Kelly v The State of Western Australia - [2020] WASCA 29

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT :   THE COURT OF APPEAL (WA)
CITATION:   KELLY -v- THE STATE OF WESTERN AUSTRALIA [2020] WASCA 29
CORAM:   MAZZA JA
BEECH JA
VAUGHAN JA

HEARD:   14 FEBRUARY 2020
DELIVERED          :   6 MARCH 2020
FILE NO/S:   CACR 79 of 2019
BETWEEN:   SEAN THOMAS KELLY
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent

ON APPEAL FROM:
Jurisdiction              :   DISTRICT COURT OF WESTERN AUSTRALIA
Coram:   QUAIL DCJ
File Number            :   IND 135 of 2019

Catchwords:

Criminal law and sentencing - Aggravated home burglary and assault occasioning bodily harm - Whether 3 years 6 months' immediate imprisonment for aggravated home burglary offence manifestly excessive as to length or type of sentence - Whether total effective sentence of 4 years' immediate imprisonment infringed first limb of the totality principle - Whether s 11 of the Sentencing Act 1995 (WA) required the judge to not sentence for the offence of assault occasioning bodily harm

Legislation:

Criminal Code (WA), s 401
Sentencing Act 1995 (WA), s 11

Result:

Leave to appeal on all grounds refused
Appeal dismissed

Category: D

Representation:

Counsel:

Appellant	:	K G Robson
Respondent	:	B M Murray

Solicitors:

Appellant	:	Evangel Legal
Respondent	:	Director Of Public Prosecutions (WA)

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

Brindley v The State of Western Australia [2019] WASCA 153
Bugmy v The Queen [2013] HCA 37; (2013) 249 CLR 571
Cross v The State of Western Australia [2018] WASCA 86; (2018) 272 A Crim R 549
Holden v The State of Western Australia [2009] WASCA 50
Mason v The State of Western Australia [2018] WASCA 43
McIntyre v The State of Western Australia [2016] WASCA 150
Page v The State of Western Australia [2018] WASCA 76
Pearce v The Queen [1998] HCA 57; (1998) 194 CLR 610
Sartori v The State of Western Australia [2014] WASCA 98
The State of Western Australia v Peacock [2013] WASCA 248
The State of Western Australia v Yamalulu [2019] WASCA 6
Winmar v The State of Western Australia [2018] WASCA 155
Wragg v The State of Western Australia [2013] WASCA 198; (2013) 234 A Crim R 380

JUDGMENT OF THE COURT:

Introduction

The appellant was convicted, on his pleas of guilty, of one offence of aggravated home burglary and one of assault occasioning bodily harm. The two charges arose from what the appellant did on 28 September 2018. That day, he and his co‑offender entered the victim's house without consent. The appellant punched the victim, put him in a chokehold and threatened to kill him. His co‑offender attacked the victim, using weapons. The victim fled from the house onto the street, where the appellant and his co‑offender continued their attack on the victim.
The sentencing judge imposed a sentence of 3 years 6 months' immediate imprisonment for count 1, and 6 months' immediate imprisonment for count 2, to be served cumulatively, producing a total effective sentence of 4 years' immediate imprisonment.
The appellant challenges the sentences imposed on the grounds that:
(1)The total effective sentence infringes the first limb of the totality principle.
(2)The sentence on each individual count is manifestly excessive: in the case of count 1, as to length and type; and in the case of count 2, as to type only.
(3)The judge should have applied s 11 of the Sentencing Act 1995 (WA) and, on that account, should not have sentenced him for count 2.
In our view, none of the grounds of appeal has merit. Leave to appeal on all grounds must be refused and the appeal must be dismissed.

The facts

With an immaterial exception, the facts of the appellant's offending were not in dispute before the sentencing judge,[1] and were not in dispute on appeal. They may be summarised as follows.
[1] ts 11.
On the day of the offending, the appellant and his co‑offender had been drinking at the Kellerberrin Hotel since before lunchtime. Over the course of five hours, the appellant drank about 10 beers.[2]
[2] ts 20.
Beginning earlier that day, or the night before,[3] and continuing until just before he left the hotel, the appellant and the victim exchanged text messages in which the victim blamed the appellant and his partner for the death of a mutual friend in a car accident.[4] The judge described the victim's messages as 'provocative' and 'hostile' towards the appellant, but not threatening.[5] The sentencing judge accepted that these messages are what incited the appellant and his co‑offender to confront the victim at his house.[6]
[3] ts 20.
[4] ts 21.
[5] ts 21.
[6] ts 21.
A witness saw the appellant and the co‑offender shadowboxing as they walked from the hotel to the victim's house. The appellant knocked on the victim's door and, together with the co‑offender, pushed him inside. The appellant and the co‑offender did not have consent to enter the victim's house and they did not leave when asked. The judge rejected defence counsel's submission that the appellant went to the victim's house with the intention of merely talking to him about the text messages, finding that he went there with the intention of attacking the victim.[7]
[7] ts 21.
Once inside, the appellant and the co‑offender 'immediately delivered a flurry of punches to [the victim's] face and body'[,] saying … "this is what you get for blaming us for [the friend's] death"'.[8] The two offenders punched and kicked the victim multiple times over his body and face. The appellant punched the victim in the mouth with his right fist. The co‑offender punched the victim in the face twice while wearing knuckledusters.[9] The appellant and co‑offender tackled the victim onto his dining table, a family heirloom, which collapsed.[10] While the victim was on the floor, the appellant put the victim in a chokehold and his co‑offender hit the victim with one of the wooden legs which had broken from the table.
[8] ts 21.
[9] ts 21.
[10] ts 7.
The victim managed to flee through the front door, but then tripped immediately outside. There, the co‑offender smashed a terracotta pot over the victim's head. The judge noted that the appellant may not have known that his co‑offender was wearing knuckledusters, but was satisfied that the appellant saw his co‑offender's use of the table leg and terracotta pot.[11]
[11] ts 22.
The victim ran towards his neighbour's house, calling for help, while the appellant and his co‑offender followed. Three neighbours came to the victim's aid. The co‑offender again punched the victim while wearing knuckledusters. The appellant again put the victim in a chokehold, restricting his breathing. The appellant told the victim that he was going to die that night, a threat the appellant had also made to the victim while they were inside the victim's house. The appellant also told the victim that he would slit the victim's throat if the victim said anything.[12]
[12] ts 22.
The appellant then returned to the Kellerberrin Hotel with bruised knuckles and blood on him.[13]
[13] ts 22.
The victim received serious lacerations to his mouth and cuts and bruises all over his body. The victim was hospitalised. His teeth were knocked out of alignment and he required a splint so that the fractures to the bone plate around his teeth could heal.[14]
[14] ts 22.
Later, the appellant was arrested. The judge observed that the appellant was not entirely honest with the police during his record of interview.[15]
[15] ts 22 ‑ 23.

The appellant's personal circumstances

The appellant, in effect, adopts the judge's outline of his personal circumstances, which was as follows:
(1)At the time of sentencing, the appellant and his partner had been in a relationship for six years. They have two children, who were 5 years old and 7 weeks old at the time of sentencing. The appellant and his family were living with his mother‑in‑law, who spoke highly of the appellant. The appellant was supporting his family financially and helped care for his children and sister‑in‑law, who requires a high degree of care.[16]
(2)The sentencing judge said that the appellant's childhood can 'properly [be] described as dysfunctional'.[17] He was raised by his mother and did not know his father while he was growing up. The appellant's mother had substance abuse issues and this meant that the family moved around a lot while the appellant was growing up. His mother was in relationships that involved domestic violence, which the appellant witnessed.[18] The appellant himself was abused from the age of about 8 years old, which was a significant source of trauma for him.[19] When the appellant became older and more independent, he made contact with his father and met his five younger half‑siblings. His father died a few years before the appellant was sentenced, another source of trauma for the appellant.[20]
(3)The appellant's education was disrupted by his family moving around a lot while he was growing up. He left high school in the middle of year 10 but later completed several educational programs while in prison.[21] The sentencing judge also noted more generally that the appellant turned his life around after being released from prison in 2015.[22]
(4)The appellant has a history of employment. He completed occupational courses in scaffolding and currently works as a fly‑in fly‑out worker as a trades assistant and apprentice scaffolder. In his reference for the appellant, the appellant's supervisor at his current workplace spoke highly of the appellant and said that violence was out of his character.[23]
(5)The appellant experienced trauma as a result of the death of his friend, the friend who was the subject of the text messages between the appellant and the victim on the day of the offending. The sentencing judge noted that the appellant is from a small country town and that gossip surrounding the circumstances of his friend's death, and the appellant's connection to it, 'would have had an enormous effect' on the appellant.[24]
(6)The appellant has a long history of substance abuse, namely the use of alcohol and cannabis since the age of 12 and methylamphetamine since the age of 18.[25] Since going to prison in 2014, the appellant almost entirely ceased his use of drugs but still has issues with alcohol.[26]
[16] ts 25.
[17] ts 27.
[18] ts 24.
[19] ts 24 ‑ 25.
[20] ts 25.
[21] ts 25.
[22] ts 25.
[23] ts 25.
[24] ts 26.
[25] ts 26.
[26] ts 26.

Sentencing remarks

The judge observed that the appellant and his co-offender were equally culpable for the attack.[27]
[27] ts 22.
The sentencing judge identified the following aggravating factors:
(1)The appellant was aware that his co‑offender used two weapons to attack the victim (the table leg and terracotta pot). Further, though he may not have been aware that his co‑offender was wearing knuckledusters, he was aware of the victim's injuries resulting from the co‑offender punching the victim while wearing the knuckledusters.[28]
(2) The attack on the victim was sustained and continuing. Further, the appellant harboured such a 'level of ferocity' and 'desire to inflict hurt and pain' on the victim that he was willing to continue attacking him outside the house, in the presence of witnesses.[29]
(3)The victim's injuries were on the 'high end' of bodily harm.[30]
(4)The attack involved an invasion of the victim's house.[31]
(5)The victim had suffered physical, financial, and emotional harm because of the attack. The emotional harm was amplified by the fact the victim and appellant are from a small town where 'everybody' knows them and knows that the appellant attacked the victim. Following the appellant's offending, the victim suffered anxiety and experienced difficulty speaking and sleeping. He lacked motivation and did not feel safe in his house. He was suffering pain in his shoulder and was concerned about the health of his teeth. The victim's financial loss was in the form of losing his leave entitlements (which he used to recover from the attack) and the loss of the dining table, which was a family heirloom.[32]
[28] ts 23.
[29] ts 23.
[30] ts 23.
[31] ts 23.
[32] ts 23 ‑ 24.
The judge identified the following mitigating factors:
(1)The appellant was 25 years old at the time of sentencing. The sentencing judge gave credit for his youth, but noted that he was 'on the verge' of the age for which this would still be possible.[33]
(2)The appellant had a difficult upbringing, as already outlined.The sentencing judge said that the considerations discussed in Bugmyv The Queen[34] were applicable.[35]
(3)The appellant entered a plea of guilty at the earliest reasonable opportunity, for which the judge awarded the maximum permissible discount, namely 25%.[36]
(4)The appellant, on his own initiative, sought counselling and was being treated for depression and anxiety and perhaps also post‑traumatic stress disorder. For this, the judge gave the appellant credit for a greater degree of remorse than he otherwise would have given and credit also for taking positive steps towards rehabilitation.[37]
[33] ts 24, 27.
[34] Bugmyv The Queen [2013] HCA 37; (2013) 249 CLR 571.
[35] ts 27.
[36] ts 27.
[37] ts 27.
The sentencing judge also noted the following:
(1)Though the appellant had a history of past offending, he did not have a history of violence.[38]
(2)The appellant had satisfactorily completed his parole order.[39]
[38] ts 26.
[39] ts 27.
The judge said that he could not regard the appellant as a person of prior good character, given his criminal history. The judge observed that this was not aggravating, but it demonstrated that personal deterrence was an important factor in sentencing the appellant.[40]
[40] ts 26.
Having regard to relevant principles of sentencing, the judge was satisfied that only a sentence of imprisonment was appropriate.[41] That conclusion is not, and could not reasonably be, challenged on appeal.
[41] ts 28.
The judge imposed a term of 3 years 6 months' imprisonment for count 1. His Honour observed that he considered the appropriate sentence for count 2 to be 1 year's imprisonment, but, for totality reasons, he reduced the sentence to 6 months' imprisonment, to be served cumulatively on count 1.[42] The judge explained that it was appropriate to make the sentence on count 2 cumulative to recognise that the appellant caused the victim bodily harm, something not reflected in count 1, and also to recognise that the attack continued outside the victim's house.[43]
[42] ts 28.
[43] ts 28.
The judge found that the imprisonment must be immediately served, finding that the offending conduct was 'simply too serious' for the sentence to be suspended.[44]
[44] ts 28 - 29.

Grounds of appeal

The appellant appeals on the following grounds:
(1)The learned sentencing judge erred in imposing a total effective sentence that was disproportionate to the overall criminality, having regard to the circumstances of the offending, the personal circumstances of the appellant and sentencing standards.
(2)The learned sentencing judge erred in imposing a sentence on each count that was manifestly excessive in all the circumstances.
(3)The learned sentencing judge erred in failing to apply s 11 of the Sentencing Act. His Honour should not have sentenced the appellant on count 2.
The question of leave to appeal has been referred to the hearing of the appeal.[45]
[45] Order of Buss P, 1 August 2019.
It is convenient to begin with ground 3, which alleges a specific error.

Ground 3

Section 11 of the Sentencing Act provides, so far as is material:
11. Person not to be sentenced twice on same evidence
(1)If the evidence necessary to establish the commission by a person of an offence under the law of this State is also the evidence necessary to establish the commission by that person of another such offence, the person may be charged and convicted of each offence but is not to be sentenced for more than one of the offences.
The appellant asserts that 'the evidence necessary to establish the commission … of [count 2] is also the evidence necessary to establish the commission … of [count 1]'.[46] Consequently, the appellant submits, s 11 should have been applied and there should have been no penalty imposed on count 2.[47]
[46] Appellant's submissions [41] - [42]; appeal ts 9.
[47] Appellant's submissions [42], [45].
There is no merit in this submission.
The commission of an offence is not established unless and until all its elements are proved. That being so, the phrase 'the evidence necessary to establish the commission by a person of an offence' in s 11 refers to the evidence necessary to establish all of the elements of the offence. The same is true of the phrase 'the evidence necessary to establish the commission … of another offence'. Thus, section 11 is engaged if, and only if, the evidence necessary to establish the commission of one offence establishes, without more, all elements of, and thus the commission of, another offence. It does not apply to a case where there is overlap between the evidence required to establish the two offences, but where each offence requires some distinct additional evidence in order to establish the commission of that offence.
The present case was of the latter kind. Evidence that the appellant committed (personally or by operation of s 7 of the Criminal Code (WA)) an assault on the complainant was necessary to establish the commission of both offences in the present case. However, each offence required some additional evidence. The aggravated burglary offence required evidence that the assault occurred while the appellant was in another person's place without consent. The offence of assault occasioning bodily harm required additional evidence as to the element of bodily harm. Thus, s 11 did not apply.
The appellant submits that if the prosecution choose to lead 'surplus' evidence in proof of count 1, and thereby also prove count 2, s 11 is engaged, so that no punishment can be imposed for count 2.[48] That submission overlooks the word 'necessary' in s 11. Section 11 directs attention to the evidence necessary to prove each of the two offences. Surplus evidence is, by definition, not necessary. As we have said, s 11 applies only if the evidence necessary to prove one of the offences establishes, without more, the commission of the other offence.
[48] Appeal ts 12, 13, 18 - 19.
For these reasons, there is no merit in ground 3. We would refuse leave to appeal in respect of it.
Insofar as there was overlap in the criminality of the two offences, the judge was keenly aware of that overlap, and of the consequential need to avoid double punishment.[49] Whether the judge erred in that regard falls to be considered in the context of the totality question, dealt with below.
[49] As to which, see Pearce v The Queen [1998] HCA 57; (1998) 194 CLR 610 [40].

Grounds 1 and 2 - implied error

Appellant's submissions

The appellant's submissions, in effect, deal with grounds 1 and 2 together. We will do the same.
By grounds 1 and 2, the appellant contends that both individual sentences were manifestly excessive and the total effective sentence infringed the first limb of the totality principle. His principal submissions in support of those contentions are as follows:
(1)The real criminality of both offences lay in the assault; the burglary did not add anything to that criminality.[50]
(2)Focusing on the assault, the decision of this court in The State of Western Australia v Yamalulu[51] supports a conclusion that the appellant's sentences reveal error. That is because the offence, and criminality, in Yamalulu was much more serious, yet the appellant's sentence was 'not so far removed' from the sentence in Yamalulu.[52]
(3)The appellant points to the review of sentences for assault occasioning bodily harm in Holden v The State of Western Australia[53] and the review of sentences for home invasion offences in Wragg v The State of Western Australia[54] and Winmar v The State of Western Australia.[55] Those cases indicate that a sentence of 4 years 6 months' imprisonment is towards the higher end of the range for a home invasion accompanied by an assault.[56] However, bearing in mind the appellant's dysfunctional childhood and the considerations identified in Bugmy, his lack of prior violent offending and the fact that the circumstances of this offence are very unlikely to reoccur, the appellant should not have received a sentence towards the higher end of the range.[57]
(4)Further, in all the circumstances, the sentences of imprisonment should have been at least partly suspended.[58]

Disposition

[50] Appellant's submissions [22]; appeal ts 2, 6.

[51] The State of Western Australia v Yamalulu [2019] WASCA 6.

[52] Appellant's submissions [23] ‑ [24].

[53] Holden v The State of Western Australia [2009] WASCA 50 [43].

[54] Wragg v The State of Western Australia [2013] WASCA 198; (2013) 234 A Crim R 380 [56] ‑ [61].

[55] Winmar v The State of Western Australia [2018] WASCA 155 [81].

[56] Appellant's submissions [28], [31].

[57] Appellant's submissions [32] - [34].

[58] Appellant's submissions [36]; appeal ts 2 - 3, 5.

In our opinion, for the reasons that follow, there is no merit in grounds 1 or 2, or the appellant's submissions in support of them.
The general principles applicable to appeals against sentence on grounds of manifest excess and totality are well‑established. They may be summarised as follows:
(1)Sentencing is a discretionary exercise. An appellate court can intervene only if the appellant demonstrates either an express or implied material error. Express error involves acting on a wrong principle, for example by mistaking the law or facts or taking into account an irrelevant matter. Implied error arises where the end result is so unreasonable or unjust that the court must conclude that a substantial wrong has occurred. Thus, an appellate court cannot substitute its own opinion for that of the sentencing court merely because the appellate court would have exercised a sentencing discretion differently.
(2)In order to determine whether a sentence for an individual offence is manifestly excessive, the offence should be viewed in light of the maximum sentence prescribed by law for the crime, the standards of sentencing customarily imposed with respect to it, the place that the criminal conduct occupies in the scale of seriousness of crimes of that type, and the offender's personal circumstances.
(3)The first limb of the totality principle requires that the total effective sentence imposed on an offender who has committed multiple offences bears 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 or is yet to serve a term of imprisonment), viewed in their entirety, having regard to all relevant facts and circumstances including those referable to the offender personally (and including, for example, the desirability of accommodating any wish to rehabilitate), all relevant sentencing factors and the total effective sentences imposed in comparable cases.
(4)The range of sentences customarily imposed for a crime does not establish the range of a sound exercise of the sentencing discretion. Sentences customarily imposed in comparable cases provide a yardstick or reference point for ensuring broad consistency in sentencing, bearing in mind the scope for significant variations in relevant sentencing factors, and that there is no single correct sentence. What is important is the unifying principles which sentences imposed in comparable cases reveal and reflect.
(5)When this court dismisses an appeal against sentence and when it resentences on a successful appeal, its decision does not fix the upper or lower limit of the range.
(6)Where there is a challenge on totality grounds, the severity of a sentence imposed on an individual count generally falls to be assessed in light of the sentences imposed in respect of the other counts and its contribution to the total effective sentence. A heavy individual sentence may be softened by an order that it be served concurrently with sentences imposed in relation to the other counts. A relatively light sentence may, as a practical matter, have increased severity if it is ordered to be served cumulatively. The real question is whether the total effective sentence is unreasonable or plainly unjust.
The appellant's submissions were not framed by reference to the need to demonstrate implied error and the high hurdle that is involved in doing so.
The appellant's first submission - that the burglary charge did not add anything to the criminality of the assault - overlooks or misconceives the nature and seriousness of an offence of burglary. A simple assault committed in circumstances of aggravation carries a maximum penalty of 3 years' imprisonment.[59] An offence of assault occasioning bodily harm committed in circumstances of aggravation carries a maximum penalty of 7 years' imprisonment.[60] By contrast, the appellant faced a charge of aggravated home burglary under s 401(2), with a maximum penalty of 20 years' imprisonment. Section 401(2) provides, so far as is material, as follows:
(2)A person who commits an offence in the place of another person, when in that place without that other person’s consent, is guilty of a crime and is liable —
(a)if the offence is an aggravated home burglary, to imprisonment for 20 years; or
(ba)if the offence is not a home burglary but is committed in circumstances of aggravation, to imprisonment for 20 years; or
(b)if the offence is a home burglary not committed in circumstances of aggravation, to imprisonment for 18 years; or
(c)in any other case, to imprisonment for 14 years.
[59] Criminal Code (WA), s 313(1).
[60] Criminal Code (WA), s 317.
The maximum penalties in s 401(2) reflect and reveal Parliament's recognition of the seriousness of the various species of offences of burglary. For a very long time, the law of Western Australia, like that of other jurisdictions in Australia, has treated burglary as a very serious offence. It is the invasion of another person's property, without their consent, coupled with either an intent to commit an offence or the commission of an offence, that is the gravamen of the offence of burglary. As this court observed in Mason v The State of Western Australia,[61] home burglaries are apt to create a sense of intrusion and fear for people whose home is the subject of the burglary, especially where they are present when the offence is committed.Section 401, in its current bifurcated structure,[62] was inserted in the Code by the Criminal CodeAmendment Act (No 2) 1996 (WA). In the second reading speech for the Bill, the Attorney General said as follows:[63]
[61] Mason v The State of Western Australia [2018] WASCA 43 [68].
[62] Under s 401(1), the offence is committed by entering, or being in, another person's place without consent with intent to commit an offence, while, under s 401(2), the offence is committed by committing an offence while in another person's place without their consent.
[63] Western Australia, Parliamentary Debates, Legislative Council, 22 August 1996, 4429 ‑ 4430 (The Hon Peter Foss, Attorney General).
The Government shares the community's concern about the prevalence of home invasion offences and acknowledges the devastating effect which such offences can have on the lives of victims. Home burglary is a predatory crime which touches the lives of many people. It not only involves the expense of damage to or loss of property and the risk of serious personal injury, but also leaves victims with the sense that the sanctity of their homes has been violated.
…
Section 401 was amended in 1991, eliminating the concept of 'breaking and entering' and replacing it with the offences of entering or being in the place of another person without that person's consent with intent to commit an offence therein; and committing an offence in the place of another person, when in that place without that other person's consent.
…
The purpose of this Bill is to -
(1)reflect the gravity of home invasion offences by creating a new offence of home burglary distinct from burglary in any other place with a more severe penalty;
(2)give effect to the Murray review's recommendation that a higher maximum penalty should apply to the offence of burglary committed in circumstances of aggravation;
…
The Bill targets the unacceptable prevalence of home invasion offences and burglary involving circumstances of aggravation; reflects the views of the community and the legislature that current penalties are manifestly inadequate to deter offenders and fail to give due weight to the distressing effect of these offences on victims. (emphasis added)
As a consequence, the appellant's second submission, outlined at [35](2) above, falls away. The offence in Yamalulu - aggravated grievous bodily harm - was of a fundamentally different character. It provides no assistance in discerning whether the appellant's sentences for the individual offences are manifestly excessive, or whether the total effective sentence infringes the totality principle.
As to the appellant's third submission, consideration of the range of sentences customarily imposed for offences of this kind provides no support for a conclusion of manifest excess or infringement of the totality principle.
As this court has recently observed:[64]
The circumstances of burglary offences can vary widely and attract a wide range of sentences. Home burglaries are viewed as being particularly serious offences, and are generally seen as requiring substantial penalties in order to recognise considerations of personal and general deterrence, and reflect the prevalence of the offence. Home invasions, which involve forcible entry into residential premises known or suspected to be occupied at the time, accompanied by threatened or actual violence, are generally significantly more serious than home burglaries which lack those characteristics. A home invasion which is committed with intent to intimidate the occupants is generally more serious than a burglary which involves simply an intention to steal.
The appellant's offence was in the more serious category of a violent home invasion.
[64] Brindley v The State of Western Australia [2019] WASCA 153 [39], referring to Wragg [44]; Sartori v The State of Western Australia [2014] WASCA 98 [31]; McIntyre v The State of Western Australia [2016] WASCA 150 [15]; Page v The State of Western Australia [2018] WASCA 76 [40].
Sentences imposed for offences of this nature were reviewed in Wragg.[65] We refer to that review, without repeating it. It can be seen from that review that offences of this nature and this level of seriousness almost invariably result in a sentence of imprisonment to be immediately served, generally in the range of 2 ‑ 4 1/2 years' imprisonment.[66] The sentence of 3 years 6 months' imprisonment imposed for the aggravated burglary offence is well within that range. In any event, as this court observed in Brindley v The State of Western Australia,[67] while Wragg referred to a range of sentences imposed in previous cases, that range does not set the limits of the exercise of a sound sentencing discretion in future cases.
[65] Wragg [46] ‑ [61].
[66] See also The State of Western Australia v Peacock [2013] WASCA 248 [32].
[67] Brindley [47].
In Wragg itself, a sentence of 4 years 6 months' imprisonment for a single burglary offence was found not to have been manifestly excessive. In Winmar, this court resentenced the offender to a term of 3 years' immediate imprisonment, after a 20% discount on account of the plea of guilty, on an offence of home burglary that involved theft, not, as here, the more serious invasion for the purpose of intimidation or threatened or actual violence. In Brindley, the offender was sentenced to 3 years 6 months' immediate imprisonment for an offence of aggravated home burglary, and 6 months' immediate imprisonment for an offence of assault occasioning bodily harm, to be served cumulatively. It will be seen that the offender in Brindley was convicted of the same two offences and received the same sentence as the appellant in the present case. While there are, naturally, various differences between the facts and circumstances in Brindley and those in this appeal, including that the former involved an element of vigilantism, the cases bear sufficient similarity for it to tend against a conclusion that the sentences in the present case reveal implied error. We have also considered the cases referred to in Brindley.[68]
[68] See Brindley [42], [49], footnote 43, footnote 54.
Giving full weight to the appellant's dysfunctional background and his lack of prior violent offending, the appellant has fallen well short of demonstrating that his sentence of 3 years 6 months' imprisonment for the aggravated home burglary offence was manifestly excessive. His offence was a planned and sustained violent attack on a person in their home, involving the use of weapons and causing significant and enduring harm. We refer to the aggravating factors outlined by the sentencing judge, summarised in [16] above.
Taking into account:
(1)the maximum penalty of 20 years' imprisonment;
(2)the facts and circumstances of the appellant's offence and the place his conduct occupied on the scale of seriousness of offences of aggravated home burglary;
(3)the appellant's plea of guilty, for which he received a discount of 25%;
(4)the appellant's personal circumstances, including his dysfunctional background and his lack of prior violent offending;
(5)all other mitigating factors;
(6)the guidance provided by sentences imposed for broadly similar offending; and
(7)all relevant sentencing factors and principles,
we are far from persuaded that the sentence of 3 years 6 months' imprisonment for count 1 was unreasonable or plainly unjust.
The appellant does not challenge the length of his sentence on count 2.
Taking into account what we have already said, the appellant has fallen well short of establishing that the total effective sentence of 4 years' imprisonment exceeds a sentence bearing a proper relationship to the overall criminality involved in both offences, viewed in their entirety, taking into account common elements of the two offences and having regard to the appellant's personal circumstances. In our opinion, it was not only open, but was appropriate and necessary to impose a degree of accumulation in respect of count 2. The appellant and his co‑offender continued their assault upon the victim after he had escaped from his house. Their sustained assault upon the victim caused him bodily harm.
Finally, we turn to the appellant's contention that his sentence of imprisonment should have been, at least partly, suspended. This submission is without merit. The principles applicable to the question of whether imprisonment should be suspended or immediate are well‑known. They were outlined in Cross v The State of Western Australia[69] and need not be repeated. The question is whether the sentencing judge's conclusion - that suspension was not appropriate - was not reasonably open. In our view, not only was that conclusion reasonably open, no other conclusion could reasonably have been reached in the circumstances of the case. The judge observed, with respect correctly, that the appellant's offending was 'simply too serious' for the sentence to be suspended.[70]
[69] Cross v The State of Western Australia [2018] WASCA 86; (2018) 272 A Crim R 549 [33] ‑ [37].
[70] ts 28 - 29.

Conclusion

For these reasons, each of the three grounds of appeal is without merit. We would make the following orders:
(1)Leave to appeal on each ground is refused.
(2)The appeal is dismissed.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
RC
Research Orderly to the Honourable Justice Beech
6 MARCH 2020