Nannup v The State of Western Australia
[2011] WASCA 257
•29 NOVEMBER 2011
NANNUP -v- THE STATE OF WESTERN AUSTRALIA [2011] WASCA 257
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2011] WASCA 257 | |
| THE COURT OF APPEAL (WA) | |||
| Case No: | CACR:46/2011 | 15 SEPTEMBER 2011 | |
| Coram: | McLURE P BUSS JA MAZZA J | 29/11/11 | |
| 20 | Judgment Part: | 1 of 1 | |
| Result: | Appeal allowed Appellant resentenced | ||
| D | |||
| PDF Version |
| Parties: | SAMUEL JOSEPH NANNUP THE STATE OF WESTERN AUSTRALIA |
Catchwords: | Criminal law Sentencing Three offences of aggravated burglary, one offence of armed robbery and three offences of stealing a motor vehicle Offences committed by the appellant and three co-offenders early one morning Appellant cooperated with law enforcement authorities Whether sentencing judge made an express error by failing to take into account the appellant's cooperation Whether a different sentence should have been imposed |
Legislation: | Criminal Appeals Act 2004 (WA), s 31(4)(a) Criminal Code (WA), s 371A, s 378, s 392, s 400, s 401 |
Case References: | A Child v The State of Western Australia [2007] WASCA 285 Ashworth v The State of Western Australia [2006] WASCA 36 Bazzi v The State of Western Australia [2007] WASCA 195 Chivers v The State of Western Australia [2005] WASCA 97 Drake v The State of Western Australia [2006] WASCA 209 Drury v The State of Western Australia [2010] WASCA 220 Herbert v The Queen [2003] WASCA 61; (2003) 27 WAR 330 MA v The Queen [2001] WASCA 325; (2001) 125 A Crim R 349 Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357 Miles v The Queen (1997) 17 WAR 518 Miller v The State of Western Australia [2009] WASCA 79 Moody-Jackamarra v The State of Western Australia [2007] WASCA 7 Muldrock v The Queen [2011] HCA 39; (2011) 85 ALJR 1154 MXP v The State of Western Australia [2010] WASCA 215; (2010) 41 WAR 149 Nguyen v The State of Western Australia [2007] WASCA 114 The State of Western Australia v Nannup [2011] WASCSR 20 The State of Western Australia v Wells [2005] WASCA 23 Veen v The Queen (No 2) [1988] HCA 14; (1988) 164 CLR 465 Young v The State of Western Australia [2011] WASCA 100 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : NANNUP -v- THE STATE OF WESTERN AUSTRALIA [2011] WASCA 257 CORAM : McLURE P
- BUSS JA
MAZZA J
- Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
ON APPEAL FROM:
Jurisdiction : SUPREME COURT OF WESTERN AUSTRALIA
Coram : EM HEENAN J
Citation : THE STATE OF WESTERN AUSTRALIA -v- NANNUP [2011] WASCSR 20
File No : INS 170 of 2010
(Page 2)
Catchwords:
Criminal law - Sentencing - Three offences of aggravated burglary, one offence of armed robbery and three offences of stealing a motor vehicle - Offences committed by the appellant and three co-offenders early one morning - Appellant cooperated with law enforcement authorities - Whether sentencing judge made an express error by failing to take into account the appellant's cooperation - Whether a different sentence should have been imposed
Legislation:
Criminal Appeals Act 2004 (WA), s 31(4)(a)
Criminal Code (WA), s 371A, s 378, s 392, s 400, s 401
Result:
Appeal allowed
Appellant resentenced
Category: D
Representation:
Counsel:
Appellant : Mr S B Watters
Respondent : Ms S H Linton
Solicitors:
Appellant : Thames Legal
Respondent : Director of Public Prosecutions (WA)
Case(s) referred to in judgment(s):
A Child v The State of Western Australia [2007] WASCA 285
Ashworth v The State of Western Australia [2006] WASCA 36
Bazzi v The State of Western Australia [2007] WASCA 195
Chivers v The State of Western Australia [2005] WASCA 97
Drake v The State of Western Australia [2006] WASCA 209
Drury v The State of Western Australia [2010] WASCA 220
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Herbert v The Queen [2003] WASCA 61; (2003) 27 WAR 330
MA v The Queen [2001] WASCA 325; (2001) 125 A Crim R 349
Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357
Miles v The Queen (1997) 17 WAR 518
Miller v The State of Western Australia [2009] WASCA 79
Moody-Jackamarra v The State of Western Australia [2007] WASCA 7
Muldrock v The Queen [2011] HCA 39; (2011) 85 ALJR 1154
MXP v The State of Western Australia [2010] WASCA 215; (2010) 41 WAR 149
Nguyen v The State of Western Australia [2007] WASCA 114
The State of Western Australia v Nannup [2011] WASCSR 20
The State of Western Australia v Wells [2005] WASCA 23
Veen v The Queen (No 2) [1988] HCA 14; (1988) 164 CLR 465
Young v The State of Western Australia [2011] WASCA 100
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1 McLURE P: I agree with Buss JA.
2 BUSS JA: The appellant was convicted, on his early pleas of guilty in the Supreme Court before EM Heenan J, on seven counts in an indictment.
3 In summary, the appellant and three co-offenders participated in a crime spree early one morning across various suburbs in Perth. They committed burglaries on residential premises to obtain the keys for motor vehicles and then stole the vehicles. Also, they committed a burglary on hotel premises to steal alcohol. Further, they committed an armed robbery in one of the residential premises.
4 The appellant received a total effective sentence of 6 years' immediate imprisonment.
5 He appeals to this court against the sentencing decision.
The counts in the indictment
6 Count 1 alleged that on 24 September 2010, at Como, the appellant stole a motor vehicle (namely, a Honda Civic sedan), the property of an identified person, contrary to s 371A and s 378 of the Criminal Code (WA) (the Code). The maximum available penalty was 7 years' imprisonment.
7 Count 2 alleged that, also on 24 September 2010, at Nedlands, the appellant entered the place of an identified person, without her consent, with intent to commit an offence therein, and that at the time he was armed with an offensive weapon (namely, a knife) and an offensive instrument (namely, a club); further, that the appellant was in company with others; further, that immediately before the commission of this offence he knew or ought to have known that there was another person in the place; and further, that the place was ordinarily used for human habitation, contrary to s 401(1) of the Code. The maximum available penalty was 20 years' imprisonment.
8 Count 3 alleged that, on the same date and at the same place as in count 2, the appellant stole from IR, with threats of violence, a laptop computer, and an Apple iPhone, the property of IR, and that at the time the appellant was armed with an offensive weapon (namely, a knife), and that he was in company with others, contrary to s 392 of the Code. The maximum available penalty was life imprisonment.
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9 Count 4 alleged that, on the same date and at the same place as in count 2, the appellant stole motor vehicles (namely, a BMW sedan and a Subaru Impreza), the property of an identified person, contrary to s 371A and s 378 of the Code. The maximum available penalty was 7 years' imprisonment.
10 Count 5 alleged that, also on 24 September 2010, at Lakelands, the appellant, while in the place of a specified person, without her consent, committed the offence of stealing, and that at the time the appellant was in company with others, and that immediately before the commission of the offence he 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) of the Code. The maximum available penalty was 20 years' imprisonment.
11 Count 6 alleged that, on the same date and at the same place as in count 5, the appellant stole a motor vehicle (namely, a Holden HSV Sport), the property of an identified person, contrary to s 371A and s 378 of the Code. The maximum available penalty was 7 years' imprisonment.
12 Count 7 alleged that, also on 24 September 2010, at Cottesloe, the appellant, while in the place of a specified entity trading as the Albion Hotel, without its consent, committed the offence of stealing, and that at the time the appellant was in company with others, contrary to s 401(2) of the Code read with s 400(1)(a)(iii) of the Code. The maximum available penalty was 20 years' imprisonment.
The circumstances of the offending
13 The circumstances of the offending were these.
14 As to count 1, the appellant, a young man aged 18 years, in company with his co-offenders (being two other young men and one male juvenile), assembled at about midnight on 23 September 2010 outside residential premises in Como. Two of the co-offenders burgled the premises and stole various items including keys to a Honda Civic sedan. The appellant and his co-offenders gained access to the Honda Civic with the stolen keys and left the vicinity at speed.
15 As to counts 2 and 3, at about 12.30 am on 24 September 2010, the appellant and his co-offenders abandoned the stolen Honda Civic in a residential street in Nedlands. The appellant saw two valuable cars parked nearby on residential premises, namely, a BMW sedan and a Subaru Impreza sedan, which he decided to steal. All of the offenders
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- walked down the side of the house and entered the rear yard, intending to break into the house and steal the keys to the vehicles. One of the offenders unlocked the back door of the premises and all of the offenders entered the house. Once inside, they began searching the house, stealing several items including the keys to the Subaru Impreza. At this time, two of the occupants of the house, IR, a young woman aged 23, and her sister, LR, aged 21, were present in the house. They had heard the offenders and were hiding in a bedroom. The offenders entered this room. One of the offenders was armed with what appeared to be a crowbar. Another had a knife. The appellant demanded cash and car keys from the young women. The co-offender with the knife appeared to be very agitated. One of the offenders shouted, 'Just kill them. Slit their throats. Just kill them'. LR told the offenders where the keys to the BMW were located. The offenders left the premises with the keys to both vehicles, a laptop and an Apple iPhone.
16 Although the appellant did not have a knife or a crowbar, he was, nevertheless, a party to these offences. The threat to the young women was made as part of the criminal enterprise in which the appellant was engaged and for which he was responsible.
17 As to count 4, the appellant and his co-offenders used the stolen keys to gain access to the BMW and the Subaru Impreza. The appellant sat in the driver's seat of the Subaru Impreza and a co-offender sat in the front passenger's seat. The other co-offenders got into the BMW. Another vehicle, being driven by a friend of IR and LR, then entered the driveway of the Nedlands house and prevented the offenders from escaping in the stolen vehicles. The co-offender in the front passenger seat of the Subaru Impreza alighted, approached the vehicle that was obstructing the driveway and smashed the passenger side window with a golf club. The driver immediately reversed his vehicle into the street. He suffered minor cuts to his knee, left hand knuckles and forearm as a result of being sprayed with broken glass. The offenders then left the vicinity in the stolen vehicles and drove to the Kwinana Freeway.
18 As to count 5, at between 1.00 am and 2.00 am on 24 September 2010, the offenders went to a residential street in Lakelands. One of them noticed a Holden HSV Sport parked in front of a house. The appellant and his co-offenders abandoned the BMW and the Subaru Impreza. Two of the offenders went to the rear of the house and entered the premises through a rear sliding door. All of the offenders went inside. They found the keys to the Holden HSV Sport and $450 cash. They left the premises with this property.
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19 As to count 6, the appellant and his co-offenders gained access to the Holden HSV Sport with the stolen keys and left the area.
20 As to count 7, at 4.40 am on 24 September 2010, the appellant and his co-offenders arrived in the car park of the Albion Hotel in Cottesloe. They smashed a glass panel near the front door of the bottle shop. The offenders then entered the bottle shop and stole numerous bottles of alcohol having a total value of about $2,000. They placed the stolen goods in the Holden HSV Sport and departed.
The appellant's personal circumstances and prior criminal record
21 The appellant was born on 28 April 1992. He was aged 18 when the offences were committed and when sentenced.
22 The appellant had a deprived childhood and upbringing with a lack of education. His schooling was disrupted as a result of his moving between various regional areas in Western Australia. He has a very dysfunctional lifestyle and has never been employed.
23 The appellant's parents separated when he was young. After the separation, the appellant rarely saw his father. He was raised primarily by his grandfather who died in a motor vehicle accident in 2005. The appellant was a passenger in the vehicle. After his grandfather's death, the appellant was placed in the care of his extended family in Fitzroy Crossing. In 2007, he returned to Perth and stayed with an aunt and uncle. The appellant has two older sisters, five younger sisters and one younger brother, and has occasional contact with them.
24 The appellant is single. He has a very young daughter, but is no longer involved with the child's mother.
25 The appellant is in good physical health.
26 When he committed the offences, the appellant was affected by alcohol. He had been consuming alcohol on a daily basis before the offending. The appellant told the author of a pre-sentence report that the offences were pre-meditated. He and the co-offenders were affected by alcohol and were bored. They committed the offences to relieve their boredom.
27 The appellant has a remarkably extensive record of offences committed while he was a juvenile. His prior convictions in the Children's Court include aggravated burglary (numerous offences),
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- burglary (numerous offences), stealing (numerous offences), receiving (numerous offences), stealing a motor vehicle (numerous offences), criminal damage (numerous offences), trespass (numerous offences), assault with intent to prevent the arrest of a person, assault occasioning bodily harm, common assault and possession of a weapon with intent to cause fear. The appellant has previously been sentenced to periods of detention. His response to previous community based orders has been poor, and none of them has been completed successfully.
The sentencing outcome
28 The sentencing judge imposed individual sentences and made orders for accumulation and concurrency, as follows:
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concurrent with count 3 |
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cumulative on count 1 |
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concurrent with count 1 |
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concurrent with count 3 |
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concurrent with count 1 |
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concurrent with count 1 |
29 The total effective sentence was therefore 6 years' imprisonment. His Honour made a parole eligibility order. Also, he backdated the sentence for count 1, and the sentences to be served concurrently with that sentence, to 23 November 2010.
The grounds of appeal
30 The appellant relies on two grounds of appeal.
(Page 9)
31 Ground 1 alleges that the sentence imposed for count 5 (being a count of aggravated burglary for which the appellant received a sentence of 4 years' imprisonment) was, in all the circumstances, manifestly excessive.
32 Ground 2 alleges that the total effective sentence was disproportionate to the overall criminality involved in all of the offences, viewed in their entirety, and after having regard to all relevant circumstances including those referable to the appellant personally (and, notably, the assistance he provided to the law enforcement authorities).
The real issue in the appeal
33 Notwithstanding the form and content of the grounds of appeal, the real issue in the appeal is, and the focus of the submissions at the hearing was, whether the sentencing judge made an express error by failing to take into account the appellant's cooperation with the law enforcement authorities.
The appellant's cooperation with the law enforcement authorities
34 It is well-established that substantial discounts in sentencing may be allowed to recognise the value of an offender's cooperation with law enforcement agencies. When deciding upon the appropriate level of discount in a particular case, the court must consider the value of the offender's cooperation and the risk to his or her personal safety, while ensuring that the discount does not result in a sentence which is, in all the circumstances of the offending and the offender, obviously inadequate or an affront to community standards.
35 In MA v The Queen [2001] WASCA 325; (2001) 125 A Crim R 349, Roberts-Smith J (Steytler J agreeing) reviewed numerous authorities on discounts for cooperation with law enforcement agencies. His Honour summarised the principles he had extracted from the authorities, as follows:
1. A substantial discount must be given to an offender who gives useful information or assistance to law enforcement or assistance to law enforcement authorities irrespective of whether that demonstrates remorse or contrition. That is because of the public policy consideration of encouraging criminals to do so.
2. Where the information or assistance does demonstrate genuine remorse or contrition the discount should be greater.
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- 3. The information or assistance does not have to have been effective in the law enforcement process, although the discount will be greater where it has been.
4. The greater the disclosure and the more potentially useful it is to the authorities, in the comprehension of the offender, the greater should be the discount [118].
36 In Bazzi v The State of Western Australia [2007] WASCA 195, Wheeler JA (Owen & Miller JJA agreeing) said that there is no 'tariff' for a discount for cooperation. The discount may, in particular circumstances, be very small. In other circumstances it may be as much as 50% or even more [26].
37 As Wheeler and McLure JJA noted in A Child v The State of Western Australia [2007] WASCA 285, the allowing of discounts in sentencing for cooperation with law enforcement agencies reflects two underlying principles:
One is that assistance to the authorities, and the offer of future assistance, may be one of the most unequivocal and practical demonstrations of genuine remorse and rehabilitation. The other is that there is a clear public interest in giving a significant discount, since it is to the advantage of ordinary law-abiding citizens that crime should be detected and successfully prosecuted [12].
38 The applicable principles, including the proper approach in determining the nature, extent and value of an offender's past and promised future cooperation with law enforcement agencies and the appropriate level of any discount on his or her sentence, were examined recently by this court in MXP v The State of Western Australia [2010] WASCA 215; (2010) 41 WAR 149.
39 In the present case, the appellant's co-offenders were:
(a) R, a long-term friend;
(b) A, a long-term friend; and
(c) W, a cousin.
40 The appellant and R were arrested by the police in the late morning of 24 September 2010. They were taken to the Fremantle Police Station.
41 On 24 September 2010, the appellant participated in two video-recorded interviews with the police. The first commenced at
(Page 11)
- 3.10 pm and concluded at 4.53 pm. The second commenced at 8.58 pm and concluded at 9.42 pm.
42 In the first interview the appellant denied any knowledge of or involvement in the offences.
43 However, in the second interview he made significant admissions that were consistent with his pleas of guilty.
44 On 25 September 2010, the appellant signed and gave to the police a written statement in relation to the offending. In this statement the appellant identified his co-offenders and outlined what each of the offenders had done in relation to the offending.
45 All of the appellant's cooperation with the police was past cooperation. He was unwilling to give evidence against any of his co-offenders.
46 The prosecutor made these submissions to his Honour in relation to the appellant's cooperation:
It is accepted by the state that the offender provided a statement to the police and admissions that were made at interview named other offenders. That did, the state concedes, enable the police to locate two other offenders. However, the state submits the matter stops there. The information is essentially now worth nothing as the offender will not give evidence against those offenders and, as your Honour is aware, by virtue of that type of attitude one of the arrested co-offenders has now had his case dismissed (ts 20).
The 'instinctive synthesis', as opposed to the 'two-tiered', approach to sentencing
47 In Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357, the High Court reviewed the debate concerning the 'instinctive synthesis', as opposed to the 'two-tiered', approach to sentencing.
48 McHugh J explained the distinction between the 'instinctive synthesis' approach and the 'two-tiered' approach, as follows:
By two-tier sentencing, I mean the method of sentencing by which a judge first determines a sentence by reference to the 'objective circumstances' of the case. This is the first tier of the process. The judge then increases or reduces this hypothetical sentence incrementally or decrementally by reference to other factors, usually, but not always, personal to the accused. This is the second tier. By instinctive synthesis, I mean the method of sentencing by which the judge identifies all the factors that are relevant to
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- the sentence, discusses their significance and then makes a value judgment as to what is the appropriate sentence given all the factors of the case. Only at the end of the process does the judge determine the sentence [51].
49 Gleeson CJ, Gummow, Hayne and Callinan JJ said:
Following the decision of this Court in Wong ([2001] HCA 64; (2001) 207 CLR 584) it cannot now be doubted that sentencing courts may not add and subtract item by item from some apparently subliminally derived figure, passages of time in order to fix the time which an offender must serve in prison. That is not to say that in a simple case, in which, for example, the circumstances of the crime have to be weighed against one or a small number of other important matters, indulgence in arithmetical deduction by the sentencing judges should be absolutely forbidden. An invitation to a sentencing judge to engage in a process of 'instinctive synthesis', as useful as shorthand terminology may on occasions be, is not desirable if no more is said or understood about what that means. The expression 'instinctive synthesis' may then be understood to suggest an arcane process into the mysteries of which only judges can be initiated. The law strongly favours transparency. Accessible reasoning is necessary in the interests of victims, of the parties, appeal courts, and the public. There may be occasions when some indulgence in an arithmetical process will better serve these ends. This case was not however one of them because of the number and complexity of the considerations which had to be weighed by the trial judge [39].
50 In Chivers v The State of Western Australia [2005] WASCA 97, Steytler P (McLure JA agreeing) said that while instinctive synthesis (in the sense described in Markarian) is undoubtedly the preferred approach to sentencing, whether, in a particular case, a failure to adopt that approach constitutes error will depend upon the individual process of reasoning applied by the sentencing judge to the facts and circumstances of the particular case [27]. His Honour then added:
A mathematical, and rigid, staged approach to sentencing, as opposed to a more generally considered approach, taking into account all relevant factors and arriving at one overall result which meets the justice of the case, will, in more complex cases, very probably amount to error. However, in a more simple case in which, for example, there is only one substantially mitigating factor, such as a plea of guilty, or where a quantified allowance is required by legislation, the fact of quantification of the allowance made will not, of itself, amount to error. It is unnecessary (and, in my opinion, inadvisable) to provide any greater guidance in this case, in which the point does not arise for decision and was not addressed in the course of submissions [27].
51 Recently, in Muldrock v The Queen [2011] HCA 39; (2011) 85 ALJR 1154 [26], French CJ, Gummow, Hayne, Heydon, Crennan, Kiefel
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- and Bell JJ cited, with apparent approval, this passage from McHugh J's reasons in Markarian in which he provides this description of instinctive synthesis:
[T]he judge identifies all the factors that are relevant to the sentence, discusses their significance and then makes a value judgment as to what is the appropriate sentence given all the factors of the case [51]. (emphasis added)
The sentencing judge's remarks when imposing the individual sentences
53 In the present case, the sentencing judge incorporated his sentencing remarks in written reasons which he published. See The State of Western Australia v Nannup [2011] WASCSR 20.
54 When imposing the individual sentences, his Honour said:
For the first charge in the indictment of stealing a motor vehicle, I consider that an appropriate commencing point would be 2 years' imprisonment, but having regard to your age, the early guilty plea and the need to accommodate considerations of totality associated with other sentences, that should be reduced to 1 year …
In relation to the second count, the aggravated burglary at Nedlands, I consider that this is a very serious offence and that a starting point should be 5 years' imprisonment. Because of your youth and the early plea of guilty, that should be reduced to 4 years' imprisonment, and that will be the sentence on count 2.
For the third offence, the aggravated armed robbery in circumstances where direct threats were made to [IR and LR], this is the most serious of all the offences and I consider that an appropriate starting point is 7 years' imprisonment. Because of your youth and the early plea of guilty, I reduce that to 5 years' imprisonment.
In relation to count 4, the second of the stealing the motor vehicle charges, I again consider that a starting point should be 2 years' imprisonment. Because of your youth and the early plea of guilty, I reduce that to 1 year's imprisonment.
In relation to count 5, which is the second aggravated burglary charge, I consider that a starting point should be 5 years' imprisonment which,
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- because of your youth and the early plea of guilty, I reduce to 4 years' imprisonment.
In relation to count 6, the third motor vehicle stealing charge, I again consider that a starting point should be 2 years' imprisonment which, because of the early guilty plea and your youth, I reduce to 1 year's imprisonment.
In relation to the seventh and final charge; that is, the stealing at a place at the Albion Hotel and the theft of the liquor, I consider that the starting point should be 2 years' imprisonment which again, mainly for reasons of totality but also because of your youth and the early plea of guilty, I reduce to 1 year's imprisonment [46] - [52].
55 His Honour then made the orders for accumulation and concurrency.
The sentencing judge's express error
56 The sentencing judge's remarks demonstrate that he adopted a two-tiered approach to the imposition of the individual sentences. It was not suggested that his Honour was in error in adopting this approach.
57 As to counts 2, 3, 4, 5 and 6, his Honour specified a term of imprisonment as a 'starting point', and then reduced that starting point to recognise specified mitigating factors, namely, the appellant's youth and his early plea of guilty.
58 As to counts 1 and 7, his Honour specified a term of imprisonment as a 'starting point', and then reduced that starting point to recognise specified mitigating factors, namely, the appellant's youth and his early plea of guilty and to accommodate the totality principle.
59 The term 'starting point', in a sentencing context, is generally understood to reflect the sentencing judge's assessment of the objective criminality of the offence including any factors that increase the offender's culpability or the extent to which he or she should be punished, but without regard to any factors that decrease the offender's culpability or the extent to which he or she should be punished.
60 It is plain from the sentencing judge's remarks, when imposing the individual sentences, that he did not take into account, as a mitigating factor, the appellant's cooperation with the law enforcement authorities. The only mitigating factors taken into account by his Honour were the appellant's youth and his early plea of guilty.
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61 Earlier in his remarks, the sentencing judge noted a submission that had been made on the appellant's behalf in relation to his cooperation:
It is also submitted that there has been co-operation with the police, a full and frank description of the activities of that night given which has led to the police identifying co-offenders, and that this readiness to facilitate the course of justice is a mitigating factor to be taken into account in addition to the early pleas of guilty [39].
62 His Honour then said:
I shall certainly take into account the early pleas of guilty and the disclosure by you of your involvement in the detailed activities of that night. It is, however, put against this by counsel for the prosecution that you are not prepared to give evidence at the trial of corresponding charges against the alleged co-offenders [40].
63 Despite the observation that he would 'certainly take into account … the disclosure by [the appellant] of [his] involvement', the sentencing judge appears ultimately to have decided that the mitigation to be found in the appellant's provision of past cooperation to the law enforcement authorities was cancelled or neutralised by his refusal to provide future cooperation. His Honour's decision involved an express error. He was bound to take into account the appellant's past cooperation.
64 The failure or refusal by an offender to provide cooperation to law enforcement agencies does not aggravate the offending. Where an offender provides some material cooperation to law enforcement agencies, his or her failure or refusal to provide other cooperation does not cancel or neutralise the mitigating character of the cooperation that has actually been provided. Where an offender has given past or promised future cooperation, the focus of attention, for sentencing purposes, must be on the nature, extent and value of this cooperation. Ordinarily, a discount on sentence should be allowed to an offender who has given or promised some material information or assistance to law enforcement agencies.
65 The sentencing judge's express error enlivens this court's discretion to intervene. This court may allow the appeal and resentence the appellant if, in its opinion, a different sentence should have been imposed. See s 31(4)(a) of the Criminal Appeals Act 2004 (WA).
Should a different sentence have been imposed on the appellant?
66 The appellant committed three offences of aggravated burglary, namely, counts 2, 5 and 7.
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67 The maximum available penalty for aggravated burglary, contrary to s 401(1) or s 401(2) of the Code, is 20 years' imprisonment.
68 The primary sentencing considerations in relation to aggravated burglary are personal and general deterrence, especially when the aggravated burglary was committed on residential premises. Ordinarily, a substantial penalty must be imposed. In recent years, the sentencing range for offences involving home burglary (whether committed with the intent to intimidate the occupants by threatening or assaulting them or committed 'merely' with the intent to steal) have been firmed up in recognition of the prevalence of these offences. General deterrence is just as important in the context of aggravated burglary as it is with armed robbery. See Herbert v The Queen [2003] WASCA 61; (2003) 27 WAR 330 [5] (Malcolm CJ), [133] (Anderson J), [168] (Miller J); Drake v The State of Western Australia [2006] WASCA 209 [60] - [62] (Roberts-Smith JA, Martin CJ agreeing); Moody-Jackamarra v The State of Western Australia [2007] WASCA 7 [14] (McLure JA, Steytler P agreeing); Nguyen v The State of Western Australia [2007] WASCA 114 [12] - [14] (Steytler P, McLure JA & Miller AJA agreeing); Miller v The State of Western Australia [2009] WASCA 79 [38] (Owen JA, Buss & Miller JJA agreeing). See also Drury v The State of Western Australia [2010] WASCA 220; Young v The State of Western Australia [2011] WASCA 100.
69 The standards of sentencing customarily imposed for burglary and aggravated burglary were reviewed by this court in Ashworth v The State of Western Australia [2006] WASCA 36, Drake and Nguyen. Aggravated burglaries can be and are, of course, committed in a wide range of circumstances and the sentence to be imposed for a particular offence must be commensurate with the seriousness of the particular offence after taking into account the statutory penalty, the circumstances of the commission of the offence (including the vulnerability of any victim), any aggravating factors and any mitigating factors.
70 In the present case, the appellant also committed one offence of armed robbery, being count 3.
71 The maximum available penalty for armed robbery, contrary to s 392(c) of the Code, is life imprisonment.
72 The range of sentences commonly imposed for single offences of armed robbery is 4 to 6 years' imprisonment. This range, which is expressed in terms of the transitional provisions then in force, does not
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- take into account matters of mitigation. See Miles v The Queen (1997) 17 WAR 518, 521 (Malcolm CJ, Pidgeon J agreeing); The State of Western Australia v Wells [2005] WASCA 23 [4] - [5] (Wheeler JA, Steytler P & Roberts-Smith JA agreeing); Drury [22] (Mazza J, McLure P agreeing).
73 In Miles, Malcolm CJ noted that significant weight is ordinarily given to the requirements of personal and general deterrence in cases of armed robbery (521). See also Wells [5]. This observation may also be made in relation to the offence of aggravated burglary.
74 The appellant's offending in relation to count 3 was correctly described by the sentencing judge as 'particularly serious' [32]. The following facts and circumstances mark the egregious nature of the offence:
(a) The offence was committed at night in the home of the victims.
(b) The victims were two young women, IR and LR, who were confronted by the appellant and his co-offenders while they were hiding in fear in a bedroom as a result of their home being invaded.
(c) The offence was committed in company.
(d) Two of the co-offenders were armed with weapons, including a knife.
(e) At least one of the co-offenders threatened to kill the victims by slitting their throats. When this threat was made one of the co-offenders was armed with a knife. It would therefore have appeared to the victims that this threat was readily able to be carried out.
(f) The victim impact statements indicate, unsurprisingly, that the offence had a significant effect upon the victims. The offending caused them to suffer emotional trauma and an upheaval in their lives.
(g) The offence was premeditated. It was carried out with the object of obtaining the keys to two valuable motor vehicles which had been identified by the appellant and his co-offenders as items they wanted to steal.
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75 The appellant also committed three offences of stealing a motor vehicle, namely, counts 1, 4 and 6.
76 The maximum available penalty for stealing a motor vehicle, contrary to s 371A and s 378 of the Code, is 7 years' imprisonment.
77 The offence of stealing alleged in count 4, while not within the most serious category of offences of this type, was aggravated by one of the co-offenders deliberately damaging a motor vehicle that was preventing their escape in the stolen vehicles. The apparent object of the co-offender was to intimidate the driver into moving his vehicle immediately so as to enable the offenders to leave the vicinity in the stolen vehicles.
78 The appellant's overall offending on the night in question was, without doubt, extremely serious. He admitted to the police that he travelled by taxi to Como, where count 1 was committed, with the intention of committing property offences in company with his co-offenders. Although the vast majority of the stolen property was recovered, this does not diminish the distress suffered by the victims as a result of their property having been stolen and damaged or the severe emotional trauma experienced by IR and LR as a result of the invasion of their privacy and the threat to their safety.
79 I am satisfied, however, upon evaluating all of the facts and circumstances of the appellant and his offending, that the appeal should be allowed as a result of the sentencing judge's express error because a different sentence should have been imposed. The original sentencing outcome did not give any recognition to the appellant's cooperation with the law enforcement authorities. The essence of his cooperation was the provision of the names of his co-offenders and the disclosure of the facts and circumstances of the offending and the role of each offender in the commission of the offences.
80 No mitigation is to be found apart from the appellant's youth, his early pleas of guilty and his cooperation. The appellant has manifested, in his commission of the present offences, a continuing attitude of disobedience to the law. See Veen v The Queen (No 2) [1988] HCA 14; (1988) 164 CLR 465, 477 - 478 (Mason CJ, Brennan, Dawson & Toohey JJ). Although the appellant cannot be (and is not being) punished again for past criminal conduct, his prior record reflects on his moral culpability for the offences with which he was charged on this occasion. It also demonstrates that these offences were not an uncharacteristic aberration. Further, the fact that the offending on this occasion occurred
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- while the appellant was subject to an early release order underscores the importance of personal deterrence, in the present case, as a sentencing consideration.
81 After taking into account all relevant sentencing considerations, including the appellant's youth, his early pleas of guilty and his cooperation with the authorities, I would impose immediate terms of imprisonment on the individual counts, as follows:
(a) count 1: stealing a motor vehicle: 1 year's imprisonment;
(b) count 2: aggravated burglary: 3 years 4 months' imprisonment;
(c) count 3: armed robbery: 4 years 4 months' imprisonment;
(d) count 4: stealing a motor vehicle: 1 year's imprisonment;
(e) count 5: aggravated burglary: 3 years 4 months' imprisonment;
(f) count 6: stealing a motor vehicle: 1 year's imprisonment; and
(g) count 7: aggravated burglary: 1 year's imprisonment.
82 The totality principle is well-known. It is unnecessary to restate it. It is true that all of the offences were committed in the course of a crime spree in the early morning of 24 September 2010. However, the offences may be divided into four categories, by reference to the timing of the offences and the persons against whom they were committed. The categories comprise count 1; counts 2, 3 and 4; counts 5 and 6; and count 7. Some accumulation of the individual sentences is required in order for the total effective sentence to bear a proper relationship to the overall criminality involved in the offending, after having regard to all relevant facts and circumstances.
83 The sentence for count 1 (1 year's imprisonment) should be served cumulatively on the sentence for count 3 (4 years 4 months' imprisonment). The sentences on the other counts should be served concurrently with each other and the sentence for count 3. The total effective sentence is therefore 5 years 4 months' imprisonment. The sentences for counts 2, 3, 4, 5, 6 and 7 should be taken to have commenced on 23 November 2010. The appellant should remain eligible for parole. He will be eligible to be considered for release on parole upon having served 3 years 4 months' imprisonment calculated from the date of
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- commencement of the new sentences (that is, 3 years 4 months after 23 November 2010).
Summary of outcome
84 I would allow the appeal, set aside the original sentencing decision and resentence the appellant as I have mentioned.
85 MAZZA J: I agree with Buss JA.
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