Marshall v Kirwan
[2020] WASC 93
•19 MARCH 2020
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL
CITATION: MARSHALL -v- KIRWAN [2020] WASC 93
CORAM: SMITH J
HEARD: 6 MARCH 2020
DELIVERED : 19 MARCH 2020
FILE NO/S: SJA 1128 of 2019
BETWEEN: DARREN JOHN MARSHALL
Appellant
AND
SEAN KIRWAN
Respondent
ON APPEAL FROM:
Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram: MAGISTRATE G R SMITH
File Number : PE 42179 of 2019, PE 42180 of 2019
Catchwords:
Criminal law and procedure - Appeal against sentence following a plea of guilty to charge of burglary of a place contrary to s 401(2)(c) of the Criminal Code - Mandatory minimum penalty imposed for offence of home burglary - Charge of burglary not alleged in prosecution notice to be a home burglary - Effect of mandatory minimum penalty for offence committed in circumstances of aggravation not pleaded - Statutory construction - Precondition for mandatory minimum penalty to apply not engaged - Appellant resentenced
Legislation:
Criminal Code (WA), s 1(1), s 378, s 400, s 401, s 401(2)(c), s 401(4)(b), s 401A, s 401B
Criminal Procedure Act 2004 (WA), s 23(2)(b)
Sentencing Act 1995 (WA), s 7(3), s 9AA, s 11
Result:
Application to appeal out of time granted
Leave to appeal granted
Appeal allowed
Appellant resentenced
Category: B
Representation:
Counsel:
| Appellant | : | Mr A D Sullivan |
| Respondent | : | Mr B M Murray |
Solicitors:
| Appellant | : | Legal Aid - Perth |
| Respondent | : | Director Of Public Prosecutions (WA) |
Case(s) referred to in decision(s):
Larsen v The State of Western Australia [2019] WASCA 181
The State of Western Australia v Smith [2016] WASCA 153
SMITH J:
The appeal, the ground of appeal and the result
The appellant was charged with two offences, that on or between 7 September 2019 and 8 September 2019:
(a)while in the place of Jason Sean Alain Giacomel, without his consent, committed the offence of stealing therein, contrary to s 401(2)(c) of the Criminal Code (WA) (charge PE 42179/2019) (burglary); and
(b)stole a wallet, 1 x liquid adrenaline, 5 x liquid Tramal and a quantity of Alepam tablets, to the value of $100.00, the property of Jason Sean Alain Giacomel, contrary to s 378 of the Criminal Code (charge PE 42180/2019) (stealing).
The appellant pleaded guilty to both offences on 9 September 2019, at the Perth Magistrates Court, and was sentenced to a term of 2 years' imprisonment with eligibility for parole on the burglary charge (charge 42179/2019). Pursuant to s 11 of the Sentencing Act 1995 (WA), no penalty was imposed on the stealing charge.
The appellant seeks leave to appeal out of time against the sentence imposed for the offence of burglary on the ground that the magistrate erred in law in sentencing him on the basis that he was convicted of home burglary and therefore subject to a term of mandatory imprisonment, when the circumstance of aggravation that the place (of the offence) was ordinarily used for human habitation was not pleaded in the prosecution notice.
It was conceded by the respondent that the appeal should be allowed, and the appellant be resentenced.
After considering the written submissions filed by the parties and hearing counsel, I agreed the concession made on behalf of the respondent was properly made and set aside the sentence of 2 years' imprisonment, and resentenced the appellant to 12 months' imprisonment with eligibility for parole.
These are my reasons for granting leave to appeal, setting aside the sentence and resentencing the appellant.
The facts stated by the prosecution, sentencing submissions, and the sentencing remarks made by the magistrate
The facts read to the primary court were that:
(a)between 7.00 pm on 7 September 2019 and 3.00 am on 8 September 2019, the appellant gained entrance to the complainant's house in North Perth. The 'place' of the offence was a private residence, and at the time the offence occurred no one was home. The appellant gained entrance by forcing the locked wooden front door to the house by unknown means, causing damage to the front door. The appellant searched the house and stole a wallet and medication; and
(b)the appellant was located the following morning collapsed outside of the house, in possession of the stolen property, and conveyed to Royal Perth Hospital for treatment.
After reciting the facts, the prosecutor made a submission that the appellant is a 'repeat offender' as defined in s 401B of the Criminal Code (being a person who has at least three 'relevant convictions' for home burglary as defined in s 401A of the Criminal Code). The prosecutor also informed the court that at the time of committing the offences for which he was being sentenced, the appellant was on bail for a burglary of commercial premises, in company.
Counsel for the appellant informed his Honour that:
(a)the facts stated by the prosecutor were agreed and that the appellant accepted that the only appropriate sentence (for the offences) was imprisonment;
(b)the appellant suffers from polysubstance abuse and uses 'anything and everything to get high';
(c)the appellant has a lengthy criminal history, and had been released from prison early in 2019 having served a full term of a sentence. Finding it difficult to reintegrate back into society, the appellant reverted to his old ways of using and abusing illicit substances;
(d)the appellant could not recall committing the offences. The police informed him that they found a shoe with his DNA inside the property. He could not explain why his belongings were left on the property and he did not know the owner of the property. He could not explain why he was in possession of the [stolen items], but that his ongoing illicit substance use explains why he was found 'passed out' near the property;
(e)the appellant has one child aged four. He is not receiving any sort of assistance with respect to his illicit substance use, so his personal circumstances are limited;
(f)by way of mitigation, the appellant had entered a plea of guilty at the earliest opportunity, the burglary itself was not the most serious of its kind, and the value of the property taken was not towards the higher end of the scale; and
(g)it was conceded that the offence was committed in a home but the prosecution notice pleaded burglary of a 'place' and not a 'home'. In these circumstances the court was not bound to apply the minimum penalties prescribed for 'repeat offenders' in s 401 of the Criminal Code.
The sentencing magistrate, after observing that the appellant had at least three prior convictions for home burglary, found that he was bound to impose the minimum mandatory penalty prescribed in s 401(4)(b) of the Criminal Code of at least 2 years' imprisonment, because the admitted facts were that the relevant 'place' of the offence was a home or dwelling and the appellant was therefore guilty of home burglary.[1] His Honour, did however indicate that if he was not bound to impose the minimum mandatory penalty he would have imposed a sentence of imprisonment of 12 months.[2]
[1] ts 9 September 2019, page 8.
[2] ts 9 September 2019, page 8.
Express error is established
Statutory scheme ‑ minimum mandatory penalties for burglary
The prosecution notice pleads that the appellant committed the offences of burglary and stealing while in a 'place' contrary to s 401(2)(c) of the Criminal Code.
Section 401(2) of the Criminal Code provides:
(2)A person who commits an offence in the place of another person, when in that place without that other person's consent, is guilty of a crime and is liable ‑
(a)if the offence is an aggravated home burglary, to imprisonment for 20 years; or
(ba)if the offence is not a home burglary but is committed in circumstances of aggravation, to imprisonment for 20 years; or
(b)if the offence is a home burglary not committed in circumstances of aggravation, to imprisonment for 18 years; or
(c)in any other case, to imprisonment for 14 years.
Summary conviction penalty (subject to subsection (3)):
(a)in a case to which paragraph (a) applies where the only circumstance of aggravation is that the offender is in company with another person or other persons ‑ imprisonment for 3 years and a fine of $36 000; or
(ba)in a case to which paragraph (ba) applies where the only circumstance of aggravation is that the offender is in company with another person or other persons ‑ imprisonment for 3 years and a fine of $36 000; or
(b)in a case to which paragraph (b) applies ‑ imprisonment for 3 years and a fine of $36 000; or
(c)in a case to which paragraph (c) applies ‑ imprisonment for 2 years and a fine of $24 000.
Pursuant to s 400 a 'place', in ch XXXIX of the Criminal Code, is defined to mean, among other places, a building or structure.
Pursuant to s 23(2)(b) of the Criminal Procedure Act 2004 (WA), a prosecution notice must comply with sch 1 of div 2. Clause 6(6)(d) of sch 1 of div 2 of the Criminal Procedure Act provides:
6 Alleging particular matters and offences
…
(6)In a charge that alleges an offence involving entering or being in a place it is not necessary to describe the nature of the place, or to say how entry was gained to the place, unless ‑
…
(d)it is relevant to the offence's statutory penalty.
Section 401(4) of the Criminal Code prescribes minimum mandatory sentences for repeat offences of home burglary. Section 401(4) of the Criminal Code provides:
(4)Subject to section 401A(4), where a person convicted under this section of a home burglary (the current offence) is a repeat offender, whether or not the conviction for the current offence is a relevant conviction the court sentencing the person for the current offence ‑
…
(b)if the current offence was committed on or after the commencement day ‑
(i)if the person is an adult offender, notwithstanding any other written law, must impose a term of imprisonment of at least 2 years;
The term 'home burglary' is defined in s 1(1) of the Criminal Code to mean, unless the context otherwise indicates:
[A]n offence against any provision of Chapter XXXIX (as enacted at any time) other than section 407 committed in respect of a place (within the meaning given in section 400(1)) ordinarily used for human habitation;
A 'repeat offender' is defined in s 401B to mean a person who is being sentenced for home burglary, if the person has at least three relevant convictions including the 'current' conviction for which the person is being sentenced. A 'relevant conviction' is defined in s 401A as a person's conviction for home burglary, in relation to which for a second conviction to be a relevant conviction it must be committed after the date on which the first conviction was recorded.
Section 7(3) of the Sentencing Act1995 (WA) also relevantly provides:
(3)If the statutory penalty for an offence is greater if the offence is committed in certain circumstances than if it is committed without the existence of those circumstances, then ‑
(a)an offender is not liable to the greater statutory penalty unless he or she has been charged and convicted of committing the offence in those circumstances; and
(b)whether or not the offender was so charged, the existence of those circumstances may be taken into account as aggravating factors.
Disposition - minimum mandatory penalty in s 401(4)(i) did not apply to the offence for which the appellant was convicted
The appellant pleaded guilty to a charge which alleged burglary pursuant to s 401(2)(c) of the Criminal Code, and was therefore liable to a maximum penalty of 14 years' imprisonment and a jurisdictional limit, for a summary conviction penalty, of 2 years' imprisonment and a fine of $24,000.
As counsel for the appellant points out, and the respondent concedes, the prosecution notice particularised an offence that was not alleged to be a home burglary and thus the mandatory sentencing provisions of s 401(4) of the Criminal Code did not apply.
As the respondent properly concedes, pursuant to s 7(3)(b) of the Sentencing Act, the admitted fact that the place of the offence was a dwelling could be taken into account by the sentencing magistrate as an aggravating factor.
In The State of Western Australia v Smith, Mitchell JA observed:[3]
(a)by way of obiter, that when account is taken of s 7(3) of the Sentencing Act in respect of an indictment that did not plead, as a circumstance of aggravation, that the offender was armed with a dangerous or offensive weapon, the charge could not operate to increase the maximum penalty for the offence from 7 to 10 years' imprisonment.[4] [The latter, being the statutory penalty prescribed for the circumstance of aggravation]; and
(b)that the presence of weapons could still be taken into account as an aggravating factor.[5]
[3] The State of Western Australia v Smith [2016] WASCA 153.
[4] The State of Western Australia v Smith [2016] WASCA 153 [112] - [113].
[5] The State of Western Australia v Smith [2016] WASCA 153 [112].
In Smith, Mitchell JA also observed:[6]
Although the position has not previously been resolved by this court, I accept the Director's concession that s 7(3) of the Sentencing Act applies to a statutory minimum penalty. It follows from the definition of 'statutory penalty' in s 4(1) of the Sentencing Act, and the manner in which s 9 of that Act deals with the effect of a statutory penalty, that the reference in s 7(3) to a 'statutory penalty for an offence' includes a statutory minimum penalty.
[6] The State of Western Australia v Smith [2016] WASCA 153 [115]. (footnotes omitted)
The proper construction of s 7(3) of the Sentencing Act recently arose again in Larsen v The State of Western Australia.[7] In that matter, the appellant, Larsen, had pleaded guilty to, among other offences, a charge of grievous bodily harm pursuant to the Criminal Code. The day before sentencing, the indictment was amended to plead that the grievous bodily harm offence, contrary to s 294(1) of the Criminal Code occurred in the course of a home burglary, thereby giving rise to a mandatory minimum sentence. One of the issues in the appeal was whether it was an abuse of process by the State to amend the indictment. Mazza and Beech JJA found that the State's application to amend the indictment was not unfair and did not abuse the processes of the court. Their Honours also found it was not necessary to amend the intent to do grievous bodily harm charge to add the words, 'and the offence was committed in the course of conduct that constituted an aggravated home burglary', to permit the court to sentence Mr Larsen to the mandatory minimum sentence of 15 years' imprisonment.[8]
[7] Larsen v The State of Western Australia [2019] WASCA 181.
[8] Larsen v The State of Western Australia [2019] WASCA 181 [111], [115], [123].
In Larsen, Mazza and Beech JJA held that s 7(3)(a) of the Sentencing Act did not apply because s 294(2) of the Criminal Code expressly provided that if the offence (of intent to do grievous bodily harm) is committed by an adult offender in the course of conduct that constitutes an aggravated home burglary, the court sentencing the offender must, 'notwithstanding any other written law', impose a term of imprisonment of at least 75% of the term specified in s (1).[9]
[9] Larsen v The State of Western Australia [2019] WASCA 181 [123].
Their Honours in Larsen also noted that the provision considered by Mitchell JA in Smith was concerned with the sentencing of an offender who had committed an offence contrary to s 318(1)(d) of the Criminal Code. Further, that the mandatory minimum penalty of at least 9 months' imprisonment prescribed by s 318(4)(a) of the Criminal Code also contained the words, 'notwithstanding any other written law'.[10] Mazza and Beech JJA then went on in Larsen to find that:[11]
In our respectful opinion, the plain meaning of the words, 'notwithstanding any other written law', is that the provision overrides any other written law. Thus, those words have the effect that, notwithstanding s 7(3) of the Sentencing Act, an offender is liable to the mandatory minimum penalty where the offence is committed in the course of conduct that constitutes an aggravated home burglary. Therefore, in our opinion, the State is not, as a matter of law, required to plead that fact in order to make the offender liable to the mandatory minimum penalty in s 294(2) of the Code.
Nonetheless, in our opinion, as a matter of fairness to an accused, prosecutors should, and will be expected to, do what ultimately occurred in this case, that is, expressly plead any circumstance which gives rise to a mandatory minimum term of imprisonment.
[10] Larsen v The State of Western Australia [2019] WASCA 181 [122].
[11] Larsen v The State of Western Australia [2019] WASCA 181 [123] ‑ [124].
Whilst the same expression, 'notwithstanding any other written law' appears in s 401(4)(b)(i) of the Criminal Code, this provision is distinguishable from s 294(2) and s 318(4)(a) of the Criminal Code, as s 401(4)(b)(i) only has operative effect if the 'current offence' (for which the court records a conviction and sentences an offender) is a home burglary.
It necessarily follows by the application of the definition of 'relevant conviction' in s 401A, and the definitions of 'current offence' and 'repeat offender' in s 401B(1) that the precondition for the imposition of the prescribed mandatory terms of imprisonment in s 401(4) are that the 'current offence' referred to in s 401(4) must be a conviction of home burglary. This construction necessarily arises when the definition of 'relevant conviction' in s 401A, and the definitions of 'current offence' and 'repeat offender' in s 401B(1) are read with the opening words of s 401(4) 'where a person convicted under this section of a home burglary (the current offence)', etc.
In this matter, the appellant was not convicted of a charge of home burglary. Consequently, the precondition for the operative effect of s 401(4) was not met and thus the mandatory statutory penalty prescribed by s 401(4)(b)(i) was not engaged.
Because the sentencing magistrate held that s 401(4)(b)(i) applied to the offence of burglary and that he was bound to impose the mandatory penalty prescribed by that provision, I agree that the sentencing discretion miscarried, and that appellate intervention was warranted, to set aside the sentence of 2 years' imprisonment for the offence of burglary, and to resentence the appellant.
Resentencing
After hearing submissions from counsel for the appellant and respondent, I made the following sentencing remarks when resentencing the appellant on 6 March 2020.
Turning first to the appellant's personal circumstances, I noted that he is now 38 years of age and was 37 years old at the time of the offence of burglary and stealing. I also observed that:
(a)the appellant has a serious criminal record of offences, largely for dishonesty and burglary. He commenced offending as a juvenile. His offending is associated with a long-term addiction to heroin which he was first introduced to when he was 14 years old. The appellant did not have a stable upbringing. The appellant's parents were both 14 years old when he was born. He was initially cared for by his grandparents and then his mother, and later his father. He describes his early years as without discipline; and
(b)the appellant, on his own admission, describes himself as institutionalised and has explained that he has difficulty managing life outside of prison. However, three weeks before committing the offence he had taken steps to address his heroin addiction by obtaining a Naltrexone implant that is effective for a period of six months. He is desirous of obtaining another implant when he is out of custody as he wishes to turn his life around as he has a four year old daughter whom he wishes to connect with.
Turning to the circumstances of the offending, the offence of burglary was committed whilst the appellant was on bail for another offence of burglary (of commercial premises). The appellant was convicted of that offence and received a fine subsequent to being sentenced by the magistrate in this matter.
The fact that the appellant was on bail at the time that he committed the offence, the subject of the appeal, is an aggravating factor in assessing the criminality of the offence. It is also an aggravating factor that the burglary was committed in a person's home. However, the burglary cannot be described within the scale of home burglaries as a serious home burglary as there was an absence of violence. The appellant stole a wallet and medication, being Tramal which is in the morphine family of drugs and Alepam, an antianxiety medication. The appellant was found collapsed and lying outside of the house which resulted in him being conveyed to hospital having left at least one of his shoes inside the house. The explanation for his state (when found collapsed) is that the appellant had been drinking alcohol which had a detrimental effect on his Naltrexone implant.
The appellant cannot claim mitigation because of youth or good character, and polysubstance abuse is not a mitigating factor.
However, previous sentences do not aggravate the seriousness of the offence in question.
Considering all of the circumstances, I formed the opinion that personal and general deterrence demanded an immediate term of imprisonment as there is a need to protect the public from the appellant's offending that is driven by his entrenched drug dependency.
I had regard to the fact that the maximum penalty for the offence of burglary is 14 years' imprisonment. I also had regard to the jurisdictional limit of 2 years' imprisonment for a summary conviction for an offence of burglary, contrary to s 401(2)(c) of the Criminal Code.
I accepted that the appellant should be given the full discount of 25% allowable under s 9AA of the Sentencing Act for his plea of guilty at the earliest opportunity and that the sentence should properly reflect the criminality of the offence for which there should be a further discount.
For these reasons, I formed the view that the appropriate sentence disposition should be a period of 12 months' imprisonment, backdated to 8 September 2019, with eligibility for parole.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
NM
Research Orderly to the Honourable Justice Smith19 MARCH 2020