Lynden v The State of Western Australia [No 2]
[2013] WASCA 186
•22 AUGUST 2013
LYNDEN -v- THE STATE OF WESTERN AUSTRALIA [No 2] [2013] WASCA 186
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2013] WASCA 186 | |
| THE COURT OF APPEAL (WA) | |||
| Case No: | CACR:96/2013 | 2 AUGUST 2013 | |
| Coram: | PULLIN JA NEWNES JA MAZZA JA | 22/08/13 | |
| 7 | Judgment Part: | 1 of 1 | |
| Result: | Appeal dismissed | ||
| B | |||
| PDF Version |
| Parties: | RICHARD ANTHONY LYNDEN THE STATE OF WESTERN AUSTRALIA |
Catchwords: | Criminal law Sentencing Stealing goods valued at more than $12,000 Whether sentence manifestly excessive |
Legislation: | Criminal Code (WA), s 378 |
Case References: | Chan v The Queen (1989) 38 A Crim R 337 Fawcus v The State of Western Australia [2013] WASCA 86 Hollingsworth v Keates [2002] WASCA 86 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 : LYNDEN -v- THE STATE OF WESTERN AUSTRALIA [No 2] [2013] WASCA 186 CORAM : PULLIN JA
- NEWNES JA
MAZZA JA
- Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram : STEVENSON DCJ
File No : IND 99 of 2013
Catchwords:
Criminal law - Sentencing - Stealing goods valued at more than $12,000 - Whether sentence manifestly excessive
Legislation:
Criminal Code (WA), s 378
Result:
Appeal dismissed
Category: B
Representation:
Counsel:
Appellant : Mr S D Freitag
Respondent : Ms C Barbagallo
Solicitors:
Appellant : Simon Freitag
Respondent : Director of Public Prosecutions (WA)
Case(s) referred to in judgment(s):
Chan v The Queen (1989) 38 A Crim R 337
Fawcus v The State of Western Australia [2013] WASCA 86
Hollingsworth v Keates [2002] WASCA 86
Wilson v The State of Western Australia [2010] WASCA 82
1 PULLIN JA: The appellant entered a fast-track plea of guilty to one charge of stealing contained in an indictment. On 19 April 2013, Stevenson DCJ sentenced the appellant to 20 months' immediate imprisonment with eligibility for parole.
2 The appellant appeals against this sentence. There is one ground of appeal. The ground of appeal alleges that the learned sentencing judge erred in imposing a sentence that was manifestly excessive.
Background
3 The facts as outlined by the learned sentencing judge were as follows. On 22 August 2012, the appellant attended the Stargate Shopping Centre with his family. The appellant was pushing his son in a pram. The appellant entered a clothing shop called Sukerti Fashion with his son in the pram. The appellant stood at the entrance of the shop and noticed that nobody appeared to be in the shop. In fact, the store owner (the victim) was at the back of the store hanging up clothing.
4 The appellant went into the shop and approached the counter. He then went behind the counter, looking around to make sure that he was not being observed. The appellant took the victim's handbag, hiding it underneath his hoodie. He returned to the pram and left the store.
5 The contents of the victim's handbag were valued at $12,450. Inside the handbag was $5,300 in Australian currency and 10 million Indonesian rupiah (valued at AUD $1,000). The handbag also contained five gold necklaces, five gold rings, four pairs of earrings, one silver necklace, two bracelets, and a silver nugget to the collective value of $6,150. None of the money or the property was recovered.
6 The store was fitted with a number of closed circuit television (CCTV) surveillance cameras which captured the appellant's conduct. The CCTV footage was provided to the police after the victim realised that her handbag had been stolen. Subsequently, the appellant was apprehended.
7 The appellant was interviewed by police on 4 October 2012. The appellant admitted that he had been in the store at the time the offence was committed, but denied that he had taken anything while he was in the store. The appellant was shown photographs of the CCTV footage which showed him taking the victim's handbag, but he still denied having taken anything from the store.
8 As to the appellant's personal history, he left school at the end of Year 9. His record of employment is sporadic and, at the time of sentencing, he was unemployed. He has been in a de facto relationship for nine years and has two sons with his partner, aged seven and three.
9 The appellant has a long history of substance abuse and a lengthy adult criminal record that includes, inter alia, six stealing offences, four burglary offences, offences of threats to injure, an offence of carrying a controlled weapon, and offences of damage to property. The appellant's juvenile criminal record also includes, inter alia, five stealing offences and seven burglary offences. He has been the subject of intensive supervision orders, which he breached by the commission of further offences. He has been fined and imprisoned before. The sentencing judge found that the appellant was not under the influence of alcohol or cannabis at the time of the commission of this offence and that the appellant knew exactly what he was doing. His Honour accepted that while the appellant only became aware of the contents of the handbag after stealing it, he showed a lack of regard for the sentimental and emotional attachment that the victim may have had to the jewellery by throwing some of the jewellery away.
10 At the time he was sentenced, the appellant was 23 years and 10 months of age. The sentencing judge accepted that youth was a mitigating factor for the purpose of imposing a sentence, but found that there was little mitigatory benefit to the appellant who was 'an adult' and 'responsible for [his] conduct in the community'. The appellant's plea of guilty was also a mitigating factor. However, the effect of the guilty plea was reduced because the appellant showed no genuine remorse for his offending, he was caught 'red-handed' on CCTV footage, he had a long history of dishonesty offences, and he committed a further offence of stealing subsequent to being charged with the stealing offence the subject of this appeal. As a result, the sentencing judge, pursuant to s 9AA of the Sentencing Act 1995 (WA), stated that the appellant's head sentence was reduced by 10%.
11 The sentencing judge found that the vulnerability of shopkeepers was an aggravating factor and expressed the need for general and personal deterrence.
The ground of appeal
12 The sole ground of appeal alleges that the sentence of 20 months' immediate imprisonment was manifestly excessive. The appellant referred to the appellant’s fast-track plea of guilty, his lack of knowledge as to the contents of the handbag, the spontaneous nature of the offending, and the appellant's family and personal circumstances.
Principles applicable to the appeal
13 The general principles applicable to appeals against sentence were set out by McLure P and Owen JA in Wilson v The State of Western Australia [2010] WASCA 82 [2]. A challenge based on implied error will often involve the contention that an individual sentence is manifestly excessive. To determine whether a sentence is manifestly excessive, it is necessary to view it in 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 that type and the personal circumstances of the offender: Chan v The Queen (1989) 38 A Crim R 337, 342.
The merits of the appeal
14 Stealing is a crime pursuant to s 378 of the Criminal Code (WA) and carries a maximum penalty of 7 years' imprisonment. Where the value of the property stolen is less than $1,000, the offence may be dealt with summarily, in which case the maximum penalty is a fine of $6,000: s 426(4) of the Criminal Code. The summary jurisdictional limit did not apply in this case as the value of the property stolen by the appellant exceeded $1,000. Indeed, the fact that the value of the property stolen by the appellant was $12,450 was an indication of the level of seriousness of the offence carried out by the appellant. That the appellant was unaware of the contents of the handbag when he stole it did not, as counsel for the appellant contended, alter the seriousness of his offence or reduce the culpability of the appellant.
15 The appellant referred to two cases in support of his submission that the sentence imposed was manifestly excessive: Fawcus v The State of Western Australia [2013] WASCA 86 and Hollingsworth v Keates [2002] WASCA 86. In Fawcus, the appellant, on separate occasions, stole food to the value of $79.95 to provide a Christmas meal for his children, and stole fuel to the value of $70.20. He had not been to prison before the commission of the two stealing offences and an armed robbery offence for which he was also sentenced. On appeal, the appellant's sentences of 6 months' imprisonment for each stealing offence to be served concurrently were reduced to 3 weeks' imprisonment for each offence to be served concurrently. The appellant contended that Fawcus was a comparable case given the spontaneous nature of the appellant's offending and an early plea of guilty. However, Fawcus differed from this appeal. In Fawcus, the property stolen was of little value, some of the property was recovered and the appellant did not attempt to conceal the stolen goods.
16 In Hollingsworth, the appellant, who was a heroin addict, was sentenced to 6 months' imprisonment for stealing goods to the value of $128, all of which were retrieved because she was apprehended as she left the shop from which the goods were stolen. The sentence was set aside and replaced with a fine of $200 in light of the six weeks already spent in custody by the appellant. Although the appellant in Hollingsworth also plead guilty to the stealing offence and had prior convictions for dishonesty offences, the case is materially different because the value of the property stolen was modest and the property was recovered.
17 Counsel for the appellant contended that these cases provide a point of comparison because the appellant in this appeal did not intentionally steal property to the value of $12,000, and, therefore, his mental element was more akin to the appellants in Fawcusand Hollingsworth. This contention must be rejected. The appellant stole the handbag intending to permanently deprive the owner of its contents. When he later opened the handbag, he became aware of the value of the contents which he kept, spent or threw away. The seriousness of his conduct is not reduced because he 'unwittingly' stole a handbag that happened to contain property of a high value. The sentences imposed on appeal in Fawcus and Hollingsworth do not provide a point of comparison as the offending by the appellants in those cases belong to a much less serious class of stealing offences.
18 The learned sentencing judge took into account the appellant's personal circumstances. His Honour was correct to diminish the mitigatory effect of the appellant's fast-track guilty plea because the appellant failed to show any remorse for his offending and continued to offend despite having been charged with the stealing offence the subject of this appeal. The appellant was a mature adult who engaged in persistent and similar criminal conduct and had failed to rehabilitate himself.
19 In all the circumstances, the sentence of 20 months' imprisonment was not manifestly excessive.
20 The ground of appeal has no merit.
21 The appeal should be dismissed.
22 NEWNES JA: I agree with Pullin JA.
23 MAZZA JA: I agree with Pullin JA.
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