Panicciari v The State of Western Australia
[2020] WASCA 154
•17 SEPTEMBER 2020
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: PANICCIARI -v- THE STATE OF WESTERN AUSTRALIA [2020] WASCA 154
CORAM: BUSS P
MITCHELL JA
HEARD: 11 SEPTEMBER 2020
DELIVERED : 17 SEPTEMBER 2020
FILE NO/S: CACR 65 of 2020
BETWEEN: MATTHEW JOHN PANICCIARI
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram: DAVIS DCJ
File Number : IND 405 of 2019
Catchwords:
Criminal law - Sentencing - Aggravated home burglary - Whether sentence infringed the parity principle - Whether sentence is manifestly excessive
Legislation:
Criminal Code (WA), s 317(1)(b), s 401(2)(a)
Result:
Leave to appeal refused
Appeal dismissed
Category: D
Representation:
Counsel:
| Appellant | : | T F Percy QC & S Nigam |
| Respondent | : | No appearance |
Solicitors:
| Appellant | : | Nigams Legal |
| Respondent | : | Director of Public Prosecutions (WA) |
Case(s) referred to in decision(s):
Brindley v The State of Western Australia [2019] WASCA 153
Eldridge v The State of Western Australia [2020] WASCA 66
Herbert v The Queen [2003] WASCA 61; (2003) 27 WAR 330
Kabambi v The State of Western Australia [2019] WASCA 44
Ngo v The Queen [2017] WASCA 3
Tapper v The State of Western Australia [2016] WASCA 140
The State of Western Australia v Richards [2020] WASCA 129
The State of Western Australia v Wilkins [2020] WASCA 149
Winmar v The State of Western Australia [2018] WASCA 155
Wragg v The State of Western Australia [2013] WASCA 198; (2013) 234 A Crim R 380
JUDGMENT OF THE COURT:
Summary
The appellant was convicted after trial of one count of aggravated home burglary, contrary to s 401(2)(a) of the Criminal Code (WA), and one count of assault occasioning bodily harm, contrary to s 317(1)(b) of the Code. On 9 April 2020, he was sentenced to 2 years 6 months' immediate imprisonment for the aggravated home burglary offence. He received no penalty for the assault offence, pursuant to s 11 of the Sentencing Act 1995 (WA).
The appellant now appeals against his sentence for the aggravated home burglary offence on two grounds. Ground 1 contends that his sentence infringes the parity principle, by reason of the disparity between his sentence and the sentence of 2 years' imprisonment, conditionally suspended for 18 months, imposed on his co-offender Lucia Frances Brown. Ground 2 contends that his sentence is manifestly excessive.
For the following reasons, neither of the grounds of appeal have any reasonable prospect of succeeding. Leave to appeal should be refused and the appeal should be dismissed.
Circumstances of offending
The appellant and Ms Brown were sentenced at the same time. The sentencing judge made the following findings as to the circumstances of the appellant's and Ms Brown's offending.[1]
[1] Sentencing ts 2 - 7.
At the time of the offence, the appellant and Ms Brown were in a relationship. The victim was Ms Brown's former partner.
Ms Brown's and the victim's relationship had broken down about 6 months before the offending. The victim claimed that Ms Brown owed him money for the repair of a carpet. There was an 'unhappy exchange' between the offenders and the victim at a local shopping centre in early March 2018. After this, the appellant went to the victim's home and an 'agreement of sorts' was reached. There was no contact between the offenders and the victim between 12 March 2018 and the date of the offences.
The offending occurred at 9 pm on Saturday 12 May 2018, when the two offenders went to the victim's home. The victim and his housemate were home at the time. The appellant was relatively well built, and the victim and his housemate were slightly built.
The offenders knocked on the victim's door and the victim, who had just woken up, came to the door. There was a conversation at the door before the victim tried to close it. The offenders then pushed open the front door and entered the home without the victim's consent. Once inside, the offenders claimed that the victim had been harassing Ms Brown's family, and told him to stop.
The victim took his phone from his pocket and said he was going to ring the police. The appellant snatched the phone from the victim. The victim immediately snatched it back. The appellant started punching the victim to his face, just inside his front door, and continued to punch him as the appellant pushed his way into the house. The appellant continued to assault the victim by punching him to the face, head, neck and back. One of the punches caused the victim to drop to his knees. The victim was on the ground clutching the phone to his chest while the appellant continued to punch him to the face. Ms Brown joined in the assault and punched and kicked the victim while he was on the ground. She said words to the effect, 'You know you've been stalking me. You can't leave me alone'. The victim's housemate was present and witnessed the incident.
At one point, Ms Brown picked up a baseball bat from inside the home, but did not use it. The appellant continued to assault the victim by punching him, saying words to the effect, 'I want you to leave us alone'. A short time later, the offenders left the unit taking the baseball bat with them.
The incident lasted about 3 - 5 minutes. The victim was punched up to 40 times. The appellant threw at least 90% of those punches and his punches were more forceful than any thrown by Ms Brown. It was the appellant's punches that directly caused the bodily harm suffered by the victim.
An ambulance was called, which took the victim to the Midland Hospital Emergency Department. He suffered a number of injuries, including a broken nose, two black eyes and a number of other bruises and abrasions.
The sentencing judge was satisfied that the offence was unprovoked and there was no reasonable explanation for it, other than possibly revenge or retribution for the victim's past behaviours and perhaps also his request for money from Ms Brown. However, her Honour was satisfied that the offending was unplanned.[2]
[2] Sentencing ts 6 - 7.
Victim impact
In addition to his multiple physical injuries, the victim has continued to suffer psychological consequences of the offending. His sleep is affected, and there has been an impact on his emotional wellbeing and lifestyle. He no longer feels safe in his home at night. He does not feel comfortable around people and has withdrawn socially, isolating himself from friends and family. The victim has been diagnosed with depression and anxiety, and suffered stress as a result of having to give evidence. The victim said that he had been left with a scar which is a constant reminder of the attack, and has also suffered some financial consequences.[3]
[3] Sentencing ts 7.
Appellant's personal circumstances
The sentencing judge made the following findings as to the appellant's personal circumstances.[4]
[4] Sentencing ts 10 - 13, 15 - 16.
The appellant was 28 years old at the time of offending and 30 years old at the date of sentence. He is the eldest of three children born to his parents, and had a positive childhood and upbringing. His parents' marriage had recently ended, and the appellant was living with his father and siblings at the date of sentence. He had a reasonable education to year 10, and a good employment history. He was helping his father financially.
The appellant has had three significant relationships. The first started when he was 23 years old and lasted 3 - 4 years. The second was with Ms Brown. The third had been ongoing since August 2019. The appellant's current partner was pregnant with his first child at the date of sentence.
The appellant was in good physical health and did not have any substance abuse issues at the date of sentencing. He suffered from depression and bipolar disorder, and had expressed suicidal ideation. The sentencing judge was not satisfied that there was anything in the appellant's mental illness that in any way mitigated his offending.
The appellant had a criminal record, with convictions of threats to injure and aggravated common assault. Both offences were committed in December 2008. They arose from the same incident, involving an assault against the appellant's previous partner.
The appellant was not remorseful, and continued to deny the offending at the date of sentence. His risk of reoffending was assessed as low.
Co-offender's personal circumstances
The sentencing judge made the following findings as to Ms Brown's personal circumstances.[5]
[5] Sentencing ts 2, 8 - 10.
Ms Brown was 23 years old at the time of offending and 25 years old at the time of sentence.
She was born in the United Kingdom and came to Australia with her mother and stepfather (with whom she has a good relationship) about 10 years ago. She has a younger brother, with whom she also has a good relationship.
Ms Brown was single at the time of sentencing. Her last relationship was with the appellant and lasted for about a year. Before that, Ms Brown lived with the victim in his house for some months before moving out in about October 2017.
Ms Brown had a good education, completing year 12 and doing well at school. She had partly completed a Bachelor in Health Science at Curtin University, but had deferred her studies for 12 months. She had a good employment history.
Ms Brown had no criminal record and was otherwise of good character. She has no issue with substance abuse. She had been diagnosed as suffering from anxiety, post-traumatic stress disorder and obsessive compulsive disorder. She had undertaken, and intended to continue, counselling sessions with a psychologist. Through counselling, and now that she was older, Ms Brown had a greater understanding of the impact of her offending on the victim and of her mental health issues. By the time of sentencing, she had achieved stable employment and independent accommodation for herself. Ms Brown had complied with all bail conditions in the nearly two years since being charged. She had been assessed as being at low risk of reoffending.
Ms Brown entered a late plea of guilty to the offences shortly prior to her listed trial. The plea, which was notified to the State 2 months before trial, was a late indication of remorse.
Sentencing judge's approach
The sentencing judge identified the statutory aggravating factors of the aggravated home burglary offence: the offenders were in company with each other, did bodily harm to the victim, knew or ought to have known that there was another person in the place and that the place was ordinarily used for human habitation. In Ms Brown's case, the assault offence was aggravated because she was in a family and domestic relationship with the victim.[6]
[6] Sentencing ts 2.
After making findings about the circumstances of the offending and the offenders' personal circumstances, the sentencing judge observed:[7]
Aggravated burglary is regarded as a serious offence and particularly where it involves as in this case a home invasion. The community is very concerned about this offence. The victim's home and privacy was invaded. It's very important that people feel confident that they're going to be safe in their homes.
An aggravated home burglary is seen as requiring a substantial penalty in order to recognise the factors of personal and general deterrence. Burglaries involving the use of violence are usually far more serious than those which involve simple stealing.
Where violence is used, the authorities have made it clear that a term of imprisonment is likely to be imposed, and that's the case even for first offenders who have pleaded guilty. The need for general deterrence in particular outweighs matters personal to the offender. The offence of assault occasioning bodily harm is also an offence which, if accompanied by serious injury to the victim, can be expected to attract a sentence of imprisonment.
The sentencing judge concluded that the offenders committed a serious home burglary and assault and that the circumstances of the offending were so serious that the only appropriate penalty was one of imprisonment.
[7] Sentencing ts 14.
The sentencing judge found that the offenders were equally culpable in willingly and together entering the victim's home without his consent and participating in the assault of him. Her Honour was not able to make any findings as to whose idea it was to go to the house or who was the ringleader. There were, however, some differences in the offenders' roles and what each did in the offending, as well as some differences in mitigation.[8]
[8] Sentencing ts 14 - 15.
In the appellant's case, the sentencing judge noted submissions made about hardship to his family that would result from his incarceration, but held that this was not an exceptional case where family hardship was a mitigating circumstance.[9] Her Honour also noted the appellant's mental illness and risk of self-harm, but recognised that this could be treated in prison.[10] Her Honour took account of the absence of prison visits over the next few months due to the COVID-19 pandemic precautions.[11] She also took account of the fact that the appellant made admissions which limited the issues at trial, but noted that he did not have the mitigation that a plea of guilty would have brought.[12]
[9] Sentencing ts 15 - 16.
[10] Sentencing ts 16.
[11] Sentencing ts 17.
[12] Sentencing ts 18.
In all the circumstances, the sentencing judge was positively satisfied that it was inappropriate to suspend the appellant's term of imprisonment.[13] Her Honour imposed a term of 2 years 6 months' immediate imprisonment for the aggravated home burglary offence. No penalty was imposed for the assault offence, because the assault was without any circumstance of aggravation and was the grounding offence for the aggravated home burglary count. The appellant was made eligible for parole.[14]
[13] Sentencing ts 17.
[14] Sentencing ts 18.
The sentencing judge found that Ms Brown's criminality was less than that of the appellant because:[15]
(1)Ms Brown's role in the offending was less than the appellant's, in that she delivered fewer blows to the victim and those blows she did deliver were not forceful and did not cause bodily harm.
(2)Ms Brown left the victim's home before the appellant, appearing shocked at what had occurred and was heard to say 'sorry'. She withdrew from the altercation.
(3)Ms Brown pleaded guilty while the appellant did not. Ms Brown received a 15% discount for her late plea of guilty under s 9AA of the Sentencing Act.
(4)Ms Brown had expressed some late remorse, which the appellant had not.
(5)Ms Brown had no criminal history, unlike the appellant.
(6)Ms Brown had the benefit of youth as a mitigating factor, while the appellant did not.
[15] Sentencing ts 19.
The sentencing judge considered that a sentence of 2 years' imprisonment was the appropriate term for Ms Brown's aggravated home burglary offence.[16] Her Honour considered that it was appropriate to conditionally suspend that sentence because of Ms Brown's:[17]
(1)lower culpability in the offending than the appellant's;
(2)pleas of guilty;
(3)expression of late remorse;
(4)youth, recognising that it is a very serious step to send a young person to prison;
(5)good employment;
(6)good antecedents; and
(7)low risk of reoffending.
[16] Sentencing ts 19.
[17] Sentencing ts 19 - 20.
The sentencing judge sentenced Ms Brown to 2 years' imprisonment conditionally suspended for 18 months for the aggravated home burglary offence. Her Honour indicated that she would impose a concurrent sentence of 6 months' conditionally suspended imprisonment for the aggravated assault occasioning bodily harm offence.[18]
[18] Sentencing ts 22.
Ground 1: parity
The operation of the parity principle was described by Buss P, with whom Mazza JA agreed, in Ngo v The Queen:[19]
[19] Ngo v The Queen [2017] WASCA 3 [36] - [40].
The object of the parity principle is to ensure appropriate consistency in the sentencing of co-offenders. The critical question is whether disparity or lack of disparity in the sentencing outcome is capable of giving rise to a legitimate or justifiable sense of grievance, or to give the appearance in the mind of an objective observer that justice has not been done. The applicable test is objective not subjective. The application and effect of relevant sentencing principles must be taken into account in determining whether there is a legitimate or justifiable sense of grievance.
An appellate court may interfere, on the ground of a marked and unjustifiable disparity or on the ground of an absence of a marked and justifiable disparity, with a sentencing judge's exercise of the sentencing discretion even though the sentence in question, viewed in isolation, would not necessarily be regarded as manifestly excessive or otherwise open to challenge. But parity of sentencing does not require a sentencing judge to be so lenient as to 'shock the public conscience' by imposing a sentence entirely disproportionate to the offence in question.
In Green v The Queen [2011] HCA 49; (2011) 244 CLR 462 French CJ, Crennan and Kiefel JJ said:
(a)the parity principle is based upon the norm of 'equality before the law' [28];
(b)equal justice according to law requires, so far as the law permits, that 'like cases be treated alike' [28]; and
(c)equal justice also requires, where the law permits, 'differential treatment of persons according to differences between them relevant to the scope, purpose and subject matter of the law' [28].
Their Honours also said that an appellate court will refuse to intervene, on the basis of the parity principle, where disparity is justified by differences between co-offenders; for example, differences in relation to age, background, criminal history, general character and the part each co‑offender has played in the relevant criminal conduct or enterprise [31].
It has often been said that it is desirable for co-offenders to be sentenced by the same sentencing judge. Alternatively, if that is not practicable, the second sentencing judge should be fully informed about the sentence imposed by the first sentencing judge.
(Some citations omitted)
In the present case, there is no merit in the appellant's argument that the sentence imposed on him infringed the parity principle. The matters referred to by the sentencing judge and summarised at [33] above justified the differences between the type and length of sentences imposed on the appellant and Ms Brown. The fact that Ms Brown's assault offence was subject to a circumstance of aggravation (domestic relationship) which did not apply to the appellant, and that Ms Brown had threatened violence with the baseball bat, does not demand a different conclusion. Having regard to the differences noted at [33] above, the differences between the sentences imposed on the appellant and Ms Brown are not capable of giving rise to an objectively justifiable sense of grievance on the appellant's part.
Although the issue is not raised by the ground of appeal, the appellant also contends that the sentencing judge erred in finding that Ms Brown did not cause bodily harm to the victim. The appellant contends that an admission as to causing bodily harm was inherent in Ms Brown's pleas of guilty.[20] Even assuming that the appellant has standing to challenge a factual finding as to Ms Brown's criminality, there is no merit in this submission. Ms Brown could be criminally responsible for bodily harm caused by blows delivered to the victim by the appellant under s 7(b), s 7(c) or s 8 of the Code. In the sentencing proceedings, it was common ground between the State and Ms Brown that she was to be sentenced in relation to the assault occasioning bodily harm on the basis that she was an aider.[21]
[20] Appellant's submissions, par [26].
[21] Primary ts 418 - 419.
Ground 2: manifest excess
General principles
The principles relevant to allegations of implied error are well established, and were summarised in Kabambi v The State of Western Australia.[22] It is unnecessary to repeat those principles here. The issue is ultimately whether error is to be inferred from a sentence which is unreasonable or plainly unjust.
[22] Kabambi v The State of Western Australia [2019] WASCA 44 [21].
As far as the appellant contends that the sentence imposed was manifestly excessive as to type, it is necessary to have regard to s 39 and related provisions of the Sentencing Act. Those provisions require a sentencing judge to be positively satisfied that it is not appropriate to suspend or conditionally suspend a term of imprisonment before the term can be ordered to be served immediately. The discretion to suspend or conditionally suspend a term of imprisonment is not confined by considerations relating to rehabilitation. In a particular case, the objective features of an offence may outweigh the personal considerations of rehabilitation.[23] On appeal, the question is whether it was reasonably open to the sentencing judge to conclude that suspended or conditionally suspended imprisonment were inappropriate sentencing options.
Maximum penalty
[23] Tapper v The State of Western Australia [2016] WASCA 140 [68] - [70] and the cases there cited.
The maximum penalty for an offence of aggravated home burglary is imprisonment for 20 years. There is no minimum penalty applicable to this case.
Customary sentencing standards
The customary sentencing standards for burglary offences are referred to in recent decisions of this court in Eldridge v The State of Western Australia,[24] and Brindley v The State of Western Australia.[25]In Brindley, the court observed:[26]
The circumstances of burglary offences can vary widely and attract a wide range of sentences. Home burglaries are viewed as being particularly serious offences, and are generally seen as requiring substantial penalties in order to recognise considerations of personal and general deterrence, and reflect the prevalence of the offence. Home invasions, which involve forcible entry into residential premises known or suspected to be occupied at the time, accompanied by threatened or actual violence, are generally significantly more serious than home burglaries which lack those characteristics. A home invasion which is committed with intent to intimidate the occupants is generally more serious than a burglary which involves simply an intention to steal.
[24] Eldridge v The State of Western Australia [2020] WASCA 66.
[25] Brindley v The State of Western Australia [2019] WASCA 153.
[26] Brindley [39].
The court in Brindley referred to a number of earlier decisions which reviewed the range of sentences commonly imposed for burglary offences, which the sentence in the present case falls under or well within.[27] In Eldridge, the court observed:[28]
The cases illustrate that there is no tariff for home burglary, whether aggravated or non-aggravated. This is hardly surprising given the vast variation of circumstances in which offences of home burglary are committed and the personal circumstances of those who commit them.
What is clear is that home burglaries are serious offences which are prevalent and which are ordinarily met with terms of imprisonment. There has long been a recognition that sentences for home burglary need to be firmed up. Whether this has in fact happened is debatable.
[27] Brindley [43] - [46], citing Wragg v The State of Western Australia [2013] WASCA 198; (2013) 234 A Crim R 380, Herbert v The Queen [2003] WASCA 61; (2003) 27 WAR 330 and Winmar v The State of Western Australia [2018] WASCA 155.
[28] Eldridge [63] - [64].
The need to firm up sentences for aggravated home burglary offences has been emphasised by recent decisions of this court in The State of Western Australia v Richards[29] and The State of Western Australia v Wilkins.[30]
[29] The State of Western Australia v Richards [2020] WASCA 129 [28] - [29].
[30] The State of Western Australia v Wilkins [2020] WASCA 149 [67], [76].
It cannot reasonably be argued that the length of the term of 2 years 6 months' imprisonment imposed in the present case exceeded the length of terms of immediate imprisonment customarily imposed for reasonably comparable offending.
Seriousness of the offending
The appellant's offending was a serious example of an aggravated home burglary. He forced entry into the victim's home, knowing it was occupied, for the purpose of intimidating the victim, and inflicted a sustained attack on the victim which resulted in physical and psychological harm. The significant psychological effects of the offending are ongoing. The criminality involved in the offending demanded a substantial term of immediate imprisonment.
Personal circumstances
The appellant's personal circumstances are noted above. There were some mitigating features. Importantly, however, the appellant did not have the mitigating benefit of a guilty plea. Further, the significance of personal and general deterrence as predominant sentencing considerations limited the weight that could be given to the mitigating circumstances.
Disposition
Having regard to all of the above matters, it is not reasonably arguable that the sentence of 2 years 6 months' immediate imprisonment imposed on the appellant for the aggravated home burglary offence was unreasonable or plainly unjust. To the contrary, in our view, the length of the term of imprisonment imposed on the appellant was lenient. It is not reasonably arguable that the sentencing judge erred in being positively satisfied that it was inappropriate to suspend or conditionally suspend the term of imprisonment.
Orders
For the above reasons, neither of the appellant's grounds of appeal have any reasonable prospect of succeeding. Leave to appeal should be refused and the appeal should be dismissed.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
ZMM
Associate to the Honourable Justice Mitchell16 SEPTEMBER 2020
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