Noi v The State of Western Australia
[2021] WASCA 84
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: NOI -v- THE STATE OF WESTERN AUSTRALIA [2021] WASCA 84
CORAM: BUSS P
MITCHELL JA
VAUGHAN JA
HEARD: 5 MAY 2021
DELIVERED : 18 MAY 2021
FILE NO/S: CACR 131 of 2020
BETWEEN: NOI
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram: LEMONIS DCJ
File Number : ALB/IND 45 of 2020
Catchwords:
Criminal law - Sentencing - Aggravated home burglary and unlawful damage - Whether a miscarriage of justice arose as a result of the sentencing judge adopting incorrect statement in a pre-sentence report - Whether sentences of immediate imprisonment for the offences are manifestly excessive as to the type of penalty imposed - Whether length of sentence for aggravated burglary offence is manifestly excessive
Legislation:
Criminal Code (WA), s 401(2), s 444(1)
Result:
Leave to appeal refused
Applications to adduce additional evidence dismissed
Appeal dismissed
Category: D
Representation:
Counsel:
| Appellant | : | T F Percy QC and S Nigam |
| Respondent | : | B M Murray |
Solicitors:
| Appellant | : | Nigams Legal Pty Ltd |
| Respondent | : | Director of Public Prosecutions (WA) |
Case(s) referred to in decision(s):
HNA v The State of Western Australia [2016] WASCA 165
Panicciari v The State of Western Australia [2020] WASCA 154
Serukai v The State of Western Australia [2020] WASCA 159
JUDGMENT OF THE COURT:
Summary
The appellant was convicted on his pleas of guilty of three offences committed on 13 April 2020 at the home of the victim, his former de facto partner.
Count 1 was a charge of aggravated home burglary, contrary to s 401(2)(a) of the Criminal Code (WA), by the appellant committing the offence of criminal damage while being in the victim's home without her consent. The pleaded circumstance of aggravation was that, immediately before the commission of the offence, the appellant knew or ought to have known that there was another person in the place.
Count 2 was a charge of unlawfully damaging a television contrary to s 444(1)(b) of the Criminal Code. The offence charged in count 2 was the grounding offence for the aggravated home burglary charge.
Count 3 was a charge of unlawfully damaging a mobile phone.
On 7 September 2020, the appellant was sentenced to 2 years' immediate imprisonment for the aggravated home burglary offence (count 1) and 4 months' immediate imprisonment for unlawfully damaging the mobile phone (count 3). No penalty was imposed for unlawfully damaging the television (count 2). The sentence for count 3 was ordered to be served concurrently with the sentence for count 1. This resulted in a total effective sentence of 2 years' immediate imprisonment. The appellant was made eligible for parole. As the appellant had not served any time in custody on remand, the sentence took effect on the date on which it was imposed.
The appellant appeals against his sentences on three grounds.
Ground 1, as amended at the hearing of the appeal, contends that a miscarriage of justice occurred when the sentencing judge 'adopted the matters set out in the pre-sentence report' and found the offences indicated that the appellant 'harboured feelings of entitlement consistent with being a domestic violence perpetrator'. Both the appellant and respondent applied to adduce additional evidence relating to this ground of appeal.
Ground 2 contends that the sentences of immediate imprisonment were manifestly excessive as to type, and that the sentencing judge should have imposed conditionally suspended sentences. Ground 3 contends that the sentence of 2 years' immediate imprisonment for the aggravated home burglary offence was manifestly excessive as to length.
The application for leave to appeal on these grounds was referred to the hearing of the appeal. At the hearing of the appeal, the court refused leave to appeal on ground 1 and dismissed the applications to adduce additional evidence in the appeal. Our reasons for making those orders are set out below.
After refusing leave to appeal on ground 1, the court heard argument on grounds 2 and 3. The court then reserved its decision on the appeal. For the following reasons, we would also refuse leave to appeal on grounds 2 and 3 and dismiss the appeal.
Circumstances of the offending
The circumstances of the offending were set out in an Amended Statement of Material Facts,[1] which was read by the prosecutor at the sentencing hearing.[2] Written sentencing submissions filed by the appellant's sentencing counsel indicated that the appellant did not dispute those facts.[3] Those facts were adopted by the sentencing judge in his Honour's sentencing remarks.[4] Those facts are as follows.
[1] AB 111 - 113.
[2] Sentencing ts 7 - 8.
[3] Defence Outline of Submissions on Sentencing dated 28 August 2020.
[4] Sentencing ts 23 - 24.
The victim, who was 35 years old, and the appellant, who was 39 years old, were former de facto partners who had been separated for approximately eight years at the date of the offending. They have two children together: a daughter, who was 13 years old at the time of the offending, and a son, who was 12 years old at the time of the offending.
There were no Family Court orders in respect of the custody arrangements for the children at the time of the offending. The victim and the offender had a flexible care arrangement under which the children could stay with either parent at any time.
Prior to the offence, a three-day police order protecting the victim had been issued under the Restraining Orders Act 1997 (WA) and served on the appellant. The police order expired at 1.30 am on 13 April 2020.
At about 2.30 pm on 13 April 2020, the appellant attended the victim's residence at a regional WA town to locate their son. At the time the victim was outside at the back of the property and the appellant's son was in the lounge room. As the victim saw the appellant's truck arrive at the property, she ran inside through the back door to make sure that the front door was locked.
The appellant walked up to the victim's front door and forced entry into her house by kicking in the front door. This caused the locking mechanism to come away from the door completely.
As the victim saw the appellant coming down the hallway, she ran into the backyard with their son. As the appellant walked into the lounge room at the rear of the house, he wilfully knocked a black Samsung television off a cabinet onto the floor. This caused damage to the device to the point where it would no longer turn on. The television was valued at $1,500.
The appellant then entered the victim's backyard and told her, 'you can get a restraining order that lasts for two years, it's not going to make any difference'. The appellant shouted at his son, 'you better get back here right now, or you're going to cop it'. The victim told their son to run.
A neighbour heard the offender yelling at the son before seeing the son start to run down the street. The neighbour took the son inside his house for safety.
In the backyard, the victim was talking to a 000 operator on her mobile phone. The appellant snatched the phone out of her hand and smashed it against the post and gate, causing the screen to completely break.
The appellant then drove from the victim's house in his truck. The appellant was arrested and charged on 14 April 2020.
The sentencing judge noted that, in a pre-sentence report, the appellant had admitted that his conduct was carried out to show the victim and his son 'who was the boss'.[5] The judge accepted that fact in the context where, after the judge asked the appellant's sentencing counsel about the relevant passage in the pre-sentence report, counsel responded:[6]
Yes. And I've [asked] him about that. He has indicated that that's what he said to the report writer. And, basically, he felt he was disciplining his son and the complainant had assisted in the son avoiding his discipline. So, he felt aggrieved about that, and he accepts that's what he said. Probably doesn't do him any credit, but he has, at least, been honest with the report writer.
[5] Sentencing ts 24.
[6] Sentencing ts 13.
The sentencing judge indicated that he was satisfied, beyond reasonable doubt, that the appellant's offending was carried out with an intent to intimidate the victim and to assert control over her. The sentencing judge reached that conclusion having regard to the following matters:[7]
(1)The force that was used to gain entry.
(2)Once inside the house, the appellant smashed an expensive television.
(3)The appellant also smashed the victim's phone as she was on the phone to a 000 operator. While the judge was not satisfied that the appellant knew the victim was on the phone to a 000 operator, by smashing the phone the appellant prevented her from seeking help.
(4)The appellant told the victim that her getting a restraining order was not going to make a difference.
(5)What was said in the pre-sentence report about the appellant wanting to show who the boss was.
[7] Sentencing ts 25.
The sentencing judge was also satisfied, beyond reasonable doubt, that the offending instilled fear in the victim and in the appellant's son.[8]
[8] Sentencing ts 25.
The sentencing judge also noted the submission of the appellant's sentencing counsel, to the effect that the offending originated from the appellant's misguided attempt to discipline his son. However, his Honour observed that this had occurred three days prior to the offending. In addition, the judge noted that what had occurred earlier involved the appellant forcibly taking his son from the victim's house and the victim then following and collecting their son from the driveway of the appellant's house. It was this conduct of the appellant which led to the victim attending the police station and the three-day police order being put in place.[9]
[9] Sentencing ts 25.
Personal circumstances
The sentencing judge made the following findings about the appellant's personal circumstances.[10]
[10] Sentencing ts 24 - 25.
The appellant, who remained 39 years old at the date of sentencing, was raised in a close and supportive family. The appellant and the victim separated in January 2011 after a 7 year relationship. At the time of sentencing, the appellant's son lived in Perth and the appellant's daughter lived with the appellant.
The appellant completed year 12 and commenced employment in his family's supermarket business. He had also gained a real estate licence and been in charge of running the family-owned real estate business. At the time of sentencing, he was employed in his family's supermarket business. He had stable employment, and the financial and social stability such employment can provide, as well as family support. His health was good.
The appellant had previously used methylamphetamine, but had ceased doing so in his mid-30s.
The appellant had a criminal record consisting primarily of drug and traffic offences, the last drug offence occurring in May 2016. He also had a conviction of importing prohibited weapons. He had once been subject to a community based order, which was cancelled after the appellant did not complete the required community work. He had been convicted of two counts of breaching a violence restraining order protecting the same victim. The breaches involved sending the victim a text message and driving onto a property the appellant was prohibited from approaching. The offences of breaching the restraining order were committed on separate dates in December 2011 and resulted in fines.[11]
[11] See criminal record (AB 108).
Sentencing judge's approach
The sentencing judge identified a number of mitigating factors in this case:[12]
(1)The appellant had pleaded guilty to the offences at the first reasonable opportunity, for which the sentencing judge allowed a 25% discount under s 9AA of the Sentencing Act 1995 (WA).
(2)There was a limited degree of remorse, although the appellant did not have any significant insight into the conduct which caused the offending.
(3)The appellant's full-time employment and family relationships were positive and protective factors.
(4)The appellant wished to reconnect with his son and was caring for his daughter.
[12] Sentencing ts 26 - 27.
The sentencing judge recognised that home burglaries are serious offences which are generally seen as requiring substantial penalties. His Honour also recognised that a home burglary committed with intent to intimidate the occupants is generally more serious than a burglary which involves simply an attempt to steal. He referred to the importance of personal and general deterrence as sentencing considerations, with the need for personal deterrence in the appellant's case being heightened by the following circumstances:[13]
(1)The offending occurred shortly after the expiry of the three-day police order.
(2)The appellant made comments during the incident that the victim obtaining a violence restraining order would make no difference.
(3)The appellant smashed the victim's phone, thus preventing her from seeking help.
[13] Sentencing ts 27.
In relation to general deterrence, the sentencing judge observed:[14]
I also consider general deterrence is important as the community must understand that forcibly entering a former partner's home to confront them is not tolerated and is regarded as serious offending. While your counsel says that you're not an appropriate vehicle for general deterrence because of the unique circumstances of this case, I consider in effect what has happened here is a form of domestic violence. (emphasis added)
[14] Sentencing ts 27.
The sentencing judge considered the offending to be of such seriousness that a sentence of imprisonment was the only appropriate sentence in respect of the offences.[15] In concluding that the seriousness of the offending was so serious as to make suspended or conditionally suspended imprisonment inappropriate sentencing options, the judge observed:[16]
As I've explained, the offending here is serious and included forced entry and the offending being carried out with an intent to intimidate and to assert control over your ex-partner. The offending also instilled fear in her, which it was intended to do.
I consider the offending is too serious to warrant the suspension of the term of imprisonment and I'm therefore positively satisfied it's not appropriate to suspend the term of imprisonment and I order that it be served immediately.
[15] Sentencing ts 27.
[16] Sentencing ts 28.
The judge imposed the sentences noted at [5] above.
Ground 1: miscarriage of justice arising from pre-sentence report
Ground 1, as amended, contends that a miscarriage of justice occurred when the sentencing judge 'adopted the matters set out in the pre-sentence report' and found that the offences indicated that the appellant 'harboured feelings of entitlement consistent with being a domestic violence perpetrator'.
Appellant's submissions
In oral submissions, senior counsel for the appellant identified three matters which were said to have been adopted by the sentencing judge. All three matters were said to arise from the following passage in the pre‑sentence report:[17]
The current offences were by his own admission a deliberate and intended act of intimidation to show his ex-defacto and son 'who was the boss'. He claims there was never any intention to cause physical harm to anyone. The offences nevertheless indicate he harbours feelings of entitlement consistent with domestic violence perpetrators. (emphasis added)
[17] Pre-sentence report 1.
The three statements from this passage which the appellant contends the sentencing judge adopted and which are the only matters the subject of ground 1 are:[18]
(1)the appellant admitted the offences were 'a deliberate and intended act of intimidation';
(2)the appellant 'harbours feelings of entitlement'; and
(3)those feelings of entitlement are 'consistent with domestic violence perpetrators'.
[18] Appeal ts 27 - 30.
The appellant's senior counsel disavowed reliance on the statement to the effect that the appellant admitted committing the offences to 'show his ex-de facto and son "who was the boss",' as one of the 'matters set out in the pre-sentence report' relied on in relation to ground 1.[19]
[19] Appeal ts 29 - 31.
Senior counsel for the appellant submitted that the first of the statements referred to at [38] above was implicitly adopted by the sentencing judge in:
(1)the passage referred to at [23] above; and
(2)the reference to 'forcibly entering a former partner's home to confront them' in the passage quoted at [33] above.
The appellant submitted that the second and third statements were implicitly adopted when the judge said that he considered what had happened to be a form of domestic violence in the passage quoted at [33] above.[20]
[20] Appeal ts 30 - 35.
The alleged finding by the sentencing judge which is the subject of the ground of appeal is that the offences indicated that the appellant 'harboured feelings of entitlement consistent with being a domestic violence perpetrator'. That finding is said to arise from the judge's implicit adoption of the three statements in the pre-sentence report referred to at [38] above.
Disposition
After hearing oral submissions from the appellant's senior counsel, we were satisfied that ground 1 had no reasonable prospect of succeeding.
First, the sentencing judge made no express or implicit finding as to any feelings of 'entitlement' which the appellant may have harboured, or as to what those feelings might be consistent with. The ground as formulated must fail as it turns on an alleged finding which the sentencing judge did not actually make.
Secondly, there is no reasonable basis for contending that the sentencing judge's view that the offending was 'a form of domestic violence' was based on his adoption of the impugned passage of the pre‑sentence report or any view as to feelings of entitlement that the appellant may have harboured. Rather, the judge was making his own assessment by reference to the circumstances of the offending conduct.
Thirdly, the sentencing judge was plainly correct to characterise the offending as a form of domestic violence. The victim was the appellant's former de facto partner and the mother of his two children (the children being co-parented by the appellant and the victim). The appellant violently forced entry into the victim's home, when he knew she was present, by kicking in the front door. This occurred shortly after the expiry of a police order protecting the victim. The appellant wilfully damaged her property, including a mobile phone which was a means of seeking help, while threatening that the victim obtaining a 2 year restraining order would make no difference. He was clearly using violence to intimidate his former partner with whom he shared the care of their two children. The pre-sentence report was not required to conclude that the offending was a form of domestic violence. Additionally, the report was not actually relied upon by the sentencing judge for the purposes of reaching that conclusion. Even if the pre‑sentence report had been relied upon for that purpose, there would be no miscarriage of justice as, in our view, it could not reasonably be contended that the offending in this case did not constitute a form of domestic violence.
Fourthly, while the judge did find that the appellant's offending was carried out with an intent to intimidate the victim (see [23] above), the judge listed the five matters on which that finding was based. The only reference to the pre-sentence report was what was 'said in the pre‑sentence report about [the appellant] wanting to show who the boss was'.[21] As noted at [39] above, the appellant disavowed reliance on that statement as one of the matters referred to in ground 1. The judge's finding therefore did not involve the adoption of the first statement from the pre-sentence report referred to at [38] above.
[21] Sentencing ts 25.
Fifthly, the finding that the appellant intended to intimidate the victim was inevitable given the admitted conduct which constituted the offence. Even if the sentencing judge had relied on one or more of the three statements in the pre-sentence report referred to at [38] above for the purpose of making that finding, that reliance could not have resulted in any miscarriage of justice.
Having regard to the above matters, ground 1 had no reasonable prospect of success as:
(1)The ground was premised on the judge making a finding as to the appellant's feelings of entitlement and adopting the three statements in the pre-sentence report referred to at [38] above.
(2)The judge made no finding in relation to feelings of entitlement that the appellant may have harboured, and did not adopt any of those three statements in the pre-sentence report.
(3)Further, the findings on which the appellant relies that the judge did make - that the appellant intended to intimidate the victim and that the offending constituted a form of domestic violence - were plainly correct. Any reliance on the pre-sentence report for the purpose of making those findings could not give rise to any miscarriage of justice.
It was therefore unnecessary for this court to consider whether to receive the additional evidence sought to be relied on by the parties, which concerned the accuracy of the passage in the pre-sentence report quoted at [37] above or the qualifications of the author of the pre‑sentence report to make those statements. That additional evidence could not have overcome the fundamental difficulties which we have identified with ground 1.
For these reasons we refused leave to appeal on ground 1 and dismissed the applications to adduce additional evidence which were rendered redundant by the refusal of leave to appeal on that ground.
Grounds 2 and 3: manifest excess
Grounds 2 and 3 respectively contend that sentences of immediate imprisonment were manifestly excessive as to type, and that the sentence of 2 years' immediate imprisonment for the aggravated home burglary offence was manifestly excessive as to length. In our view, there is no merit in those grounds.
The applicable principles for considering whether a sentence is manifestly excessive in the context of an aggravated home burglary offence, and the customary sentencing standards for that kind of offending, were recently reiterated by this court in Serukai v The State of Western Australia.[22]
[22] Serukai v The State of Western Australia [2020] WASCA 159 [32] - [34], [40] - [46].
Further, it is established that, where a sentence is said to be manifestly excessive as to type, the question for this court is whether it was reasonably open to the sentencing court to be positively satisfied that a sentencing option listed in s 39(2) of the Sentencing Act was not appropriate.[23]
[23] See HNA v The State of Western Australia [2016] WASCA 165 [23] - [31].
In the present case, the sentence of 2 years' imprisonment imposed for the home burglary offence was only 10% of the available maximum penalty. In Serukai, the court referred to sentences in the range of 2 years 3 months' immediate imprisonment and 4 years 6 months' immediate imprisonment recently imposed or upheld by this court for aggravated home burglary offences.[24] The length of the appellant's sentence falls below that range, in the case of a home invasion committed with an intention to intimidate the occupants of the house. Such burglaries are generally regarded as more serious than a burglary which involves simply an intention to steal.
[24] Serukai [44] - [45].
The appellant's submissions as to manifest excess were largely focussed on the decision of this court in Panicciari v The State of Western Australia.[25] That case involved the conviction of an offender after trial for a home invasion burglary that involved the offender physically assaulting the victim, including with a weapon. This court refused leave to appeal on a ground alleging manifest excess, expressing the view that the sentence of 2 years 6 months' immediate imprisonment imposed on the offender in that case was lenient.[26] In Panicciari, this court determined that the ground that alleged the sentence to be manifestly excessive was not reasonably arguable. Nothing in that determination suggests that the sentence imposed on the appellant in this case was manifestly excessive.
[25] Panicciari v The State of Western Australia [2020] WASCA 154, referred to at appellant's submissions par 30 - 31 and appeal ts 37, 43 - 44.
[26] Panicciari [48].
Senior counsel for the appellant pointed to the absence of certain aggravating factors in this case, such as the use of weapons and a physical assault on the victim. While the present offence would have been worse if those aggravating factors had been present, the appellant's offending remained serious. The absence of those aggravating factors was reflected in the imposition of what was a very moderate sentence for an aggravated home burglary offence.
The seriousness of the appellant's offending in this case was aggravated by the fact that the appellant and the victim had been in a domestic relationship, and continued to share the care of their children. The fact that the offending was a response to the victim making a complaint to police which led to a police order, and was accompanied by threats that a 2 year restraining order would make no difference, were particularly aggravating features of the offending. Combined with the appellant's past record of breaching violence restraining orders protecting the same victim, these aggravating features of the appellant's offending elevated the significance of personal deterrence as a sentencing consideration.
General deterrence was also an important sentencing consideration, as the sentencing judge correctly recognised in the passage quoted at [33] above. Sentences imposed by the courts on offenders (who as a matter of fact are usually male) who violently offend against a former partner should send a clear message that the personal integrity of former partners must be respected - both physically and psychologically. Domestic violence directed towards a former partner is a very serious matter, particularly where the offending involves a violation of the former partner's right to feel safe in her own home. The prevalence of this kind of offending in the community requires that general deterrence be accorded significant weight as an important sentencing consideration in cases of violent offending against former partners.
In our view, the sentencing judge was plainly correct to hold that the seriousness of the appellant's offending, even considered in light of the mitigating circumstances his Honour identified, was so serious as to make suspended or conditionally suspended imprisonment inappropriate sentencing options. Nor, in all the circumstances and having regard to all relevant sentencing principles and considerations, is it reasonably arguable that a 2 year sentence of imprisonment was manifestly excessive as to length. The sentence of 2 years' immediate imprisonment for the aggravated home burglary offence, and the 2 year total effective sentence, are not arguably unreasonable or plainly unjust.
We would refuse leave to appeal on grounds 2 and 3, which in our view have no reasonable prospect of success.
Orders
For the above reasons, we would make the following orders in addition to those made at the hearing of the appeal:
(1)Leave to appeal is refused on grounds 2 and 3.
(2)The appeal is dismissed.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
JB
Associate to the Honourable Justice Mitchell
18 MAY 2021
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