Law v The State of Western Australia
[2009] WASCA 193
•6 NOVEMBER 2009
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: LAW -v- THE STATE OF WESTERN AUSTRALIA [2009] WASCA 193
CORAM: McLURE JA
PULLIN JA
BUSS JA
HEARD: 13 OCTOBER 2009
DELIVERED : 13 OCTOBER 2009
PUBLISHED : 6 NOVEMBER 2009
FILE NO/S: CACR 53 of 2009
BETWEEN: WAKA LAW
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram :WISBEY DCJ
File No :IND 150 of 2009
Catchwords:
Criminal law - Sentencing - Proof of facts on sentencing - Onus of proof - Standard of proof - Facts and circumstances likely to result in a more severe sentence - Facts and circumstances likely to result in a less severe sentence
Legislation:
Nil
Result:
Appeal dismissed
Category: A
Representation:
Counsel:
Appellant: Mr S B Watters
Respondent: Mr A L Troy
Solicitors:
Appellant: Thames Legal
Respondent: Director of Public Prosecutions (WA)
Case(s) referred to in judgment(s):
CJ v The State of Western Australia [2009] WASCA 42
Hutchins v The State of Western Australia [2006] WASCA 258
Langridge v The Queen (1996) 17 WAR 346
McLean v The Queen [1999] WASCA 209
Nguyen v The State of Western Australia [2009] WASCA 8
R v Hill [1979] VR 311
R v Lobban [2001] SASC 392; (2001) 80 SASR 550
R v Olbrich [1999] HCA 54; (1999) 199 CLR 270
R v Storey [1998] 1 VR 359
R v Vletter [2004] WASCA 96
Schugman v Menz [1970] SASR 381
The State of Western Australia v Wickham [2009] WASCA 137
McLURE JA: The reasons of Buss JA reflect the basis for my joinder in making the orders on 13 October 2009.
PULLIN JA: I agree with Buss JA.
BUSS JA: On 17 April 2009, the appellant was convicted on his plea of guilty before Wisbey DCJ in the District Court of one count in an indictment which alleged that, on or about 8 October 2008, the appellant, while in the place of Mercurys Gold Pty Ltd trading as Balcatta Mowers, without its consent, committed the offence of stealing while in company with others, contrary to s 401(2) of the Criminal Code (WA) (the Code).
The appellant was sentenced to 2 years and 2 months' immediate imprisonment, back‑dated to commence on 3 November 2008. A parole eligibility order was made.
The appellant appealed to this court against the sentencing decision. On 13 October 2009, this court heard and dismissed the appeal, with reasons to be published later. These are my reasons.
The grounds of appeal
On 30 July 2009, Miller JA ordered, relevantly, that leave to appeal be granted on the following amended grounds of appeal, which I reproduce without the supporting particulars:
1.The sentencing Judge erred both in law and in fact when, given the circumstances, he failed to adequately state the factual basis upon which he was sentencing the [Appellant];
2.The sentencing Judge erred both in law and in fact when he failed to find the relevant facts and sentenced the Appellant on a basis that did not accurately reflect the Appellant's criminality.
The background facts
On 11 November 2008, the appellant appeared, without legal representation, in the Magistrates Court at Perth. He entered pleas of guilty on the fast‑track system to one charge of burglary, contrary to s 401(1)(c) of the Code, and one charge of stealing, contrary to s 378 of the Code.
The burglary charge related to the premises of Balcatta Mowers. The charge did not, however, allege, as a circumstance of aggravation, that the appellant committed the offence in company. However, the prosecution's
statement of material facts did allege that he committed the burglary 'with others (not yet identified)'.
The stealing charge specified various items of property stolen from Balcatta Mowers with an alleged total value of $24,758.
On 23 December 2008, the indictment I have mentioned at [3] above was filed in the District Court. At the same time, a notice of discontinuance was filed in respect of the original charge of burglary and the separate charge of stealing, which related to the same incident.
On 30 January 2009, the appellant appeared before O'Brien DCJ in the District Court, again without legal representation, and indicated an intention to plead guilty to the count in the indictment. It became apparent, in the course of discussions between her Honour and the appellant, that he denied the circumstance of aggravation of being in company. The matter was adjourned to enable the appellant to obtain legal advice.
The appellant obtained legal representation before his next appearance in the District Court on 20 February 2009. The proceedings were, however, adjourned again.
On 17 April 2009, the appellant appeared before the sentencing judge and pleaded guilty to the count in the indictment.
The hearing before the sentencing judge
The prosecutor commenced her sentencing submissions by tendering the papers comprising the State brief. Counsel for the appellant did not object to the tender.
The prosecutor outlined the material facts relied on by the State, as follows:
The facts are that between 5.30 pm on Wednesday, 8 October and 7.40 am on Thursday, 9 October 2008, the offender and others who have not yet been identified nor charged attended at Balcatta Mowers situated at unit 5, number 3 Cressall Road in Balcatta. Whilst at that location, the offenders cut phone lines to the building at a junction box next to the premises. This action caused the external alarm on the building to sound.
The offenders smashed the external alarm from the wall, in turn silencing the alarm. The offenders gained access to the roof of the premises and gained entry into the roof cavity by cutting and rolling back an amount of the sheet metal. Once inside the roof space, they cut further phone lines to the alarm system.
Once access was gained, the offenders lowered themselves onto a mezzanine floor of the premises and disconnected a security camera that was facing the workshop area. They then lowered themselves to the ground floor and further disconnected two security cameras and one internal siren.
They then jemmied open the front roller door shutter that leads into the main showroom and selected the following items from the display shelves: one Star cylinder mower, one Husqvarna 137E chainsaw, one Husqvarna 240E chainsaw, one Husqvarna 440E chainsaw, one Husqvarna 445E chainsaw, one Husqvarna 450E chainsaw, one Husqvarna 570 chainsaw, one Husqvarna LTH1842 tractor, one Echo CS2700ES chainsaw, one Echo CS3050 chainsaw, one Echo CS351WES chainsaw, one hedge trimmer, one Echo Samurai 190 mower, one Echo GT2150 brush cutter, two Echo SRM2306ESL brush cutters, one bent shaft brusher and one Kawasaki KBL34A brush cutter.
Further, the offenders stole all of the business computer and the security surveillance hard drives from the premises prior to leaving. In total, some $21,623 [sic] worth of property was stolen.
At 7.40 am on Wednesday, 9 October 2008, the complainant attended the workshop and found that the premises had been entered and the items stolen. As a result, police attended the location and a forensic examination of the premises located items of interest at the point of entry. An analysis of fingerprints that were located was conducted and they were found to positively identify the offender (ts 2 ‑ 3).
None of the stolen property was recovered.
Counsel for the appellant then made his sentencing submissions. The relevant features were these:
(a)Counsel emphasised the plea of guilty.
(b)Counsel said that although, on his instructions, there was some deviation between the material facts as outlined by the prosecutor and his instructions, the deviation did not warrant a trial of issues or an adjournment (ts 4).
(c)Counsel then set out his instructions in relation to the offence. He said, relevantly:
My client was in desperate need of money at the time.
His instructions are as follows in respect of the incident per se. He had been travelling to his residence when he saw a silhouette of two persons on the roof of the building referable to this burglary. Incidentally, your Honour, his recollection of the time is somewhat different from that on the material facts. He thought it was later, about 10‑ish or so in the evening.
He returned to his home, thinking about what he had seen and no doubt appreciating that those two people were getting into the place. He resolved to return and did return to the premises with another. He made his way to the roof and found the cavity and followed it, finding his way ultimately to the showroom.
He and the other took items of an electrical nature from the showroom but my instruction further is that some other items were clearly ‑ clearly items already on the list as described by my learned friend had been taken. Specifically, my client took a mower for his ‑ that he particularly took by himself and a couple of other items of electrical ‑ a couple of other electrical items. He ultimately took those items to a pub and sold them. The money that he received went towards unpaid debts as disclosed (ts 4 ‑ 5).
Counsel for the appellant then made submissions as to the appellant's personal circumstances and antecedents.
The prosecutor, in her reply, referred to 'the dispute about the material facts' (ts 9). She said:
There is a notation in the file that the palm prints or the fingerprints that I referred to as part of the statement of material facts were actually in the form of a palm print that was found on the interior of the metal sheeting in the roof which seems to suggest that certainly the offender gained entrance through the roof.
It begs the question that if he simply followed in after other offenders had previously been in the premises, why he chose to enter through the roof and not via the open front roller doors which certainly seemed to be the manner of exit of the offenders. So certainly the State does not accept that this offender came in after some other burglary had already taken place and that's also supported or, should I say, his version of events is somewhat discredited given the location of this building. I'm given to understand from the notations on the file that the building is actually set back from the street and is located behind some other shops so his version of events that he was simply driving past and saw people on the roof again doesn't bear up under close examination, if I can put it that way (ts 9). (emphasis added)
The sentencing judge commented to the prosecutor that the offence in question was 'quite a serious and very professional burglary' (ts 10). The prosecutor responded, relevantly:
Your Honour will note from the victim impact statement … the victim does refer to comments that have been made to her by her insurance agents that their level of security was quite good, that they don't think there was anything more they could have done to secure the premises and for people to burgle the premises despite those security measures does speak to some degree of sophistication.
Certainly all manner of warning, if I can put it that way, was cut off. The phone lines were cut. The powerlines were cut. They entered in a manner where they entered behind the cameras and then took ‑ for added measure they took the cameras and the ‑ certainly the hard drives with them containing the footage and, yes, your Honour, it does speak to a very professional and very sophisticated degree of burglary, as does the amount of property and the value of the property stolen. If your Honour has reference to the photos that are contained on the brief, your Honour will see that the showroom was left virtually empty. There was not much left on display at all (ts 10).
The sentencing judge said, in his sentencing remarks, that although there appeared to be some dispute as to the facts, it was quite clear the appellant entered or gained access to the building through the roof, steps were taken in the course of the burglary to neutralise the security system, there was no doubt this was a serious and professional burglary, and the appellant was to be sentenced on that basis (ts 11).
The appellant's submissions to this court
Counsel for the appellant submitted to this court that there was a 'factual disparity' between the material facts outlined and relied on by the prosecutor, following the plea of guilty, and the appellant's instructions, as communicated by counsel to the sentencing judge, concerning his role in the offence.
According to counsel for the appellant, once this factual disparity became apparent, the sentencing judge should have resolved it either by finding the facts, for the purposes of sentencing, to be those outlined by defence counsel on the basis of his instructions, or by ordering a trial of issues.
It was submitted that it was unclear whether the sentencing judge was sentencing the appellant as one of the people who had entered the building from the roof, cut various communication lines, disabled security cameras and other equipment, or whether he was sentencing him on the basis that he entered the building later and after the sophisticated means of entry had been employed by others. It was suggested by counsel that it was more likely his Honour sentenced the appellant on the basis of the material facts outlined and relied on by the prosecutor.
Counsel for the appellant conceded that if it was proper for the sentencing judge to have imposed sentence on the basis of the material facts outlined and relied on by the prosecutor, the sentence of 2 years and 2 months' immediate imprisonment was well within the applicable range.
The relevant legal principles
In R v Olbrich [1999] HCA 54; (1999) 199 CLR 270, Gleeson CJ, Gaudron, Hayne and Callinan JJ rejected a contention that a sentencing judge who was not satisfied of some matter urged in a plea on behalf of an offender must, nevertheless, sentence him or her on a basis that accepts the accuracy of the contention, unless the prosecution proves the contrary beyond reasonable doubt [24].
Several propositions are well established in relation to the basis on which a sentencing judge must impose sentence where the offender pleads guilty.
First, a plea of guilty to an offence necessarily involves an admission by the offender of each of the elements of the offence, including all of the essential facts necessary to constitute the offence. See R v Hill [1979] VR 311, 312 (Young CJ, Menhennitt & Crockett JJ). The plea also negatives all defences. See Schugman v Menz [1970] SASR 381, 381 ‑ 382 (Bray CJ). A plea of guilty does not, however, constitute an admission of all of the facts stated in the State's or Crown's depositions or witness statements. See Hill, 312. It is necessary for the sentencing judge to evaluate the facts, consistently with the plea, to determine the offender's culpability and decide upon an appropriate sentence.
Secondly, the distinction between aggravating and mitigating circumstances, for sentencing purposes, may sometimes be unclear or even, on occasions, ambiguous. In R v Storey [1998] 1 VR 359, Winneke P, Brooking and Hayne JJA and Southwell AJA said:
It may very well be that the descriptions of aggravating and mitigating circumstances will be useful shorthand expressions to refer to the distinction we draw. They are, however, no more than shorthand expressions. It would not be right to argue from the tag that is applied to the category of circumstances to some conclusion about whether a particular circumstance is or is not in one group rather than the other. Factors cannot be characterised as always aggravating or always mitigating. For example, the taking of drugs or alcohol will sometimes be put forward as a mitigating factor but it may, in a given case, be held to aggravate the crime. Good standing in the community will usually tend to mitigate but may tend to aggravate if it has been misused. One must always ask what the tendency of the circumstance is in the particular case under consideration. No doubt there will be cases in which the same facts can be seized on by both the Crown and the accused and described by one as an aggravating circumstance and the other as a mitigating circumstance. 'Aggravating' and 'mitigating' must be understood in a wide sense, and without, for example, drawing the distinction which might be drawn between the significance for another purpose on the one hand of a circumstance which renders the crime more serious (for example, the use of a weapon) and on the other hand of a prior or subsequent conviction.
The test is not what tag can or should be applied to any particular fact but what use the judge proposes to make of the fact in relation to the offender (371).
I respectfully agree with these observations. In the balance of my reasons, I will use the terms 'aggravating circumstances' and 'mitigating circumstances' in the sense explained by the majority in Storey. The essential point of distinction is whether, in a particular case, a fact or circumstance is likely to result in a more severe or less severe sentence than would otherwise be the case. See Langridge v The Queen (1996) 17 WAR 346, 367 (Kennedy J, Wallwork J agreeing).
Thirdly, if the prosecution seeks to have the sentencing judge take a matter into account as an aggravating circumstance, it will be for the prosecution to bring that matter to the judge's attention and, if necessary, call evidence about it. See Olbrich [25].
Fourthly, if the offender seeks to have the sentencing judge take a matter into account as a mitigating circumstance, it will be for the offender to bring that matter to the judge's attention and, if necessary, call evidence about it. See Olbrich [25]
Fifthly, it will only be necessary for the prosecution or the offender to call evidence about an aggravating or mitigating circumstance, as the case may be, if the asserted matter is controverted by the other party or if the sentencing judge is not prepared to act on the assertion, even though it is not controverted by the other party. See Olbrich [25].
Sixthly, the sentencing judge is obliged to give notice to the offender if the judge is not prepared to act on an alleged mitigating circumstance which is asserted by the offender and not controverted by the prosecution. See Hutchins v The State of Western Australia [2006] WASCA 258 [25] (McLure JA, Steytler P & Wheeler JA agreeing); Nguyen v The State of Western Australia [2009] WASCA 8 [20] (Steytler P); CJ v The State of Western Australia [2009] WASCA 42 [4] (McLure JA, Buss JA agreeing); The State of Western Australia v Wickham [2009] WASCA 137 [29] (Miller JA, Martin CJ & Buss JA agreeing). The giving of notice enables the offender to adduce evidence, for the purpose of establishing the mitigating circumstance, before sentence is imposed. See CJ [4].
Seventhly, the prosecution must establish an aggravating circumstance beyond reasonable doubt, but the offender is only required to prove a mitigating circumstance on the balance of probabilities. See Olbrich [27]; Storey, 369.
Eighthly, if the sentencing judge is not persuaded of the existence of a particular fact, whether mitigating or aggravating, the absence of that fact does not prove the converse fact, adverse to or in favour of the offender, as the case may be. Where the sentencing judge is not persuaded of the existence of a fact, the fact does not exist for the purposes of sentencing. See R v Lobban [2001] SASC 392; (2001) 80 SASR 550 [32] (Martin J, Mullighan & Bleby JJ agreeing).
The merits of the appeal
In my opinion, it is apparent from the remarks of the sentencing judge, read as a whole, that he imposed sentence on the basis of the material facts outlined and relied on by the prosecutor.
It was open to the sentencing judge to proceed in this manner. His Honour was entitled to be satisfied beyond reasonable doubt of the existence of the material facts outlined and relied on by the prosecutor, on the basis of the appellant's plea of guilty and the papers comprising the State brief, which, as I have mentioned, was tendered by the prosecutor without objection from counsel for the appellant.
The admissible evidence included evidence that there had been a burglary at Balcatta Mowers, the offenders had entered the building through the roof, the appellant's palm print was found on the interior of the metal sheeting of the roof at the point of entry, telephone and power lines had been cut, and the security system had been disabled and stolen, together with numerous other goods. The stolen property had a total value of $24,758.
The sentencing judge was entitled to conclude from the State's admissible evidence, and in the absence of any admissible evidence from the appellant or otherwise pointing to the occurrence of two unrelated burglaries, that the only reasonable and rational inference that could be drawn was that there was only one burglary, the burglary was 'serious and professional' and the appellant committed the burglary with others (including entering or gaining access to the building through the roof and taking steps in the course of the burglary to neutralise the security system). There was no admissible evidence adduced by or on behalf of the appellant to counter the inferences to be drawn from the plea of guilty and the State brief.
In my opinion, the sentencing judge did not fail to accord procedural fairness to the appellant. I am of that opinion for these reasons:
(a)The appellant was represented at the sentencing hearing by an experienced and competent criminal defence lawyer.
(b)The prosecutor, in her reply, expressly and unequivocally controverted the version of events put forward by counsel for the appellant to the extent that counsel's version differed relevantly from the material in the State brief.
(c)Counsel for the appellant knew all of the facts and circumstances he needed to know for the purpose of deciding whether to apply for a trial of issues or not. He decided not to apply for a trial.
(d)There appear to have been tactical reasons for counsel's decision. In particular, it was inevitable that the appellant would be sentenced to a term of immediate imprisonment; the appellant was entitled to a significant discount on his sentence for his fast‑track plea of guilty; if there had been a trial of issues, it would have been essential for the appellant to have given sworn evidence in support of his version of events that there were in fact two unrelated burglaries on the night in question, and that the second burglary in which he was involved was less egregious than the first; if the appellant had given sworn evidence and been disbelieved by the sentencing judge, the discount on his sentence for his fast‑track plea of guilty would have been reduced.
In the circumstances, the sentencing judge was not obliged to inform counsel for the appellant that he would not be sentencing the appellant on the version of events put forward by counsel.
The sentencing hearing bears the hallmark of a strategic decision by the appellant's counsel to secure a significant discount on the appellant's sentence for his fast‑track plea of guilty, and then to endeavour to mitigate the seriousness of the offence by advancing a version of events from the bar table in the hope that it would weigh favourably on the mind of the sentencing judge, without exposing the appellant to the palpable risks of giving sworn evidence.
The sentencing judge adequately stated the factual basis on which he was sentencing the appellant. That basis accurately reflected the nature and extent of the appellant's criminality. The grounds of appeal are without merit.
The concession by counsel for the appellant to this court that if the grounds of appeal were not made out then the sentence of 2 years and 2 months' immediate imprisonment was well within the applicable range, was properly made. See, for example, R v Vletter [2004] WASCA 96; McLean v The Queen [1999] WASCA 209.
Conclusion
For these reasons, I joined with the other members of the court in dismissing the appeal.
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