Pustkuchen v The State of Western Australia - [2010] WASCA 11

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT : THE COURT OF APPEAL (WA)

CITATION: PUSTKUCHEN -v- THE STATE OF WESTERN AUSTRALIA [2010] WASCA 11

CORAM: McLURE P
OWEN JA
NEWNES JA

HEARD: 6 OCTOBER 2009

DELIVERED : 22 JANUARY 2010

FILE NO/S: CACR 39 of 2009

BETWEEN: JAMES BRUCE PUSTKUCHEN
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent

ON APPEAL FROM:
Jurisdiction              :  DISTRICT COURT OF WESTERN AUSTRALIA
Coram  :GROVES DCJ
File No  :IND 1604 of 2008

Catchwords:

Criminal law - Sentencing - Arson and other offences - Activation of a previous sentence of suspended imprisonment - Whether effective term of 7 years' imprisonment offended totality principle - Turns on own facts

Legislation:

Nil

Result:

Appeal dismissed

Category: B

Representation:

Counsel:

Appellant: Ms K J Farley
Respondent: Mr D Dempster

Solicitors:

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

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

Jarvis v The Queen (1993) 20 WAR 201
Pollock v The State of Western Australia [2009] WASCA 121
The State of Western Australia v Bennett [2009] WASCA 93
Watterston v The State of Western Australia [2004] WASCA 249

McLURE P: I agree with Owen JA.
OWEN JA: The appellant appeals, with leave, against a total effective sentence of 7 years' imprisonment imposed on him following his conviction for one count of aggravated burglary and one count of criminal damage by fire. Included in the total effective sentence was a 12 month period reflecting the 'activation' of a 12 month suspended sentence previously imposed for burglary and stealing offences committed in 2000 and 2001.

Background

The appellant was charged on indictment dated 8 October 2008 alleging that:
(1)On 26 October 2007 at North Perth [the appellant], while in the place of [the complainant], without his consent, committed the offence of stealing.
And that [the appellant] was in company with another.
And that the place was ordinarily used for human habitation.
(2)On the same date and at the same place as in count (1) [the appellant] wilfully and unlawfully damaged a dwelling.
And that the dwelling was damaged by fire.
At the time these offences were said to have been committed, the appellant was subject to a 12 month suspended sentence for two counts of burglary and two counts of stealing. I will mention the circumstances of those offences a little later in these reasons.
On 12 December 2008, after the matter had been remitted for trial, the appellant indicated that he would plead guilty to count 1. The guilty plea was formally entered on 23 January 2009.
The appellant was tried by Groves DCJ and a jury on count 2 between 30 March 2009 and 1 April 2009. The appellant gave evidence denying that he had deliberately damaged the dwelling by fire, suggesting that the fire may have been started by a discarded cigarette butt. The prosecution adduced evidence from an arson squad detective who indicated that it was highly improbable that the fire could have started in the manner suggested by the appellant. Following the trial, the appellant was convicted on count 2.

On 2 April 2009 the appellant was sentenced to 3 years' imprisonment on count 1 and 5 years' imprisonment on count 2. The sentencing judge ordered that the sentence for count 2 commence one year after the commencement of the term ordered in respect of count 1. His Honour also ordered that the 12 month suspended sentence be activated and be served cumulatively upon the sentences for counts 1 and 2. This yielded a total effective sentence of 7 years' imprisonment. The appellant's sentence was backdated to reflect time spent in custody and he was made eligible for parole. The sentencing judge also made a $200,000 compensation order in favour of the person whose home had been destroyed by the fire.

Suspended sentence

Before I outline the circumstances of the two counts contained in the indictment, it is necessary to provide some detail about the suspended sentence for two counts of burglary and two counts of stealing.
The four offences were committed on two occasions, on 17 July 2000 and 10 October 2001. On each occasion, the appellant broke into commercial premises and stole a laptop computer. That offending was brought to light in early 2007 by reason of the police 'back-capture' programme, which involved the matching of DNA left at unsolved crime scenes with persons whose DNA was available for testing. On 1 May 2007 the appellant pleaded guilty to the four offences and was sentenced in the Magistrates Court to 12 months' imprisonment suspended for 12 months in relation to the charges.

Relevant facts (the charges in the indictment)

On 26 October 2007 the appellant and an accomplice, his then girlfriend, went to a house on Doris Street in North Perth. They did not know the owners of the house. The appellant had his accomplice go to the front door and knock on the door in order to ascertain whether anybody was home. Once they had ascertained that the house was empty, the appellant broke a window and crawled though the opening.
Once inside the house, the appellant began to rummage through and to and ransack the residence. He stole a large number of items from the house, including jewellery, perfume, mobile phones, electrical equipment and computer equipment. The value of items stolen was approximately $53,000, that being the sum paid by the complainant's insurer for the stolen property. The accomplice brought the car around to the rear of the house and parked it in a garage. They then loaded the stolen property into the back of the car, filling the boot and the back seat.
As the accomplice drove the car out of the garage, the appellant went back inside the house to retrieve his telephone. When the appellant emerged from the house, it was on fire. The State's case at trial was that the appellant set fire to the house in order to destroy any forensic evidence which may have led to his apprehension. In finding the appellant guilty of criminal damage by fire, the jury was necessarily satisfied that the fire was intentionally started by the appellant and was not an accident.
The fire caused considerable damage to the house and its contents. Property damaged by the fire included furniture, fittings, kitchen utensils, bedding and linen, clothing, tools and books. There was also a great deal of structural damage done to the home. The evidence suggested that, in total, as much as $400,000 damage was done to the home and contents by the fire.
On 8 November 2007 the police executed a search warrant at the premises occupied by the appellant. Some of the stolen property was recovered at the premises. When questioned about the burglary and the fire, the appellant denied any involvement. He claimed that he had purchased the property at a swap meet the previous Sunday.
The appellant was charged on indictment with one count of aggravated burglary and one count of criminal damage by fire.

Sentencing remarks

Groves DCJ began by outlining the circumstances of the offences. He noted that the conviction on count 2 indicated that the jury was satisfied beyond a reasonable doubt that the appellant had deliberately damaged the home by fire, or knew or believed that the act was likely to result in the destruction of or damage to the property. The jury must also have been satisfied that the fire was not started accidentally.
The sentencing judge turned to the appellant's personal circumstances. The appellant was born in January 1982. He was 25 1/2 years of age at the time of the offences. He was not married, was not in a permanent relationship and had no children.
The appellant had had an uneventful upbringing, at least until his parents separated. He first took heroin at the age of 13. In 1999 a girlfriend who introduced him to heroin died of a heroin overdose. Other friends had died as a result of car accidents and suicides. Much of his offending had been a consequence of associating with negative peers and, most recently, his accomplice, who was a drug‑user. The appellant had made several reasonable efforts to avoid a relapse into drug use, including participating in a residential rehabilitation programme.
The sentencing judge considered the appellant's education and work history. Despite his drug use during his teenage years, the appellant had enjoyed a reasonable education. Since his last release from custody, the appellant had engaged in a variety of occupations, including work for a relative at a tyre retailer. He had then left the family home to work in the painting industry. Unfortunately, that led to a relapse into the use of drugs.
The sentencing judge noted that appellant had the benefit of the support of his family. His extended family and relatives had offered him employment upon his release from prison. His mother and his mother's partner had both written letters indicating their support for him. They both wrote of the pain the appellant's offending had caused and attributed much of the appellant's offending behaviour to drug use.
The sentencing judge referred to a letter written to him by the appellant. In the letter the appellant recognised that he had brought the consequences of his offending upon himself, largely through his entrenched drug use. He sought to convey to the court and his victims his sorrow for his actions. He regretted that his 'inexcusable actions' had caused his victims to lose their home. He wished that he could change the past. He also set out his plans for the future.
His Honour also referred to the victim impact statements of the complainant and the complainant's wife. The victim impact statements described the emotional and financial consequences of the appellant's offending, both immediate and ongoing. The sentencing judge indicated that the matters stated in the victim impact statements could be taken into account as an aggravating factor.
The sentencing judge summarised some of the observations contained in the pre‑sentence report. The report said that the appellant felt genuine remorse towards the victims and was devastated at the effect his drug use and offending had had on his progress towards rehabilitation. The appellant had been released into the community only six months before committing the offences the subject of the indictment. His previous response to supervision had been poor. He had completed only one of six orders to which he had been subject. Those other orders had been breached, cancelled or breached by reason of re-offending. In his Honour's view, the history of non‑compliance with community orders reflected a poor attitude towards law and order.
The sentencing judge briefly set out the appellant's criminal record. The appellant's record of offending was significant and lengthy. He had committed a number of burglaries with and without aggravation, stealing offences and armed robbery. He made his first appearance before the courts at the age of 10. The appellant had continued to offend during his adolescence and adulthood. As a consequence, he had spent much of his adult life in prison. The appellant considered himself to be institutionalised.
The sentencing judge then turned to consider the seriousness of the offences. The burglary offence involved the theft of a substantial volume of goods from hard‑working people. Although the appellant was affected by drugs when he committed the offence, there was no mitigation in that fact. As his Honour remarked, those who commit offences while under the influence of drugs have to wear the consequences of their conduct.
His Honour noted that the arson charge was more serious than the burglary charge. The house was completely destroyed, and approximately $400,000 worth of damage was caused. Although the contents were insured, the house itself was not insured for fire damage. The victims lost all of their personal possessions, and the damage had a profound emotional and financial effect on their lives. Nothing could replace the memories and sentimental value of items that had been destroyed by the fire. The appellant's conduct constituted a wanton act of vandalism and demonstrated a total disregard for the property of others.
The sentencing judge referred to a number of authorities of this court emphasising that the dominant sentencing consideration in arson cases is general deterrence. His Honour noted, however, that while the authorities were important in determining the proper sentence, he needed to bear in mind that no two cases were ever the same.
The sentencing judge then turned to consider the suspended sentence order. He noted that under the Sentencing Act1995 (WA) he could order an offender to serve the term of imprisonment that had been suspended and would take that course unless he decided that it would be unjust to do so in light of all the circumstances that had arisen or had become known since the suspended sentence was imposed.
His Honour decided that the suspended sentence should be activated, saying:
It's not a factor that those offences were committed in the year 2001 and took a long time for them to come before the court. What is relevant was the date when those sentences were imposed and the fact that this later offending was committed whilst you were subject to the suspended imprisonment order.
The fact that you did re-offend within such a short time, of course, is an aggravating factor. I'm satisfied that there are no mitigating factors which have arisen which would cause me to do otherwise than to activate the sentences imposed on the suspended imprisonment order.
His Honour then passed sentence. In relation to count 1, the sentencing judge imposed a sentence of 3 years' imprisonment. That term was said to reflect a discount for a late plea of guilty, which had indicated remorse and facilitated the administration of justice. In relation to count 2, his Honour imposed a sentence of 5 years' imprisonment. He said that in reaching that term, he had referred to various authorities, the most recent being Watterstonv The State of Western Australia [2004] WASCA 249.
The sentencing judge considered that the burglary and the arson offence constituted two separate and distinct offences, rather than one continuing episode. As a consequence, the sentences should be partly, rather than entirely, concurrent. He said:
The burglary, the loading up of the car, the transportation away of the goods, was all in place – done and in place. You went back into the premises and then the separate offence of arson was committed. In those circumstances I've concluded that the sentence for arson should be partly concurrent with the sentence on count 1.
His Honour ordered that the sentence for count 2 commence one year after the commencement of the sentence for count 1. He then ordered that the 12 month 'activated' sentence for the earlier offences be served cumulatively upon the sentences for the offences in the indictment. This yielded a total effective sentence of 7 years' imprisonment.
The sentencing judge backdated the sentence to reflect the time the appellant had spent in custody. He made the appellant eligible for parole. He also made the compensation order to which I have already referred.

Ground of appeal

The appellant advances a single ground of appeal, namely:
1.The effective term of imprisonment imposed of 7 years' imprisonment offended the totality principle and was manifestly excessive in all the circumstances of the case, particularly given:
(a)That the suspended term of imprisonment breached by [the offences the subject of the indictment] were committed in July 2000 when the appellant was 18 years of age, and October 2001, when the appellant was 19 years of age.
(b)The appellant's plea of guilty to those offences and to the aggravated burglary the subject of [the indictment].
As can be seen from the ground, there is no challenge to either of the individual sentences imposed in respect of particular counts. The gravamen of the appellant's case is that the total sentence of 7 years infringed the totality principle.

The totality principle

The totality principle and the authorities in which it has been explained are well known. The principle has been described as having two limbs. First, a judicial officer sentencing an offender for a number of offences must ensure that the aggregation of the sentences appropriate for each offence is a just and appropriate measure of the total criminality involved. Secondly, the overall sentence should not be 'crushing' in the sense that it would destroy any reasonable expectation of a useful life after release: see the authorities collected in Pollock v The State of Western Australia [2009] WASCA 121 [24] ‑ [25].
A phrase often used to describe the practical application of the totality principle is that the judge, having fixed terms for the individual offences, should stand back and 'take a last look' to ensure that the aggregate term properly measures the overall criminality involved and that it is not crushing. In my view this is an apt description of the process and is a prudent step that a judicial officer should take in finalising the task of sentencing for multiple offences.
In Jarvis v The Queen (1993) 20 WAR 201 at 205 Ipp J described a 'crushing' sentence as one that:
(a)leaves the offender with no hope for the future;
(b)would provoke a feeling of hopelessness in the offender if and when he is released; or
(c)destroys a reasonable expectation of a useful life after release.
The appellant's ground of appeal does not indicate which of the limbs of the totality principle are said to have been breached by the sentence. On my reading of the appellant's submissions, his primary complaint against the sentence is that it does not bear a proper relationship with the overall criminality of the offending. Nonetheless, I will also consider whether the sentence is crushing.

The sentence related to the overall criminality of the offending

Appellant's submissions

In his submissions, the appellant makes several points in support of his claim that the total effective sentence of 7 years' imprisonment was disproportionate to the criminality of his offending. First, the sentence of 5 years for the arson count is said to be at the high end of the range for arson offences which was identified by Miller JA in The State of Western Australia v Bennett [2009] WASCA 93 [48]. Although the individual sentence on the arson count is not challenged, the appellant says that the fact that he received a relatively harsh sentence on that count should be taken into consideration when assessing whether the totality principle was breached. Secondly, the offences the subject of the suspended sentence were committed in 2000 and 2001 when the appellant was only 18 or 19 years old. Thirdly, the appellant pleaded guilty to the aggravated burglary count and the offences the subject of the suspended sentence. Finally, the appellant expressed a desire to rehabilitate himself.

Seriousness of the offending

Unlike the appellant, the offender in Bennett had pleaded guilty. The case stands as authority for three propositions:
(a)the dominant sentencing consideration in cases of arson is general deterrence;
(b)the personal circumstances of an offender carry less weight in cases of arson than they might otherwise do; and
(c)there is no tariff for the offence of arson, but in 'post-transitional' terms the offence commonly attracts sentences within a range of 2 years and 8 months to 4 years and 8 months in very serious cases and 2 years to 3 years and 4 months in less serious cases;
The offences committed by the appellant were serious. The value of the property stolen or damaged by fire was considerable. The aggravated burglary count was committed in company in a person's home. It was carried out in an organised manner, with the stolen property being loaded into a car parked in the back. The arson offence was particularly serious. The fire was lit at a home and it did severe damage to the building. The offence was carried out in order to destroy DNA evidence that may have implicated the appellant in the burglary. It caused the homeowners great economic, emotional and financial distress. In these circumstances, and bearing in mind that the appellant was convicted after trial, it is hardly surprising that the sentence imposed in respect of the arson count was a little above the upper end of the range identified in Bennett.

Mitigating factors

There were only a limited number of mitigating factors in the appellant's favour. The appellant was 25 years old at the time of offending and so could not put his offending behaviour down to youthful immaturity. He had no mental illness. His upbringing was uneventful and does not explain his current offending. Although the appellant had struggled with drug use from an early age, little in the way of mitigation could arise from that fact. He had a lengthy criminal record which meant he could not claim credit for being of otherwise good character.
The three main mitigating factors falling in the appellant's favour were his guilty plea to the aggravated burglary count, his genuine remorse and his expression of a wish to rehabilitate. Each one of those factors was mentioned by the sentencing judge and his Honour said that he would take them into account. Indeed, his Honour stated that the 3 year term for the aggravated burglary included a discount to reflect the guilty plea.
While the appellant was entitled to a discount for these three matters, there is a limit as to how much they could have been expected to reduce the total effective sentence. I have already mentioned the seriousness of the offences. Further, in arson cases the dominant sentencing consideration is general deterrence: Bennett [48]. This means that circumstances personal to an offender will carry less weight during the sentencing process than they otherwise might.
There is another aspect of the appellant's circumstances that requires comment. The guilty plea on count 1 was entered late, which meant that the discount to which the appellant was entitled was less than would have been the case had the plea been made at the earliest opportunity. Although the appellant was found to be remorseful and to have positive plans for the future, he had been the subject of numerous supervision orders in the past. In my view, the fact that the appellant has had several opportunities to reform and to reflect on his offending lessens the mitigatory effect of his remorse and apparent resolve. In saying that, I should not be taken as suggesting that the appellant should be punished again for his previous offending. Nor should I be taken as suggesting his remorse and desire to rehabilitate is not genuine. But the value of those mitigating factors needs to be assessed in the light of the appellant's previous opportunities to address his behaviour.

The suspended sentence

The appellant argues that the activation of the suspended term and the order that it be served cumulatively is a further reason why the total effective sentence was disproportionate. The appellant points out that offences the subject of the suspended sentence were committed when he was only 18 or 19 years of age. He also pleaded guilty to those offences. The appellant's submission, in essence, is that in ordering that the 12 month suspended sentence be activated and be served cumulatively upon the other sentences, the sentencing judge placed insufficient weight upon the appellant's youth at the time the offences were committed and his guilty plea in relation to them.
I am not persuaded that the appellant's youth at the time when the offences were committed has quite the force for which he now contends. It has to be borne in mind that there was a lapse of some years between the time when the offences had been committed and the date on which he was sentenced by the Magistrate. The appellant had not voluntarily disclosed his guilt. The offences had come to light because of the capture of DNA evidence. They were serious offences. On two separate occasions a little over one year apart the appellant broke into business premises at night and stole property valued at $3,000 on one occasion and $4,000 on the other. It can be assumed that the appellant's youth and plea of guilty were factors that influenced the magistrate to limit the term to 12 months and to suspend the sentence rather than order immediate imprisonment.
At the time of the current offending, however, the appellant was not a young man. He was 25 years old and should have known better. The fact that he committed a burglary (and then set the house alight) only some 7 months after receiving a suspended sentence for burglary and stealing illustrates a poor understanding of his offending behaviour and a weak commitment to genuine rehabilitation. In these circumstances, there is a limit to the extent to which the appellant can call in aid those same factors (youth and guilty plea) to ameliorate the consequences of his actions. In my view it was open to the sentencing judge to order that the

suspended sentence be activated and be served cumulatively even though there were mitigating circumstances which fell in the appellant's favour at the time those offences were initially dealt with.

Conclusion on the proper relationship with overall criminality

For these reasons, it cannot be said that the total effective sentence did not have a proper relationship with the overall criminality of the offending. The offences were extremely serious. The appellant's mitigating factors were limited and were, in any event, properly taken into account by the sentencing judge. The mitigating factors in relation to the offences the subject of the suspended sentence had already been taken into account when he was sentenced for those offences. He could not rely on them again in relation to the offences the subject of the indictment. The sentence was not disproportionate to the overall criminality of the offending.

Was the sentencing crushing?

In my opinion, the total effective sentence imposed on the appellant could not be said to be crushing. Although the sentence of 7 years' imprisonment is certainly heavy, it is not such as to deprive the appellant of a reasonable expectation of a useful life after his release from prison. He will be released from prison at some time between March 2013 and March 2015. At that stage he will be between the ages of 31 and 33. In relative terms he will still be a young man.
On the materials submitted on the appellant's behalf at the sentencing hearing, when he is released from custody he will have family support and reasonable employment prospects. There is no reason to think that if the appellant takes the opportunities available in prison to improve his skills and deal with his substance abuse problems, he cannot expect to have a productive life after his release. It seems to me that none of the usual bases for concluding that the sentence is crushing are present.

Conclusion

The claim that the sentence breached the totality principle and was manifestly excessive has not been made out. I would dismiss the appeal.
NEWNES JA: I agree with Owen JA.