Papertalk v The State of Western Australia
[2011] WASCA 229
•24 OCTOBER 2011
PAPERTALK -v- THE STATE OF WESTERN AUSTRALIA [2011] WASCA 229
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2011] WASCA 229 | |
| THE COURT OF APPEAL (WA) | |||
| Case No: | CACR:52/2011 | 20 SEPTEMBER 2011 | |
| Coram: | McLURE P MAZZA J | 24/10/11 | |
| 7 | Judgment Part: | 1 of 1 | |
| Result: | Leave to appeal on all grounds refused Appeal dismissed | ||
| B | |||
| PDF Version |
| Parties: | EDWARD WILLIAM PAPERTALK THE STATE OF WESTERN AUSTRALIA |
Catchwords: | Criminal law Application for leave to appeal against sentence Aggravated burglary Whether sentence manifestly excessive |
Legislation: | Criminal Appeals Act 2004 (WA), s 27(2) Criminal Code (WA), s 401(2), s 401(4) Sentencing Act 1995 (WA), s 7(2), s 7(2)(b), s 7(2)(c) |
Case References: | Ashworth v The State of Western Australia [2006] WASCA 36 Barnes v The State of Western Australia [2004] WASCA 258 Benter v The State of Western Australia [2005] WASCA 245 Chan v The Queen (1989) 38 A Crim R 337 Keating v The State of Western Australia [2007] WASCA 98 Nguyen v The State of Western Australia [2007] WASCA 114 Trompler v The State of Western Australia [2008] WASCA 265 Veen v The Queen (No 2) (1998) 164 CLR 465 Wilson v The State of Western Australia [2010] WASCA 82 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : PAPERTALK -v- THE STATE OF WESTERN AUSTRALIA [2011] WASCA 229 CORAM : McLURE P
- MAZZA J
- Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram : WISBEY DCJ
File No : GER 9 of 2011
Catchwords:
Criminal law - Application for leave to appeal against sentence - Aggravated burglary - Whether sentence manifestly excessive
(Page 2)
Legislation:
Criminal Appeals Act 2004 (WA), s 27(2)
Criminal Code (WA), s 401(2), s 401(4)
Sentencing Act 1995 (WA), s 7(2), s 7(2)(b), s 7(2)(c)
Result:
Leave to appeal on all grounds refused
Appeal dismissed
Category: B
Representation:
Counsel:
Appellant : Mr P G Giudice
Respondent : No appearance
Solicitors:
Appellant : George Giudice Law Chambers
Respondent : Director of Public Prosecutions (WA)
Case(s) referred to in judgment(s):
Ashworth v The State of Western Australia [2006] WASCA 36
Barnes v The State of Western Australia [2004] WASCA 258
Benter v The State of Western Australia [2005] WASCA 245
Chan v The Queen (1989) 38 A Crim R 337
Keating v The State of Western Australia [2007] WASCA 98
Nguyen v The State of Western Australia [2007] WASCA 114
Trompler v The State of Western Australia [2008] WASCA 265
Veen v The Queen (No 2) (1998) 164 CLR 465
Wilson v The State of Western Australia [2010] WASCA 82
(Page 3)
1 McLURE P: I agree with Mazza J.
2 MAZZA J: This is an application for leave to appeal against sentence.
3 The appellant pleaded guilty on the fast-track system to one count of aggravated burglary, contrary to s 401(2) of the Criminal Code (WA). On 14 March 2011, Wisbey DCJ sentenced him to 2 years' immediate imprisonment with eligibility for parole, to commence on 16 July 2010.
4 The facts of the appellant's offending are as follows. At about 1.30 pm on 13 July 2010, the appellant went to a house in suburban Geraldton. He climbed the back fence, knocked on the back door and entered the house through the door which was unlocked, with the intention of stealing property. The complainant was at home. She disturbed the appellant, who then left the premises empty handed. After he was arrested on 16 July 2010, he admitted the offence.
5 The proposed grounds of appeal are:
His Honour the sentencing Judge:
1. Imposed a sentence that was manifestly excessive;
2. Excessive weight was placed upon [the appellant's] criminal history;
3. Insufficient weight was placed on [the appellant's] recent criminal history, being a period of non-offending; and
4. Erred in law in determining that the Appellant's criminal record was an aggravating factor.
6 Leave to appeal can only be granted in respect of a ground of appeal if it has a reasonable prospect of success: s 27(2) of the Criminal Appeals Act 2004 (WA).
7 The general sentencing principles which must be applied to this appeal do not need repetition here. They are set out in Wilson v The State of Western Australia [2010] WASCA 82 [2].
The appellant's antecedents
8 The appellant was, at the time he committed the offence, 28 years of age. The court-ordered pre-sentence and psychological reports revealed that he had a disadvantaged background and was, on occasions in his childhood, subjected to physical abuse by his father.
(Page 4)
9 The appellant has entrenched problems with alcohol and illicit drug abuse, the seriousness of which he fails to acknowledge. He also has a lengthy criminal history.
10 Between 2000 and 2006, he was sentenced in the Magistrates Court and the District Court on six occasions for a total of 10 burglaries on houses and one burglary on a place. He received various penalties including community based orders, a suspended term of imprisonment and, on 7 September 2006, 18 months' immediate imprisonment for one count of aggravated burglary on a house. When he came to be sentenced by Wisbey DCJ, he was a repeat offender within the meaning of s 401(4) of the Criminal Code. Accordingly, his Honour was obliged to sentence the appellant to an immediate term of imprisonment of not less than 12 months.
11 Since completing the parole component of the sentence imposed on 7 September 2006, the appellant had been convicted on 25 September 2008 of possession of a house-breaking implement and two counts of trespass, on 22 January 2009 with one count of trespass, on 20 August 2009 with one count of driving without a licence, on 29 October 2009 with two counts of driving whilst disqualified, and on 12 August 2010 with one count of stealing a motor vehicle, one count of stealing and two counts of driving whilst disqualified.
12 The authors of the pre-sentence and psychological reports noted a lack of insight by the appellant into his offending behaviour and a lack of victim empathy.
His Honour's sentencing remarks
13 His Honour expressly took into account, as mitigating factors, the appellant's fast-track plea of guilty and his disadvantaged background.
14 He referred to the appellant's prior offending in this way:
I've been provided with a pre-sentence report which sets out your background and [I] also have been provided with your record of prior offending. That record, as has been pointed out by the prosecutor, contains a number of convictions for burglary in respect of which you have been dealt with in different ways, but regrettably not in a way which has taught you that you cannot continue to behave in this manner: sentencing ts 3.
15 Later in his reasons, in the context of whether the appellant may be released on parole, his Honour said:
(Page 5)
- Whether in fact you get parole of course will depend on those who consider those matters and no doubt will be influenced by the fact that you have offended on previous occasions without learning your lesson: sentencing ts 3 - 4.
Analysis of the grounds of appeal
16 Grounds 2 and 3 allege weighting errors. Neither of these grounds, as expressed, is a valid ground of appeal: Trompler v The State of Western Australia [2008] WASCA 265 [32].
17 It is convenient to deal with ground 4.
18 Mr Giudice submitted that his Honour's treatment of the appellant's prior offending was contrary to s 7(2)(b) and s 7(2)(c) of the Sentencing Act 1995 (WA) and the principles set out by the High Court in Veen v The Queen (No 2) (1998) 164 CLR 465, 477 - 478.
19 The relationship between s 7(2) of the Sentencing Act and what was said in Veen v The Queen (No 2) was stated in Benter v The State of Western Australia [2005] WASCA 245 [30] (McLure JA). An offender's criminal record, or the failure of a previous sentence to achieve its purpose, cannot aggravate the offence for which an offender is being sentenced. The sentence must be proportionate to the gravity of the offence and all its surrounding circumstances. Within the limits of a proportionate sentence, an offender's criminal record is relevant when considering matters of punishment, deterrence and the protection of society.
20 See also Keating v The State of Western Australia [2007] WASCA 98 and Barnes v The State of Western Australia [2004] WASCA 258.
21 There is nothing in either of the comments made by his Honour which indicates that he sentenced the appellant contrary to s 7(2) or Veen v The Queen (No 2).
22 In context, his Honour's use of the phrases '[Y]ou cannot continue to behave in this manner' and '[Y]ou have offended on previous occasions without learning your lesson' did no more than emphasise the need for personal deterrence.
23 Ground 4 has no reasonable prospect of success.
24 I now turn to ground 1.
(Page 6)
25 Mr Giudice acknowledged that, as the appellant was a repeat offender, the appellant had to be sentenced to a mandatory minimum term of imprisonment of not less than 12 months. He submitted that the circumstances of the offending warranted a term of imprisonment no greater than the mandatory minimum. He emphasised in his submissions that the appellant had not been convicted of burglary since 7 September 2006, and apart from the convictions recorded on 26 September 2008 and 12 August 2008, the appellant had not committed any dishonesty or property offences since 7 September 2006.
26 To determine whether a sentence is manifestly excessive, it is necessary to consider it in the context of the maximum sentence prescribed by law for the crime, the standards of sentencing customarily observed with respect to the crime, the place which the criminal conduct occupies in the scale of seriousness of crimes of that type, and the personal circumstances of the offender: Chan v The Queen (1989) 38 A Crim R 337, 342.
27 The statutory maximum penalty for aggravated burglary is 20 years' imprisonment: s 401(2) of the Criminal Code.
28 Mr Giudice did not refer to the standards of sentencing customarily imposed for offences of aggravated burglary. The range of sentences imposed for burglary and aggravated burglary offences have firmed up because of the prevalence of such offending. Ordinarily, the offence attracts a term of immediate imprisonment, although there are examples where a non-custodial sentence has been imposed in appropriate circumstances. Of course, that option was not open in this case. The standards of sentencing customarily observed for aggravated burglary offences were discussed in Ashworth v The State of Western Australia [2006] WASCA 36 [85] - [90] and in Nguyen v The State of Western Australia [2007] WASCA 114 [12] - [14]. Having regard to those cases, the sentence of 2 years' imprisonment imposed on the appellant was not outside those standards.
29 The appellant entered the complainant's house at a time when it was likely that somebody would be at home. He did so for the purpose of stealing property. The prospect of instilling fear in whoever might be at home was very real. Householders are entitled to feel confident that they and their property will be safe at home. This type of offending undermines this confidence. While there was no physical confrontation between the complainant and the appellant, the potential for such a confrontation, and the possibility of unintended injury and damage to
(Page 7)
- property as a result, is ever present. In this case, factors such as general and personal deterrence, and public protection were important.
30 I have already mentioned the appellant's personal circumstances. They were of limited mitigation.
31 The points made by Mr Giudice concerning the appellant's offending since he was last convicted of burglary have no merit. The appellant's offending since he completed his latest period of parole has been regular and serious. It is true that he had not, in that time, been convicted of burglary, but he had been convicted of possession of a house-breaking implement and trespass. This, and his other recent offending, when viewed in the context of his overall offending over the last 10 years or so, shows that the appellant has a persistent disregard for the law. Contrary to Mr Giudice's submission, the appellant's conduct since his last burglary offence is no basis for leniency.
32 The sentence of 2 years' imprisonment was, in all of the circumstances of the case, a sound exercise of his Honour's discretion. It has not been demonstrated that the sentence was manifestly excessive.
33 Ground 1 has no reasonable prospect of success.
Conclusion
34 None of the proposed grounds of appeal have any reasonable prospect of success. Accordingly, the appeal must be dismissed.
Orders
1. Leave to appeal on all grounds is refused.
2. The appeal is dismissed.
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