Peterson v The State of Western Australia
[2019] WASCA 207
•27 DECEMBER 2019
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: PETERSON -v- THE STATE OF WESTERN AUSTRALIA [2019] WASCA 207
CORAM: QUINLAN CJ
BUSS P
MAZZA JA
HEARD: 20 JUNE 2019
DELIVERED : 27 DECEMBER 2019
FILE NO/S: CACR 133 of 2018
BETWEEN: BRYCE WILLIAM PETERSON
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram: QUAIL DCJ
File Number : IND 1180 of 2017
Catchwords:
Criminal law - Appeal against sentence - Aggravated home burglary - Unlawful and indecent assault - Sentencing considerations - Mitigatory effect of appellant's significantly deprived background
Legislation:
Criminal Appeals Act 2004 (WA), s31(4)(a)
Criminal Code (WA), s 323, s 378, s 401(2)(a)
Sentencing Act 1995 (WA), s 6, s 7, s 8, s 9AA
Result:
Application for an extension of time to appeal granted
Appeal dismissed
Category: D
Representation:
Counsel:
| Appellant | : | A D Sullivan |
| Respondent | : | J A Scholz |
Solicitors:
| Appellant | : | Legal Aid (WA) |
| Respondent | : | Director of Public Prosecutions (WA) |
Case(s) referred to in decision(s):
Bugmy v The Queen [2013] HCA 37; (2013) 249 CLR 571
Director of Public Prosecutions (Vic) v Dalgliesh [2017] HCA 41; (2017) 262 CLR 428
Donaldson v The State of Western Australia [2018] WASCA 143
Kentwell v The Queen [2014] HCA 37; (2014) 252 CLR 601
Marrah v The Queen [2014] VSCA 119
Munda v The State of Western Australia [2013] HCA 38; (2013) 249 CLR 600
Pool v The State of Western Australia [2013] WASCA 274
Prempeh v The State of Western Australia [2013] WASCA 150
R v Engert (1995) 84 A Crim R 67
The State of Western Australia v Upkett [2013] WASCA 263
Veen v The Queen [No 2] [1988] HCA 14; (1988) 164 CLR 465
QUINLAN CJ:
I have had the benefit of reading, in draft, the reasons of Buss P and Mazza JA.
The facts and background circumstances are fully set out by their Honours and I need not repeat them.
I agree with Buss P and Mazza JA that the appeal should be dismissed. In particular, I agree with their Honours, for the reasons that they give, that, having regard to all relevant circumstances and sentencing considerations, the sentence imposed by the learned sentencing judge was the correct one and that no different sentence should have been imposed upon the appellant.
I also agree that, insofar as it was implicit in the learned sentencing judge's remarks that the appellant ought to have developed personal responsibility such that the negative effects of his deprived background should have diminished, such a notion is inconsistent with the central holding of Bugmy v The Queen,[1] namely that the effects of 'profound childhood deprivation do not diminish with the passage of time and repeated offending'.
[1] Bugmy v The Queen [2013] HCA 37; (2013) 249 CLR 571 (Bugmy) [44] (French CJ, Hayne, Crennan, Kiefel, Bell & Keane JJ).
Finally, I agree that the impugned passage of the learned sentencing judge's sentencing remarks is capable of bearing that interpretation, particularly the words '[Y]ou are now 38 years old. You are responsible for your own actions and those experiences that you had as a child do not provide you with much by way of mitigation now'.[2]
[2] Ts 53.
Even still, I am not so sure that the learned sentencing judge did fail to give 'full weight' to the appellant's deprived background in the manner required by Bugmy.
In that regard, I would make the following observations.
First, in my view, there is a proper distinction to be drawn between whether the effects of profound childhood deprivation diminish with the passage of time and repeat offending and whether the mitigatory impact of those effects might change, over time, from one sentencing decision to another.
In this context, as the plurality said in Bugmy, following its reference to the need to give 'full weight' to an offender's deprived background in every sentencing decision:[3]
However, this is not to suggest, as the appellant's submissions were apt to do, that an offender's deprived background has the same (mitigatory) relevance for all of the purposes of punishment. Giving weight to the conflicting purposes of punishment is what makes the exercise of the discretion so difficult. An offender's childhood exposure to extreme violence and alcohol abuse may explain the offender's recourse to violence when frustrated such that the offender's moral culpability for the inability to control that impulse may be substantially reduced. However, the inability to control the violent response to frustration may increase the importance of protecting the community from the offender.
[3] Bugmy [44] (French CJ, Hayne, Crennan, Kiefel, Bell & Keane JJ).
Given that each sentencing exercise involves the task of arriving at an 'instinctive synthesis' of all relevant factors,[4] the sentencing of any offender for a subsequent offence will involve a fresh occasion for carrying out that task, in which the relative weight to be accorded to the variety of sentencing considerations may be different, having regard to the particular circumstances existing at the time.
[4] See Director of Public Prosecutions (Vic) v Dalgliesh [2017] HCA 41; (2017) 262 CLR 428 [4]-[7] (Kiefel CJ, Bell & Keane JJ).
For this reason, in my view, there is no contradiction in saying that, while in every case, an offender's deprived background must be given 'full weight' (in the sense that the effects of that background have not diminished), it will not necessarily have the 'same weight' from one sentencing exercise to another (in the sense that the effects of the deprived background will have the same effect on the overall sentence). In this regard, the weight that is to be given to each of the various, and potentially conflicting, sentencing considerations will always be relative to the weight to be given to the other sentencing considerations. Thus, for example, the 'full weight' of an offender's deprived background, as a mitigatory factor, might be 'outweighed' by the need for community protection in one case, but not in another.
The second observation I would make is that the sentencing remarks of a sentencing judge will, of course, always be directed towards the offender himself or herself. In that context, it may be quite proper to impress upon the offender, even one with a deprived background, the need to accept personal responsibility for his or her conduct, as best as his or her circumstances and background will allow.
I accept that this is a difficult matter. Nevertheless, it would be most regrettable if the recognition, in Bugmy, that the effects of profound deprivation do not diminish over time, was thought to require a form of fatalism in which efforts toward reduction in offending behaviour in such cases are to be regarded as futile. Nor do I understand the Court in Bugmy to have required, or suggested, such a fatalistic view.
Finally, while I accept that the learned sentencing judge's remarks were not happily expressed (and so capable of bearing the construction that the effects of the appellant's deprived childhood had diminished over time), the fact that the instinctive synthesis arrived at by his Honour produced a sentence that this Court concludes should not be disturbed on appeal suggests (although I accept does not compel the conclusion) that, ultimately, the various sentencing consideration were given appropriate weight in the sentencing exercise.
BUSS P & MAZZA JA:
This is an appeal against sentence. The appellant was charged on indictment in the District Court with three offences, all of which were said to have occurred on 17 December 2016 at Doubleview. Count 1 alleged that the appellant, while in the place of T, without her consent, committed the offence of indecent assault and that immediately before the commission of the offence, the appellant knew or ought to have known that there was another person in the place and that the place was ordinarily used for human habitation, contrary to s 401(2)(a) of the Criminal Code (the Code). Count 2 alleged that the appellant unlawfully and indecently assaulted T by touching her on the vagina contrary to s 323 of the Code. Count 3 alleged that the appellant stole an item the property of TH (T's housemate), contrary to s 378 of the Code.
On 1 February 2018 the appellant was convicted of counts 1 and 2 on his pleas of guilty. Count 3 was discontinued.[5]
[5] ts 35.
On 22 June 2018 the appellant was sentenced on count 1 to 5 years 4 months' imprisonment. The appellant was made eligible for parole and the sentence was backdated to commence on 29 December 2016.
In relation to count 2 no penalty was imposed pursuant to s 11 of the Sentencing Act 1995 (WA).[6]
[6] ts 58.
The appeal against sentence was filed eight days out of time. In light of the short delay, we would grant an extension of time to appeal.
The appellant relies on one ground of appeal, namely that the learned sentencing judge erred in reducing the mitigation available to the appellant as a result of his deprived childhood due to his age at the time of sentencing.[7] Leave to appeal has been granted in respect of this ground.[8]
[7] WAB 6.
[8] Order 14 November 2018, Buss P & Mazza JA, WAB 4.
The facts
The learned sentencing judge summarised the facts of the offending in his sentencing remarks. The appellant does not challenge the correctness of that summary. The facts are as follows.
On 17 December 2016, the appellant was living at an address in Doubleview. The victim, T, lived with two housemates in a nearby villa which was part of a three villa complex. After midnight, one of T's housemates woke her after noticing a mountain bike and a Domino's Pizza bag lying in the front yard of their villa. T stood by or just outside the front door of the villa and the appellant appeared from near the garage. He admitted to T's housemate that the bike and bag were his. Ultimately he rode away. T went back to bed and fell asleep. Her housemate left the villa to go to work.[9]
[9] ts 48 - 49.
A short time later, T awoke to find the appellant crouched next to her bed. He had his right hand under the covers and between her legs. The palm of his hand was on her thigh and one of his fingers was on her vagina outside her underwear. T recognised the appellant as the man she had seen earlier outside her villa. The appellant told her to be quiet. T told him to get out, which he did. T followed him to the back door and locked it after he left. She then called the police.[10]
[10] ts 49.
The police obtained CCTV footage which showed the appellant at a nearby Domino's Pizza store. Following a media campaign the appellant was identified. On 29 December 2016, he was arrested. The police searched his house and found clothing which matched that shown in the CCTV footage as well as the mountain bike. The appellant was interviewed by police. He denied going to T's house and committing any sexual assault upon her. In the interview, he asserted that he was definitely not the offender and, in effect, that he was not the kind of person to commit such offences.[11]
[11] ts 49.
The appellant initially pleaded not guilty to the three offences alleged in the indictment. His trial was set down to commence on 5 February 2018. However, as we have already said, on 1 February 2018 he pleaded guilty to counts 1 and 2 on the indictment and the State discontinued count 3.[12]
[12] ts 49.
Personal circumstances
The learned sentencing judge had before him a pre-sentence report dated 19 June 2018 and a report written by forensic psychologist Ms Claire Lynn dated 6 June 2018.[13]
[13] ts 53.
Both reports reveal, and his Honour found, that the appellant had a very difficult childhood.[14] His mother died when he was 5 years of age. His upbringing from that point was marred by domestic violence and an absence of emotional and financial support. He was physically and emotionally abused and neglected. He had to intervene in a sibling's attempted suicide. The appellant lost contact with his extended family. His education was limited and he tended to associate with other disadvantaged peers. The appellant had his first sexual experience around the age of 9.[15]
[14] ts 53.
[15] Psychological report dated 6 June 2018, pages 2 - 3.
Ms Lynn made these observations about the appellant's history and its impact upon him:
Historically [the appellant] suggested some early exposure to domestic violence and he clearly recalled being a direct victim of his father's violence. He also struggled in association with his father's poor financial management and inability to provide emotional support and attention. His response to distressing and potentially traumatic events was likely heightened under such conditions. Similarly to his primary role model, [the appellant] has struggled with poor self and financial management over time. Socially he was unable to connect with others and he failed to thrive within the educational system or subsequently within the vocational domain. A sense of alienation and anticipation of rejections has presented over time which is associated with a seemingly transient lifestyle and work history, chronic substance abuse and dysfunctional relationship pattern while struggling to manage emotionally. These issues are relevant to his recurrent sexual offending.
As the learned sentencing judge put it, the appellant 'lived in a great deal of poverty, having insufficient love and had real feelings of abandonment'.[16] His Honour found that the appellant's childhood experiences 'shaped the adult that [he] became'.[17]
[16] ts 53.
[17] ts 53.
The appellant left school in year 9. Since then, he has received income from intermittent periods of work as a concreter or labourer, as well as Centrelink benefits.[18]
[18] ts 53.
The appellant has had long‑term issues with cannabis, alcohol and, increasingly since his arrival in Western Australia in 2016, methylamphetamine.[19]
[19] ts 53.
A personality and diagnostic assessment carried out by Ms Lynn revealed that the appellant 'struggles to adjust to historic memories of experiences that instilled fear and continue to impact him and aggravate anxiety levels'.[20]
[20] Psychological report, page 5.
The appellant has a prior criminal history in New South Wales and Queensland. As an adult, in New South Wales, the appellant has convictions for common assault in 1998, 1999 and 2007, assault occasioning bodily harm in 2006, and receiving stolen property in 1999.[21] Most significantly, the appellant was convicted in Queensland on 27 October 2015 of entering a dwelling at night with intent to commit an offence.[22] The burglary involved the unlawful and indecent assault of a 26‑year‑old woman while she was sleeping.[23] He was sentenced to 12 months' imprisonment suspended after serving a period of 3 months. The operational period of the suspended sentence was 18 months.[24] The appellant was subject to the suspended imprisonment order at the time of his offending.[25]
[21] ts 51; WAB 59 - 68.
[22] WAB 55.
[23] The Queen v Bryce William Peterson, sentencing transcript 27 October 2015, page 2.
[24] The Queen v Bryce William Peterson, sentencing transcript 27 October 2015, page 4.
[25] ts 52.
At the time of the commission of the offences, the appellant was also the subject of outstanding arrest warrants in New South Wales and Queensland.[26] It was not suggested, either in the primary court or in this court, that the appellant was unaware of these warrants at the time of the commission of the offences.[27]
[26] ts 52 - 53.
[27] ts 41 - 42.
Ms Lynn said that the appellant presented with 'significant dynamic factors which are typically associated with increased risk of sexual re‑offence'. She also said that the appellant's 'cognitive distortions and associated negative emotional processes and externalising appear to be significant and relevant to his offending cycle'. Ms Lynn was of the opinion that the appellant's 'need for specialised sex offender treatment appears to be [a] high priority'.[28]
[28] Psychological report, page 9.
The pre-sentence report and other aspects of the psychological report
The author of the pre-sentence report noted that, while the appellant pleaded guilty, he disputed the facts and, in particular, denied touching T.[29] The author observed that the appellant appeared to pay little regard to the impact his behaviour may have had upon his victim and that he was, in effect, not remorseful for his behaviour.[30]
[29] Pre-sentence report, page 2.
[30] Pre‑sentence report, page 2.
Similarly, Ms Lynn noted that the appellant denied touching T sexually before leaving her villa.[31] Ms Lynn also noted that the appellant denied touching the victim of the offence he committed in Queensland and observed that a 'failure to take responsibility was prominent in regards to his current and prior conviction and in regards to the problems he has reportedly encountered more generally in life and his relationships'.[32]
[31] Psychological report, page 7.
[32] Psychological report, page 8.
The victim impact statement
The adverse consequences of the appellant's offending upon T are described in her victim impact statement. T described how, since the commission of the offences, she has encountered difficulties sleeping, and has lost the sense of security she had of being in her own home. In addition, she feels anxious in certain social settings, and has struggled to build relationships.[33]
[33] Victim impact statement, pages 1 - 2.
The sentencing remarks
Other than the part of his Honour's sentencing remarks in which it is alleged he made the error the subject of the ground of appeal, little needs to be said about the sentencing remarks.
It is clear that his Honour characterised the offence as a serious example of its type, having regard to the fact that it occurred at night and involved what his Honour described as a 'gross violation of [T] and the security that she was entitled to feel in her home'.[34] His Honour noted the adverse consequences that the offending has had on T.[35]
[34] ts 52.
[35] ts 52.
The learned sentencing judge correctly said that while the appellant's prior criminal history was not an aggravating factor, the circumstances of the offence, and the fact that the appellant had 'done it before', led him to conclude that the appellant posed a 'significant risk to public safety'.[36]
[36] ts 51.
His Honour referred to a letter the appellant had written to him, in effect seeking leniency. His Honour said the letter showed that the appellant was 'completely focused on [his] own experiences of perceived injustices at the hands of others', and the letter did the appellant 'no credit at all'.[37]
[37] ts 54.
The learned sentencing judge gave a reduction of 10% pursuant to s 9AA of the Sentencing Act for the appellant's late pleas of guilty.[38] Otherwise, he held that there was 'very little other mitigation available to [the appellant], apart from that small amount of residual mitigation, which still arises from [his personal] circumstances'.[39] His Honour gave no credit for remorse, insight or rehabilitation.[40]
[38] ts 57.
[39] ts 57.
[40] ts 57.
The ground of appeal
There was no dispute before the learned sentencing judge, or before this court, that the appellant had, as his Honour put it, a 'very difficult childhood'. Nor was it disputed that the appellant's 'very difficult childhood' 'shaped' the adult that he became.
His Honour elaborated on this issue, as follows:[41]
I accept that you had a very difficult childhood and indeed, I've got no doubt that your experiences in childhood shaped the adult that you became. Your mother died when you were very young and your upbringing by your father was marred by exposure to domestic violence and alcohol abuse. And it's clear that you lived in a great deal of poverty, had insufficient love and had real feelings of abandonment.
You were schooled to year 9. You had difficulty in your schooling in terms of your behaviour which was understandable given the life experiences that you had to that date.
Since finishing school, you've had intermittent employment, mostly as a concreter and a labourer. And in relation to this offending, you'd been unemployed although you've had some work, I understand, in steel fixing and perhaps other labouring but you've been effectively unemployed for about two years prior to this.
Again not surprisingly given your background, you've had long‑term issues with alcohol, cannabis and methylamphetamine abuse.
The fact of the matter though is, … whilst your childhood might have shaped who you are and perhaps things might have been different if there had been intervention at an earlier point, you are now 38 years old. You are responsible for your own actions and those experiences that you had as a child do not provide you with much by way of mitigation now. (emphasis added)
[41] ts 53.
It is the italicised portion of this part of the sentencing remarks in which it is said that his Honour erred as alleged in the ground of appeal.
The appellant also points to his Honour's statement, later in his sentencing remarks, that the appellant had only a 'small amount of residual mitigation, which still arises from [his personal] circumstances'.[42]
[42] ts 57.
The appellant contends that his Honour's approach to the appellant's very difficult childhood is contrary to the principles enunciated by the High Court in Bugmy v The Queen,[43] where French CJ, Hayne, Crennan, Kiefel, Bell and Keane JJ said, in the context of an Aboriginal offender from a deprived background:[44]
It will be recalled that in the Court of Criminal Appeal the prosecution submitted that the evidence of the appellant's deprived background lost much of its force when viewed against the background of his previous offences. On the hearing of the appeal in this Court the Director did not maintain that submission. The Director acknowledges that the effects of profound deprivation do not diminish over time and he submits that they are to be given full weight in the determination of the appropriate sentence in every case.
The Director's submission should be accepted. The experience of growing up in an environment surrounded by alcohol abuse and violence may leave its mark on a person throughout life. Among other things, a background of that kind may compromise the person's capacity to mature and to learn from experience. It is a feature of the person's make-up and remains relevant to the determination of the appropriate sentence, notwithstanding that the person has a long history of offending.
Because the effects of profound childhood deprivation do not diminish with the passage of time and repeated offending, it is right to speak of giving 'full weight' to an offender's deprived background in every sentencing decision. However, this is not to suggest, as the appellant's submissions were apt to do, that an offender's deprived background has the same (mitigatory) relevance for all of the purposes of punishment. Giving weight to the conflicting purposes of punishment is what makes the exercise of the discretion so difficult. An offender's childhood exposure to extreme violence and alcohol abuse may explain the offender's recourse to violence when frustrated such that the offender's moral culpability for the inability to control that impulse may be substantially reduced. However, the inability to control the violent response to frustration may increase the importance of protecting the community from the offender. (footnotes omitted)
[43] Bugmy v The Queen [2013] HCA 37; (2013) 249 CLR 571.
[44] Bugmy [42] - [44].
The appellant submits, in effect, that the learned sentencing judge wrongly considered that the effects of the appellant's deprived background diminished with age, and thus he failed to give 'full weight' to that background in sentencing the appellant.
The respondent submitted that the statement made by their Honours in Bugmy applies only to cases where the offender had a 'profoundly deprived childhood', as a consequence of which the offender suffers from alcohol addiction and mental illness.[45] The respondent argued that the appellant is not such an offender, as there was no evidence that, as a result of his childhood experiences, he suffers from a mental illness or addiction which is, in any way, causative of his offending.[46] Further, the respondent submitted that the statement made by the High Court in Bugmy does not mean that the mitigatory effect of a deprived background will be the same in every case, or will remain constant over time.[47] Finally, the respondent submitted that an offender's deprived childhood must be considered along with other relevant sentencing factors, which point away from leniency. It may be that in a particular case, greater weight will have to be given to factors such as personal deterrence and the protection of society.[48] In this regard, the respondent asserted that, in Bugmy, their Honours cited, with apparent approval,[49] Gleeson CJ's statement in R v Engert:[50]
A moment's consideration will show that the interplay of the considerations relevant to sentencing may be complex and on occasion even intricate. In a given case, facts which point in one direction in relation to one of the considerations to be taken into account may point in a different direction in relation to some other consideration. For example, in the case of a particular offender, an aspect of the case which might mean that deterrence of others is of lesser importance, might, at the same time, mean that the protection of society is of greater importance. That was the particular problem being examined by the court in the case of Veen (No 2). Again, in a particular case, a feature which lessens what might otherwise be the importance of general deterrence, might, at the same time increase the importance of deterrence of the offender.
[45] WAB 20 - 21.
[46] Appeal ts 46; WAB 21.
[47] Appeal ts 39 - 41.
[48] Appeal ts 39 - 40.
[49] Bugmy [45].
[50] R v Engert (1995) 84 A Crim R 67, 68.
Disposition
In the present case, the sentencing judge was obliged to sentence the appellant in accordance with the sentencing principles set out in pt 2 div 1 of the Sentencing Act. Part 2 div 1 comprises s 6 to s 9AA.
By s 6(1), a sentence imposed on an offender must be commensurate with the seriousness of the offence. This is a fundamental sentencing principle. Section 6(2) provides that the seriousness of an offence must be determined by taking into account the statutory penalty for the offence (par (a)); the circumstances of the commission of the offence, including the vulnerability of any victim of the offence (par (b)); any aggravating factors (par (c)); and any mitigating factors (par (d)). By s 7(1), aggravating factors are those factors which, in the court's opinion, increase the culpability of the offender. Section 7(2) provides that an offence is not aggravated by the fact that the offender pleaded not guilty to it (par (a)); the offender has a criminal record (par (b)); or a previous sentence has not achieved the purpose for which it was imposed (par (c)). By s 8(1), mitigating factors are those factors which, in the court's opinion, decrease the culpability of the offender or decrease the extent to which the offender should be punished.
In Munda v The State of Western Australia,[51] French CJ, Hayne, Crennan, Kiefel, Gageler and Keane JJ distinguished between an offender's moral culpability, on the one hand, and the objective seriousness of his or her offending, on the other:[52]
The circumstance that the appellant has been affected by an environment in which the abuse of alcohol is common must be taken into account in assessing his personal moral culpability, but that consideration must be balanced with the seriousness of the appellant's offending.
[51] Munda v The State of Western Australia [2013] HCA 38; (2013) 249 CLR 600.
[52] Munda [57].
In Veen v The Queen [No 2],[53] Mason CJ, Brennan, Dawson and Toohey JJ explained that a relevant sentencing factor (for example, a mental abnormality which makes an offender a danger to society when he or she is at large, but diminishes his or her moral culpability for a particular offence) has two countervailing effects: one which tends towards a longer custodial term of imprisonment and the other which tends towards a shorter term.
[53] Veen v The Queen [No 2] [1988] HCA 14; (1988) 164 CLR 465, 476 - 477.
The principles enunciated by the High Court in Bugmy, in the passage quoted at [47] above, are, relevantly, as follows:
(a)The effects of an offender's profound childhood deprivation do not diminish with the passage of time or repeated offending.
(b)The effects of an offender's profound childhood deprivation are to be given 'full weight' in every sentencing decision relating to the offender.
(c)However, the effects of an offender's profound childhood deprivation may point in different directions in relation to relevant sentencing factors; for example, those effects may diminish the offender's moral culpability for the offending, but may also increase the importance of protecting the community from the offender's criminal behaviour.
(d)Those conflicting purposes of punishment, in a sentencing context, must be weighed in the balance.
In our opinion, the principles enunciated by the High Court in Bugmy do not apply solely to an offender whose upbringing has resulted in the offender suffering from alcohol addiction and mental illness. The principles are of broader application. They are relevant to an offender who, for whatever reason or combination of reasons, has experienced very significant childhood deprivation of a kind and to a degree which leaves its mark on the offender throughout their life, such as to impair the offender's capacity to mature and to learn from experience, and to reform.
In our opinion, the unchallenged evidence before the learned sentencing judge, including the unchallenged contents of Ms Lynn's report, established that the appellant had experienced very significant childhood deprivation of a kind and to a degree which has left its mark on him throughout his life, such as to impair the appellant's capacity to mature and to learn from experience, and to reform. Having regard to the impugned passage in the sentencing remarks set out at [44] above, it is clear that the sentencing judge found that the appellant's 'very difficult childhood', as his Honour put it, 'shaped' him into the adult he had become. By this finding, his Honour conveyed that the very significant deprivation experienced by the appellant as a child had negatively affected him as an adult and had, in turn, contributed to his offending over the years.
However, in our opinion, his Honour failed to give 'full weight' to the appellant's very significant childhood deprivation in exercising the sentencing discretion. It is apparent from the impugned passage in the sentencing remarks set out at [44] above that his Honour proceeded on the basis that, as the appellant had attained the age of 38 years (and was no longer youthful or inexperienced for sentencing purposes), the appellant was, morally, wholly responsible for his conduct and, in effect, the appellant's deprivation was a sentencing factor of little importance. His Honour's approach was contrary to the principles enunciated in Bugmy in that his Honour failed to proceed on the basis that the effects of the appellant's deprivation had not diminished with the passage of time or repeated offending. Consequently, his Honour did not evaluate, by reference to the undiminished character of the effects of the appellant's deprivation, the extent to which the 'full weight' of those effects should be regarded as reducing his moral culpability (and, to that extent, mitigating) and the extent to which those effects pointed in a different direction, such as the importance of protecting the community. Accordingly, we are satisfied that his Honour erred and that the essence of the ground of appeal, as developed by counsel for the appellant at the hearing of the appeal, has been made out.
The learned sentencing judge's error was 'material' in that the error was capable of affecting the actual sentence imposed by his Honour. It is therefore the duty of this court to exercise the sentencing discretion afresh. See Kentwell v The Queen.[54] However, as we will explain, we consider that a different sentence should not have been imposed. See s 31(4)(a) of the Criminal Appeals Act 2004 (WA).
[54] Kentwell v The Queen [2014] HCA 37; (2014) 252 CLR 601 [42] (French CJ, Hayne, Bell & Keane JJ).
We will not repeat the facts and circumstances of the offending or the appellant's antecedents. Self‑evidently, the offences were very serious and have had lasting adverse effects upon T. The appellant offended while subject to a suspended imprisonment order for an offence committed in Queensland which was very similar on its facts to the present offending. Moreover, the present offences were committed while the appellant was the subject of outstanding arrest warrants in both Queensland and New South Wales. The appellant's risk of sexual re‑offending is significant. Not only was general deterrence an important sentencing factor, so too were the protection of the public (in particular, vulnerable women) and personal deterrence.
As mandated by the High Court in Bugmy, full weight must be accorded to the appellant's very difficult childhood and the permanent effects that has had upon the appellant. But, as explained earlier in these reasons, an offender's very significantly deprived background and its impact and consequences must be considered having regard to all relevant sentencing factors. In the present case, the relevant sentencing factors included not only the appellant's reduced moral culpability for the offending, but also the need to recognise the effects of the offending upon the victim, the need for personal and general deterrence and the protection of the public (in particular, vulnerable women). See The State of Western Australia v Upkett;[55] Marrah v The Queen[56] and Donaldson v The State of Western Australia.[57]
[55] The State of Western Australia v Upkett [2013] WASCA 263 [70].
[56] Marrah v The Queen [2014] VSCA 119 [16].
[57] Donaldson v The State of Western Australia [2018] WASCA 143 [32].
The maximum penalty for an offence of aggravated burglary is 20 years' imprisonment. The general sentencing principles with respect to offences of aggravated home burglary are well‑established. In recent years, sentences for home burglaries have increased to reflect their prevalence and the need for personal and general deterrence and to protect the public. Home burglaries which involve the commission of violence (including sexual assaults) will ordinarily, as a matter of fact, be met with more severe penalties than those that do not.
Reference was made in the appellant's written submissions to Prempeh v The State of Western Australia[58] and Pool v The State of Western Australia.[59] In Prempeh, the appellant was convicted after trial of one count of aggravated home burglary (count 1) and one count of sexually penetrating the complainant without consent by penetrating her vagina with his finger (count 2). The offender was sentenced to 4 years 6 months' immediate imprisonment, with eligibility for parole, with respect to count 1. The sentencing judge imposed no penalty with respect to count 2, having regard to s 11 of the Sentencing Act.[60] The offender in Prempeh alleged that his sentence was manifestly excessive. The facts of the offending were somewhat similar to those in the present case but, unlike the appellant, the offender in Prempeh committed an act of sexual penetration and did not have the mitigation of pleas of guilty. However, the offender in Prempeh had no prior convictions for burglary or offences involving violence.[61] Further, unlike the present case, the offender in Prempeh did not commit the offences while subject to a suspended imprisonment order. In Prempeh, leave to appeal was refused and the appeal dismissed. The case of Pool is of little assistance because none of the individual sentences imposed upon the offender in that case were challenged.[62]
[58] Prempeh v The State of Western Australia [2013] WASCA 150.
[59] Pool v The State of Western Australia [2013] WASCA 274.
[60] Prempeh [2] ‑ [3].
[61] Prempeh [19].
[62] Pool [53].
The decisions in Prempeh and Pool do not establish that the sentence of 5 years 4 months' imprisonment imposed on the appellant for count 1 was inconsistent with the standards of sentencing customarily observed with respect to that offence or inconsistent with the place which the appellant's criminal conduct occupies on the scale of seriousness of this kind of offence.
The appellant's pleas of guilty were a relevant mitigating factor and, like the learned sentencing judge, we would afford the appellant a reduction of 10% pursuant to s 9AA of the Sentencing Act. Apart from the appellant's very significantly deprived childhood and his pleas of guilty, there was very little mitigation available to him.
Having regard to all relevant circumstances and all relevant sentencing factors, including the appellant's very difficult childhood and the impact and ongoing effects that has had upon him, we are of the opinion that a sentence of 5 years 4 months' imprisonment for count 1 is appropriate. No different sentence should have been imposed upon the appellant for count 1 or count 2. Thus, while the essence of the ground of appeal, as developed by counsel for the appellant at the hearing of the appeal, has been made out, the appeal must be dismissed.
The orders that we would make are as follows:
1.An extension of time is granted.
2.The appeal is dismissed.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
AW
Research Associate to the Honourable Justice Murphy and the Honourable Justice Mazza27 DECEMBER 2019
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