Miller v The State of Western Australia - [2022] WASCA 50

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT :   THE COURT OF APPEAL (WA)
CITATION:   MILLER -v- THE STATE OF WESTERN AUSTRALIA [2022] WASCA 50
CORAM:   BUSS P
BEECH JA

HEARD:   26 NOVEMBER 2021
DELIVERED          :   6 MAY 2022
FILE NO/S:   CACR 140 of 2021
BETWEEN:   DANIEL STURROCK MILLER
Appellant

AND

THE STATE OF WESTERN AUSTRALIA
Respondent

ON APPEAL FROM:
Jurisdiction              :   DISTRICT COURT OF WESTERN AUSTRALIA
Coram:   LONSDALE DCJ
File Number            :   IND 903 of 2021

Catchwords:

Criminal law - Appeal against sentence - Appellant convicted on his pleas of guilty of one count of aggravated home burglary and five counts of wilfully and unlawfully damaging property - Sentence of 3 years' immediate imprisonment for the aggravated home burglary - Total effective sentence of 3 years 6 months' immediate imprisonment - Manifest excess - Totality principle - Parity principle

Legislation:

Criminal Code (WA), s 401(2)(a), s 444(1)(b)

Result:

Leave to appeal refused
Appeal dismissed

Category: B

Representation:

Counsel:

Appellant	:	Mr D J McKenzie
Respondent	:	No appearance

Solicitors:

Appellant	:	Legal Aid (WA)
Respondent	:	Director of Public Prosecutions (WA)

Case(s) referred to in decision(s):

Brindley v The State of Western Australia [2019] WASCA 153
Eldridge v The State of Western Australia [2020] WASCA 66
Green v The Queen [2011] HCA 49; (2011) 244 CLR 462
House v The King [1936] HCA 40; (1936) 55 CLR 499
Panicciari v The State of Western Australia [2020] WASCA 154
Robson v The State of Western Australia [2020] WASCA 153
Serukai v The State of Western Australia [2020] WASCA 159
Stanley v The State of Western Australia [2018] WASCA 229
The State of Western Australia v Quartermaine [2021] WASCA 145
The State of Western Australia v Richards [2020] WASCA 129
The State of Western Australia v Wilkins [2020] WASCA 149

JUDGMENT OF THE COURT:

This is an application for leave to appeal against sentence.
The appellant was charged on indictment with six offences.
Count 1 alleged that on 5 September 2020, at Pinjarra, the appellant, while in the place of the complainants without their consent, wilfully and unlawfully damaged a washing machine and glass windows; that the appellant was in company with another; that immediately before the commission of the offence the appellant knew or ought to have known that there was another person in the place; and that the place was ordinarily used for human habitation, contrary to s 401(2)(a) of the Criminal Code (WA) (the Code).
Count 2 alleged that on 5 September 2020, at Pinjarra, the appellant wilfully and unlawfully damaged a washing machine and glass windows, contrary to s 444(1)(b) of the Code.
Count 3 alleged that on 5 September 2020, at Pinjarra, the appellant wilfully and unlawfully damaged a Mazda 323 motor vehicle, contrary to s 444(1)(b) of the Code.
Count 4 alleged that on 5 September 2020, at Pinjarra, the appellant wilfully and unlawfully damaged a Holden Commodore motor vehicle, contrary to s 444(1)(b) of the Code.
Count 5 alleged that on 5 September 2020, at Pinjarra, the appellant wilfully and unlawfully damaged a Holden Astra motor vehicle, contrary to s 444(1)(b) of the Code.
Count 6 alleged that on 5 September 2020, at Pinjarra, the appellant wilfully and unlawfully damaged a Toyota Hilux motor vehicle, contrary to s 444(1)(b) of the Code.
On 14 September 2021, the appellant was convicted, on his pleas of guilty before Lonsdale DCJ, of each of the charged offences.
The appellant was aged 22 at the time of the offending and was 23 when sentenced.
The maximum penalty for count 1 is 20 years' imprisonment. The maximum penalty for each of the other counts is 10 years' imprisonment.
Her Honour imposed individual sentences as follows:
(a)count 1: 3 years' immediate imprisonment;
(b)count 2: no penalty;
(c)count 3: 6 months' immediate imprisonment;
(d)count 4: 6 months' immediate imprisonment;
(e)count 5: 6 months' immediate imprisonment; and
(f)count 6: 6 months' immediate imprisonment.
Her Honour ordered that the sentence for count 3 be served cumulatively upon the sentence for count 1 and that the sentences for counts 4, 5 and 6 be served be concurrently with each other and concurrently with the sentence for count 1. The total effective sentence was therefore 3 years 6 months' immediate imprisonment. A parole eligibility order was made.
The appellant's younger half‑brother, MJ, who at the material time was a juvenile, was a co‑offender on each of the counts. MJ was sentenced in the Children's Court (before the appellant was sentenced) to an intensive supervision order. The order was for a term of 12 months. A community service requirement for 100 hours of community service was imposed. MJ was aged 17 at the time of the offending and was 18 when sentenced.
The appellant relies upon three grounds of appeal. Ground 1 alleges, in essence, that the sentence of 3 years' immediate imprisonment for the aggravated home burglary (count 1) was manifestly excessive. Ground 2 alleges, in essence, that the total effective sentence of 3 years 6 months' immediate imprisonment infringed the first limb of the totality principle. Ground 3 alleges, in essence, that the total effective sentence infringed the parity principle.
At the hearing of the application for leave to appeal, counsel for the appellant made oral submissions in support of grounds 1 and 2. Counsel conceded that 'parity [does not] apply here … because the principles of juvenile justice do not apply to [the appellant] in the same way that they apply to [MJ]' (ts 2). However, despite that concession, counsel did not abandon ground 3. He merely informed the court that he would make 'no further submission on it' (ts 2).
None of the grounds of appeal has a reasonable prospect of success. Leave to appeal must be refused and the appeal dismissed.

The facts and circumstances of the offending

At about 3.00 am on 5 September 2020, the appellant went to residential premises in Pinjarra in company with MJ.
The appellant and MJ were looking for a young man, known to them and the complainants, who allegedly had participated in an assault on MJ earlier that day.
The appellant and MJ entered the Pinjarra property through a closed metal gate.
The appellant and MJ, who were in possession of weapons, began to smash the house windows. The weapons comprised a hockey stick (which MJ brought to the premises) and a rake (which the appellant found at the premises).
The appellant and MJ moved around the outside of the house, smashing windows. They then gained entry to the house by forcing open the laundry door flyscreen and smashing the glass door. While inside the house, the appellant broke the front of a washing machine, caused damage to a door and smashed internal glass windows.
The complainants awoke and walked into the hallway. Two of the complainants recognised the appellant and MJ. The young man whom the appellant and MJ were endeavouring to locate was not present.
A Mazda 323 motor vehicle was parked in the driveway of the Pinjarra property. While at the property, the appellant and MJ used weapons to smash the windscreen and the side windows of the vehicle (count 2).
Also on the driveway of the Pinjarra property was a Holden Commodore motor vehicle. The appellant and MJ used weapons to smash the windows of the vehicle (count 3).
Also on the driveway was a Holden Astra motor vehicle. The appellant and MJ used weapons to smash the windscreen of the vehicle (count 4).
Also on the driveway of the Pinjarra property was a Toyota Hilux motor vehicle. The appellant and MJ used weapons to smash a side window of the vehicle (count 5).
After committing the offences, the appellant and MJ got into a motor vehicle and departed.

The sentencing judge's sentencing remarks and the appellant's personal circumstances and antecedents

The sentencing judge recounted in her sentencing remarks the facts and circumstances of the offending.
Her Honour characterised the appellant's offending as involving the persistent and gratuitous destruction of property for no obvious purpose. Her Honour said the fact that the appellant was at the Pinjarra property in company with MJ and that both of them had weapons meant 'there was a danger that matters could have escalated, and people could have been seriously injured' (ts 19). Her Honour accepted that the offending 'was not all [the appellant's] idea, but [he] did go along with it' (ts 19). Her Honour added that 'in the end, this was joint offending, and [the appellant] and [MJ] are equally responsible for the acts of the other' (ts 20).
The sentencing judge said the appellant was heavily intoxicated at the time of the offending, but that was not an excuse or a mitigating circumstance.
Her Honour observed that the appellant had struggled with his education. He left school in year 10. However, since leaving school he has always been employed. His employer had a very high regard for him.
The appellant's offending appears to have been related to his illicit substance use, involvement with negative peers, poor consequential thinking and lack of good decision-making skills. However, the appellant had abstained from illicit substances for about a year before he was sentenced.
The appellant was diagnosed with ADHD as a child. He has taken medication for that condition from time to time. When he was aged 18 the appellant was prescribed anti-anxiety medication. He stopped taking the medication suddenly, about two weeks before the offending.
The appellant has a prior criminal record as an adult. In particular, he has been convicted of disorderly behaviour in public; criminal damage or destruction of property (two offences); being armed or pretending to be armed in a way that may cause fear; common assault; breach of a bail undertaking; possession of drug paraphernalia in or on which there was a prohibited drug or plant; and possession of a prohibited drug. The appellant had not previously been imprisoned.
As we have mentioned, the appellant was aged 22 at the time of the offending and was 23 when sentenced. The sentencing judge noted that the appellant still had the mitigating benefit of youth.
The appellant pleaded guilty at an early stage. Her Honour recognised the pleas of guilty by affording the appellant a discount of 20% on the head sentence she would otherwise have imposed for each of counts 1, 3, 4, 5 and 6 (her Honour having decided to impose no penalty for count 2).
Her Honour accepted that 'over time' the appellant had developed a level of remorse for his offending and that he was 'truly sorry' for his criminal behaviour (ts 19).
The appellant has a partner. The partner has three children. The appellant has been assisting with the care of the children. The partner is employed and does not use illicit drugs.
The author of the pre‑sentence report stated that the appellant appeared open to engaging in substance abuse counselling to explore relapse prevention. The sentencing judge recommended that the appellant 'continue to engage in treatment in order to reduce [his] risk of reoffending' (ts 21). Her Honour said she hoped that the appellant would not reoffend and noted that the appellant had been 'well‑behaved on bail' (ts 21).
After imposing the sentences of imprisonment for counts 1, 3, 4, 5 and 6, her Honour considered whether it was open to her to suspend (conditionally or unconditionally) the sentences, either wholly or in part. Her Honour concluded, having regard to all of the facts and circumstances of the offending and all of the personal circumstances and antecedents of the appellant, that the offences were of such seriousness as to require that the sentences of imprisonment be served immediately.

Grounds 1 and 2 of the appeal: counsel for the appellant's submissions

Counsel for the appellant emphasised that the appellant had pleaded guilty, was remorseful and was employed when sentenced. Counsel asserted that the appellant had a low risk of reoffending. It was submitted that the offending was not 'pre‑planned' and that the appellant did not instigate the offending. Although the offending occurred in the early hours of the morning and the actions of the appellant and MJ were 'frightening', both of the offenders were known to the complainants. No physical harm was caused to the complainants. Counsel said the appellant was youthful, had 'a limited criminal record' and had not previously been imprisoned.
According to counsel, having regard to previous comparable cases, the criminality of the appellant's offending and the appellant's personal circumstances and antecedents, the sentence for count 1 was manifestly excessive as to length and type, and the total effective sentence infringed the first limb of the totality principle as to length and type.

Grounds 1 and 2 of the appeal: their merit

In the present case, the appellant does not assert that the sentencing judge made any express error.
The general sentencing principles applicable to a ground of appeal that alleges that a sentence is manifestly excessive are well established. Similarly, the general sentencing principles applicable to a ground of appeal which alleges that a total effective sentence infringes the first limb of the totality principle are well established. Further, the principles governing the parity principle are well established. All of those principles have been referred to by this court on numerous occasions. It is unnecessary to repeat any of them.
Section 401(2)(a) of the Code provides that 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 if the offence is an aggravated home burglary to 20 years' imprisonment.
In the present case, the offence charged in count 1 was an aggravated home burglary.
In Brindley v The State of Western Australia,[1] it was observed:
The circumstances of burglary offences can vary widely and attract a wide range of sentences. Home burglaries are viewed as being particularly serious offences, and are generally seen as requiring substantial penalties in order to recognise considerations of personal and general deterrence, and reflect the prevalence of the offence. Home invasions, which involve forcible entry into residential premises known or suspected to be occupied at the time, accompanied by threatened or actual violence, are generally significantly more serious than home burglaries which lack those characteristics. A home invasion which is committed with intent to intimidate the occupants is generally more serious than a burglary which involves simply an intention to steal (Wragg v The State of Western Australia [2013] WASCA 198; (2013) 234 A Crim R 380 [44]; Sartori v The State of Western Australia [2014] WASCA 98 [31]; McIntyre v The State of Western Australia [2016] WASCA 150 [15]; Page v The State of Western Australia [2018] WASCA 76 [40]).
[1] Brindley v The State of Western Australia [2019] WASCA 153 [39].
In Eldridge v The State of Western Australia,[2] this court said:
The cases illustrate that there is no tariff for home burglary, whether aggravated or non‑aggravated. This is hardly surprising given the vast variation of circumstances in which offences of home burglary are committed and the personal circumstances of those who commit them.
What is clear is that home burglaries are serious offences which are prevalent and which are ordinarily met with terms of imprisonment. There has long been a recognition that sentences for home burglary need to be firmed up. Whether this has in fact happened is debatable.
[2] Eldridge v The State of Western Australia [2020] WASCA 66 [63] ‑ [64].
Subsequently, the necessity for a firming up of sentences for aggravated home burglary offences has been emphasised in The State of Western Australia v Richards;[3] The State of Western Australia v Wilkins;[4] Robson v The State of Western Australia;[5] Panicciari v The State of Western Australia;[6] and Serukai v The State of Western Australia.[7]
[3] The State of Western Australia v Richards [2020] WASCA 129 [28] ‑ [29].
[4] The State of Western Australia v Wilkins [2020] WASCA 149 [67], [76].
[5] Robson v The State of Western Australia [2020] WASCA 153 [20] ‑ [22].
[6] Panicciari v The State of Western Australia [2020] WASCA 154 [42] ‑ [44].
[7] Serukai v The State of Western Australia [2020] WASCA 159 [44].
In Wilkins [70], this court made the following comments:
The seriousness of the respondent's offending was to be evaluated having regard to his criminal acts and the circumstances in which he did those acts, and not by reference to whether the label of a 'home invasion' should or should not be applied to his offending behaviour. The seriousness of what the respondent did was to be found in his actions in entering a home occupied by other people without their consent; attempting to steal their motor vehicle by demanding their car keys; and swinging a tomahawk at the victim when the victim resisted. The fact that the victim, with the assistance of his son, was able to overpower the respondent does not detract from the seriousness of the offending.
In Serukai [46], it was noted that, in considering the appropriate sentence for an aggravated home burglary offence, it is important to bear in mind the wide variety of conduct that may constitute the offence. Also, the classification of conduct referred to in Brindley (see the passage set out at [48] above) is general in nature and must, in a particular case, give way to an assessment of what the offender has actually done.
We have had regard to a number of previous cases in which this court has considered or reviewed sentences for aggravated home burglary; in particular, Brindley; Serukai; and The State of Western Australia v Quartermaine.[8]
[8] The State of Western Australia v Quartermaine [2021] WASCA 145.
In the present case, the facts and circumstances of the appellant's offending on count 1 were very serious. The appellant and his co‑offender broke into the complainants' home in the early hours of the morning by forcing open the laundry door flyscreen and smashing the glass door. The appellant and his co‑offender broke the front of a washing machine, caused damage to a door and smashed internal glass windows, while inside the house. The appellant and his co‑offender were armed with weapons. The complainants were asleep before the appellant and his co‑offender entered their home. The complainants awoke. As her Honour recognised, there was a danger that the confrontation between the appellant and his co‑offender, on the one hand, and the complainants, on the other, could have escalated and people could have been seriously injured. It was fortunate that the young man for whom the appellant and his co‑offender were searching was not present.
As we have mentioned, the appellant has a number of previous convictions as an adult. Although the appellant's prior criminal record and the failure of previous attempts to facilitate his rehabilitation did not aggravate the seriousness of the current offending, the appellant was not entitled to any mitigation on the basis that the current offending was an aberration or that he was a person of previous good character.
The sentencing judge did not make a finding that the appellant was at a low risk of reoffending. It is apparent that the risk of the appellant reoffending depends, to a significant extent, upon whether he continues to abstain from illicit drugs and whether he ceases involvement with negative peers. In the circumstances, personal deterrence (as well as general deterrence) was a sentencing factor of importance.
The principal mitigating factor was the appellant's pleas of guilty at an early stage. There was also other mitigation; in particular, the appellant's relative youth (he was aged 22 at the time of the offending), his eventual development of some remorse for his offending, his good employment record and the apparent support he has from his partner.

As her Honour observed, although the offending 'was not all [the appellant's] idea', he did participate in the offending (ts 19). In the end, the appellant offended jointly, as a matter of law and fact, with his younger co‑offender.
The sentencing judge did not find, and we do not accept, that the offending was not 'pre‑planned'. The appellant and his co‑offender went to the Pinjarra property to look for the young man who allegedly had participated in an assault on MJ earlier that day. They armed themselves with weapons. The appellant and MJ moved around the outside of the house, smashing windows, before they forced entry to the house. There appears to have been some premeditation in relation to the aggravated home burglary.
It is true that no physical harm was caused to the complainants, but that merely demonstrates that the offending could have been worse. The absence of an aggravating factor does not diminish the seriousness of what the appellant and his co‑offender actually did.
In our opinion, the sentence for count 1 was commensurate with the seriousness of the offence. Her Honour was correct in deciding, in effect, that it was inappropriate, in the circumstances, to impose suspended or conditionally suspended imprisonment, either wholly or in part. It was not appropriate, in view of the objective seriousness of the offending, to suspend or conditionally suspend any of the term of imprisonment for count 1.
The sentence for count 1 was broadly consistent with the sentencing pattern revealed by previous cases with some comparable features to the appellant's offending and his personal circumstances and antecedents.
We consider that, when the sentence of 3 years' immediate imprisonment for count 1 is viewed from the perspective of:
(a)the maximum penalty;
(b)the facts and circumstances of the offence;
(c)the vulnerability of the sleeping complainants, who were entitled to be safe in their home;
(d)the general pattern of sentences for offences of this kind;
(e)the importance of denunciation of the appellant's criminal conduct and personal and general deterrence as sentencing factors; and
(f)all mitigating factors,
the sentence was not unreasonable or plainly unjust either as to length or type.
The sentence imposed by the sentencing judge for count 1 was not manifestly excessive.
Section 444(1)(b) of the Code provides, relevantly, that any person who wilfully and unlawfully destroys or damages any property is guilty of a crime and is liable, if the property is not destroyed or damaged by fire, to 10 years' imprisonment.
The appellant and his co‑offender deliberately and wantonly damaged each vehicle the subject of counts 3, 4, 5 and 6. The vandalism was unprovoked. Her Honour rightly characterised this offending as involving the persistent and gratuitous destruction of property. The sentence of 6 months' imprisonment imposed for each of counts 3, 4, 5 and 6 represented 5% of the maximum sentence. The objective seriousness of the offending on each of those counts, having regard to the facts and circumstances of the offending as a whole and all relevant sentencing factors, required the imposition of a term of imprisonment for each of counts 3, 4, 5 and 6. It cannot reasonably be contended that the length of each term of imprisonment was unreasonable or plainly unjust.
It was not open to the sentencing judge to consider whether any of the terms of imprisonment for counts 3, 4, 5 and 6 should be suspended or conditionally suspended, either wholly or in part, in view of the sentence of immediate imprisonment which her Honour rightly imposed for count 1. See s 76(3)(b) and s 81(3)(b) of the Sentencing Act.
The sentences imposed by her Honour for counts 3, 4, 5 and 6 were not manifestly excessive.
Although counts 3, 4, 5 and 6 were committed in close temporal proximity to count 1, it was necessary to order that one of the sentences for counts 3, 4, 5 and 6 be served cumulatively upon the sentence for count 1 in order to ensure that the total effective sentence imposed on the appellant was commensurate with the seriousness of his overall offending.
In our opinion, the total effective sentence of 3 years 6 months' immediate imprisonment did not infringe the first limb of the totality principle. A custodial term of that length was required in order properly to mark the very serious character of the appellant's offending as a whole, and to give effect to the sentencing considerations of denunciation of the appellant's criminal conduct as a whole and personal and general deterrence. The total effective sentence bears a proper relationship to the criminality involved in all of the offences, viewed together, and having regard to all relevant facts and circumstances and all relevant sentencing factors.
It is not reasonably arguable that error by her Honour in the exercise of her discretion should be inferred, based on the first limb of the totality principle, from the sentencing outcome. The total effective sentence of 3 years 6 months' immediate imprisonment was not unreasonable or plainly unjust.
Grounds 1 and 2 of the appeal are without merit.

Ground 3 of the appeal

As we have mentioned, counsel for the appellant conceded at the hearing of the appeal that 'parity [does not] apply here … because the principles of juvenile justice do not apply to [the appellant] in the same way that they apply to [MJ]' (ts 2). Counsel informed the court that he would make 'no further submission on [ground 3]' but did not abandon the ground (ts 2). Counsel was right to make the concession. It would have been appropriate for counsel to abandon the ground.
A sentencing judge's application of the parity principle involves a discretionary judgment to which the principles in House v The King[9] apply. See Green v The Queen[10] and Stanley v The State of Western Australia.[11]
[9] House v The King [1936] HCA 40; (1936) 55 CLR 499.
[10] Green v The Queen [2011] HCA 49; (2011) 244 CLR 462 [32].
[11] Stanley v The State of Western Australia [2018] WASCA 229 [40].
It is apparent that the sentencing judge was fully informed about the sentencing of MJ in the Children's Court.
The most significant distinguishing feature, for sentencing purposes, between the appellant, on the one hand, and MJ, on the other, was that MJ was a juvenile when the offending occurred. The principles of juvenile justice applied to him.
Another significant distinguishing feature is that the appellant had a prior criminal record and MJ did not have any previous convictions at the time of the offending.
Otherwise, there does not appear to be any material distinction, for sentencing purposes, between the culpability of the appellant and MJ in relation to the offending or in their personal circumstances and antecedents.
We are satisfied, after evaluating and weighing all relevant sentencing factors, in the context of the facts and circumstances of the offending by the appellant and MJ, and after taking into account the similarities and differences between their offending and their personal circumstances and antecedents, that the sentences imposed on the appellant by her Honour did not infringe the parity principle or the principle of equal justice.
In particular, we are satisfied that the sentencing outcome for the appellant, compared to the sentencing outcome for MJ, does not reveal an unjustifiable disparity adverse to the appellant and favourable to MJ.
In our opinion, the sentencing outcome in relation to the appellant, compared to the sentencing outcome in relation to MJ, does not give rise to a legitimate or justifiable sense of grievance on the appellant's part, and is not such as to give the appearance in the mind of an objective observer that justice has not been done as between the appellant and MJ, or generally.
Ground 3 of the appeal is without merit.

Conclusion

None of the grounds of appeal has a reasonable prospect of success. Leave to appeal must be refused and the appeal dismissed.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
BS
Associate to the Honourable Justice Buss
6 MAY 2022