McKinley v Edmonds
[2014] WASC 43
•4 FEBRUARY 2014
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL
CITATION: McKINLEY -v- EDMONDS [2014] WASC 43
CORAM: HALL J
HEARD: 4 FEBRUARY 2014
DELIVERED : 4 FEBRUARY 2014
FILE NO/S: SJA 1149 of 2013
BETWEEN: JOEL ROSS McKINLEY
Appellant
AND
RYAN JAMES EDMONDS
Respondent
ON APPEAL FROM:
Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram :MAGISTRATE E K LANGDON
File No :FR 7989 of 2013, FR 7990 of 2013, FR 4063 of 2013
Catchwords:
Criminal law - Appeal against sentence - Aggravated burglary and stealing - Offences committed on commercial premises - 8 months' imprisonment - Whether magistrate failed to consider a suspended sentence - Whether sentence manifestly excessive
Legislation:
Nil
Result:
Leave to appeal refused
Appeal dismissed
Category: B
Representation:
Counsel:
Appellant: In person
Respondent: Mr T McArthur
Solicitors:
Appellant: In person
Respondent: Director of Public Prosecutions (WA)
Case(s) referred to in judgment(s):
Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321
Main v The State of Western Australia [2010] WASCA 28
Pennetta v The State of Western Australia [2013] WASCA 234
Ridley v The State of Western Australia [2013] WASCA 45
Rodenburg‑Hill v WA Police [2009] WASC 330
Thompson v The State of Western Australia [2013] WASCA 1
HALL J:
(These reasons were delivered orally and have been edited from the transcript)
On 26 November 2013, the appellant was sentenced to a total effective term of 8 months' imprisonment in the Fremantle Magistrates Court. He now seeks leave to appeal against that sentence.
The offences for which the appellant was sentenced were one count of aggravated burglary, charge number FR7989/13, for which he received 8 months' imprisonment, one count of wilful and unlawful damage, charge number FR7990/13, for which no penalty was imposed and two counts of stealing, charges number FR7991/13, for which he received 3 months' imprisonment concurrent and R04063/13, for which he received 1 month's imprisonment concurrent.
Facts
The facts of the offending were not disputed and can be summarised as follows. At about 2.25 am on Monday, 13 May 2013, the appellant was in company with another when he went to a store in Armadale Road, Jandakot. He and his co‑offender used an angle grinder to cut the rear roller door of the premises and entered the store. They then went to the office area of the premises and smashed a locked door. Upon entry into the office the appellant and the co‑offender attempted to open a safe. This was done by use of the angle grinder, a sledgehammer and a crowbar. Whilst the appellant and his co‑offender were not successful in breaking open the safe, it was damaged beyond repair. They then both left the scene. The incident was caught on closed circuit television.
Police attended the appellant's home on 10 July 2013 in relation to another matter and located the angle grinder. Further investigations identified the appellant's DNA located inside a glove which had been left at the premises on 13 May 2013.
The amount of damage as a result of the burglary was significant. The damage was the subject of the second charge, but was also encompassed within the first charge of aggravated burglary. It is for that reason that no additional penalty was imposed for the second charge. The value of the damage was referred to as being $4,885 in the charge, though invoices were presented in the Magistrates Court showing that the cost was in fact in excess of $12,000, however, the appellant was sentenced only on the basis of the lower sum which was referred to in the charge itself.
As mentioned, on 10 July 2013 police officers executed a search warrant at the appellant's home in Wellard. In addition to items related to burglary other items were also found. A quantity of stolen property was located, including 160 metres of electrical cable, two laser levels and a surveyor's ruler.
The electrical cable had been stolen from the premises of an engineering firm in Henderson between 1 and 3 June 2013 and had a value of $2,850. The theft of that property had involved cutting the padlocks of ten shipping containers. Co‑offenders were involved, but the appellant declined to identify them.
The theft of the electrical cable was the subject of charge FR7991/13. The appellant told police when he was interviewed that he had located the spool and cable at a vacant block near his home and that he had stripped wire from the cable and sold it to a scrap metal dealer for $1,300.
The two laser levels and surveyors ruler were stolen from the premises of a transport and earth moving company at Port Kennedy on 30 June 2013. Those items had a value of $3,900.The theft of those items was the subject of RO4063/13.
Personal circumstances
The appellant was 23 years old when he came to be sentenced. He is single with no dependents. Other than a single traffic conviction in 2012, he has no prior history of offending.
When interviewed for a pre‑sentence report the appellant accepted responsibility and acknowledged the seriousness of the offences. He said that he had committed the burglary after being talked into it by the co‑offender, though he also said that he saw it as a way to get out of debt. Whilst he and the co‑offender did not know for sure that there was a safe on the premises, he said that he had a hunch in that regard and the intention had been to steal money. The appellant said that he had financial problems due to a significantly reduced income. He was struggling to pay his mortgage. He saw the burglary as a way to obtain cash quickly, though he knew the likely consequences if caught.
Though the appellant denied during the pre‑sentence report interview that drug use had been a factor in the offending, he later admitted to daily methylamphetamine use over an 18 month period. He also conceded that this had caused his financial problems.
At the time of sentencing, the appellant was working with his father as a rigger. He continued to have the support of his parents. However, his mother considered that he needed to address his drug use.
He showed no interest in counselling during the interview. The pre‑sentence report author concluded that the appellant did not yet appear to be motivated to address his drug use issue and consequently could be at risk of further offending.
The appellant submitted on the appeal that at the time of the interview his attitude was such that he did not appreciate the risk that he was at of being imprisoned. He regrets his poor attitude and assured me that he has now changed his approach to life and appreciates the significance of both the offences and his drug problem.
In the Magistrates Court on 26 November 2013, counsel who appeared for the appellant submitted that he had ceased using methamphetamines and had been abstinent for four months. He was said to have disassociated from his co‑offenders and was now in gainful employment. There was a supportive reference from a man for whom the appellant did subcontract work.
Proceedings in the Magistrates Court
In sentencing, the magistrate acknowledged the appellant's early pleas of guilty. However, she considered that the offences were serious examples of their type. She said that there was a need for any penalty to incorporate elements of personal and general deterrence. Whilst the appellant was relatively young and had no prior record of significance, the offences were premeditated, occurred over a period of time, involved property with significant value and had involved a co‑offender who the appellant had not identified.
The magistrate also noted that drug use had clearly played a part in the offending, but this was not something that the appellant was willing to address. She concluded that imprisonment was the only appropriate option and that suspension was not open, given the seriousness of the offences.
The appeal notice contains two grounds. Those grounds are as follows:
(1)The learned sentencing magistrate erred in law by failing to properly consider suspending the sentence of imprisonment; and
(2)The learned sentencing magistrate erred in law by imposing sentences that were manifestly excessive as to type, having regard to the circumstances of the offending, the appellant's pleas of guilty, the appellant's personal circumstances and sentencing standards.
Ground 1 - suspension
As to the first ground, the magistrate gave express consideration to whether the sentence could be suspended. Whilst it was necessary to have regard to all the relevant considerations, including those personal to the appellant, when deciding whether to suspend (Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321) there is no reason to think that the magistrate did not give such consideration in this case. It was not necessary for her to repeat those considerations.
Ground 1 has no reasonable prospect of success and leave in respect of it must be refused.
Ground 2 - was the sentence manifestly excessive?
As to ground 2, a ground alleging manifest excess asserts the existence of an implied error. A sentence is manifestly excessive if it is unreasonable or plainly unjust. To determine whether a sentence is manifestly excessive, it is necessary to view it in the perspective of the maximum penalty prescribed by law for the offence, the standards of sentences customarily observed with respect to that offence, the place that the criminal conduct occupies in the scale of seriousness of offences of the type and the personal circumstances of the offender.
In the present case, the challenge is to the total effective sentence and that sentence of 8 months needs to take into account the totality of the offending conduct. The maximum penalty for aggravated burglary is 20 years' imprisonment: s 401(2)(a) of the Criminal Code (WA). The summary conviction penalty is 3 years and a fine of $36,000. The maximum penalty for criminal damage, where the damage does not occur by fire, is 10 years: s 444(1)(b) of the Criminal Code. The summary conviction penalty, where the damage is not by fire and the cost does not exceed $25,000 is 3 years imprisonment and a fine of $36,000. The maximum penalty for stealing (other than in the case of particular items which are not relevant here) is 7 years' imprisonment: s 378(1) of the Criminal Code. The summary conviction penalty where the value of the property exceeds $1,000 but is less than $10,000 is 2 years and a fine of $24,000: s 426 of the Criminal Code. In each case, the summary conviction penalty represents the jurisdictional limit of the Magistrates Court. It remains relevant to consider the maximum penalty in assessing the seriousness of the offences.
As to the standards of sentences customarily imposed, there is a wide range of circumstances in which offences of burglary can occur. I have considered a number of other cases involving burglaries on commercial premises. They include Pennetta v The State of Western Australia [2013] WASCA 234; Ridley v The State of Western Australia [2013] WASCA 45; Thompson v The State of Western Australia [2013] WASCA 1; Main v The State of Western Australia [2010] WASCA 28 and Rodenburg‑Hill v WA Police [2009] WASC 330.
Taking into account that most of those cases involve convictions on indictment, some involve convictions after trial and most involve multiple offences, there is nonetheless no support in them for a conclusion that the sentence of 8 months imposed here was inconsistent with those customarily imposed for offences of this type.
As to the seriousness of the offences, they involved a number of seriously aggravating features. Included amongst those were, firstly, that the aggravated burglary was committed in company. Secondly, it was clearly a premeditated offence, given that an angle grinder was taken with a view to gaining access to a safe. Thirdly, very significant damage was done to the premises. Fourthly, the two stealing offences occurred within six weeks following the burglary. Fifthly, each offence involved theft of valuable property. Sixthly, in each case, the motive was to obtain money or property in order to pay off the appellant's debts. That is, they were driven by commercial gain.
The offending involved a serious course of conduct and a wanton disregard for the property rights of others. The magistrate was right to conclude that general and personal deterrence were importance factors.
As to personal circumstances, the appellant was relatively young but not so young as to lack the ability to fully appreciate the wrongfulness of his actions. Whilst he had no relevant prior convictions, that fact was very much offset by the seriousness of the offences and that this was a course of conduct, not a single aberration.
The appellant's initial failure to fully and honestly admit the extent of his drug problem when interviewed for the presentence report supported a conclusion that his motivation to address this factor was poor at that time. His claims to have ceased use and of being abstinent for the previous four months could have carried little weight in light of the pre‑sentence report.
The most significant mitigating factor was the plea of guilty. The appellant was given credit for that plea, though the amount of credit was not quantified in accordance with s 9AA of the Sentencing Act 1995 (WA). However, that is not material, in my view, because the sentence that was imposed was not one that was otherwise inappropriate. Having regard to s 14(2) of the Criminal Appeals Act 2005 (WA), any error in not quantifying the amount of the discount for the plea of guilty is not one that is material.
Conclusion
A sentence of imprisonment to be served is a sentence of last resort. Generally the use of such a sanction for a first offender will be reserved for particularly serious offending. However, it cannot be thought that a first offender cannot be sentenced to imprisonment. Whether such a sentence is appropriate will depend significantly on the seriousness of the offences. In this case, the seriousness of the offences justified sentences of imprisonment to be served.
I am not persuaded that the sentences imposed were not properly open to the magistrate. The question on appeal is not what sentences an appeal judge might impose but whether the sentences actually imposed were open in the proper exercise of the sentencing discretion. No error has been established and ground 2 cannot succeed.
For those reasons, the orders of the court will be that leave to appeal on both grounds is refused and the appeal is dismissed.
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