O'Brien v The State of Western Australia
[2008] WASCA 104
•18 APRIL 2008
O'BRIEN -v- THE STATE OF WESTERN AUSTRALIA [2008] WASCA 104
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2008] WASCA 104 | |
| THE COURT OF APPEAL (WA) | 08/05/2008 | ||
| Case No: | CACR:138/2007 | 18 APRIL 2008 | |
| Coram: | STEYTLER P McLURE JA MILLER JA | 18/04/08 | |
| 8 | Judgment Part: | 1 of 1 | |
| Result: | Appeal allowed Sentence imposed for aggravated burglary in consequence of breach of the intensive supervision order quashed Sentence of 8 months' imprisonment substituted for aggravated burglary the subject of the intensive supervision order Orders for cumulation set aside Appellant resentenced by cumulating sentences for counts 1, 3 and 12 on indictment 1265 of 2006 and cumulation of sentence of 8 months' imprisonment for aggravated burglary the subject of breach of the intensive supervision order Aggregate sentence 34 months' imprisonment | ||
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| PDF Version |
| Parties: | RODNEY ANTHONY O'BRIEN THE STATE OF WESTERN AUSTRALIA |
Catchwords: | Criminal law Sentencing Burglary, stealing and fraud Breach of intensive supervision order imposed for aggravated burglary Aggregate sentence of 4 years 6 months 2 weeks Whether sentence offended totality principle Whether resentencing for offence of aggravated burglary in consequence of breach of intensive supervision order manifestly excessive |
Legislation: | Criminal Code, s 401(2)(a) Sentencing Act 1995 (WA), s 32 Sentencing Legislation Amendment and Repeal Act 2003 (WA) |
Case References: | Herbert v The Queen [2003] WASCA 61; (2003) 27 WAR 330 Jarvis v The Queen (1993) 20 WAR 201 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : O'BRIEN -v- THE STATE OF WESTERN AUSTRALIA [2008] WASCA 104 CORAM : STEYTLER P
- McLURE JA
MILLER JA
- Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram : KEEN DCJ
File No : IND 876A of 2006, IND 1265 of 2006
Catchwords:
Criminal law - Sentencing - Burglary, stealing and fraud - Breach of intensive supervision order imposed for aggravated burglary - Aggregate sentence of
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4 years 6 months 2 weeks - Whether sentence offended totality principle - Whether resentencing for offence of aggravated burglary in consequence of breach of intensive supervision order manifestly excessive
Legislation:
Criminal Code, s 401(2)(a)
Sentencing Act 1995 (WA), s 32
Sentencing Legislation Amendment and Repeal Act 2003 (WA)
Result:
Appeal allowed
Sentence imposed for aggravated burglary in consequence of breach of the intensive supervision order quashed
Sentence of 8 months' imprisonment substituted for aggravated burglary the subject of the intensive supervision order
Orders for cumulation set aside
Appellant resentenced by cumulating sentences for counts 1, 3 and 12 on indictment 1265 of 2006 and cumulation of sentence of 8 months' imprisonment for aggravated burglary the subject of breach of the intensive supervision order
Aggregate sentence 34 months' imprisonment
Category: B
Representation:
Counsel:
Appellant : Mr S B Watters
Respondent : Mr S A Vandongen
Solicitors:
Appellant : Andree Horrigan
Respondent : Director of Public Prosecutions (WA)
Case(s) referred to in judgment(s):
Herbert v The Queen [2003] WASCA 61; (2003) 27 WAR 330
Jarvis v The Queen (1993) 20 WAR 201
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1 STEYTLER P: I have had the advantage of reading the reasons of Miller JA. They reflect my own reasons for joining in the orders made by the court.
2 McLURE JA: I agree with Miller JA.
3 MILLER JA: At the hearing of this appeal, the court unanimously allowed the appeal and quashed the sentence of 21 months' imprisonment imposed by the sentencing judge for the offence of aggravated burglary which had been the subject of a breached intensive supervision order. The court substituted a sentence of 8 months' imprisonment. It also set aside the orders of the sentencing judge for cumulation and resentenced the appellant by cumulating the sentences imposed on counts 1, 3 and 12 with the sentence of 8 months' imprisonment imposed for the offence of aggravated burglary, the subject of the breached intensive supervision order. The consequential aggregate sentence was 34 months' imprisonment. These are my reasons for joining in the decision of the court.
The offences
4 The appellant was charged on indictment 876 of 2006 with the offence of aggravated burglary, contrary to s 401(2)(a) of the Criminal Code. The offence alleged that, on 1 May 2001 at Rockingham, while in Dooge's Panel and Paint, he committed the offence of stealing at the time he knew or ought to have known that there was another person in the place.
5 The appellant pleaded guilty to this offence before Mazza DCJ in the District Court at Perth on 28 July 2006. He also pleaded guilty to various matters, the subject of a notice under s 32 of the Sentencing Act1995 (WA).
6 The facts of the indictable offence reveal that, on the afternoon of 1 May 2001, the appellant went to Dooge's Panel and Paint in Rockingham, where he asked for a quote for repairs to his car. He asked a shop assistant whether there was a cash tin or till from which he could get change. The assistant went to the lunch room of the shop where there was a money tin. He removed some money for the purpose of changing it with money held by the appellant. The appellant walked into the lunch room and exchanged moneys himself. He then walked away from the area and the shop assistant went to serve another customer. The appellant re-entered the premises and went into the lunch room, unobserved. He
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- removed the cash tin from a cabinet, opened it with a set of keys left on the table and took approximately $1,500.
7 The appellant was not dealt with for approximately six years. He had left the State and it took some time before he returned. He was given a 12-month intensive supervision order, the purpose being to show that he could rehabilitate himself. He was fined in relation to the matters which were the subject of the s 32 notice.
8 On 5 October 2007, the appellant appeared before Keen DCJ in the District Court at Perth on indictment 1265 of 2006 which alleged 12 offences. There was also a s 32 notice which contained a charge of trespassing, and a driving offence. In addition, the appellant was dealt with for breach of the intensive supervision order imposed by Mazza DCJ.
9 Indictment 1265 of 2006 contained two counts of burglary, two counts of stealing, seven counts of obtaining a benefit by fraud, and one count of attempted obtaining of a benefit by fraud.
10 The offence the subject of count 1 occurred on 4 November 2006, when the appellant entered a building in West Perth and went to business premises where he stole items including laptop computers, a mobile phone and other electronic equipment. The total value of the property stolen was $11,425.
11 The offence the subject of count 2 occurred on 5 December 2006. The appellant went to Sun City Agency in Two Rocks with a female associate. When a staff member went to the back of the premises, he accessed the till and removed $350.
12 The offence the subject of count 3 occurred between 29 November and 5 December 2006. The appellant gained entry to some business premises in Two Rocks and stole a laptop computer, other electronic equipment and some cash.
13 The offence the subject of count 4 occurred on 20 March 2007, when the appellant went to a worksite at Yanchep, ostensibly seeking work. A staff member left him unattended in a demountable unit and the appellant stole from a backpack a credit card which was in the staff member's wallet.
14 The offences the subject of counts 5 to 11 related to the appellant's use of the stolen credit card to obtain various goods on seven different occasions accompanied, at times, by a female associate. Count 12 was an
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- attempt to use the credit card to acquire goods. The credit card was rejected because it had been reported stolen.
15 The appellant pleaded guilty to all offences on 5 October 2007. He also pleaded guilty to (1) breaching the intensive supervision order imposed by Mazza DCJ in the District Court on 28 July 2006; and (2) the s 32 matters.
Sentencing
16 The appellant was sentenced by Keen DCJ on 5 October 2007. The sentencing judge first recounted the facts. He then made reference to the appellant's plea of guilty on the fast-track system. He referred to matters personal to the appellant, pointing out that he was 28 years old, but had a considerable record of convictions for offences involving dishonesty. These convictions were recorded in various Australian States.
17 The sentencing judge referred to a pre-sentence report which he had been supplied. He was concerned about an entry in that pre-sentence report which indicated that the appellant had a certain pride in his ability to gain entry to premises and commit offences in them. The entry is in the following terms:
It is noted that in discussing his offending history, Mr O'Brien displayed much enthusiasm and childlike excitement. He described in detail his 'genius' capacity to gain entry into business properties and commit offences.
18 The sentencing judge found that the appellant had offended in order to support an amphetamine habit and had used money from his criminal activities to buy drugs. He had an unstable adolescent life and difficulties in coping outside of prison. A psychological report concluded that he had 'high needs for intervention in relation to changing his approach to life' and recommended intervention to increase his limited self-efficacy and to enhance his social and general coping skills.
19 The sentencing judge saw both personal and general deterrence as important features of the sentencing process. He reduced all sentences by 30% to take account of the appellant's early pleas of guilty and then reduced the sentences by a further one-third in accordance with the Sentencing Legislation Amendment and Repeal Act 2003 (WA). The consequence was that the appellant's sentences were as follows:
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No Motor Driver's license |
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- The aggregate sentence consequential upon the orders for cumulation was 4 years 6 months 2 weeks.
Appeal
20 On 27 December 2007, Wheeler JA granted the appellant leave to appeal on one ground. At the hearing of this appeal, a second ground was proposed by way of amendment. There was no objection to the amendment and the court allowed the appellant to incorporate that ground in the grounds of appeal. The grounds now read:
Ground 1
1. The sentence imposed offended the totality principle and was manifestly excessive in all the circumstances, given;
Particulars
- a) insufficient weight was attached to the mitigatory factors personal to the Appellant;
b) Counts two and three were ordered to be served entirely cumulative upon one another;
- c) the sentence was outside a broad discretionary range.
- Ground 2
2. The sentence of sixteen and a half months imposed for the aggravated burglary on Indictment 876 of 2006 was manifestly excessive in all the circumstances, given;
Particulars
- a) the plea of guilty
b) the circumstances of the offending.
22 Counsel for the respondent also conceded that there had been an excessive degree of cumulation in the sentences imposed by the sentencing judge. He suggested that proper orders for cumulation would be to cumulate the sentences on counts 1, 3 and the amended sentence for aggravated burglary in consequence of the breach of the intensive supervision order. This would give an aggregate sentence of 2 years 6 months' imprisonment.
23 In my opinion, a sentence of 8 months' imprisonment for the aggravated burglary the subject of the intensive supervision order would properly recognise the criminality of the offence. It was not a burglary of residential premises, sentences for which have been firmed-up in recent years in recognition of the prevalence of the offence (cfHerbert v The Queen [2003] WASCA 61; (2003) 27 WAR 330 [5] (Malcolm CJ), [171] (Miller J). In the present case, there was no forced entry and the circumstances of the offence suggest that it was opportunistic.
24 In my opinion, an aggregate sentence of 2 years 6 months suggested by counsel for the respondent would be inadequate to reflect the total criminality of the appellant's conduct (Jarvis v The Queen (1993) 20 WAR 201, 207 (Ipp J)).
25 The appellant committed a raft of offences over a period of several months in late 2006 and early 2007, and exhibited some pride in his ability to do so. Added to this, he breached an intensive supervision order which had been imposed in mid-2006 with a view to assisting his rehabilitation.
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26 The total criminality of the appellant's conduct would be better reflected by an aggregate sentence of 34 months, resulting from cumulation of the sentences imposed on counts 1, 3, 12 and the amended sentence for aggravated burglary.
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