Kickett v The State of Western Australia
[2019] WASCA 147
•19 SEPTEMBER 2019
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: KICKETT -v- THE STATE OF WESTERN AUSTRALIA [2019] WASCA 147
CORAM: MAZZA JA
MITCHELL JA
HEARD: 19 SEPTEMBER 2019
DELIVERED : 19 SEPTEMBER 2019
PUBLISHED : 19 SEPTEMBER 2019
FILE NO/S: CACR 93 of 2019
BETWEEN: KARLEIGHA FAYE KICKETT
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram: BURROWS DCJ
File Number : IND 2367 of 2018
Catchwords:
Criminal law - Sentencing - Aggravated home burglary - Whether sentence manifestly excessive
Legislation:
Criminal Code (WA), s 401(2)(a)
Result:
Application for an extension of time in which to appeal dismissed
Leave to appeal refused
Appeal dismissed
Category: D
Representation:
Counsel:
| Appellant | : | Ms K A Gorski |
| Respondent | : | No appearance |
Solicitors:
| Appellant | : | Legal Aid (WA) |
| Respondent | : | Director of Public Prosecutions (WA) |
Case(s) referred to in decision(s):
Beins v The State of Western Australia [No 2] [2014] WASCA 54
Bugmy v The Queen [2013] HCA 37; (2013) 249 CLR 571 [37] - [41]
Cluett v The Queen [2019] WASCA 111
McIntyre v The State of Western Australia [2016] WASCA 150
Page v The State of Western Australia [2018] WASCA 76
Sartori v The State of Western Australia [2014] WASCA 98
Sheriff v The State of Western Australia [2017] WASCA 185
The State of Western Australia v Upkett [2013] WASCA 263
Wragg v The State of Western Australia [2013] WASCA 198; (2013) 234 A Crim R 380
REASONS OF THE COURT:
At the conclusion of hearing this application for an extension of time in which to appeal and for leave to appeal, we made the following orders:
(1)The appellant's application for an extension of time in which to appeal is dismissed.
(2)Leave to appeal is refused.
(3)The appeal is dismissed.
These are our reasons for making those orders.
Summary
On 3 May 2019, the appellant was convicted, on her plea of guilty, of one count of aggravated home burglary contrary to s 401(2)(a) of the Criminal Code (WA). The offence was committed on 4 March 2018 at the complainants' home in Parmelia. The maximum penalty for that offence is 20 years' imprisonment. As the appellant was a repeat offender, the minimum penalty for that offence is 2 years' immediate imprisonment. The appellant was sentenced to a term of 3 years 10 months' immediate imprisonment.
The appellant seeks leave to appeal against that sentence on the ground that it is manifestly excessive. She requires an extension of time in which to appeal. For the following reasons, that ground of appeal has no reasonable prospect of succeeding, so that it would be futile to grant the extension sought. The application for an extension of time should be dismissed, leave to appeal should be refused and the appeal should be dismissed.
Circumstances of offending
At around 11.50 am on Sunday, 4 March 2018, the appellant attended the complainants' home in Parmelia. The complainants were a husband and wife, aged 85 and 81 years respectively.
The appellant knocked on the door and asked the female complainant if she could come inside and have a glass of water. The complainant allowed the appellant inside. The appellant placed her phone on charge in the kitchen area, and was given a glass of water by the complainant. The appellant then asked the female complainant if she could use the bathroom. The appellant went into the bathroom and started wetting her hair in the shower and used the bathroom towel to dry her hair.
The appellant then went into the master bedroom whilst the female complainant went back towards the kitchen area. The appellant rummaged through a bedside table, drawers and jewellery boxes. The female complainant, thinking something was wrong, observed the appellant in the bedroom. She told the appellant to get out.
The appellant then exited the master bedroom and walked towards the kitchen area. The female complainant, believing the appellant had stolen items from the bedroom, yelled to the male complainant, who was in the kitchen area. The male complainant grabbed the appellant in an attempt to restrain her. The appellant began to lash out using her arms and legs in an attempt to break free from the male complainant.
The appellant and the male complainant fell to the kitchen floor and were still wrestling with each other. The appellant managed to break free and ran towards the front door of the house. As she went through the front door, the male complainant grabbed the appellant's bag, which ripped open. Numerous jewellery and personal items of property (not associated with the complainants' house) spilled from the bag onto the front porch. The appellant ran away.
Police and forensic officers later attended at the scene. A hair strand was located in the bathroom. The DNA from the hair strand matched the appellant's DNA. Police also seized the appellant's mobile phone, which had been left in the kitchen of the complainants' house. The phone was logged into the appellant's Facebook account.
On Tuesday, 3 April 2018 the appellant was arrested in Bentley in relation to another matter. The appellant was conveyed to the Cannington Police Station where she participated in an electronic record of interview. She did not provide an explanation as to how her DNA and mobile phone were located at the incident scene. The appellant said '[y]ou've got me fucked.'
Personal circumstances
The appellant was 32 years old at the time of sentencing.
The appellant had met her mother only once. She was raised by her maternal grandmother and then her father and his partner. The appellant's father had spent a lot of time in prison when she was a child. The appellant had suffered from various traumatic experiences in her childhood.
The appellant has been involved in four relationships since she was 13 years old, all of which she described as being marred by incidents of domestic violence and dependency on illicit drugs. The appellant started sniffing solvents and using methamphetamine intravenously when she was 10 years old.
The appellant left school at the age of 13 years. She had never worked in the community, and had relied on welfare benefits. She was, at the time of sentence, working for a cleaning party in Bandyup prison and was in the self-care unit.
The appellant was born with a 'heart murmur', for which she did not require medication. She had suffered psychologically over the 4 years prior to sentence, with two incidents of attempted self-harm.
The appellant's criminal record was 18 pages long. She started offending as a juvenile in 2000. Her adult record included convictions of drug-related offences, possession of stolen property, resisting arrest, stealing motor vehicles, burglary, driving matters, and receiving offences.
In April 2013, the appellant was sentenced by the District Court to 3 years 10 months' immediate imprisonment for stealing, aggravated robbery and aggravated burglary in a dwelling. Since her release after serving that term, the appellant accumulated further convictions of driving offences, stealing, possessing prohibited drugs, disorderly behaviour, aggravated burglary (committed before the April 2013 sentencing) and fraud.
The appellant had also been released on a parole order in 2008, but committed the offence of aggravated burglary 8 days later. Her parole order was suspended and eventually cancelled. The appellant had breached four previous supervision orders, and was not considered by Community Corrections to be suitable for any further supervision dispositions.
Sentencing judge's approach
After referring to the circumstances of the offence and the appellant's personal circumstances, the sentencing judge observed that the appellant had failed to take up opportunities to address her substance dependency, both in custody and in the community. The sentencing judge said:[1]
Now, that causes me a great deal of concern because one of the things I have to consider is the protection of the community and I have to consider giving you a sentence to stop you doing things in the future and the same, but the protection of the community is really significant in your case and if you're telling me that you're just going to go out there and get straight back on the drugs, then to fund that lifestyle it's inevitable that you'll commit crimes to do so.
So with that attitude I consider you at a very high risk of reoffending in a similar nature. Unless and until you address your drug problem and, I think, your underlying psychological issues relating from your childhood, you are just going to keep coming back to this court and you're going to spend longer and longer periods of time in gaol and that's the reality of it.
[1] Primary ts 16.
The sentencing judge made the following observations about the appellant's offending history:[2]
Now, your criminal record isn't an aggravating factor. However, you don't come before the court as someone who's never done anything in the past so you don't have what they call prior good character. It demonstrates a persistent defiance and disregard for the law.
The fact that previous sentences which have been imposed by the courts for burglary and robbery haven't achieved their purpose for which they were imposed - and that was to stop you from further offending. That's not an aggravating factor. However, it is necessary for me to impose a firm penalty to deter you from committing these types of offences in the future and to protect the community.
Now, as I've said, your record reflects your longstanding abuse and misuse of drugs and until you get that under control, you're going to keep coming back here. In your case the protection of the community is really significant. People are entitled to feel safe in their houses.
[2] Primary ts 17.
The sentencing judge found that the appellant took advantage of an elderly couple by gaining access to their home under the guise of getting a glass of water, and then went rummaging through their house and their belongings. The sentencing judge observed:[3]
You didn't steal anything but these are retired pensioners and [the male complainant] was 85 years old and you had a physical confrontation with him. It could have been disastrous. He's an old man and something really bad could have happened to him when you confronted him in his own home. It must have been a really terrifying experience for these people …
The sentencing judge said that she viewed the appellant's offence as a very serious example of an aggravated burglary.[4]
[3] Primary ts 17.
[4] Primary ts 18.
The sentencing judge identified the appellant's plea of guilty as a mitigating factor. Her Honour allowed a discount of 20% under s 9AA of the Sentencing Act 1995 (WA), having regard to the timing of the plea and the relatively strong prosecution case.[5]
[5] Primary ts 18.
Her Honour also considered the appellant's disadvantaged childhood to be a mitigating factor.[6]
[6] Primary ts 15, 18.
The sentencing judge then imposed the sentence of 3 years 10 months' imprisonment noted above. The sentence was backdated to 4 October 2018, which was the conclusion of a 6 month sentence for other matters which had been imposed while the appellant was on remand. The appellant was made eligible for parole.
Manifest excess: general principles
The general principles governing appeals contending that a sentence is manifestly excessive are well established:[7]
(1)A ground of appeal which alleges that a sentence is manifestly excessive asserts 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.
(2)The discretion conferred on sentencing judges is of fundamental importance and this court may not substitute its opinion as to sentencing for that of the sentencing judge merely because it would have exercised the discretion in a different manner. The appellant must demonstrate that the sentence imposed is unreasonable or plainly unjust.
(3)The guidance afforded by comparable cases is flexible rather than rigid. The mere fact that a sentence is within the range of other sentences imposed for similar offending 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 the range does not necessarily establish that the exercise of the sentencing discretion in the particular case miscarried.
(4)A sentencing range for comparable offences is merely one of the factors to be taken into account in deciding whether an individual sentence is manifestly excessive. A range of sentences customarily imposed is of significance for the purpose of ensuring broad consistency in the sentencing of offenders in broadly comparable cases. However, a sentencing range for comparable cases does not fix the range of a sound exercise of the sentencing discretion in a particular case.
(5)When an appellate court dismisses an appeal against sentence, and when it allows an appeal against sentence and resentences the offender, the court's decision on the sentencing outcome does not, of itself, fix the upper or lower limit of the range.
[7] Cluett v The Queen [2019] WASCA 111 [44]; Sheriff v The State of Western Australia [2017] WASCA 185 [172].
Disposition
As noted at [2] above, the maximum penalty for the appellant's aggravated home burglary offence was 20 years' imprisonment and the minimum penalty was 2 years' immediate imprisonment.
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.[8]
[8] Wragg v The State of Western Australia [2013] WASCA 198; (2013) 234 A Crim R 380 [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].
The present case is not in the most serious category of burglary. The appellant did not force her way into the complainants' home in a violent manner. However, the appellant was aware that the home was occupied by an elderly couple, whom she took advantage of by gaining access to their home under the guise of getting a glass of water. Their consent to the appellant being in their house was revoked when the female complainant told her to get out. The appellant then assaulted the 85‑year‑old male complainant while she was in the complainants' house without their consent. The use of violence at that time was a significant aggravating feature of the offence.
General deterrence is a particularly important sentencing consideration when dealing with offending of this kind.[9] Further, the appellant's repeated offending, while not an aggravating factor, tends to elevate the importance of personal deterrence and community protection as sentencing considerations. Previous sentences of immediate imprisonment had failed to deter the appellant from committing serious burglary offences. The sentencing judge found that the appellant was at a high risk of re-offending.
[9] Beins v The State of Western Australia [No 2] [2014] WASCA 54 [121].
In addition to the plea of guilty, the appellant's deprived upbringing, noted above, was mitigating. Her moral culpability was less than would have been the case for an offender whose formative years were not spent in an environment of violence and substance abuse.[10] Her difficult and traumatic childhood is of a kind likely to have an impact that does not diminish with the passage of time and repeated offending.[11] While this factor tends to reduce the importance of general and personal deterrence, they remain significant sentencing considerations in all the circumstances of this case. The importance of community protection, where the sentencing judge had found the appellant to be at high risk of re-offending, is undiminished. The weight to be given to an offender's deprived background must be assessed in light of all of the relevant circumstances of the case.[12]
[10] Bugmy v The Queen [2013] HCA 37; (2013) 249 CLR 571 [37] - [41].
[11] Bugmy [43] - [44].
[12] The State of Western Australia v Upkett [2013] WASCA 263 [70].
In all the circumstances of this case, the sentence of 3 years 10 months' immediate imprisonment, which was less than 20% of the maximum available penalty and only 22 months longer than the minimum term, cannot arguably be characterised as unreasonable or plainly unjust.
Orders
The appellant's ground, which alleges inferred error, has no reasonable prospect of succeeding. Given that conclusion, there would be no point in extending the time for the appellant to appeal against her sentence. In these circumstances, it was appropriate to dismiss the application for an extension of time, refuse leave to appeal and dismiss the appeal.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
ET
Associate to the Honourable Justice Mitchell19 SEPTEMBER 2019
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