Narkle v The State of Western Australia
[2024] WASCA 90
•1 AUGUST 2024
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: NARKLE -v- THE STATE OF WESTERN AUSTRALIA [2024] WASCA 90
CORAM: BUSS P
MITCHELL JA
HEARD: 22 JULY 2024
DELIVERED : 1 AUGUST 2024
FILE NO/S: CACR 18 of 2024
BETWEEN: DAMIEN TROY NARKLE
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram: BARBAGALLO DCJ
File Number : IND 70 of 2023
Catchwords:
Criminal law - Appeal against sentence - Whether total effective sentence offends the first limb of the totality principle
Legislation:
Bail Act 1982 (WA), s 51(2a)
Criminal Code (WA), s 313(1), s 338B(1)(a)(ii), s 401(1)(a), s 445, s 552
Restraining Orders Act 1997 (WA), s 61(1)
Road Traffic Act 1974 (WA), s 49(1)(a)
Result:
Leave to appeal refused
Appeal dismissed
Category: D
Representation:
Counsel:
| Appellant | : | In person |
| Respondent | : | No appearance |
Solicitors:
| Appellant | : | In person |
| Respondent | : | Director of Public Prosecutions (WA) |
Case(s) referred to in decision(s):
Kabambi v The State of Western Australia [2019] WASCA 44
Roffey v The State of Western Australia [2007] WASCA 246
JUDGMENT OF THE COURT:
Summary
On 22 February 2024, the appellant was sentenced by the District Court of Western Australia to a total effective sentence of 4 years 6 months' immediate imprisonment. The sentences related to two counts charged on an indictment and six charges pending in the Magistrates Court of Western Australia which were dealt with under s 32 of the Sentencing Act 1995 (WA). All the charged offences were committed on 22 January 2023, other than a breach of a family violence restraining order which was committed between 1 March 2023 and 6 June 2023. The sentences were backdated to 22 January 2023 to take account of time spent in custody on remand. The appellant was made eligible for parole.
The offences and sentences imposed are set out in the following table:
Count / Charge Number
Offence
Maximum penalty
Sentence of imprisonment
Accumulation
Count 1
Attempted aggravated burglary
Criminal Code (WA), s 401(1)(a), s 552
10 years' imprisonment
2 years
Head sentence
Count 2
Aggravated threat to kill
Criminal Code (WA), s 338B(1)(a)(ii)
10 years' imprisonment
6 months
(Reduced from 12 months for totality)
Cumulative
BU 254/2023
Breach of protective bail conditions
Bail Act 1982 (WA), s 51(2a)
3 years' imprisonment and a fine of $10,000
12 months
Concurrent
BU 255/2023
Assault
Criminal Code (WA), s 313(1)(a)
18 months' imprisonment and a fine of $18,000
6 months
Cumulative
BU 256/2023
Aggravated assault
Criminal Code (WA), s 313(1)(b)
3 years' imprisonment and a fine of $36,000
10 months
Cumulative
BU 257/2023
Unlawful damage
Criminal Code (WA), s 445
2 years' imprisonment and a fine of $24,000
5 months
Cumulative
BU 258/2023
No authority to drive
Road Traffic Act 1974 (WA), s 49(1)(a)
18 months' imprisonment and a fine of 80 penalty units
3 months
(Reduced from 7 months for totality)
12 months driving disqualification
Cumulative
BU 4674/2023
Breach of family violence restraining order
Restraining Orders Act 1997 (WA), s 61(1)
2 years' imprisonment and a fine of $10,000
4 months
Concurrent
Total effective sentence
4 years 6 months
The appellant now appeals against his sentence on the ground that the total effective sentence of 4 years 6 months' immediate imprisonment infringes the first limb of the totality principle.
For the following reasons, that ground of appeal has no reasonable prospect of succeeding. Leave to appeal on the sole ground of appeal should be refused and the appeal should be dismissed.
Circumstances of offending
The circumstances of the appellant's offending are set out in the amended statement of material facts read by the prosecutor and accepted by the appellant at sentencing.[1] Those facts are reflected in the sentencing judge's findings as to the circumstances of the offending.[2]
[1] Sentencing ts 128 - 130.
[2] Sentencing ts 145 - 150.
At the time of the offending, the appellant resided with his mother, Jean Michael, and his girlfriend, Nikki Brockbernd, who was 27 weeks pregnant with their child. Their friends, Alan Agnew and Susan Collins, lived in another unit in the same complex. The appellant and Ms Brockbernd had been in a relationship for approximately two years. There were protective bail conditions in place in relation to other offending which prevented the appellant from acting in an aggressive, threatening, offensive or intimidatory manner towards Ms Brockbernd.
On 21 January 2023 at approximately 4.00 pm, the appellant, Ms Michael and Ms Brockbernd travelled to Bunbury River in Ms Brockbernd's car to catch crabs. On the way to the river, the appellant started drinking and became intoxicated. At approximately 9.00 pm, Ms Brockbernd drove them home. Ms Brockbernd and the appellant collected Mr Agnew and Ms Collins and travelled back to the river to collect the crab pots. Ms Michael did not go with them.
The group returned to the unit complex at approximately 10.00 pm. The appellant then got back into Ms Brockbernd's car and drove off, despite being intoxicated and not holding a driver's licence. The appellant has never held a valid Western Australian driver's licence, and due to previous driving convictions is subject to 12 current revocations including two permanent life disqualifications. The appellant's conduct in driving Ms Brockbernd's car in the early hours of the morning of 22 January 2023 is the subject of charge BU 258 of 2023.
At some point, Ms Michael and Ms Brockbernd went to Mr Agnew and Ms Collins' unit. Some time later, the appellant returned. He went to Mr Agnew and Ms Collins' unit and asked Ms Brockbernd for their house keys. The appellant told Ms Brockbernd he smashed her car. The appellant was bleeding from the face.
Ms Brockbernd went outside and saw a large scratch down the driver's side of the car, that the front window and driver's side had been smashed and that there was damage to the front of her car. Ms Brockbernd returned to Mr Agnew and Ms Collins' unit. The appellant asked Ms Brockbernd to come outside, but Ms Brockbernd refused as she feared for her safety due to the appellant's intoxicated state. Ms Collins dialled triple zero.
The appellant initially left the unit, but returned and attempted to enter through the front screen door, pulling on it and saying, 'I am going to break your window'. The appellant threatened to kill Ms Brockbernd and the group. The threat to kill Ms Brockbernd is the subject of count 2 on the indictment. Ms Brockbernd, in a panicked state, called the police.
The appellant then picked up a chair from outside and smashed the bedroom and lounge windows of Mr Agnew and Ms Collins' unit. He yelled, 'I am going to catch you' and unsuccessfully attempted to climb through the window. This conduct is the subject of the attempted aggravated burglary charged in count 1 of the indictment. The pleaded circumstances of aggravation were 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.
Ms Brockbernd and Ms Collins attempted to hide in the unit while Mr Agnew went outside to confront the appellant. The appellant hit Mr Agnew on the left cheek, causing him to fall to the ground. This assault of Mr Agnew was the subject of charge BU 256 of 2023, with a pleaded circumstance of aggravation being that the victim was over the age of 60 years. Ms Collins then came outside, holding a wooden chair leg. The appellant punched her to the left side of her face with his fist, causing her to fall over. This assault of Ms Collins was the subject of charge BU 255 of 2023.
The appellant's aggressive behaviour towards Ms Brockbernd in breach of his bail undertaking was the subject of charge BU 254 of 2023.
While Ms Michael was hiding in the neighbour's unit, the appellant smashed the front window of her unit. This unlawful damage was the subject of charge BU 257 of 2023.
When police attended the scene on 22 January 2023, they observed a broken front window; broken furniture; items strewn across the front lawn; blood on the ground, wall, and curtains; significant damage to the front driver's side of Ms Brockbernd's car; swelling to the left-side of Mr Agnew's face; and blood on Ms Collins' face, particularly around her ear.
Upon the police arriving at the scene, the appellant ran off on foot. Police followed a trail of blood in an attempt to locate the appellant but were unsuccessful. The appellant was ultimately arrested later on 22 January 2023. He was taken to hospital due to injuries sustained to his hand and was conveyed to the Bunbury Police Station after he was medically cleared. The appellant elected to participate in an electronic record of interview with police, denying the offending before providing 'no comment' responses.
On 1 March 2023, while the appellant was remanded in custody, the appellant was served with a family violence restraining order which named Ms Brockbernd as the protected person. The conditions of the family violence restraining order included that the appellant not communicate or attempt communication with Ms Brockbernd by any means.
Ms Brockbernd had previously added her phone number to the list of permitted numbers the appellant could call from prison under the alias of her sister. Following service of the family violence restraining order, the appellant continued to call Ms Brockbernd. Ms Brockbernd informed the appellant that she had been advised by the Department of Communities Child Protection to take out the order. Ms Brockbernd was pregnant at the time. Ms Brockbernd told the appellant that they could continue speaking but would need to be careful.
The appellant had over 500 phone calls with Ms Brockbernd while he was remanded in Bunbury Regional Prison. The phone calls were of a general nature, about day-to-day things. The phone calls did not contain any abuse, threats, or coercion. The appellant and Ms Brockbernd spoke to each other in the calls as though they were in a current relationship.
The communications with Ms Brockbernd in these phone calls in breach of the family violence restraining order were the subject of charge BU 4674 of 2023.
Victim impact
The sentencing judge found that all of the victims were vulnerable and the appellant preyed on their vulnerability to commit the offences. Ms Brockbernd was vulnerable because she was smaller than the appellant and was pregnant with their child. Mr Agnew and Ms Collins were older than the appellant, being 61 and 58 years old respectively, and were smaller than the appellant. The appellant was well aware of the vulnerability of his 70-year-old mother, Ms Michael, as he was living with her at the time of the offending. The offending occurred in the victims' homes, where they should have felt most safe from violence.[3]
[3] Sentencing ts 150 - 151.
While there were no victim impact statements, the sentencing judge inferred that the appellant's protracted series of violent acts was a frightening experience for all four victims, who would find it difficult to trust the appellant again.[4]
[4] Sentencing ts 151 - 152.
Personal circumstances
The sentencing judge made the following findings as to the appellant's personal circumstances.[5]
[5] Sentencing ts 152 - 155.
The appellant was 41 years old at the time of the offending. He was the sixth of seven children to his parents' marriage. The appellant had a good upbringing, good parenting and a good relationship with his parents.
The appellant had five children from previous relationships who were between 10 and 24 years' old. He remained in a relationship with Ms Brockbernd at the date of sentence. Ms Brockbernd and the appellant's child was born in April 2023. At the time of sentencing, the child was in the foster care of Ms Brockbernd's sister, although Ms Brockbernd saw the child three days a week. The appellant had only seen photographs of the child.
The appellant had never had a job and had always relied on government allowances to get by in the community when he was not in prison. He was in reasonably good health.
The appellant had a terrible problem with alcohol. He would get intoxicated and then commit serious offences. The appellant had a 'long, unenviable and awful criminal history' including numerous home burglary and burglary offences, violent offences, driving offences and breach of bail offences. These offences began when the appellant was a child and continued into adulthood. The appellant had also been convicted of breach of restraining order offences, resulting in him being declared a serial family violence offender from 21 August 2023. The appellant had been prolific in committing serious offences and had been sentenced to an 'array of sentencing options', none of which had any deterrent effect on the appellant's behaviour.
Sentencing judge's approach
The sentencing judge noted the appellant had spent long periods in prison which seemed to be the only time the appellant had remained 'offence free'. While the appellant's significant criminal history was not an aggravating factor, it spoke to the appellant's 'blatant disregard for the law' and was relevant to personal deterrence, general deterrence, and protection of the community. The sentencing judge considered there was a significant risk of the appellant reoffending. Her Honour observed that, despite the time the appellant had spent in prison, as far as she could tell the appellant had not taken any steps to change his behaviour.[6]
[6] Sentencing ts 154 -155.
The sentencing judge considered the appellant's pleas of guilty were made at the earliest reasonable opportunity and applied a discount of 25% to the sentences she would have otherwise imposed, pursuant to s 9AA of the Sentencing Act.[7] Other than his pleas of guilty, the sentencing judge could see nothing which the appellant had said or done to demonstrate remorse, particularly to the victims in this case.[8]
[7] Sentencing ts 156.
[8] Sentencing ts 156.
The sentencing judge identified the appellant's chronic alcohol use, 'hanging around with the wrong crowd' and lack of employment as factors impacting on his offending. Despite being given many opportunities to do so, the appellant had done nothing to address these issues.[9]
[9] Sentencing ts 156 - 157.
The sentencing judge regarded the appellant's offending as very serious, and as essentially involving domestic violence perpetrated against his partner and anyone around her at the time. Her Honour identified the following aggravating features of the offending on 22 January 2023:[10]
[10] Sentencing ts 158.
1.The incident was terrifying for all the victims.
2.The offending was persistent and prolonged.
3.The offending occurred late at night when all the victims should have felt that they could have been safe in their own home.
4.The appellant did not desist from offending of his own volition, but only stopped when the police arrived and he ran off.
5.The offending consisted of numerous acts of violence against four different victims.
6.The appellant perpetrated personal acts of violence against two people who were older, one of whom was over 60 years of age.
7.The appellant's violence was entirely gratuitous and unprovoked.
8.The likely impact of the offending on the victims.
9.The offending involved a gross breach of trust, particularly towards the appellant's partner and mother who were entitled to look to the appellant for protection.
10.The vulnerability of the victims.
The sentencing judge also referred to the persistent and prolonged nature of the breaching of the family violence restraining order which involved over 500 calls with Ms Brockbernd.[11]
[11] Sentencing ts 158.
The sentencing judge recognised the need to impose sentences which punished the appellant, protected the community, denounced the appellant's conduct, generally deterred others, specifically deterred the appellant from committing these types of offences and aided in the appellant's rehabilitation. Her Honour said that specific deterrence was a significant matter in the present case having regard to the appellant's criminal history. Her Honour was satisfied that sentences of immediate imprisonment were the only appropriate sentencing option.[12]
[12] Sentencing ts 158 - 159.
The sentencing judge then imposed the sentences referred to at [1] - [2] above.
Totality principle: general principles
McLure JA (Steytler P & Miller JA agreeing) summarised the totality principle in Roffey v The State of Western Australia:[13]
The legal principles relevant to the disposition of this appeal are not in dispute. An appellate court is not entitled to intervene merely because it would have exercised the sentencing discretion in a manner different than the sentencing judge. It can only intervene if the sentencing judge has made an express or implied material error of fact or law.
The appellant relies on the totality principle which comprises two limbs. The first limb is that the total effective sentence must bear a proper relationship to the overall criminality involved in all the offences, viewed in their entirety and having regard to the circumstances of the case, including those referable to the offender personally.
The second limb is that the court should not impose a 'crushing' sentence. The word crushing in this context connotes the destruction of any reasonable expectation of a useful life after release. An aggregate sentence may be inappropriately long under the first limb even if it cannot be described as crushing.
The practical effect of the totality principle is ordinarily to arrive at an aggregate sentence that is less than that which would be arrived at by simply adding up all the terms appropriate for the individual offences. A rationale for the totality principle is that there is assumed rehabilitation and reduced demand for retribution after the initial sentences have been served. Where the principle of totality comes into effect, it is of little importance how the ultimate aggregate is made up. (citations omitted)
[13] Roffey v The State of Western Australia [2007] WASCA 246 [23] - [26].
The following general principles are also well established:[14]
1.Sentencing is a discretionary exercise. An appellate court can intervene only if the appellant demonstrates either an express or implied material error. Express error involves acting on a wrong principle, for example by mistaking the law or facts or taking into account an irrelevant matter. Implied error arises where the end result is so unreasonable or unjust that the court must conclude that a substantial wrong has occurred. Thus, an appellate court cannot substitute its own opinion for that of the sentencing court merely because the appellate court would have exercised a sentencing discretion differently.
2.The range of sentences customarily imposed for a crime does not establish the range of a sound exercise of the sentencing discretion. Sentences customarily imposed in comparable cases provide a yardstick or reference point for ensuring broad consistency in sentencing, bearing in mind the scope for significant variations in relevant sentencing factors, and that there is no single correct sentence. What is important is the unifying principles which sentences imposed in comparable cases reveal and reflect.
3.When this court dismisses an appeal against sentence and when it resentences on a successful appeal, its decision does not fix the upper or lower limit of the range.
4.The real question is whether the total effective sentence imposed on the offender is unreasonable or plainly unjust.
[14] See, for example, Kabambi v The State of Western Australia [2019] WASCA 44 [21].
Disposition
The appellant does not, and could not reasonably, complain about any of the individual sentences. Rather, the ground of appeal is confined to alleging a breach of the first limb of the totality principle. It is therefore unnecessary to set out in detail the customary sentencing practices in relation to the individual offences. The criminality involved in the individual counts is reflected in the sentences imposed for those counts. The essential question for this court is whether the total sentence bears a proper relationship to the overall criminality involved in all the offences, viewed in their entirety and having regard to the circumstances of the case, including those referable to the appellant personally.
The overall criminality involved in all of the offending was, as the sentencing judge correctly recognised, high. It involved the appellant engaging in prolonged unprovoked violent behaviour late at night at the victims' homes. Four victims were the subject of the offending, and a significant degree of accumulation was required to recognise the impact of the offences on each victim. There were no significant mitigating factors other than the appellant's pleas of guilty. The appellant's lengthy prior criminal record showed that the appellant's behaviour on 22 January 2023 was not aberrant or out of character. While it was not an aggravating factor, the appellant's past offending elevated the significance of personal deterrence and community protection in the present case.
Having regard to:
1.the maximum penalties for the offences of which the appellant was convicted;
2.the overall criminality involved in all of the appellant's offences, viewed in their entirety and having regard to all relevant circumstances (including those referable to the appellant personally); and
3.all relevant sentencing factors and principles,
the total effective sentence of 4 years 6 months' immediate imprisonment imposed on the appellant was not arguably unreasonable or plainly unjust. The ground has no reasonable prospect of succeeding.
Orders
For the above reasons, the following orders should be made in the appeal:
1.Leave to appeal on the sole ground of appeal is refused.
2.The appeal is dismissed.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
RL
Associate to the Honourable Justice Mitchell
1 AUGUST 2024
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