Morrison v The State of Western Australia
[2025] WASCA 132
•5 SEPTEMBER 2025
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: MORRISON -v- THE STATE OF WESTERN AUSTRALIA [2025] WASCA 132
CORAM: MAZZA JA
HALL JA
FORRESTER J
HEARD: 19 & 21 AUGUST 2025
DELIVERED : 21 AUGUST 2025
PUBLISHED : 5 SEPTEMBER 2025
FILE NO/S: CACR 6 of 2025
BETWEEN: BEVAN ARTHUR MORRISON
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram: EGAN DCJ
File Number : IND ESP 14 of 2024
Catchwords:
Criminal law - Appeal against sentence - Appellant convicted on pleas of guilty of two counts of burglary and three counts of criminal damage - Where appellant first‑time offender - Whether sentencing judge erred in failing to take into account the fact that appellant had overcome childhood deprivation as mitigatory factor - Whether sentencing judge erred by failing to find appellant was at low risk of reoffending - Whether total effective sentence infringed first limb of totality principle
Legislation:
Nil
Result:
Leave to appeal granted on ground 2
Appeal allowed
Appellant resentenced
Category: B
Representation:
Counsel:
| Appellant | : | R Napper |
| Respondent | : | G N Beggs |
Solicitors:
| Appellant | : | Aboriginal Legal Service (WA) |
| Respondent | : | Director of Public Prosecutions (WA) |
Case(s) referred to in decision(s):
The State of Western Australia v Krakouer [2020] WASCA 133; (2020) 94 MVR 24
REASONS OF THE COURT:
On 21 August 2025, this court unanimously allowed the appellant's appeal against sentence. We made these orders, with reasons to follow:
1.An extension of time to appeal is granted.
2.Leave to appeal is granted on ground 2.
3.Leave to appeal is refused on grounds 1 and 3.
4.The appeal is allowed.
5.The sentences imposed by Egan DCJ on 26 November 2024 are set aside.
6.The appellant is resentenced as follows:
Count 1 3 months' imprisonment
Count 2 1 year's imprisonment
Count 3 1 year's imprisonment
Count 4 6 months' imprisonment
Count 5 1 year's imprisonment
All of the sentences are to be served concurrently with each other, with the effect that the total effective sentence imposed upon the appellant is 1 year's imprisonment. The total effective sentence of 1 year's imprisonment is to be conditionally suspended for a period of 12 months, pursuant to pt 12 of the Sentencing Act 1995 (WA), with a supervision and program requirement.
7.The appellant's application to adduce additional evidence dated 14 August 2025 is granted.
These are our reasons.
Introduction
At about 5.55 am on Sunday, 3 September 2023, the appellant, who was in an intoxicated state, went to the Esperance Boulevard Shopping Centre. The shopping centre was closed. The appellant forced entry into the shopping centre. He then grabbed a fire extinguisher and used it to damage property belonging to the owners of the shopping centre, the display windows of a jewellery store, and to force entry into a liquor store. While in the liquor store, he damaged bottles of alcohol, ceiling panels, and equipment. He also stole some cans of Jim Beam and Cola, and some cigarettes. The total cost of the clean‑up and the repairs to the shopping centre, and the jewellery and liquor stores was $104,492.98.
On 26 November 2024, the appellant was convicted in the District Court on his pleas of guilty of five offences, being two counts of burglary, in relation to the shopping centre and the liquor store, contrary to s 401(2)(c) of the Criminal Code (WA) (the Code) (counts 1 and 4); and three counts of wilful and unlawful damage, contrary to s 444(1)(b) of the Code, in respect of the damage done to the shopping centre, and the jewellery and liquor stores (counts 2, 3 and 5).
At first instance, counsel for the appellant conceded that a term of imprisonment was the only appropriate sentence to be imposed on the appellant. However, it was submitted to the sentencing judge that, having regard to the combination of mitigating circumstances, the appellant should be placed on a pre‑sentence order,[1] with a view that upon successful completion of the order he would be sentenced to a term of suspended imprisonment. Counsel for the State submitted that a term of immediate imprisonment might not be the only disposition available to the sentencing judge, and that it was open to his Honour to place the appellant on a pre‑sentence order.
[1] Pursuant to s 33A(3) of the Sentencing Act 1995 (WA).
The sentencing judge declined to place the appellant on a pre‑sentence order. He sentenced the appellant to a total effective sentence of 2 years 6 months' immediate imprisonment, with eligibility for parole, backdated to commence on 9 October 2024. He found, in effect, that, regardless of the appellant successfully completing a pre‑sentence order, suspension of the terms of imprisonment imposed was not appropriate because of the seriousness of the offending, having regard to the damage caused by the appellant, and to the need for both personal and general deterrence.
The details of the individual sentences imposed are set out in the table below.
| Charge | Details | Maximum penalty | Sentence | |
| 1. | Burglary and commit offence of stealing s 401(2)(c) of the Code | Esperance Boulevard Shopping Centre, stealing of fire extinguisher | 14 years' imprisonment | 6 months' imprisonment (reduced from 9 months for totality) (cumulative) |
| 2. | Unlawful damage s 444(1)(b) of the Code | Three glass panel doors and a children's carousel ride | 10 years' imprisonment | 1 year 2 months' imprisonment (concurrent) |
| 3. | Unlawful damage s 444(1)(b) of the Code | Glass display windows (Prouds Jewellers) | 10 years' imprisonment | 1 year 2 months' imprisonment (concurrent) |
| 4. | Burglary and commit offence of stealing s 401(2)(c) of the Code | Woolworths Group Limited trading as BWS Esperance, stealing of cigarettes and pre‑mixed alcoholic drinks | 14 years' imprisonment | 9 months' imprisonment (concurrent) |
| 5. | Unlawful damage s 444(1)(b) of the Code | Eight glass fridge doors, 100 bottles of assorted alcohol, ceiling panelling, computers and tills | 10 years' imprisonment | 2 years' imprisonment (cumulative) |
| Total effective sentence | 2 years 6 months' immediate imprisonment, backdated to 9 October 2024, with eligibility for parole | |||
The grounds of appeal
The appellant relied on three grounds of appeal. Grounds 1 and 2 alleged express errors. Ground 3 alleged implied error. Ground 1 alleged that the sentencing judge erred in law by failing to take into account the fact that the appellant had effectively overcome the effects of childhood deprivation as a mitigating factor. Ground 2 alleged that the sentencing judge erred by not finding that the appellant posed a low risk of reoffending. Ground 3 alleged that the total effective sentence of 2 years 6 months' immediate imprisonment infringed the first limb of the totality principle.
The question of leave to appeal in respect of these grounds was referred to the hearing of the appeal. Ground 2 was made out. This enlivened the court's jurisdiction to resentence the appellant afresh. Accordingly, it was not necessary to decide grounds 1 and 3.
The facts
The facts of the offending are not in dispute. They were read by the prosecutor at the sentencing hearing, and adopted by the sentencing judge into his sentencing remarks. They are summarised below.
At about 5.55 am on 3 November 2023, the appellant broke into the Esperance Boulevard Shopping Centre by kicking and shoulder‑charging the front doors, causing at least one of the panels to break or become dislodged (count 1). Once inside, he grabbed a fire extinguisher from a storeroom, discharged it and used it to damage a children's carousel ride (count 2), as well as four display windows of Prouds Jewellers (count 3).
The appellant then again used the fire extinguisher to smash the front windows of a BWS liquor store, and gained entry into the store. Once inside, he smashed approximately 100 bottles of alcohol, as well as eight glass fridge doors, ceiling panels, computers, and tills. He then stole a 10‑pack of Jim Beam and Cola and a packet of cigarettes, which he consumed at the counter of the liquor store until police attended and arrested him.
The total cost of the clean-up and repair to the shopping centre, Prouds Jewellers, and the BWS liquor store was $104,492.98. The majority of the cost was in respect of the BWS liquor store, which was in the sum of $73,119.24. The losses to each of the shopping centre, Prouds Jewellers, and BWS liquor store were below the deductible or excess for the insurance policies held by these entities. Thus, none of the cost of the clean-up and repair was recovered by insurance.
There was no dispute that, at the time of the commission of the offences, the appellant was very intoxicated by alcohol. Prior to the commission of the offences, the appellant had been celebrating his partner's 21st birthday. Although he does not usually consume alcohol, he did so on this occasion. At some point, the appellant and his partner argued, and she went out without him. Due to the appellant's intoxication, he has no recollection of the offending.
The appellant's background
The appellant is an Indigenous Australian man. At the time of the commission of the offences he was 22 years old, and 23 years old when sentenced.[2]
[2] In the sentencing remarks, the sentencing judge erroneously said that the appellant was 24 years old at the time of sentencing. Nothing turns on this error.
The details of the appellant's upbringing given in the pre‑sentence report and in the plea in mitigation differed somewhat. However, the differences were not material. The following is clear enough.
The appellant was born in South Australia. His mother was unable to provide a stable home environment, due to issues with family violence, transience, and excessive alcohol consumption. The appellant was raised by his grandparents in the Northern Territory until he was approximately 12 years of age, then, after living with his mother for a brief period in Darwin, he came to Western Australia, where he lived with an aunt.
His Honour found that, during his upbringing, the appellant was exposed to a culture of alcohol and violence, particularly between adult male figures, and that alcohol consumption was likely to have been normalised. Generally during his childhood, the appellant lacked supervision and educational support.
The appellant received a very limited education and his attendance at school was poor. He remains functionally illiterate and innumerate. While in secondary school, the appellant completed training courses in landscaping and house maintenance, and obtained Certificates I and II in Construction. The appellant's employment history is limited, and at the time of sentencing, he was receiving Centrelink Job Seeker payments.
The appellant reported no mental or physical health issues, although, when he was younger, he suffered from a rheumatic heart condition.
Despite the appellant's exposure to excessive alcohol consumption during his childhood, and its normalisation, the appellant does not consume alcohol regularly. As described to the author of the pre‑sentence report, the appellant's alcohol use has been intermittent. According to defence counsel at sentencing, the appellant consumed alcohol only on 'special occasions'. Leaving aside the offending behaviour, there was no evidence that the appellant's use of alcohol was problematic. The appellant told the author of the pre‑sentence report that he has, in the past, used cannabis to 'feel better'.
The appellant and his partner have been in 'a positive relationship' for four years. They have no children.
The appellant has no criminal record to speak of. His only conviction was recorded in 2020 in the Magistrates Court for an offence of driving without a licence, for which he was fined $250.
After he was charged, the appellant referred himself to Hope Community Services in Esperance to address factors associated with his offending, including his use of alcohol.
Prior to being sentenced, the appellant was on bail for approximately 400 days, and was subject to strict conditions (including, for a period, a home detention condition). The appellant was also subject to a reporting requirement, conditions that he not consume alcohol or illicit drugs, as well as random urinalysis and breath testing. The appellant was compliant with his bail conditions.
The sentencing remarks
The sentencing judge found that the appellant's offending 'was not sophisticated in any way'. His Honour noted that, as no one was in the shopping centre at the time of the commission of the offences, there was 'little, if any, risk of injury to others'. His Honour also observed that apart from the theft of the fire extinguisher, the alcohol, and the cigarettes, the appellant did not steal anything.
His Honour correctly observed that, although the appellant's voluntary intoxication may explain why he committed the offences, it was not a mitigating factor and the appellant must bear responsibility for his actions.
The sentencing judge identified two aggravating factors:
(1)The offending was persistent, in that the appellant broke into the shopping centre and, after unsuccessfully attempting to break into the jewellery store, broke into the liquor store.
(2)The appellant did significant damage to the property of the shopping centre, the jewellery store, and the liquor store, in the vicinity of $105,000.
His Honour identified six mitigating factors:
(1)The sentencing judge reduced each of the sentences he imposed by 20% for the appellant's pleas of guilty under s 9AA of the Sentencing Act, which, although not entered at the first reasonable opportunity, were entered at an early stage in the proceedings.
(2)The appellant's youth. His Honour acknowledged that the appellant was 22 years of age at the time of the offending, and recognised that it is in the interests of the community to rehabilitate a youthful offender.
(3)The appellant's upbringing. As to this factor, his Honour said:[3]
You were exposed in your upbringing and in your family circumstances to a general lack of supervision and support, particularly educational support. In addition, you were exposed to a culture of alcohol and violence between, in particular, adult male figures, and so at the very least it appears that alcohol consumption is likely to have become normalised for you. I therefore take that into account in your favour in the sentencing exercise to the extent possible.
(4)The appellant was genuinely remorseful for his offending.
(5)Notwithstanding the appellant's conviction for driving without a licence in 2020, the sentencing judge said he was prepared to treat the appellant as having prior good character.
(6)His Honour accepted that the appellant appeared to have undertaken rehabilitation as to his use of alcohol. The sentencing judge also noted that the appellant had self‑referred to Hope Community Services in Esperance, and that he was engaging well and he continued to address the contributing factors around alcohol and the offending.
[3] ts 23 - 24.
Although not a matter expressly raised by defence counsel, the sentencing judge referred to the question of the appellant's future risk of offending. He noted that the author of the pre‑sentence report did not address this subject, and that there was no psychological report provided to the court. In these circumstances, his Honour found that there was no evidence before him that enabled him to find that the appellant posed a low risk of future reoffending. This finding is challenged by ground 2.
His Honour expressly noted that the author of the pre‑sentence report stated that the appellant had complied with his bail conditions, and had returned negative results for his random urinalysis testing. His Honour said that these matters were to the appellant's credit.
The sentencing judge acknowledged that defence counsel had submitted that a pre‑sentence order was appropriate. His Honour also acknowledged that the State submitted that it might be open to the court to place the appellant on a pre‑sentence order. His Honour found to the contrary. He said:[4]
I do not accept that a pre‑sentence order is appropriate in your case, and that is because I consider that the offending is such as to warrant a term of immediate imprisonment even if you are placed on a pre‑sentence order.
[4] ts 25 - 26.
His Honour had regard to concurrency, cumulacy, and totality. He accepted that the offending had occurred in the course of a single episode of offending, but expressed the view that to order all of the sentences to be served concurrently would not properly reflect the overall criminality of the offending.
His Honour decided that a total effective sentence of 2 years 6 months' imprisonment was a proper reflection of the appellant's overall criminality, having regard to all of the circumstances of the case, including those referrable to the appellant personally. He reduced the sentence he would otherwise have imposed on count 1 from 9 months' imprisonment to 6 months' imprisonment, having regard to totality, and made the orders for concurrency and cumulacy referred to in the table at [7] above.
His Honour considered, but rejected, the imposition of a suspended imprisonment order of any type. In doing so, his Honour said that he was 'positively satisfied' that the imposition of a suspended term of imprisonment would be inappropriate. He said that this was
because of the seriousness of the offending as well as the damage that was significant [and] the need for both personal and general deterrence.[5]
[5] ts 28.
Ground 2
It is only necessary to address ground 2.
Ground 2 reads:
2.The learned sentencing judge erred in fact by not finding that the appellant was at low risk of re‑offending (TS 24 ‑ 25).
(i)The sentencing judge found that there was no evidence before him that would enable him to find that the appellant was at low risk of re‑offending; and
(ii)The evidence before the sentencing judge established on the balance of probabilities that the appellant was at low risk of re‑offending.
The appellant's submissions
At the hearing of the appeal, counsel for the appellant, Mr Napper, submitted that, although at first instance defence counsel did not, in terms, submit that his Honour should find that the appellant posed a low risk of reoffending, such a submission was implicit when the plea in mitigation is considered as a whole. In particular, defence counsel had emphasised that the offending was a 'one‑off' and out of character for the appellant; that the appellant had no prior relevant criminal record; that, after his arrest, he had sought counselling to address the causes of the offending; and, when on bail, he had complied with all conditions.
Regardless of whether or not defence counsel submitted that the sentencing judge should make a finding that the appellant posed a low risk of reoffending, counsel for the appellant observed that his Honour had himself addressed the issue in his sentencing remarks. Mr Napper submitted that, having done so, his Honour erred in finding that there was no evidence before him which would have enabled him to find that the appellant was at low risk of reoffending. Counsel contended that, to the contrary, the evidence not only enabled a conclusion as to the risk to be made, but plainly demonstrated that the appellant was at low risk of reoffending.
Mr Napper further submitted that the failure of the sentencing judge to find that the appellant was at low risk of reoffending was material to the sentencing outcome. He submitted that, had such a finding been made, it would have been relevant to the extent to which personal deterrence was a relevant sentencing consideration, and to the question of whether a suspended imprisonment order, or a conditionally suspended imprisonment order, should have been made.
The respondent's submissions
Counsel for the respondent, Ms Beggs, submitted that the sentencing judge was not required to assess whether the appellant was at low risk of reoffending. However, having done so, the absence of any formal risk assessment, either by the author of the pre‑sentence report or by a psychologist, justified the sentencing judge's finding that there was no evidence before him capable of supporting a finding that the appellant was a low risk of reoffending.
Further, Ms Beggs submitted that all of the matters that the appellant contended were relevant to an assessment of the appellant's risk of reoffending had been referred to by the sentencing judge, and taken into account as mitigating factors. The failure of his Honour to find that the appellant had a low risk of reoffending would not, in effect, have made any material difference to the sentence that was imposed.
Disposition
Whether or not defence counsel expressly submitted that the sentencing judge should find that the appellant posed a low risk of reoffending, the fact remains that his Honour addressed the question in his sentencing remarks. Having found the six mitigating factors referred to at [29] above, his Honour raised the question of risk of reoffending as the first of two other matters which he said deserved mention. His Honour said:[6]
The first matter concerns your future risk of offending. The author of the pre‑sentence report does not address your future risk of offending, and, of course, there is no psychological report that has been provided to the court. In the circumstances, there is no information before me that will enable me to find that you are a low risk of future re‑offending.
[6] ts 24 - 25.
The fact that the question of the appellant's risk of reoffending was mentioned indicates that his Honour understood that it was being submitted on the appellant's behalf that he posed a low risk of reoffending, or, at least, that it was a matter that he should address. It is plain, from the portion of the sentencing remarks quoted above, that his Honour declined to make such a finding because, in his view, there was no reference to risk in the pre‑sentence report and no psychological report available which might bear on the issue.
With respect to the sentencing judge, the fact that there was no risk assessment by the author of the pre‑sentence report, or by a psychologist, did not foreclose a finding that the appellant's risk of reoffending was low. A sentencing judge may, depending upon the facts and circumstances of the particular case, assess for themselves whether or not an offender poses a risk of reoffending. Such an assessment may, and often will, have regard to an offender's past history, any criminogenic factors, and any relevant events which have occurred between the commission of the alleged offences and sentencing. For example, any rehabilitation undertaken by an offender after the commission of the offence, but before sentencing, may assist in an assessment of risk. So, too, may an assessment by a duly qualified expert. However, the absence of expert opinion does not preclude a sentencing judge making an assessment of risk. Nor, if there is expert opinion on the subject, is a sentencing judge bound to accept that opinion.
In the present case, while there was no expert opinion available to the sentencing judge, the unchallenged evidence before him was to this effect:
(1)The appellant had no prior relevant criminal history, in fact, no criminal history to speak of at all.
(2)Despite his childhood deprivation, the appellant had not succumbed to the pressure or temptation to commit offences as a result of that deprivation. Although the appellant committed the offences whilst severely intoxicated, he had no history of problematic alcohol use.
(3)The appellant was genuinely remorseful for his offending and had referred himself to Hope Community Services in Esperance to address the factors associated with his offending, including his use of alcohol. His Honour accepted that the appellant was engaging well with that service.
(4)In the approximately 400 days the appellant had been on bail, he complied with his bail conditions, including a condition that he not consume alcohol.
The material before the sentencing judge indicated that the appellant had led an essentially prosocial life up until the night in question, that he was shocked by his offending behaviour, and that he was taking steps to address it. His essentially prosocial character, including his ability to overcome his childhood deprivation, in our opinion, augured well for his rehabilitation. Having regard to the circumstances referred to in [46] above, an assessment of risk was possible. Had such an assessment been made, it would have been that the appellant was a low risk of reoffending. This would likely have influenced (favourably to the appellant) the sentencing judge's assessment of the need for the sentence to provide personal deterrence. In this regard, it is noted that one of the factors which contributed to his Honour being positively satisfied that the imposition of a suspended term of imprisonment was not appropriate was the need for both personal and general deterrence. Had his Honour found, as he should have, that the appellant was a low risk of reoffending, this would have at least moderated the need for personal deterrence, a matter clearly material to the question of whether to suspend the term of imprisonment imposed.
Ground 2 has been made out. As the error was material to the exercise of the sentencing discretion in this case, this court's discretion to resentence the appellant was enlivened. Consequently, there is no need to decide grounds 1 and 3. We would refuse leave to appeal in respect of these grounds.
Resentencing
The appellant filed an application to adduce additional evidence in this appeal in the event he was resentenced. The application, dated 14 August 2025, is supported by an affidavit affirmed by Mr Napper, which annexed the appellant's individual management plan, as prepared by the Department of Justice. Essentially, the plan shows that while the appellant has been imprisoned he has been administered an assessment screening tool and assessed as a low risk of reoffending. Consequently, he has not been offered any specific criminogenic programs. The appellant has worked while in prison, and his security rating has been reduced to 'minimum'. The application to adduce additional evidence was unopposed and we allowed it.
This court had available to it the pre‑sentence report that was before the sentencing judge and had the benefit of an oral pre‑sentence report ordered for the purposes of this appeal. The oral pre‑sentence report provided this court with information as to whether, if this court wished to resentence the appellant to a conditionally suspended imprisonment order, programs would be available to him upon his release from prison in the town of Esperance, to address any issues concerning his consumption of alcohol. The oral pre‑sentence report revealed that such programs were available in Esperance.
The objective features of the appellant's offending were, without doubt, serious. Essentially, while under the influence of alcohol, he ran amok at the Esperance Boulevard Shopping Centre and caused significant damage to the shopping centre, the jewellery shop, and the liquor store. Business owners must be protected from such conduct. It is behaviour that must be deterred. As the sentencing judge found, there was an element of persistence in the behaviour.
However, the appellant had the benefit of the mitigating factors found by the sentencing judge, to which we would add that the appellant posed a low risk of reoffending.
The appellant entered pleas of guilty at an early stage in the proceedings. We would, like the sentencing judge, give a 20% discount on each count pursuant to s 9AA of the Sentencing Act. The appellant is genuinely remorseful. It cannot be overlooked that the appellant's offending was out of character and is unlikely to be repeated. It is significant that the appellant has overcome his childhood deprivation, and has essentially led a prosocial life. As this court remarked in The State of Western Australia v Krakouer,[7] this is a mitigating factor ordinarily deserving of considerable weight in the exercise of the sentencing discretion. We endorse the comments made in Krakouer, that it is not in the interests of the community for a person who has been able to overcome childhood deprivation to have that achievement undone by a sentence of immediate imprisonment unless the seriousness of the offending demands that outcome. In our opinion, when all of the relevant facts and circumstances are weighed, a conditionally suspended imprisonment order is the appropriate sentence.
[7] The State of Western Australia v Krakouer [2020] WASCA 133; (2020) 94 MVR 24 [81] ‑ [82].
A conditionally suspended imprisonment order, rather than a suspended imprisonment order (without conditions), is appropriate to enable the appellant to be supervised in the community, and to be provided with programs to further assist him in his rehabilitation, which may include programs relating to alcohol use.
In setting the length of the terms of imprisonment and the length that the appellant should be subject to the order, we had regard to the fact that the appellant has now spent approximately 9 months in prison, and, before he was sentenced, 47 days in custody on remand, as well as a period of his bail on home detention.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
LF
Research Associate to the Honourable Justice Mazza
5 SEPTEMBER 2025
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