisonment infringed first limb of totality principle

Legislation:

Criminal Code (WA), s 401, s 444
Sentencing Act 1995 (WA), s 9AA

Result:

Application for extension of time dismissed
Leave to appeal refused
Appeal dismissed

Category:    D

Representation:

Counsel:

Appellant:     In person

Respondent:     No appearance

Solicitors:

Appellant:     In person

Respondent:     Director of Public Prosecutions (WA)

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

Greenland v The State of Western Australia [2017] WASCA 83

KAT v The State of Western Australia [2017] WASCA 11

Knight v The State of Western Australia [2014] WASCA 217

McIntyre v The State of Western Australia [2016] WASCA 150

Mippy v The State of Western Australia [2012] WASCA 254

R v Faithfull [2004] WASCA 39

Rossi v The State of Western Australia [2014] WASCA 189

Topic v The State of Western Australia [2013] WASCA 157

Wragg v The State of Western Australia [2013] WASCA 117

1. JUDGMENT OF THE COURT:    This is an application for an extension of time to appeal and, if an extension is granted, for leave to appeal against sentence.

2. The appeal was commenced approximately 5 1/2 months out of time.  The delay in filing the appeal has not been satisfactorily explained by the appellant in his affidavit sworn 18 May 2017.  Whether an extension of time is granted depends upon an assessment of the merits of the appellant's case.

3. The appellant was charged on an indictment in the District Court dated 14 March 2016 with three offences as follows:

   (1)On 8 April 2015 at Lesmurdie [the appellant], while in the place of [E] without her consent committed the offence of criminal damage

   And that [the appellant] was armed with an offensive weapon, namely an axe

   And that [the appellant] was armed with an offensive instrument, namely a knife

   And that the place was ordinarily used for human habitation.

   (2)On the same date and at the same place, [the appellant] wilfully and unlawfully damaged furniture.

   (3)On 9 April 2015 at Forrestfield [the appellant], while in the place of [SC] without his consent, assaulted [E]

   And that [the appellant] was armed with an offensive weapon, namely an axe

   And that immediately before the commission of the offence [the appellant] knew or ought to have known that there was another person in the place

   And that the place was ordinarily used for human  habitation.

4. Counts 1 and 3 are contrary to s 401(2) of the Criminal Code (WA) and carry a maximum penalty of 20 years' imprisonment. Count 2 is contrary to s 444(1) of the Criminal Code and carries a maximum penalty of 10 years' imprisonment. 

5. On 26 May 2016, four days before his trial was due to commence, the appellant pleaded guilty and was duly convicted of each charge.

6. On 16 November 2016, the appellant was sentenced as follows:

   •Count 1:        12 months' immediate imprisonment

   •Count 2:        No penalty

   •Count 3:        4 years' immediate imprisonment

7. The sentencing judge ordered that the sentences on counts 1 and 3 be served cumulatively.  Thus, the total effective sentence was 5 years' imprisonment.  The sentence was backdated to commence on 28 September 2015 and the appellant was made eligible for parole.  Violence restraining orders were made to protect the complainants. 

8. The appellant does not challenge the violence restraining orders. He challenges the terms of imprisonment. Proposed ground 1 alleges that the sentencing judge erred by failing to find that the appellant entered his pleas of guilty at the earliest reasonable opportunity and by not giving a 25% reduction for his guilty pleas pursuant to s 9AA of the Sentencing Act 1995 (WA) (SA). Proposed ground 2 alleges that, although his Honour said that he had given a discount of 10% for the pleas of guilty pursuant to s 9AA of the SA, he did not in fact do so. Proposed ground 3 alleges that the sentence of 4 years' imprisonment for count 3 was manifestly excessive. Proposed ground 4 alleges that the total effective sentence of 5 years' imprisonment infringed the totality principle.

9. For the reasons which follow, we would dismiss the appellant's application for an extension of time.  None of the proposed grounds has a reasonable prospect of succeeding.  To give an extension of time in these circumstances would be an exercise in futility. 

The facts

1. The appellant and E, the victim in count 1, were married.  They have three children, two of whom are a daughter named S and a son named J.  At the time of the offences S was 18 years old and J was 14 years old.  The appellant and E separated in 2010.  After they separated, E formed a relationship with SC, the victim in count 3.  The appellant's children lived with E in rented accommodation in Lesmurdie while SC lived in his own home in Forrestfield.

2. On 7 April 2015, the appellant and E were divorced.  At around 2.35 pm on the following day, the appellant went to E's house.  S was the only person home at that time.  The appellant walked into the house via an unlocked laundry door without the consent of E or, for that matter, S.  He was, at the time, carrying a knife.  He picked up an axe which was kept in the laundry.  S, thinking that her mother and partner had entered the house, came out of her bedroom only to see the appellant.  He walked past her and into E's bedroom.  He used the knife to stab the mattress and to cut up the sheets.  S yelled at the appellant to stop and unsuccessfully attempted to take the knife from him.  Undeterred, the appellant used the axe to deliberately cause a substantial amount of damage to property inside the house.  S, who was terrified by what had occurred, fled the house via a gap in the wire of her bedroom window.

3. As a result of the appellant's actions, E's home was uninhabitable.  She, S and J stayed at SC's house.  At 10.40 pm on 9 April 2015, SC, E, S, J and two teenage boys were at SC's house.  Unannounced and without SC's consent, the appellant entered the premises via an unlocked front door, carrying the same axe he had used the day before.  He went into the bedroom where SC and E were sleeping and confronted them.  Both feared for their lives.  J grabbed the appellant in a bear hug to prevent him going any further into the bedroom.  SC approached the appellant in an attempt to calm him down.  The appellant said, 'You're dead, you cunt'.  He then punched E to the left side of her face.  SC grabbed the axe.  The appellant then punched him to the chin.  Eventually, the appellant let go of the axe and said to E, 'That man is a dead cunt'.  The appellant then ran off, leaving the axe behind.  On 15 April 2015, the appellant surrendered to police and was charged with the offences to which he ultimately pleaded guilty.

4. The physical injuries suffered by SC and E were relatively minor.  The same cannot be said with respect to the psychological trauma the appellant caused to E, SC, S and J.  The victim impact statement of E speaks of the fear and the adverse emotional effects caused by the appellant's offending.

The appellant's antecedents

1. The learned sentencing judge was provided with a pre‑sentence report and psychiatric report in relation to the appellant as well as several character references.  The appellant's counsel relied on a report from Communicare concerning the appellant's participation in a 12‑week residential behavioural change program for men who have used domestic violence. 

2. At the time he was sentenced the appellant was 52 years of age.  He was treated by the sentencing judge as a first offender.  He had a steady record of employment.  He has some history of substance misuse, mostly with respect to alcohol, but also cannabis and methylamphetamine.  Although the appellant has had episodes of depression, he does not have a major mental illness and there was nothing to suggest that the appellant's offending was caused by any such illness. 

3. The appellant was arrested on 15 April 2015 and was remanded in custody until 2 June 2016, a total of 415 days.  After he was released on bail, but before he was sentenced, he took part in the 12‑week residential behavioural change program we mentioned earlier.  The report provided to the sentencing judge showed that during the program the appellant made some very positive improvements and had begun to take responsibility for his behaviour.  The author of the psychiatric report wrote that the appellant 'displayed good insight' into his offending.  However, his Honour expressed difficulty in accepting this finding.

The sentencing remarks

1. The learned sentencing judge acknowledged a number of mitigating factors including the appellant's pleas of guilty.  His Honour characterised the pleas as being 'very late'.

2. His Honour observed that the bitterness the appellant felt as a result of the end of his marriage could not 'remotely excuse' his offending. 

3. As to count 1, his Honour did not accept that the appellant went to E's house to retrieve some of his belongings.

4. As to count 3, his Honour rejected the appellant's submission that he went to SC's house with the intention of apologising to one of his sons for his behaviour the previous day.  His Honour found instead that the appellant attended at SC's house with the intention of confronting him.  His Honour observed that this offending was not a one‑off aberration having regard to the commission of count 1.  He noted that it was an escalation of the appellant's violent conduct.  

5. The sentencing judge considered that there was a need for both general and personal deterrence.  He expressly had regard to both limbs of the totality principle.  In doing so he referred to the so‑called one transaction rule, recognising that it was merely a rule of thumb.  His Honour decided that accumulation of the individual sentences was necessary 'in order to mark the very serious nature of [the] overall offending and to reflect the important sentencing considerations of personal and general deterrence'.  However, his Honour reduced the terms imposed on each count to accommodate the totality principle. 

6. He did not impose any sentence with respect to count 2 in order to avoid double punishment.

Appellate sentencing principles

1. The general principles governing this appeal are well‑established.  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, or failing to take into account a relevant matter.  Proposed grounds 1 and 2 are allegations of express error.  Implied error arises where the end result is so unreasonable or unjust that the court must conclude that a substantial wrong has occurred.  Proposed grounds 3 and 4 are allegations of implied error. 

Proposed ground 1

1. Proposed ground 1 challenges his Honour's finding that the appellant entered his pleas of guilty 'very late'. The appellant alleges that the pleas were entered at the first reasonable opportunity, and warranted a 25% discount pursuant to s 9AA of the SA.

2. Sections 9AA(2) and (3) of the SA provide that if a person pleads guilty to a charge, the court may reduce the head sentence for the offence in order to recognise the benefits to the State and to any victim of, or witness to, the offence which results from the plea. The earlier in the proceedings the plea is made, the greater the reduction may be. Section 9AA(4) of the SA provides that a court must not reduce the sentence by more than 25%, or by 25% unless the offender pleaded guilty or indicated that he or she would plead guilty at the first reasonable opportunity.

3. The meaning and effect of the expression 'first reasonable opportunity' was considered by McLure P in Rossi v The State of Western Australia.[1]  It is unnecessary to repeat what her Honour wrote on that occasion.

   [1] Rossi v The State of Western Australia [2014] WASCA 189 [64] ‑ [70].

4. The appellant submits that his pleas of guilty were entered after negotiations with the State, and that the first reasonable opportunity he had to enter his pleas of guilty was when he did, four days before his trial was due to commence.

5. These submissions must be rejected.  There was no material before the sentencing judge which showed that the pleas of guilty entered by the appellant on 26 May 2016 were entered as a result of any negotiation.

6. As we have said, the appellant was charged on 15 April 2015.  The indictment is dated 14 March 2016.  The appellant pleaded guilty as charged at a time when the State's case had been fully prepared.  There is nothing to indicate that prior to 26 May 2016 the appellant engaged in any form of negotiation with the State in respect of the charges or his pleas to those charges, and no submission was ever put to the learned sentencing judge on the appellant's behalf suggesting that there had been some form of plea negotiation and that the pleas of guilty were entered at the first reasonable opportunity.

7. On the material before this court, his Honour's characterisation of the pleas as having been entered 'very late' appears correct.

8. What is apparent from the court record is that after the appellant entered his pleas of guilty, he sought to negotiate with the State the facts upon which he was to be sentenced.  It is apparent that his lawyer proposed that the appellant be sentenced on a version of the facts favourable to him.  This proposal was rejected by the State.  Moreover, the sentencing judge put the appellant on notice that he was not prepared to accept the appellant's version of the facts without a trial of the issues.  The appellant declined the opportunity to adduce evidence in support of his proposed version of the facts.  In effect, the appellant capitulated and he was sentenced according to the facts asserted by the State.

9. At the hearing before this court the appellant acknowledged that the negotiations (which he said were in respect of the material facts) occurred at 'the last minute'.  He laid the blame for the timing of the negotiations upon the lawyer he had retained to defend him, but later dismissed.  Assuming this all to be true, it does not establish that the pleas were entered at the first reasonable opportunity. 

10. The pleas of guilty were not entered at the first reasonable opportunity. Accordingly, the appellant could not lay any claim to a 25% reduction pursuant to s 9AA of the SA. The pleas were entered very late. The 10% reduction was not erroneous.

11. Proposed ground 1 has no reasonable prospect of succeeding.

Proposed ground 2

1. Proposed ground 2 proceeds on the alternative basis that his Honour was correct to give a reduction of 10% pursuant to s 9AA of the SA in respect of counts 1 and 3. The appellant alleges that in arriving at those sentences, his Honour, in effect, neglected to give the stated reduction for the plea of guilty. In oral submissions he asserted that this was evident from his Honour's failure to state the head sentence for each count.

2. There is no merit to this argument.  This court has stated recently in KAT v The State of Western Australia[2] and Greenland v The State of Western Australia[3] that a sentencing judge is not required by s 9AA of the SA to expressly state the head sentence. His Honour's failure to state the head sentence cannot, without more, demonstrate a failure to give the stated s 9AA reduction. As there is no basis for the appellant's claim other than assertion and speculation made in his written submissions, the proposed ground has no reasonable prospect of succeeding.

   [2] KAT v The State of Western Australia [2017] WASCA 11.

   [3] Greenland v The State of Western Australia [2017] WASCA 83.

Proposed ground 3

1. The appellant alleges that the sentence of 4 years' imprisonment imposed for count 3 was manifestly excessive.

2. In determining whether a sentence is manifestly excessive, it is necessary to examine it from the perspective of the maximum sentence prescribed by law for the relevant offence (which, as we have said, is 20 years' imprisonment), 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.

3. The appellant's submissions in respect of this ground focus on an allegation that the sentence of 4 years' imprisonment is too much, having regard to the outcomes in four cases said by the appellant to be comparable, namely Mippy v The State of Western Australia;[4] Topic v The State of Western Australia;[5] Knight v The State of Western Australia[6] and McIntyre v The State of Western Australia.[7]

   [4] Mippy v The State of Western Australia [2012] WASCA 254.

   [5] Topic v The State of Western Australia [2013] WASCA 157.

   [6] Knight v The State of Western Australia [2014] WASCA 217.

   [7] McIntyre v The State of Western Australia [2016] WASCA 150.

4. As this court has observed in other cases, the circumstances of burglary offences can vary widely and attract a wide range of sentences.  Home burglaries are regarded as particularly serious offences that generally require substantial penalties to recognise considerations of personal and general deterrence and reflect the prevalence of the offence.  A home burglary committed with intent to intimidate the occupants is generally more serious than a burglary which involves simply an attempt to steal.  The cases referred to by the appellant do not need to be discussed in detail.  Four cases is insufficient to establish a customary range of sentencing.  In Wragg v The State of Western Australia,[8] this court undertook a more comprehensive review of cases involving home burglaries in which actual violence was committed or threatened.[9]  It is clear from that review that the sentence imposed by his Honour in respect of count 3 was broadly consistent with sentences imposed in cases with some factual similarity to the present case.

   [8] Wragg v The State of Western Australia [2013] WASCA 117.

   [9] Wragg v The State of Western Australia [45] - [61].

5. The circumstances of count 3 were particularly serious.  Having already committed a violent home burglary upon E's house the day before, the appellant once again armed himself with an axe, entered SC's house at night, threatened SC and then assaulted him and E.  He did so in the presence of two of his children and in circumstances where his 14‑year‑old son attempted to physically restrain him.  The appellant's actions terrorised the occupants of the house.

6. While the appellant's personal circumstances were generally favourable, he does not appear to have developed complete insight into his behaviour.  His Honour was correct to highlight the need for personal as well as general deterrence.

7. Having regard to all the relevant circumstances, we are far from persuaded that the sentence of 4 years' immediate imprisonment for count 3 was manifestly excessive.  In our opinion, the sentence was a proper exercise of the sentencing discretion.  It was not unreasonable or plainly unjust.

8. Proposed ground 3 has no reasonable prospect of succeeding.

Proposed ground 4

1. The first limb of the totality principle requires that the total effective sentence 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 of the totality principle provides that the overall sentence should not be crushing in the sense that it would destroy any reasonable expectation of a useful life after release.

1. The appellant's submissions in respect of proposed ground 4 claim that his Honour should have ordered that the sentences on counts 1 and 3 be served concurrently.  In essence, the appellant argues that the two aggravated burglaries were, in reality, one episode of offending, such as to justify the application of the so called one transaction principle. 

2. The one transaction rule is a rule of thumb only, to the effect that concurrent sentences may well be imposed in respect of multiple offences which occur in a continuing episode of offending.  However, wholly concurrent sentences may not reflect the total criminality of the offending and may not be appropriate.  See such cases as R v Faithfull.[10]

   [10] R v Faithfull [2004] WASCA 39.

3. We do not regard the appellant's offending on 8 and 9 April 2015 as constituting a continuing episode of offending.  The offences were separate in time and place.  Each involved separate and deliberate decisions by the appellant to enter houses occupied by his ex‑wife carrying weapons and behaving in a threatening manner.  Counts 1 and 2 involved the destruction of a substantial amount of property.  Count 3 involved verbal threats and assaults.  To have imposed wholly or partly concurrent sentences for counts 1 and 3 would not have been a proper reflection of the appellant's overall criminality.

4. In our opinion, the total effective sentence imposed upon the appellant did not infringe the first limb of the totality principle.  To the contrary, it was a proper reflection of the appellant's total criminality having regard to all of the circumstances, including those referable to him personally.

5. Nor could it be said that the total effective sentence was crushing.  Once the total effective sentence is served and the appellant is released into the community, he will still have a reasonable expectation of a useful life.

6. Proposed ground 4 has no reasonable prospect of succeeding.

Conclusion

1. We would make the following orders:

   1.The application for an extension of time is dismissed.

   2.Leave to appeal is refused.

   3.The appeal is dismissed.