Lap v The State of Western Australia
[2012] WASCA 156
LAP -v- THE STATE OF WESTERN AUSTRALIA [2012] WASCA 156
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2012] WASCA 156 | |
| THE COURT OF APPEAL (WA) | |||
| Case No: | CACR:138/2012 | 24 JULY 2012 | |
| Coram: | BUSS JA MAZZA JA | 15/08/12 | |
| 7 | Judgment Part: | 1 of 1 | |
| Result: | Appeal dismissed | ||
| D | |||
| PDF Version |
| Parties: | LAP THE STATE OF WESTERN AUSTRALIA |
Catchwords: | Criminal law Application for leave to appeal against sentence Five counts of aggravated burglary Young offender Were individual sentences manifestly excessive Did total effective sentence breach totality principle Turns on own facts |
Legislation: | Nil |
Case References: | JSA v The State of Western Australia [2012] WASCA 25 Wilson v The State of Western Australia [2010] WASCA 82 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : LAP -v- THE STATE OF WESTERN AUSTRALIA [2012] WASCA 156 CORAM : BUSS JA
- MAZZA JA
- Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
ON APPEAL FROM:
Jurisdiction : CHILDREN'S COURT OF WESTERN AUSTRALIA
Coram : CURTHOYS DCJ
File No : CC 701 of 2012, CC 703 of 2012, CC 705 of 2012, CC 1473 of 2012, CC 1475 of 2012
Catchwords:
Criminal law - Application for leave to appeal against sentence - Five counts of aggravated burglary - Young offender - Were individual sentences manifestly excessive - Did total effective sentence breach totality principle - Turns on own facts
(Page 2)
Legislation:
Nil
Result:
Appeal dismissed
Category: D
Representation:
Counsel:
Appellant : Mr S B Watters
Respondent : No appearance
Solicitors:
Appellant : Holgate Legal
Respondent : Director of Public Prosecutions (WA)
Case(s) referred to in judgment(s):
JSA v The State of Western Australia [2012] WASCA 25
Wilson v The State of Western Australia [2010] WASCA 82
(Page 3)
1 BUSS JA: I agree with Mazza JA.
2 MAZZA JA: Before the court are applications for an extension of time and leave to appeal against sentence. In the event that leave to appeal is granted, an urgent appeal order is sought. The appeal was filed approximately three weeks out of time. Having regard to the affidavit of the appellant's solicitor, sworn 31 May 2012, I would grant an extension of time.
3 The appellant pleaded guilty at an early opportunity to five counts of aggravated burglary on dwellings. On 18 April 2012, he was sentenced by Curthoys DCJ, sitting as the President of the Children's Court of Western Australia, to 22 months' detention on each charge, to be served concurrently, resulting in a total effective sentence of 22 months' detention. At the time he was sentenced, the appellant was serving an earlier sentence of detention imposed for other offences as a consequence of breaking a supervised release order. His Honour ordered that the total effective sentence he imposed be served cumulatively upon the sentence the appellant was then serving. As a consequence of this order, the total effective sentence will commence on 13 August 2012. His Honour ordered that the appellant be eligible for release under a supervised release order.
4 The appellant sought to challenge the sentences imposed upon him on three grounds. Ground 1 was abandoned at the hearing of this application. The two proposed grounds now relied upon allege that each of the individual sentences was manifestly excessive (ground 2) and that the total effective sentence infringed the first limb of the totality principle (ground 3).
The offending
5 On 2 May 2011, the appellant was sentenced to a total period of 18 months' detention for offences which included aggravated burglary. He was made eligible for release under a supervised release order.
6 On 8 February 2012, the appellant was released from detention pursuant to a supervised release order. While subject to the order, and only a day after his release, the appellant committed the first of the burglaries the subject of this appeal. He committed further offences on 11 and 12 February 2012, and two offences on 16 February 2012. There is no need to set out in any detail the facts of each offence. Essentially, the appellant adopted the same method of offending. The appellant went to houses in which the occupants were absent. He then forced entry into the
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- property and stole various items, including jewellery, mobile telephones, watches, portable computers.
7 On 16 February 2012, he was apprehended by police with various stolen items. Forensic evidence also linked the appellant with the offences.
The appellant's background
8 The appellant was born on 14 January 1996. His background is unquestionably tragic. From an early age, the appellant was exposed to ongoing domestic violence and substance abuse. Both his parents have spent significant periods of time in prison. The appellant has largely lived an unstructured and erratic lifestyle and has moved between numerous family members, with no stable accommodation. Offending is normal within his family and extended family. Due to his transient lifestyle, the appellant has missed lengthy periods of school and struggled academically.
9 The appellant first used cannabis when he was 10 years of age, and alcohol and methylamphetamine since he was 12. When he is within the community he uses these substances daily. The evidence before his Honour was that the appellant sees no negative impact in drug and alcohol abuse.
10 The appellant has a lengthy criminal history. Since 2007, when not in detention he has persistently, and on many occasions, committed burglaries on dwellings. Community based orders designed to facilitate his rehabilitation have been breached and have not stopped his offending. At the time he was sentenced by his Honour, the appellant was a repeat offender. Accordingly, his Honour was required to sentence the offender to at least 12 months' detention for each of the offences to which he pleaded guilty: s 401(4)(b) of the Criminal Code (WA).
11 There were before his Honour a number of psychological reports. The latest, dated 16 March 2012, by Ms R Buktenica, reveals no history of mental health issues or depression. The appellant displayed difficulties understanding the seriousness of his behaviour and had little understanding of the impact of his behaviour on others. He expressed no remorse. Ms Buktenica noted that the appellant 'holds concrete and rigid beliefs that normalise offending behaviour and minimise the seriousness of what he has done'.
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His Honour's sentencing remarks
12 His Honour noted the appellant's age and deprived background. He observed, having regard to his criminal history, that the appellant had a 'very persistent habit of burglary'. He noted that previous attempts to rehabilitate the appellant had failed and that he was, at the time of his offending, in breach of the supervised release order. His Honour considered that the offending showed the appellant was 'a threat to the community'. Consequently, his principal concern was public protection. His Honour gave mitigatory weight to the appellant's youth and early pleas of guilty. He reduced the sentence he would have imposed on each offence by 2 months, to take into account time that he had spent in custody for the current offences.
The merits of the appeal
13 Having abandoned ground 1, there is now no challenge to his Honour's approach to the sentencing of the appellant. In particular, there is no challenge to the emphasis his Honour gave to the protection of the community, despite the appellant's youth.
14 The two grounds of appeal can be dealt with together. The relevant general principles which apply to appeals against sentence are well-known and were explained by McLure P and Owen JA in Wilson v The State of Western Australia [2010] WASCA 82 [2]. They do not require repetition here.
15 Each proposed ground of appeal alleges inferred rather than express error.
16 To determine whether a sentence is manifestly excessive, it is necessary to examine 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 the kind in question and the personal circumstances of the offender.
17 There are two limbs or aspects to the totality principle. This appeal concerns only the first limb which requires that the total effective sentence imposed upon an offender must bear a proper relationship to the overall criminality involved in all the offences, viewed in their entirety and having regard to the circumstances of the case, including those referable to the offender personally. The scope of the first limb of the totality
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- principle embraces a consideration of any sentence that the offender is still serving.
18 The maximum penalty for aggravated burglary is 20 years' imprisonment. Section 118(1)(b) of the Young Offenders Act 1994 (WA) provides that if the statutory penalty for an offence is or includes imprisonment and the court dealing with the offender decides to impose a custodial sentence, the court may sentence the offender to a term of detention that is not longer than the term of imprisonment to which the offender would have been liable if the offender were not a young person.
19 In JSA v The State of Western Australia [2012] WASCA 25 [100], Buss JA discussed the few relevant sentencing decisions of this court, to which I would add JSA itself. I have also considered the decisions of single judges referred to by the appellant's counsel. They are all distinguishable from the present case. Of course, in the end, each case must be decided on its own facts.
20 The appellant's offending was serious, whether looked at individually or collectively. The appellant commenced offending the day after his release on a supervised release order. He committed five burglaries in the space of a week. In each instance, he broke into homes where the occupants had gone out. The appellant exploited this situation to break into the properties and steal various valuable items, including personal jewellery.
21 The principal mitigating factor was the appellant's early pleas of guilty, although it must be said that, in light of the forensic evidence, the case against the appellant was very strong. The appellant was entitled to some mitigation for his youth and his deprived background, but against these matters must be weighed his lengthy record of similar offending, his inability to comply with orders designed to achieve his rehabilitation, and the high likelihood that he will reoffend in a similar way. Personal deterrence and public protection were plainly required. It cannot be overlooked that because the appellant was a repeat offender, terms of imprisonment of not less than 12 months had to be imposed.
22 I accept that, for a young offender, a term of 22 months' imprisonment is a high sentence, but in all of the circumstances of this case I do not think that the individual sentences can be said to be unreasonable or plainly unjust. Each represents a proper exercise of His Honour's sentencing discretion. The individual sentences are not manifestly excessive.
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23 The appellant's argument with respect to the alleged infringement of the first limb of the totality principle relied upon his Honour's order that the total effective sentence for the five burglary offences be served cumulatively upon the unexpired portion of the sentence imposed on 2 May 2011. In my opinion, his Honour was correct to make such an order, having regard to the appellant offending so soon after his release on the supervised release order. I have not been persuaded that the total effective sentence breached the first limb of the totality principle.
24 For these reasons, grounds 2 and 3 have no reasonable prospects of succeeding. Leave to appeal must be refused in respect of each ground. As leave has been refused on all grounds, the appeal is to be taken to be dismissed: s 27(2) and (3) of the Criminal Appeals Act 2004 (WA).
25 In the light of these decisions, the application for an urgent appeal order is otiose. It will be dismissed.
Orders
1. The extension of time is granted.
2. Leave to appeal is refused on each ground.
3. The application for an urgent appeal order is refused.
4. The appeal is dismissed.
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