Mippy v The State of Western Australia

[2012] WASCA 254

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT :   THE COURT OF APPEAL (WA)

CITATION:   MIPPY -v- THE STATE OF WESTERN AUSTRALIA [2012] WASCA 254

CORAM:   McLURE P

BUSS JA
MAZZA JA

HEARD:   23 AUGUST 2012

DELIVERED          :   5 DECEMBER 2012

FILE NO/S:   CACR 27 of 2012

BETWEEN:   CLINTON JAMES MIPPY

Appellant

AND

THE STATE OF WESTERN AUSTRALIA
Respondent

ON APPEAL FROM:

Jurisdiction              :  DISTRICT COURT OF WESTERN AUSTRALIA

Coram  :STAUDE DCJ

File No  :IND 1361 of 2011

Catchwords:

Criminal law - Application for leave to appeal against sentence - Wilfully and unlawfully destroy or damage property - Aggravated burglary and commit offence in dwelling - Discounted sentence - Whether sentence manifestly excessive

Legislation:

Criminal Code (WA)
Sentencing Act 1995 (WA)

Result:

Appeal dismissed

Category:    D

Representation:

Counsel:

Appellant:     Ms K A Gorski

Respondent:     Mr J McGrath SC

Solicitors:

Appellant:     Legal Aid (WA)

Respondent:     Director of Public Prosecutions (WA)

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

Butler v The State of Western Australia [2012] WASCA 249

H v The State of Western Australia [2006] WASCA 53

Wilson v The State of Western Australia [2010] WASCA 82

1. McLURE P:  I agree with Mazza JA.

2. BUSS JA:  I agree with Mazza JA.

3. MAZZA JA:  This is an appeal against sentence.  On 13 December 2011, the appellant pleaded guilty before Staude DCJ on the fast‑track system to two offences contained in an indictment, as follows:

   (1)On 22 May 2011 at Clarkson Clinton James Mippy wilfully and unlawfully damaged the property of Heather Mippy.

   (2)On the same date and at the same place Clinton James Mippy, while in the place of Heather Mippy without her consent, committed the offence of criminal damage

   And that Clinton James Mippy did bodily harm to Heather Mippy

   And that immediately before the commission of the offence Clinton James Mippy knew or ought to have known that there was another person in the place

   And that the place was ordinarily used for human habitation.

4. The maximum penalty for count 1 is 10 years' imprisonment: s 444(1) of the Criminal Code (WA), and for count 2 is 20 years' imprisonment: s 401(2) of the Criminal Code.

5. The appellant also admitted that these offences breached a suspended imprisonment order made on 17 February 2011 in the Perth Magistrates Court for an offence of aggravated assault occasioning bodily harm (AB 28).

6. His Honour sentenced the appellant to 1 year's imprisonment for count 1 and 3 years' imprisonment for count 2.  He ordered that the sentences be served concurrently.  The appellant was made eligible for parole.  The appellant received an additional 10 months' imprisonment for the offence which was the subject of the suspended imprisonment order.  Thus, the total effective sentence imposed upon the appellant was 3 years and 10 months' imprisonment.

7. The appellant does not complain about the sentence imposed for the breach of the suspended imprisonment order.  The appellant's complaint is in respect of the sentences imposed on the indictable offences.  He claims that his Honour failed to reduce those sentences for his fast‑track pleas of guilty (count 1).  Alternatively, that the term of 3 years' imprisonment for

the aggravated burglary was manifestly excessive (count 2).  Leave to appeal has been granted in respect of ground 1 only.

1. The relevant legal principles which govern this appeal are not in dispute and were described by McLure P and Owen JA in Wilson v The State of Western Australia [2010] WASCA 82 [2].

The facts of the offending

1. There is no dispute about the facts of the appellant's offending.  The complainant is the appellant's mother.  At 11.30 pm on 22 May 2011, the appellant went to his mother's home in the suburb of Clarkson.  Living with the appellant's mother at the time were two of her own children, aged 14 and 12, and three grandchildren aged 5, 4 and 2.

2. Initially, the appellant stood outside the house shouting for his mother and banging on the front door.  The complainant, realising he was intoxicated, refused to let the appellant in, and called the police. 

3. The appellant went to the carport of the house and extensively damaged his mother's car, smashing the windows and windscreen as well as denting and scratching the bodywork.  He then pulled off the locked flyscreen door at the front of the house, but was unable to gain entry through the front door.  Next, he broke two bedroom windows with rocks and thus gained entry to the house.

4. The complainant took the five children who were, at this point, distressed, into her bedroom.  The appellant kicked open the bedroom door and assaulted his mother in the presence of all five children.  The children fled the house.  During a momentary pause to his assault, the complainant managed to escape and hide in the toilet.  The appellant then pushed over a refrigerator, a television and a cabinet, causing damage to those items.

5. As a result of the assault, the complainant sustained a split lip, a loose tooth and bruising to her right leg and chest.  She subsequently received treatment from a doctor and a dentist. 

6. The damage to the house, its contents and the complainant's vehicle totalled just over $9,000. 

7. The complainant's deposition describes just how distressed and frightened she and the children were as a result of the appellant's behaviour. 

The appellant's antecedents

1. At the time of the offending and when he was sentenced, the appellant was 31 years of age.  He was raised mainly by his mother and stepfather.  His childhood was marred by domestic violence and alcohol abuse.  At the age of 13 he went to live with his father, who was a poor role model.  The only period of stability the appellant had during his adolescence was when he stayed with his grandmother.  The appellant harbors a belief that the complainant failed to look after him when he was young (AB 38).  The appellant has a long history of alcohol and cannabis abuse.  In the past, he has been addicted to amphetamines.  The appellant also has a long history of domestic violence directed towards his partner, a good deal of which has been associated with his alcohol abuse.

2. The appellant has a significant criminal record.  As an adult he has been convicted of numerous driving offences and other offences, including stealing a motor vehicle, possession of an offensive weapon, disorderly conduct, assaulting a public officer, offensive behaviour, escaping legal custody, possession of heroin, giving false details to the police, common assault and aggravated assault occasioning bodily harm.  The victim of the last mentioned offence was his partner.  It was in respect of this offence that the appellant was placed on the suspended imprisonment order that he breached.

3. The court‑ordered psychological report noted that the appellant is preoccupied with a sense of victimisation particularly targeted towards the complainant and his partner.  The author noted that the appellant tends to externalise blame for his problems.  He has limited insight into the impact of his substance abuse and he is ambivalent towards change. 

His Honour's sentencing remarks

1. His Honour proceeded to sentence immediately after hearing from counsel, both of whom made reference to the appellant's fast‑track pleas (AB 35). 

2. At the outset his Honour said that among the things he had to consider were any aggravating or mitigating factors (AB 36). 

3. His Honour then recounted the facts of the appellant's offending and the appellant's antecedents. 

4. Towards the end of his sentencing remarks, he told the appellant that because of totality considerations he would impose concurrent sentences for the offences in the indictment.  He then described the aggravating circumstances of the burglary, as follows:

   In sentencing you for the aggravated burglary, I take account of the fact that the offence occurred at night when your family was asleep and your behaviour was extremely violent, such that you caused injury to your mother and considerable damage to her property.  You effectively terrorised your mother and her children and grandchildren.  These are aggravating features of the offence.

   His Honour made no reference to the appellant's fast‑track pleas of guilty. 

Relevant legislative provisions

1. Section 8(2) of the Sentencing Act1995 (WA) provides that a plea of guilty is a mitigating factor, and the earlier in the proceedings the plea is made or an indication is given that it will be made, the greater the mitigation. Section 8(4) of the Sentencing Act states that if, because of a mitigating factor, a court reduces a sentence it would otherwise have imposed on an offender, the court must state that fact in open court. 

2. It is well‑established that the discount given for a fast‑track plea of guilty usually falls somewhere between 20% ‑ 35%, depending on the circumstances:  H v The State of Western Australia [2006] WASCA 53 [9].

3. Given the terms of s 8(4) of the Sentencing Act, a judge's failure to refer to the effect of the plea of guilty will ordinarily be an indication that he or she has overlooked it unless, from all the circumstances, it is obvious that a reduction has in fact been made for the plea.  If it appears that the plea of guilty has been overlooked an express error will have occurred which would enliven this court's power to resentence the appellant.  Of course, the appeal would nevertheless be dismissed if this court considered that, even after making an appropriate reduction for the plea of guilty, no different sentence should be imposed:  H v The State of Western Australia [10]; and s 31(4)(a) of the Criminal Appeals Act  2004 (WA).

Did his Honour take into account the appellant's guilty pleas

1. Having considered his Honour's sentencing remarks as a whole, I am unable to conclude that he had the pleas of guilty in mind when he imposed the sentences.  It is not obvious that his Honour reduced the sentences he imposed on account of the pleas of guilty.  It is not possible to conclude from the sentences for the indictable offences individually or in the aggregate whether the learned sentencing judge did or did not reduce the sentences for the pleas of guilty.  Express error has been established.  The question now becomes whether, even taking into account the pleas of guilty, a different sentence should have been imposed.

2. The circumstances of the appellant's offending were, without doubt, very serious.  The offences were committed late at night when the occupants of the complainant's house were asleep.  In a self‑induced intoxicated state (which is not mitigating) and acting out of anger, the appellant broke into his mother's house and assaulted her in the presence of five young children.  It can fairly be said that he terrorised his mother and the children.  He caused a substantial amount of damage to the complainant's property.  It is a significantly aggravating factor that the appellant was, at the time, subject to a suspended imprisonment order.  There is, in the materials before this court, little indication that the appellant is remorseful or has insight into his offending.  He has significant unresolved issues with alcohol, substance abuse and domestic violence and displays no real desire to change.  The appellant's criminal history is persistent and reveals a strong need for personal deterrence.  General deterrence also looms large in offending of this kind. 

3. The only mitigating factor was the appellant's fast‑track pleas of guilty.  However, the reduction to be given for the pleas must be towards the lower end of the usual range.  This is because the pleas were not motivated by remorse and were made in the face of a strong prosecution case.

4. In my consideration of whether any different sentence should be imposed, I am mindful of the appellant's contention that 3 years' imprisonment for the aggravated burglary was manifestly excessive.

5. In light of the maximum penalty for the offence, the serious circumstances in which it was committed, the standards of sentencing customarily observed for the offence (see Butler v The State of Western Australia [2012] WASCA 249 [40] ‑ [46]) and the appellant's personal circumstances, which were not favourable to him, this contention must be rejected.

6. Having regard to all relevant matters including the appellant's pleas of guilty, I would not have imposed different sentences to those imposed by Staude DCJ.  Accordingly the appeal must be dismissed.

Conclusion and orders

1. Although his Honour made an express error, the appeal must be dismissed because a different sentence should not be imposed.

2. I would make the following orders:

   1.Leave to appeal is refused on ground 2.

   2.The appeal is dismissed.