Otway v The State of Western Australia

[2008] WASCA 165

OTWAY -v- THE STATE OF WESTERN AUSTRALIA [2008] WASCA 165

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2008] WASCA 165
Court:	THE COURT OF APPEAL (WA)
Case No:	CACR:6/2008	Heard:	8 AUGUST 2008
Coram:	STEYTLER P WHEELER JA MILLER JA	Delivered:	18/08/08
No of pages:	10	Judgment Part:	1 of 1
Result:	Appeal allowed on ground 2 Appellant resentenced
Category:	B
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Parties:	BRENT ROBERT OTWAY THE STATE OF WESTERN AUSTRALIA
Catchwords:	Criminal law Appeal Sentencing Totality Time spent in custody Turns on own facts
Legislation:	Criminal Appeals Act 2004 (WA), s 31(4)(a) Sentencing Act 1995 (WA), s 87
Case References:	House v The King [1936] HCA 40; (1936) 55 CLR 499 Howorth v The State of Western Australia [2007] WASCA 78 Little v The Queen [2001] WASCA 87 Narkle v Hamilton [2008] WASCA 31 Nguyen v The State of Western Australia [2007] WASCA 114 R v Pallister [2002] WASCA 68(S); (2002) 131 A Crim R 460 Vlek v The Queen (Unreported, WASC, Library No 990153, 29 March 1999)

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : OTWAY -v- THE STATE OF WESTERN AUSTRALIA [2008] WASCA 165 CORAM : STEYTLER P

WHEELER JA
MILLER JA

HEARD : 8 AUGUST 2008 DELIVERED : 18 AUGUST 2008 FILE NO/S : CACR 6 of 2008 BETWEEN : BRENT ROBERT OTWAY

Appellant

AND

THE STATE OF WESTERN AUSTRALIA
Respondent

ON APPEAL FROM:

Jurisdiction : SUPREME COURT OF WESTERN AUSTRALIA

Coram : MURRAY J

File No : INS 175 of 2006

Catchwords:

Criminal law - Appeal - Sentencing - Totality - Time spent in custody - Turns on own facts

(Page 2)

Legislation:

Criminal Appeals Act 2004 (WA), s 31(4)(a)

Sentencing Act 1995 (WA), s 87

Result:

Appeal allowed on ground 2

Appellant resentenced

Category: B

Representation:

Counsel:

Appellant : Mr S B Watters
Respondent : Mr R E Cock QC

Solicitors:

Appellant : Thames Legal
Respondent : Director of Public Prosecutions (WA)

Case(s) referred to in judgment(s):

House v The King [1936] HCA 40; (1936) 55 CLR 499
Howorth v The State of Western Australia [2007] WASCA 78
Little v The Queen [2001] WASCA 87
Narkle v Hamilton [2008] WASCA 31
Nguyen v The State of Western Australia [2007] WASCA 114
R v Pallister [2002] WASCA 68(S); (2002) 131 A Crim R 460
Vlek v The Queen (Unreported, WASC, Library No 990153, 29 March 1999)


(Page 3)

1 STEYTLER P: I agree with Wheeler JA.

WHEELER JA:

The appeal

2 On 3 December 2007, the appellant was convicted on his own pleas of guilty of four counts of aggravated burglary, one count of aggravated armed robbery, one count of stealing and one count of stealing a motor vehicle. He was sentenced to an aggregate term of 5 years 6 months' imprisonment, backdated to commence on 17 December 2006.

3 On 17 March 2008, the appellant was granted leave to appeal on two grounds. The first ground is that the learned sentencing judge erred in imposing a total effective sentence which infringed the principle of totality having regard to the circumstances of the case, including matters personal to the appellant. The second ground, as amended at the hearing of the appeal, is that the learned sentencing judge erred in failing to take into account all prior time the appellant had spent in custody.

The offences

4 The relevant facts are as follows. At 2.40 am on 14 July 2006, the appellant attended the complainant's home at Lakefront Circle in The Vines in the company of another. The pair wore black beanies over their faces to disguise their identity. The learned sentencing judge did not conduct a trial of facts to determine the precise involvement of each offender. Instead, sentencing proceeded on the basis that one of the offenders smashed the rear bedroom window of the complainant's premises which enabled the pair to gain entry. One of the offenders then took possession of a dagger-shaped letter opener from the kitchen bench and the pair approached the master bedroom, where the complainant was sleeping. One of the offenders stood at the doorway, while the other entered the room and demanded that the complainant hand over the keys to a car. The complainant refused the demand and that offender threatened to stab him with the letter-opener. As a result of the threat, the complainant pointed to a nearby briefcase which contained a set of keys to his car, which was valued at approximately $60,000. One of the offenders removed the car keys and a mobile telephone from the briefcase, which was located on top of a chest of drawers, along with a wallet containing $85 and bankcards. The pair then left the premises and used the stolen car keys to drive away in the complainant's vehicle. These facts gave rise to count 1 (aggravated burglary), count 2 (aggravated armed robbery) and count 3 (stealing a motor vehicle).

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5 At 3.15 pm on that same day, the appellant, the principal co-offender and two young teenage girls, drove the stolen vehicle to an address in Wellard where they forced open a side bedroom window in order to gain entry. An electronic safe containing jewellery was forced from a wall in the premises and stolen, together with a laptop computer, $600 cash and a box of 0.22 calibre bullets (count 4).

6 At 7.50 pm that evening, the offender and his co-offenders drove the stolen motor vehicle to a service station in Casuarina. The appellant filled the vehicle with $83 worth of fuel and drove away without paying (count 5).

7 Between 1.00 pm and 3.00 pm on 15 July 2006, the appellant, still in the company of the co-offenders, drove the stolen motor vehicle to another address in Wellard. One of the offenders forced open a side window and a television worth $4,000 was stolen from the premises (count 6).

8 In the morning of 16 July 2006, the co-offenders drove the stolen motor vehicle to a street in Casuarina. The offenders watched the inhabitants of a home leave the premises and then gained entry. They stole property to a value of $10,800, including money, a laptop and a television (count 10).

Sentences

9 In relation to each of counts 1, 3, 4 and 6, his Honour imposed sentences of 2 years' imprisonment, to be served concurrently with a sentence of 3 years and 6 months for the aggravated armed robbery that formed the subject of count 2, but cumulatively upon a sentence of 2 years for the aggravated burglary in count 10. The appellant was also sentenced to 4 months for stealing the fuel (count 5) to be served concurrently with the other counts.

The appellant's personal circumstances

10 The appellant was 19 years old at the time of sentencing and came to the court with a poor school record and unsettled work history. He had accumulated a criminal history in the Children's Court which included 11 offences of stealing a motor vehicle and numerous convictions for burglary and stealing. The offences were said to be motivated by a drug consumption binge, although his Honour noted, "I think there is also an antecedent cause or causes concerned with a traumatic situation in which you have been involved as a child". The learned sentencing judge was

(Page 5)

also of the view that the appellant's diagnosed attention deficit hyperactivity disorder may have had some effect on his conduct. The pre-sentence report described the appellant as "somewhat volatile, emotionally immature and impulsive". While guilty pleas were entered, they were not entered at an early stage and his Honour found that they were not "accompanied by any meaningful contrition or concern or empathy for the victims of the offences".

Totality (ground 1)

11 The appellant does not complain against the individual sentences imposed in respect of each offence. Rather, the appellant submits that "the total sentence was unjust" in that it does not bear a proper relationship to the overall criminality.

12 In advancing this contention, the appellant relies on Nguyen v The State of Western Australia [2007] WASCA 114. The appellant in Nguyen had been convicted of 19 counts of burglary, one count of stealing a motor vehicle and one count of aggravated burglary. On appeal, he was sentenced to an aggregate term of 7 years 8 months' imprisonment. The tenor of the appellant's written submissions is that the appellant ought to have been given a significantly shorter sentence than the offender in Nguyen on the basis that the appellant had more positive antecedents and had committed fewer offences.

13 A ground of appeal which is to the effect that a total sentence is disproportionate to overall criminality is inadequately supported if it refers, for the purposes of comparison, to only one case. In any event, while there are aspects of the appellant's case that place it at a lower level of criminality when compared to Nguyen, I note that only one of the counts in Nguyen contained circumstances of aggravation. In this case, there are four counts of aggravated burglary and one count of aggravated armed robbery which involved a threat of violence.

14 In Howorth v The State of Western Australia [2007] WASCA 78, the court considered a range of cases concerned with burglary and stealing of motor vehicles. The difficulty of sentencing offenders who commit many such offences was noted, in terms which I repeat:

[W]e would note ... that there is a particular difficulty involved in cases of multiple offending such as burglary, or stealing motor vehicles, or simple stealing. Generally speaking, in such cases the offences are discrete offences committed on discrete occasions, so that cumulative sentences would ordinarily be appropriate. Further, the criminality of an offender who offends on a number of occasions is plainly greater than the

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criminality of an offender who has offended but once, all other circumstances being equal, and the impact on the community of a number of distinct offences would ordinarily be greater than the impact of but one offence, assuming the circumstances of the offences to be broadly similar. We repeat, however, the observation which was made by Wheeler JA in Sulejmani v The State of Western Australia [2005] WASCA 95 at [22]:

'As to concurrency, as I have already indicated, in principle there is no reason to make any of the terms of imprisonment imposed concurrent. However, it is the case that the courts have long been cautious in imposing cumulative terms of imprisonment in respect of property crimes such as burglary. The reason for this, is a simple practical one. It is very often the case that offences of this kind are committed in order to obtain money for drugs or alcohol, by offenders who commit a very large number of such offences before being apprehended. Terms of imprisonment appropriate to each individual offence, imposed cumulatively, could easily lead to total terms of imprisonment which would normally be reserved for the very worst types of offending, such as very serious robberies or multiple sexual offences. For that reason, even when a very considerable number of burglary type offences have been committed, it is the practice generally to make only some of them cumulative. It is then necessary to retain some proportion between those offenders who commit very large numbers of such offences and those offenders who commit only a few. Some sort of rough practical "threshold" of total offending must be passed by a property offender before he or she faces wholly cumulative terms. It is always a matter of impression when this point has been reached.' [20]

15 The analysis in Howorth suggests that, as a matter of first impression, the appellant's offending and personal circumstances fit broadly with cases found in that portion of the judgment which is headed "The 9 to 10-year sentences" (that reference being to pre-transitional provision sentences). In particular, the case of Little v The Queen [2001] WASCA 87, discussed at [26], appears to be in many respects comparable. It involves a similar number of offences (five counts compared to the appellant's seven), the offending occurred over a similar period of time (four days) and the offender was relatively young at the time of offending (22 years old). While the offender in Little had a significantly lengthier history of offending (257 convictions), it should be noted that many of those prior convictions related to driving offences. Moreover, unlike the appellant, the offender in Little pleaded guilty under the fast track system. The Court of Criminal Appeal observed that, had he not done so, the sentencing judge would have imposed an aggregate sentence of 12 years (8 years post-transitional). Finally, I note that the sentence in Little related to one count of aggravated burglary, one count
(Page 7)

of armed robbery and three counts of stealing a motor vehicle. The appellant in this case committed four counts of aggravated burglary.

16 It is plain from his Honour's sentencing remarks that he considered questions of totality (ground 2). He made no error of principle in respect of that issue. The total sentence he imposed accords with the standards of sentencing customarily imposed in broadly similar cases of multiple offending. Ground 1 is not made out.

Time spent in custody (ground 2)

17 The appellant was taken into custody in relation to these offences on 20 July 2006 and remained in custody until he was granted bail on 2 January 2007. The appellant was taken back into custody in relation to unrelated matters on 14 April 2007. As a consequence, bail was revoked on 1 June 2007. The appellant remained in custody, despite the unrelated matters being discontinued.

18 During sentencing submissions, the following exchange took place:

MURRAY J: All right, so you would submit that as that was not a matter which was pursued … I should regard that period as a period which may be referable to these offences, so there are two periods of custody, one from [20] July 2006 to 2 January 2007 and the other [14] April 2007 till today [3 December 2007].

…

HOPE, MR: That would be my submission in all fairness to the accused man.

MURRAY J: Thank you.

STOCKS, MR: Your Honour, I don't want to do the accused out of days. The problem is that the legislature [through s 87 of the Sentencing Act 1995 (WA)] only allows your Honour to backdate if he has spent time in custody for the purpose of these offences and for no other purpose.

MURRAY J: That's right.

STOCKS, MR: It is quite clear on the transcript that he had bail on these offences and it was not in any way related to these offences that he was in custody. It was in relation to another matter. He chose to retain bail on these matters and I can't say any more than your Honour is required to follow the wording of the Act which requires it to be for these offences and for no other purpose, which it wasn't.

(Page 8)

That said, the backdating date will be [17] December 2006 if your Honour does not take those dates into account and if your Honour were to take those extra dates from [14] April through to 1 June into account, it would be [28] October of 2006.

…

MURRAY J: Yes. I must say that I think in the circumstances that two periods are clear. Certainly the period after 1 June this year is a period in relation to which the only matters outstanding are these matters and he was remanded, solely in relation to them, in custody at that time. Then there is the earlier period. I would certainly take those periods into account but I can't, I think, go back beyond 1 June. (Appeal book 46 - 48, 60)

19 Although the discussion is not easy to follow, the following matters seem reasonably clear from a reading of the transcript in the light of the sentence actually imposed by his Honour. I do not understand these facts to be in dispute:

(i) His Honour was asked to "backdate" the sentences (pursuant to s 87 of the Sentencing Act1995 (WA)) to take account of all days spent in custody by the appellant prior to sentencing;

(ii) some of the prior period of custody was attributable to offences other than the offences for which he was sentenced by his Honour;

(iii) his Honour backdated the sentence in a way which took account of the periods 20 July 2006 to 2 January 2007 and 1 June 2007 to the date of sentence;

(iv) apart from the observation I have quoted, indicating that he considered he was unable to "go back beyond" 1 June, his Honour did not consider the period 14 April to 1 June 2007, a period of about 6 weeks; and

(v) for the period 14 April to 1 June, the appellant was in custody, not in relation to these offences, but in relation to charges which were subsequently discontinued.

20 It is accepted that his Honour could not have backdated to take account of the period 14 April to 1 June. However, in Narkle v Hamilton [2008] WASCA 31, the court held that "[s]ection 87 contains no express or implied limitation on the court's general power to take into account time spent in custody, including on remand, in the exercise of its sentencing discretion" [30]. Rather, the section is facilitative in so far as
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it enables a court, which has resolved to exercise its general power, to backdate or reduce the sentence: Narkle [31].

21 It is unfortunate that the only submissions made to his Honour concerned backdating. It appears that, for that reason, his Honour did not turn his mind to the discretion discussed in Narkle. Having been informed of all periods in custody, he should have done so. It therefore falls to this court to exercise, in respect of the period 14 April to 1 June, the general discretion to take time spent in custody into account. In exercising the discretion, the court is to have regard to the circumstances of the individual case: Narkle [43].

22 In R v Pallister [2002] WASCA 68(S); (2002) 131 A Crim R 460, Wallwork J (at [29] - [30]) and Anderson J (at [40]) considered that the following observations of Anderson J in Vlek v The Queen (Unreported, WASC, Library No 990153, 29 March 1999) were applicable where an offender had spent a considerable period in custody for an unrelated offence of which he was later acquitted:

I think it is also recognised (and this may be simply another aspect of the totality principle) that when a second sentencing court is considering the imposition of a cumulative sentence, there are mitigating factors arising out of that circumstance itself. When a sentence is to be cumulative on sentences already being served there is usually a discount, and the reasons for this include, no doubt, the instinctive acceptance by sentencing courts that a cumulative sentence is, in itself, a harsher sentence than one of the same length which is to take effect immediately: Jarvis v The Queen [Unreported, WASCA, Library No 930341, 14 June 1993] especially per Ipp J. Furthermore, as was pointed out in Mill [(1988) 166 CLR 59], the second sentencing court may see (or assume) that the prisoner has made progress towards rehabilitation during the term of the first sentence. (10)

23 There is reason to believe, in this case, that the appellant has taken some rehabilitative measures during his time in custody. In particular, I note the following excerpt from the pre-sentence report:

Mr Otway volunteered the fact in interview that he has undertaken brief intervention programmes related to substance use whilst in custody which is to his credit. Further, he stated that he had commenced but did not complete a more intensive Cogskills Brief Intervention Treatment programme.

Unsolicited feedback from the Cogskills course facilitators confirmed Mr Otway's completion of four of the mandatory eight sessions comprising some twenty hours, but his participation was cancelled on the basis of apparent short-term ill health. He was commended for his 'proactive

(Page 10)

approach' towards his involvement in the course. It is considered that he did make some progress in his cognitive processes.

24 It appears to me that it would be appropriate to reduce the appellant's sentence by 6 weeks to take account of the period between 14 April and 1 June. The State submits that to do so might be regarded as "tinkering" with the sentence. However, in my view, the strictures against "tinkering" are no more than a colourful way of adverting to the well-known principles enunciated in House v The King[1936] HCA 40; (1936) 55 CLR 499 at 504 - 505. In the present case, his Honour having failed to consider whether to exercise his discretion in a relevant respect, it falls to this court to resentence. There being good reason to give credit for the 6 weeks, and no apparent reason not to do so, it follows that "a different sentence should have been imposed" (Criminal Appeals Act 2004 (WA), s 31(4)(a)).

25 I would allow the appeal, set aside the sentence of 3 years 6 months in respect of count 2, and in lieu thereof substitute a sentence of 3 years 4 1/2 months.

26 MILLER JA: I agree with Wheeler JA.