Main v The State of Western Australia
[2010] WASCA 28
•18 FEBRUARY 2010
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: MAIN -v- THE STATE OF WESTERN AUSTRALIA [2010] WASCA 28
CORAM: OWEN JA
WHEELER JA
NEWNES JA
HEARD: 3 FEBRUARY 2010
DELIVERED : 18 FEBRUARY 2010
FILE NO/S: CACR 102 of 2009
BETWEEN: DEKE AARON MAIN
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram :YEATS DCJ
File No :IND 896 of 2008, IND 1369 of 2008
Catchwords:
Turns on own facts
Legislation:
Criminal Code (WA), s 143, s 512
Criminal Investigation (Identifying People) Act 2002 (WA), s 16(8)
Sentencing Act 1995 (WA), s 8(2)
Result:
Leave to appeal on ground 2
Appeal allowed on ground 2
Category: B
Representation:
Counsel:
Appellant: Mr A J Robson
Respondent: Mr R G Wilson
Solicitors:
Appellant: Legal Aid (WA)
Respondent: Director of Public Prosecutions (WA)
Case(s) referred to in judgment(s):
Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321
Fernandes v The State of Western Australia [2009] WASCA 227
H v The State of Western Australia [2006] WASCA 53
Hintz v The Queen [2002] WASCA 38
Main v Lapsley [2008] WASC 129
McDonald v White [2007] WASCA 213
Munro v State of Western Australia [2005] WASCA 31
Newburn v The Queen [2004] WASCA 108
O'Brien v State of Western Australia [2008] WASCA 104
Rafferty v Police [2006] SASC 169
Wimbridge v The State of Western Australia [2009] WASCA 196
Wood v The Queen [2002] WASCA 95
OWEN JA: I agree with Wheeler JA.
WHEELER JA:
Introduction
This is an application for an extension of time within which to appeal, and for leave to appeal, in relation to sentences imposed upon the appellant for aggravated burglary and the making of an acknowledgement of bail without lawful authority. The sentencing judge imposed a sentence of 2 years, 8 months' imprisonment in relation to the burglary offence and 8 months' imprisonment in relation to the bail offence, with the terms to be served cumulatively. The aggregate sentence imposed on the appellant was therefore 3 years and 4 months, with eligibility for parole, backdated to 21 March 2007 to reflect the time spent in custody on remand.
Circumstances of the offending
The aggravated burglary took place on 19 November 2006, when the appellant entered the premises of the Nursing Board on Adelaide Terrace and damaged doors, pulled out drawers and ripped a security camera from the wall. After the alarm system sounded, security guards attended the premises and found the appellant exiting from a security door, and patting himself. The appellant was found to have a 30 cm ceremonial or ornamental‑style knife in his pants and nearby there were two black bags containing laptops and a projector taken from the premises.
The offence of making a false acknowledgement of bail took place in the early hours of 10 March 2007. During the evening, the appellant was stopped by police in relation to street drinking. He was very intoxicated, and had outstanding bench warrants for offences not the subject of this appeal. After running away and being apprehended by police, he gave his name as David Hall, which the police believed was false. He was arrested and taken to Curtin House so that his identity could be checked. When the police searched for David Hall in their computer system, the name Kevin David Hall was found, and the appellant was asked whether this was his real name. He told police that this was his real name and was released after providing fingerprints, DNA, photographs, and a bail undertaking in the name of Kevin David Hall, in relation to a possible charge of providing false identifying particulars. On 16 March 2007, analysis of the fingerprints revealed that they matched the appellant. He was taken into custody on 23 March 2007 and made no application for bail.
Procedural history
There were two indictments. The first indictment, IND 896 of 2008, was filed on 22 June 2008, and related to the offence of aggravated burglary. The appellant pleaded not guilty to this offence, and the matter went to trial. He was convicted on 21 October 2008.
A second indictment was filed on 10 July 2008, and alleged against the appellant two counts of attempting to pervert the course of justice by concealing his identity, contrary to s 143 of the Criminal Code (WA) (the Code). One count related to an arrest on 23 December 2006 and the other to the events on 10 March 2007. The appellant pleaded not guilty to these charges and the matter was listed for trial. On 17 September 2008, after plea negotiations, this indictment was discontinued. Count 1 on this indictment was replaced by a summary charge of giving false personal details, contrary to s 16(8) of the Criminal Investigation (Identifying People) Act 2002 (WA), to be dealt with in the Magistrates Court. Count 2 was replaced by a substituted indictment alleging one count of making a bail undertaking in a false name on 10 March 2007, contrary to s 512 of the Code, to which the appellant pleaded guilty on 10 November 2008. A letter provided to the sentencing judge by the State's counsel dated 28 November 2008 (by which time the appellant had been in custody for 20 months) acknowledged that the appellant agreed to plead guilty to the amended indictment upon the concession by the State that it would not seek a further term of imprisonment in relation to this offence. The letter noted, correctly, that the concession would not bind the sentencing judge.
The appellant was sentenced by Yeats DCJ in relation to both offences on 2 December 2008, by which time he had spent 623 days in custody.
The appellant's personal circumstances
The appellant was 26 years old at the time of sentencing. He lived with his mother until the age of seven, and it was said that she was a drug user who neglected her children physically and emotionally. He lived with his father after being removed from his mother's custody, and he described his father as extremely violent and aggressive. At the age of 10, he witnessed the murder of his father's partner, and had a close friend commit suicide. The appellant completed the year 10 equivalent at TAFE and since then has been mainly unemployed.
The appellant's extensive juvenile history began at the age of 12, and includes property offences, robbery and attempted robbery, threatening behaviour, resisting arrest, possession of offensive weapons and breach of bail. His adult criminal history appears somewhat less serious, but still contains a number of property offences, several counts of giving false details to police, escaping from custody, and breaches of bail, intensive supervision orders and suspended sentences. At the time of sentencing, he had 15 pending charges in the Magistrates Court. The author of the pre‑sentence report notes that the only significant periods without convictions occurred when the appellant was serving custodial sentences or remanded in custody. The appellant has not complied with any of his adult periods of supervision.
He began using alcohol and illicit drugs from the age of eight, and said that he was influenced to do so by his mother. He admitted to the author of the pre‑sentence report that he had an alcohol problem, but said that he did not need any assistance and could manage his alcohol use on his own when released. It was noted in the psychological report that the appellant had exhibited a pattern of externalising blame and he had difficulty in accepting responsibility for his behaviour. He continued to deny that he had committed the burglary offence.
Sentencing remarks
In her sentencing remarks, Yeats DCJ noted the appellant's unfortunate upbringing and his extensive criminal record. Her Honour referred to the comments in the pre‑sentence and psychological reports that the appellant had a pattern of externalising blame and to his mistaken belief that his alcohol abuse was under control and that he did not need help. It was clear that he was unlikely to benefit from any rehabilitation programmes until he took responsibility for his offending. She did not consider that an intensive supervision order would be appropriate in relation to an offence of "aggravated robbery" [sic burglary], where the offender was armed with a knife.
Her Honour noted that she would have imposed a sentence of 4 years' imprisonment for the aggravated burglary, which she reduced by a third (presumably due to the transitional provisions of the Sentencing Act 1995 (WA)) to reach a term of 2 years and 8 months. She accepted that the false acknowledgement of bail was at "the bottom of the scale" of seriousness for that offence, and said that she started with a term of 12 months, to be reduced to 8 months. The terms were to be served cumulatively, giving a total sentence of 3 years and 4 months. Her Honour noted the time spent in custody, which required the term of imprisonment to be backdated to 21 March 2007. She ordered that the appellant be eligible for parole although she "couldn't see a basis for it", saying that this could be the appellant's last chance.
Extension of time
The appellant was sentenced on 2 December 2008, and filed the appeal notice on 31 July 2009, nearly 8 months out of time. This is an extremely lengthy delay, and the principles in relation to such "gross" delays were discussed in Wimbridge v The State of Western Australia [2009] WASCA 196 by me (at [19] ‑ [25]) and by Buss JA (at [42] ‑ [49]). In order to obtain an extension of time, the appellant must either show exceptional circumstances explaining why the appeal was not filed in time, or that a miscarriage of justice would occur if the extension were not granted.
The affidavit material from the appellant explains some difficulties in obtaining initial legal advice, but does not give a date on which he first attempted to do so. There is some explanation, but a largely unsatisfactory one for the delay. However, there is not the potential prejudice to the State which may arise in relation to late conviction appeals and the appellant's sentence is not insignificant in length. If there is a strong prospect of success on any of the grounds of appeal, an extension should be granted.
Ground 1 – incorrect record
Ground 1 asserts that the learned sentencing judge erred in fact in sentencing the appellant by relying on an incorrect record of convictions which has been corrected since sentencing. It was found by this court in Main v Lapsley [2008] WASC 129 that the appellant was wrongly convicted, and had been sentenced twice, in relation to a single incident of giving a false name to police. The result overall was that he appeared to have five such prior convictions, when the true number was four.
In Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321, the High Court said that a sentence will not be set aside unless a material error is shown. A 'material' error of fact is one that affects, or is capable of affecting, the sentence actually imposed by the sentencing judge: Fernandes v The State of Western Australia [2009] WASCA 227 at [10]. The appellant points to the decision of Rafferty v Police [2006] SASC 169 in support of his argument that the reliance on an incorrect criminal record amounts to an error which requires an appellate court to re‑exercise the sentencing discretion. However, in that case, a number of moderately serious offences were wrongly attributed to the appellant, which made a substantial difference to his record ([23] ‑ [24]).
In this case, I do not accept that the factual error made by the sentencing judge was material. The important factor was that the appellant had a record of a number of previous offences of a particular type. The fact that it was four, rather than five, should not have led to a different sentence being imposed. Ground 1 must fail.
Ground 2 – Guilty plea
The second ground of appeal contends that the learned sentencing judge erred in failing to take into account the appellant's plea of guilty in relation to the offence of making a false acknowledgment of bail. Although the sentencing judge noted the appellant's guilty plea at the commencement of her sentencing remarks, there was no statement that this entitled to the appellant to a reduction in sentence, as required by s 8(2) of the Sentencing Act 1995 (WA). The appellant submits that it may be inferred from a failure to mention a mitigating factor that no reduction has been made for that factor: McDonald v White [2007] WASCA 213.
Both parties refer to the reduction in sentence from 12 to 8 months' imprisonment, where her Honour said:
For making an acknowledgement of bail without lawful authority or excuse, I do accept that was at the bottom of the scale. I would have given you 12 months' imprisonment but I reduced that to eight months' imprisonment.
In my view, these remarks are ambiguous. They could equally refer to a "starting‑point" of 12 months arrived at after taking the plea of guilty (which was the only substantial mitigatory factor) into account, or a determination that 12 months was an appropriate sentence, apart from the transitional provisions. The fact that her Honour adopted an identical structure for the sentencing in relation to the aggravated burglary, where there was no plea of guilty, points to the latter interpretation, rather than the former, however.
The way in which this court deals with a failure to observe s 8(2) of the Sentencing Act was set out by Steytler P in H v The State of Western Australia [2006] WASCA 53 at [10]:
Section 8(2) of the Sentencing Act 1995 (WA) provides that a plea of guilty by an offender is a mitigating factor and the earlier in proceedings that it is made, or indication is given that it will be made, the greater the mitigation. Section 8(4) provides that if, because of a mitigating factor, a court reduces the sentence it would otherwise have imposed on an offender, the court must state that fact in open court. Given the provisions of s 8(4), the failure to refer to the effect of a plea of guilty will ordinarily be an indication that a sentencing judge has overlooked it: see, for example, R v Thompson (2000) 49 NSWLR 383 at 395 [52]; and Chivers v The State of Western Australia [2005] WASCA 97 at [18], [53]. However, the fact that the requirement of s 8(4) (as opposed to the existence of the plea itself) has been overlooked will not be a reason for overturning the sentence imposed if it is obvious that a reduction has in fact been made on account of the plea: Moulds v R; unreported; CCA SCt of WA; Library No 980147; 4 March 1998 at 6 per Malcolm CJ, with whom Franklyn and Ipp JJ were in agreement; Little v R [2000] WASCA 87 at [13] per Kennedy J, with whom Wallwork and Murray JJ were in agreement; and Shipley v R[2003] WASCA 247 at [19]). Also, the sentence will not be overturned for this reason if the Court of Appeal is of the opinion that, even making an appropriate reduction on account of the plea of guilty, no different sentence should, in the light of other circumstances, have been imposed: s 31(4)(a) of the Criminal Appeals Act 2004 (WA).
It is not "obvious" from the structure of the sentencing remarks that there was any reduction in sentence by reason of the plea of guilty. Further, the maximum penalty pursuant to s 512 of the Code is 2 years on summary conviction or 7 years on indictment. A penalty of 12 months' imprisonment would be a very severe penalty for an offence which was, as her Honour accepted "at the bottom of the scale", so that it does not appear likely that there was a reduction on account of the plea. In my view, this ground is made out.
Ground 3 – alternatives to imprisonment
The third ground of appeal contends that the sentencing judge failed adequately to consider alternatives to immediate imprisonment, including an intensive supervision order or a suspended sentence. The appellant submits, firstly, that the sentencing judge took into account an irrelevant consideration in refusing to grant an intensive supervision order. During the sentencing hearing, her Honour stated:
Intensive supervision orders have a great deal more in the name of them than the reality on many occasions … they apparently don't have the resources to do what a lot of the community might want done.
The appellant submits that the difficulty in enforcing intensive supervision orders is not a relevant factor. However, in my view, this was no more than a comment. The real difficulty, as her Honour has made abundantly clear, was that the appellant's previous response to supervision had been abysmal. Further, in her sentencing remarks, her Honour made it clear that she:
[did] not consider that in this case an intensive supervision order is appropriate for a 26‑year‑old, you were then 25, who commits an aggravated, armed robbery [sic burglary] and armed with a knife.
It is clear that it was these factors, rather than the difficulties in enforcing intensive supervision orders, which influenced the sentencing judge's decision to not grant an intensive supervision order.
The appellant also submits that the sentencing judge failed to adequately take account of the rehabilitation the appellant had undergone while in custody, particularly the courses the appellant had undertaken while on remand. The sentencing judge did not refer to these courses expressly in her sentencing remarks. However, the sentencing judge made reference to the pre‑sentence report and the psychological report which stated that the appellant was in need of a number of interventions, of psychological counselling and needed to learn to take responsibility for his offending. She clearly turned her mind to the question of what rehabilitation the appellant had undertaken.
The appellant also submits that the sentencing judge failed to review all the relevant sentencing principles to determine whether a suspended sentence was appropriate: Dinsdale v The Queen. However, the sentencing judge did refer to factors relevant to the question of suspension, including the nature and seriousness of the offences, the appellant's history of offending, the appellant's failure to take responsibility for his offences and the appellant's need for rehabilitation. There was no need for her expressly to list them again in relation to the question of suspension. The only relevant factor to which she did not expressly refer was the State's concession, to which I refer below.
Ground 3 fails.
Ground 4 – Taking into account the parole release date
Ground 4 of the appeal contends that the sentencing judge erred in taking account of the appellant's possible parole release date in deciding the appellant's sentence.
The appellant refers to two statements by the sentencing judge relating to the appellant's possible release on parole:
If I impose imprisonment and backdate it, as I would have to do, to 21 March 2007, then it's a matter of whether there would be any of it that needed to be served before parole eligibility.
…
[I]t is clear to me that you've already served the in custody part of that sentence, but it will be for the parole board to consider your release…
I would attribute no significance to the first statement, which was simply part of a lengthy and appropriate discussion with the appellant's lawyer. There is no suggestion from this statement that the sentencing judge reached any conclusion, based upon the date of eligibility for parole.
In relation to the second statement, in my view, her Honour was simply trying to convey to the appellant the practical impact of the sentence she imposed. It does not seem that the appellant's parole date actually influenced the sentence imposed by the sentencing judge. In fact, earlier in the judge's sentencing remarks, she commented:
You'll be considered by the parole board. I don't know if they will release you on parole. That's going to be a matter for the parole board. You don't look a very good prospect but they may try it.
Ground 4 fails.
Ground 5 – undue weight on the appellant being armed
The fifth ground of appeal contends that the sentencing judge erred by placing undue weight on the appellant being armed as an aggravating factor. The appellant contends that this was not justified given that there was no evidence the knife carried by the appellant was shown to anyone or used as part of the burglary offence. The appellant also emphasises that the offence was not committed on residential premises and no violence was threatened or used. The appellant suggests that aggravated burglary offences committed on commercial premises without violence tend to attract lower sentences. The appellant refers to Munro v State of Western Australia [2005] WASCA 31 (1 year, 4 months, but as part of a sentence for a number of offences, with totality issues arising); Newburn v The Queen [2004] WASCA 108 (1 year, suspended, to ensure parity with a "rather lenient" sentence of a co‑offender, after guilty pleas); O'Brien v State of Western Australia [2008] WASCA 104 (8 months, but
again totality issues were relevant; there was a plea of guilty, and the offender was not armed).
However, as the respondent submits, the only apparent purpose of the appellant being armed was to threaten or harm any individual who may have confronted him. The respondent refers to Hintz v The Queen [2002] WASCA 38, where a single count of a "bad case" of burglary on commercial premises resulted in a sentence of 4 years.
This fifth ground of appeal essentially relates to the question of whether the sentence imposed on the appellant for the aggravated burglary offence in these circumstances was manifestly excessive. The sentencing judge's reasons make it clear that the appellant was merely carrying the knife and her Honour does not suggest in her remarks that the appellant threatened to use the knife. It is apparent from the authorities referred to above that the offence of aggravated burglary can attract a range of sentences between 8 months and at least 4 years. In any event, the circumstances of such offences are very variable, and very often totality considerations influence sentences imposed in such cases, so that there is, and can be, no tariff. As noted earlier, there was no plea of guilty and the appellant's antecedents were poor. The sentence of 2 years and 8 months is at the higher end of sentences for a relatively simple aggravated burglary, but cannot, in my view, be said to be manifestly excessive.
Conclusion
I would grant an extension of time, refuse leave to appeal in relation to grounds 1, 3, 4 and 5, but grant leave in relation to ground 2, and uphold the appeal in that respect.
In resentencing the appellant in relation to the s 512 offence, the primary factors to be taken into account are the fact that the offence was at the "bottom of the range" of seriousness, the plea of guilty, and the State's concession before her Honour that no further imprisonment in relation to that offence was required. This last factor cannot displace the court's discretion and ultimate responsibility to impose an appropriate sentence, but it should be given some weight (cf Wood v The Queen [2002] WASCA 95 at [100], Miller J). In considering totality, it is relevant to note that the sentence in respect of the burglary was severe, although not manifestly excessive. I would impose a term of 6 months' imprisonment, but order that it be served concurrently with the term of 2 years 8 months in respect of the aggravated burglary.
NEWNES JA: I agree with Wheeler JA.
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