Meikle v The Queen
[2000] WASCA 324
•3 NOVEMBER 2000
MEIKLE -v- THE QUEEN [2000] WASCA 324
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2000] WASCA 324 | |
| COURT OF CRIMINAL APPEAL | |||
| Case No: | CCA:53/2000 | 23 OCTOBER 2000 | |
| Coram: | KENNEDY J PIDGEON J MURRAY J | 3/11/00 | |
| 10 | Judgment Part: | 1 of 1 | |
| Result: | Leave to appeal refused | ||
| PDF Version |
| Parties: | GEOFFREY THOMAS MEIKLE THE QUEEN |
Catchwords: | Criminal Law and Procedure Sentencing Aggravated burglary and a series of simple offences Offender of mature age, an alcoholic Offender forced his way into home Elderly occupants driven out Substantial damage caused inside Sentence of 4 years' imprisonment not excessive |
Legislation: | Nil |
Case References: | Badron v The Queen, unreported; CCA SCt of WA; Library No 990099; 4 March 1999 Dinsdale v The Queen [2000] HCA 54 Gallegos v The Queen [1999] WASCA 191 Holland v The Queen [1999] WASCA 43 Lowndes v The Queen (1999) 195 CLR 665 Miles v The Queen (1997) 17 WAR 518 R v Leucus (1995) 78 A Crim R 40 R v Ward (1999) 109 A Crim R 159 Scott & Massey v The Queen, unreported; CCA SCt of WA; Library No 99004; 15 January 1999 Hambridge v The Queen [1999] WASCA 50 Little v The Queen [2000] WASCA 87 R v Delaurentis, unreported; CCA SCt of WA; Library No 950052; 14 February 1995 R v Heferen (1999) 106 A Crim R 89 R v Ward (1999) 109 A Crim R 159 Sindel v The Queen, unreported; CCA SCt of WA; Library No 990110; 16 March 1999 Verschuren v The Queen (1995) 17 WAR 467 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : COURT OF CRIMINAL APPEAL CITATION : MEIKLE -v- THE QUEEN [2000] WASCA 324 CORAM : KENNEDY J
- PIDGEON J
MURRAY J
- Applicant
AND
THE QUEEN
Respondent
Catchwords:
Criminal Law and Procedure - Sentencing - Aggravated burglary and a series of simple offences - Offender of mature age, an alcoholic - Offender forced his way into home - Elderly occupants driven out - Substantial damage caused inside - Sentence of 4 years' imprisonment not excessive
Legislation:
Nil
Result:
Leave to appeal refused
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Representation:
Counsel:
Applicant : Ms K Farley
Respondent : Ms J Girdham
Solicitors:
Applicant : Unrepresented Criminal Appellants Scheme
Respondent : State Director of Public Prosecutions
Case(s) referred to in judgment(s):
Badron v The Queen, unreported; CCA SCt of WA; Library No 990099; 4 March 1999
Dinsdale v The Queen [2000] HCA 54
Gallegos v The Queen [1999] WASCA 191
Holland v The Queen [1999] WASCA 43
Lowndes v The Queen (1999) 195 CLR 665
Miles v The Queen (1997) 17 WAR 518
R v Leucus (1995) 78 A Crim R 40
R v Ward (1999) 109 A Crim R 159
Scott & Massey v The Queen, unreported; CCA SCt of WA; Library No 99004; 15 January 1999
Case(s) also cited:
Hambridge v The Queen [1999] WASCA 50
Little v The Queen [2000] WASCA 87
R v Delaurentis, unreported; CCA SCt of WA; Library No 950052; 14 February 1995
R v Heferen (1999) 106 A Crim R 89
R v Ward (1999) 109 A Crim R 159
Sindel v The Queen, unreported; CCA SCt of WA; Library No 990110; 16 March 1999
Verschuren v The Queen (1995) 17 WAR 467
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1 KENNEDY J: I have had the advantage of reading in draft the reasons to be published by Murray J, with which I am in substantial agreement. The effective head sentence may well have been at the higher end of the scale, but "a court of criminal appeal may not substitute its own opinion for that of the sentencing judge merely because the appellate court would have exercised its discretion in a manner different from the manner in which the sentencing judge exercised his or her discretion" - see Lowndes v The Queen (1999) 195 CLR 665, at 671 - 672. I agree that this application should be dismissed.
2 PIDGEON J: I agree with the reasons to be published by Murray J and with the orders proposed.
3 MURRAY J: On 29 February 2000 the applicant was sentenced to a term of 4 years imprisonment for an offence of aggravated burglary in that he committed the offence of wilful damage whilst, without the consent of the occupant, he was in the home of that person, having entered it when he knew that person was present in the dwelling. That is an offence punishable by 20 years imprisonment.
4 Burglary has only been an offence structured so as to provide for greater punishment when the place entered is one ordinarily used for human habitation, and where there are circumstances of aggravation present, since 1996. When the Code was amended at that time the penalties in the cases I have described were substantially increased. The Second Reading Speech of the Hon Minister representing the Attorney General shows that the changes were made with particular regard to offences which were described as "home invasions", which were perceived to be particularly prevalent and which were offences which caused substantial trauma to the occupants of the homes entered unlawfully, particularly by reason of the fact that, as the Hon Minister put it, the commission of the offence, "not only involves the expense of damage to or loss of property and the risk of serious personal injury, but also leaves victims with the sense that the sanctity of their homes has been violated.": 334 Hansard, Legislative Assembly (1996) 5412 - 5413.
5 I have mentioned that the sentence was imposed on 29 February 2000. A parole eligibility order was made and by reason of the time spent in custody on remand, the sentence was backdated to 27 September 1999. We were told that the applicant will become eligible for parole on 30 January 2001, effectively a period of 16 months after the
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- sentence took effect. That is the appropriate non-parole period and it can be seen that as at the time when the matter was argued before this Court, the applicant had served approximately 13 months of the sentence imposed.
6 At the same time as this sentence the applicant received fines and penalties of 6 months imprisonment for a series of simple offences which were taken into account pursuant to the procedure contained in the Sentencing Act 1995 (WA), s 32. I need not, of course, mention again the matters for which the applicant was fined and, as the sentences of 6 months imprisonment were imposed concurrently with the sentence for the offence of burglary, the applicant has long since completed their service. They were offences of refusing to leave licensed premises, resisting arrest, disorderly conduct, hindering police and assaulting a police officer.
7 I should mention when these offences were committed. The first group of three offences, refusing to leave licensed premises, resisting arrest and disorderly conduct, were committed at the Commercial Hotel in Midland during the afternoon of 29 June 1999. Having been charged, the applicant was admitted to bail and so the subsequent offences which I shall now mention were all committed in breach of the terms of his bail. On 24 July 1999 a further offence of refusing to leave licensed premises and one of disorderly conduct were committed during the evening at the Junction Hotel in Midland. While in custody after committing those offences, the applicant was conveyed to the Swan District Hospital at his request for treatment. While waiting in the emergency reception area of the hospital in the early hours of the morning of 25 July 1999, the applicant became abusive to police and nursing staff, demanding that he be seen first, although other members of the public were present in the waiting area and had been waiting longer for treatment. The applicant was re-arrested at that time and charged with disorderly conduct. He resisted arrest and thereby committed a further offence of that character.
8 On 5 September 1999 the applicant was in Broome and was refused entry to the Roebuck Hotel. Again his conduct caused him to be charged with disorderly conduct and hindering the police who attended and endeavoured to calm the applicant and obtain his co-operation to leave the hotel premises. The offence of burglary, for which the applicant was sentenced by the District Court, was committed on 27 September 1999 in Broome. At 6.20 pm the applicant came to the victims' home in an intoxicated state. The occupants were a middle-aged couple of 60 and 58 years respectively. When the applicant banged on the front door, the
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- male occupant went to speak to him. The applicant became agitated and tried to open the door. The householder managed to lock the security screen door and closed and locked the main door. He told his wife to ring the police, which she did, telling them what was occurring.
9 The applicant physically tore the screen door off its hinges and commenced to kick at the locked front door, smashing a large hole in its base. As he did so, the occupants fled out of the back door. By the time the police arrived shortly afterwards, the applicant had climbed through the hole in the door and was inside the house, smashing furniture and damaging interior walls. He refused to stop or surrender. Four officers were required to restrain him. The damage caused was valued at $2,532.83. As counsel for the applicant told us, he effectively "trashed the place".
10 The applicant having been arrested and conveyed to the Broome Police Station in a security vehicle, a police officer spoke to him and endeavoured to calm him. The applicant told the officer he was hepatitis C positive and then spat at the policeman through the grille of the police vehicle. The officer jumped back and managed to avoid being hit by the spittle.
11 Those facts were accepted by Kennedy DCJ for sentencing purposes. It is clear that her Honour appreciated the seriousness, particularly of the burglary offence and it is clear that she accepted that the cause of the applicant's offending behaviour in that and the other cases was that he was seriously intoxicated. He is an alcoholic and when he committed the offences on 27 September 1999, he was a resident of a local rehabilitation centre, attempting to control the disease, but 27 September 1999 was the applicant's 39th birthday and so he left the centre to celebrate his birthday, became intoxicated and committed the offences.
12 He has a long record of previous convictions dating back to 1979. They are mainly of traffic offences, although there are some concerned with the possession of other drugs. There are many offences of disorderly conduct, hindering police, resisting arrest, assaulting police officers and the like. Fines have been imposed and sentences of imprisonment were served from August 1994 for a series of offences, including an assault occasioning bodily harm and driving offences, including driving without a motor driver's licence. He was eligible for parole and satisfactorily completed a period on parole from 27 March to 10 August 1995. Otherwise, there were numerous offences of the type described above.
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13 Kennedy DCJ ordered a pre-sentence report which was supplied together with a psychiatric report and a psychologist's report. It was acknowledged that alcohol abuse was the applicant's major problem, but the limit of the applicant's attention to the problem appears to have been participation in detoxification programs when the problem becomes really bad. This has been going on for 10 years and the applicant appears to have a capacity to do well in such programs, particularly residential rehabilitation programs, but he does not seem to have the capacity to make the good work last when he is in the community without supervision. He was reported to have had a traumatic and emotionally deprived childhood and when before her Honour, it was said of him that he had little, if any, family or other support in the community. He left school early without attaining any particular educational qualifications and his work history appears to have been poor.
14 While alcohol abuse is the main problem, the applicant believes he is addicted to amphetamines which he takes in large quantities. The resulting paranoia and tendency to violence is a well known effect of a drug-taking habit of that kind. The applicant was not reported to have any psychiatric illness, but it was accepted that he had an anti-social personality, "with compulsive and aggressive features unconnected to his alcohol and other drug abuse, and almost certainly a direct result of his traumatic and emotionally deprived childhood." Whilst it was perfectly clear that the applicant must totally desist from alcohol and illicit drugs if he wished to break the cycle of offending, it was also reported that "his past history does not encourage optimism in this regard."
15 The psychologist supported those views and expressed the latter consideration in the following way:
"During interview, Mr Meikle did not express resistance to engaging in therapy to help him remain alcohol free, however neither did he demonstrate a high level of motivation to do so. He impressed as being of the belief that his only need is to resist the urge to resume drinking. This attitude likely reflects his independent and self-sufficient stance which circumstances appear to have dictated in the past. Some enforcement of the requirement for therapeutic intervention may be necessary."
- The obvious concern, of course, recognised by Kennedy DCJ, was that unless something effective can be done in this regard, there is a high risk that the present pattern of offending will continue. Nonetheless, as I have said, a parole eligibility order was made.
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16 There is no doubt from her Honour's relatively brief sentencing remarks that in those circumstances her Honour was concerned to give appropriate recognition to the seriousness of the offending, particularly the offence of burglary which her Honour described as a very serious and terrifying offence in respect of which the occupants of the house were entitled to the protection of the law. The application for leave to appeal, whilst it mentions the other offences and sentences, naturally focuses upon the burglary offence. Indeed, as I have said, as the other sentences were ordered to be served concurrently and have now expired, while there may be a complaint available that they may individually have been too great in some cases, I do not propose to pay these sentences any further attention.
17 The application is based on two grounds. One is the general ground that the sentence imposed was manifestly excessive in the circumstances of the case and having regard to cases of a similar nature, and the second ground is that her Honour placed insufficient weight upon matters personal to the applicant. But in my opinion, as can be seen from the above description of those matters, there was nothing in them which could have any mitigatory effect.
18 The only mitigation to be found in the case was the applicant's early "fast-track" plea of guilty in relation to the burglary and his request that the petty sessional matters be dealt with upon pleas of guilty at the same time. The Sentencing Act, s 8(2) provides that a plea of guilty by an offender is always a mitigating factor and the earlier in the proceedings the plea is made, or indication is given that it will be made, the greater will be the mitigation. It follows that a fast-track plea will attract a generous discount: Miles v The Queen (1997) 17 WAR 518.
19 But as was made clear in that case and as has been repeated on other occasions, there is no need to quantify the precise discount, either in terms of a period of time or by way of a percentage reduction in the sentence that would otherwise have been passed. It may be found convenient to take that course, but that will often not be so and it was not a course adopted by her Honour in this case. When, as in this case, the Judge passing sentence simply addresses the offender, mentioning the factors which she has taken into account, and then passes sentence, the extent of the discount for pleas of guilty will be discerned by having regard to the sentence imposed in the context of all the other circumstances of the case, whether they be aggravating or mitigatory in their effect.
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20 In this case, as has been seen, there were no other mitigatory circumstances, but particularly in the case of the burglary, there were aggravating circumstances in fact and in terms recognised by the law. In my opinion it was right that they should be given considerable weight in determining the appropriate sentence proportionate to the criminality involved in the applicant's behaviour. I consider that the mitigatory power of the pleas of guilty was much reduced by the fact that in every case the applicant was apprehended in circumstances which made conviction inevitable.
21 The plea in mitigation, rightly in my opinion, placed no great emphasis upon the fact of the pleas of guilty. Much more attention was focused upon an effort to persuade Kennedy DCJ that the applicant was doing something effective to address the causes of his offending behaviour. But in that regard, the task which confronted counsel was obviously difficult. It cannot be suggested that her Honour overlooked the fact of the pleas, and that the burglary was a fast-track plea was made clear to her Honour just before she commenced her sentencing remarks, which she did by referring to the pleas of guilty.
22 I turn to the suggestion that for the burglary offence other decided cases will support the argument that her Honour's sentence was manifestly excessive. In my opinion the submission cannot be upheld. It is necessary, I think, to bear in mind the effect of the consideration of sentence by this Court. In the case of a Crown appeal against inadequacy of sentence, it is necessary that the court be moved to conclude that an error of principle has been made, if not in any otherwise identifiable form, then certainly by the manifest inadequacy of the sentence imposed, before this Court may be caused to interfere: Dinsdale v The Queen [2000] HCA 54; 12 October 2000.
23 In deciding whether or not it must intervene to correct a sentence which it is argued is manifestly inadequate, the court will have regard to the "double jeopardy" which is involved in the effect of the Crown appeal putting in hazard for a second time the offender's right to liberty. If, nonetheless, the court is obliged to intervene, the principle of double jeopardy will cause it to do so only to the minimum extent necessary to correct the error of principle made by the sentencing court: R v Leucus (1995) 78 A Crim R 40. For those reasons sentences imposed on successful Crown appeals may, having regard to the circumstances of the case, be regarded as establishing the minimum level of punishment required by the particular case in the exercise of the court's discretionary judgment. For present purposes then, to demonstrate that a sentence was
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- manifestly excessive, such cases are of limited utility. R v Ward (1999) 109 A Crim R 159 was such a case relied upon by the applicant in argument.
24 Home invasion cases are invariably serious. As I have said, the law itself recognises them to be so in the way the offence and the prescribed punishments are structured by the Code, s 400 and s 401 by reference to the circumstances inevitably attendant upon such a case. But beyond that it is difficult to go because the more particular circumstances of each case will naturally vary very considerably. For example, the offender may enter the home and commit some act of violence against the person or property of another because of a past or existing association, often of a personal or intimate kind. That is not to say that in such circumstances the seriousness of the offence in general terms will be reduced, but the relationship between victim and offender may provide an explanation which may require the court to mitigate punishment to some degree. The cases of Badron v The Queen, unreported; CCA SCt of WA; Library No 990099; 4 March 1999, Holland v The Queen [1999] WASCA 43; 8 June 1999 and Gallegos v The Queen [1999] WASCA 191; 6 October 1999, upon which the applicant relied, are all cases of this type. But that is not this case and again, the utility of such cases in determining an appropriate range of punishment is limited.
25 More like this case, I think, was the case of Scott & Massey v The Queen, unreported; CCA SCt of WA; Library No 99004; 15 January 1999 where a majority of the court, Kennedy and Murray JJ, declined to quash sentences of 3-1/2 years imprisonment for aggravated burglary imposed upon two offenders who had entered a home and there made a violent attack upon an occupant, causing him grievous bodily harm for which they were sentenced to concurrent terms of 18 months imprisonment. The attack was an act of retribution to punish the occupant of the house for his allegedly violent behaviour which the offenders supposed had been committed against a female friend. They were misguidedly punishing the victim for what they thought was his offence committed against their friend. Again there were early pleas of guilty. The attack was a vicious one and obviously pre-meditated. The offenders were intoxicated, although that of course was recognised as providing no excuse. The offenders' participation in the attack was in aid of a third co-offender who used an iron bar. Their violent behaviour was more limited than that offender. They were both younger men than this applicant. In their case the early pleas of guilty were accepted as remorseful pleas. They had good work histories and were otherwise well thought of. They had no or no relevant previous convictions.
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26 From the above account it will be seen that while there are similarities between the two cases, there are also numerous points of distinction. I am unable to find in the case of Scott & Massey anything to support the view that the sentence imposed by Kennedy DCJ in this case was manifestly excessive. Indeed it seems to me, with respect, in all the circumstances of this case, to have been squarely within the range, bearing in mind the violent process by which the applicant forced his way into the victims' house, that they were older people who could not resist his entry, that they were forced to flee; and bearing in mind the violence of the applicant's behaviour inside the house, the damage that he did and the difficulty that the police had in apprehending him and causing him to stop the commission of the offence. I would dismiss the application for leave to appeal.
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