R v Barbis & Rouse
[2003] WASCA 107
•28 MAY 2003
R -v- BARBIS & ROUSE [2003] WASCA 107
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2003] WASCA 107 | |
| COURT OF CRIMINAL APPEAL | |||
| Case No: | CCA:15/2003 | 1 MAY 2003 | |
| Coram: | MALCOLM CJ MCKECHNIE J PULLIN J | 28/05/03 | |
| 32 | Judgment Part: | 1 of 1 | |
| Result: | Both Crown appeals against sentence dismissed | ||
| B | |||
| PDF Version |
| Parties: | THE QUEEN DEJAN BARBIS TONY ROUSE |
Catchwords: | Criminal law Sentence Crown appeals Two offenders convicted of aggravated burglary and unlawful wounding Sentence on one cooffender who restrained householder while he was stabbed by the other sentenced to 12 months' imprisonment for the burglary and 8 months for unlawful wounding Second cooffender who, unknown to the first offender, was armed with a knife and stabbed the householder, sentenced to 12 months for the burglary and 2 years and 6 months' cumulative for unlawful wounding Sentences imposed on second offender suspended Failure by sentencing Judge to state extent of reduction of sentence for undertaking to assist law enforcement authorities Mandatory provisions of s 8(5) of Sentencing Act not observed |
Legislation: | Criminal Code (WA), ss 301(1), 401(a), 401(1)(a), 688(2)(a), 688(2)(d) Sentencing Act 1995 (WA), ss 8(5), 39(2), (3) and 76(1), (2) |
Case References: | Barany v The Queen [2000] WASCA 240 Cork v The Queen, unreported; CCA SCt of WA; Library No 970664; 2 December 1997 Dinsdale v The Queen (2000) 202 CLR 321 Everett and Phillips v The Queen (1994) 181 CLR 295 Heferen v The Queen [1999] WASCA 81 Herbert v The Queen [2003] WASCA 61 House v The King (1936) 55 CLR 499 Lowndes v The Queen (1999) 195 CLR 665 Miles v The Queen (1997) 17 WAR 518 Mobilia v The Queen [2002] WASCA 130 Pearce v The Queen (1998) 194 CLR 610 Pezzino v The Queen [1997] 92 A Crim R 135 R v Osenkowski (1982) 30 SASR 212 R v Shaharuddin [1999] WASCA 229 Taylor v The Queen, unreported; CCA SCt of WA; Library No 980152; 6 April 1998 van de Worp v The Queen[2000] WASCA 154 Verschuren v The Queen (1996) 17 WAR 467 Watson v The Queen [2002] WASCA 8 Wong v The Queen (2001) 207 CLR 584 R v Ward (1999) 109 A Crim R 159 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : COURT OF CRIMINAL APPEAL CITATION : R -v- BARBIS & ROUSE [2003] WASCA 107 CORAM : MALCOLM CJ
- MCKECHNIE J
PULLIN J
- Appellant
AND
DEJAN BARBIS
Respondent
- Appellant
AND
TONY ROUSE
Respondent
Catchwords:
Criminal law - Sentence - Crown appeals - Two offenders convicted of aggravated burglary and unlawful wounding - Sentence on one cooffender who
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restrained householder while he was stabbed by the other sentenced to 12 months' imprisonment for the burglary and 8 months for unlawful wounding - Second cooffender who, unknown to the first offender, was armed with a knife and stabbed the householder, sentenced to 12 months for the burglary and 2 years and 6 months' cumulative for unlawful wounding - Sentences imposed on second offender suspended - Failure by sentencing Judge to state extent of reduction of sentence for undertaking to assist law enforcement authorities - Mandatory provisions of s 8(5) of Sentencing Act not observed
Legislation:
Criminal Code (WA), ss 301(1), 401(a), 401(1)(a), 688(2)(a), 688(2)(d)
Sentencing Act 1995 (WA), ss 8(5), 39(2), (3) and 76(1), (2)
Result:
Both Crown appeals against sentence dismissed
Category: B
Representation:
CCA 15 of 2003
Counsel:
Appellant : Mr D Dempster
Respondent : In person
Solicitors:
Appellant : State Director of Public Prosecutions
Respondent : In person
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CCA 43 of 2003
Counsel:
Appellant : Mr D Dempster
Respondent : Mr A E Monisse
Solicitors:
Appellant : State Director of Public Prosecutions
Respondent : Legal Aid of Western Australia
Case(s) referred to in judgment(s):
Barany v The Queen [2000] WASCA 240
Cork v The Queen, unreported; CCA SCt of WA; Library No 970664; 2 December 1997
Dinsdale v The Queen (2000) 202 CLR 321
Everett and Phillips v The Queen (1994) 181 CLR 295
Heferen v The Queen [1999] WASCA 81
Herbert v The Queen [2003] WASCA 61
House v The King (1936) 55 CLR 499
Lowndes v The Queen (1999) 195 CLR 665
Miles v The Queen (1997) 17 WAR 518
Mobilia v The Queen [2002] WASCA 130
Pearce v The Queen (1998) 194 CLR 610
Pezzino v The Queen [1997] 92 A Crim R 135
R v Osenkowski (1982) 30 SASR 212
R v Shaharuddin [1999] WASCA 229
Taylor v The Queen, unreported; CCA SCt of WA; Library No 980152; 6 April 1998
van de Worp v The Queen[2000] WASCA 154
Verschuren v The Queen (1996) 17 WAR 467
Watson v The Queen [2002] WASCA 8
Wong v The Queen (2001) 207 CLR 584
Case(s) also cited:
R v Ward (1999) 109 A Crim R 159
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1 MALCOLM CJ: These are two Crown appeals against sentence.
Barbis
2 On 16 January 2003, the respondent, Mr Barbis, pleaded guilty in the District Court to one count of aggravated burglary and one count of unlawful wounding. There were three circumstances of aggravation alleged, namely:
(1) Barbis was in company with another;
(2) immediately before the commission of the offence Barbis knew or ought to have known that there was another person in the place; and that
(3) the place was ordinarily used for human habitation.
3 Barbis also pleaded guilty to count 2 on the indictment which alleged that on the same date and at the same place, he unlawfully wounded Mr Lunny.
4 It was not Barbis who wielded the knife. In fact, it was accepted that he did not know that Rouse had armed himself with a knife. Barbis had made an abusive telephone call to the complainant, Mr Lunny, two nights earlier regarding money he was owed by the complainant's son regarding the sale of a motor vehicle. Barbis believed he had been cheated. The respondents went to the complainant's house with a view to demanding payment for the money Barbis claimed he was owed. When the complainant opened the door, he recognised Barbis, refused Barbis and Rouse entry and told them to leave. They continued to press into the house. When they were just inside, the complainant picked up a piece of wood and tried to push Rouse out by pressing it into his stomach. In response, Barbis grabbed the complainant's arm and took the piece of wood from him. At this point, Rouse pulled out a knife while Barbis was still holding his arm and was aware that Rouse had the knife. Rouse stabbed the complainant in the area of his abdomen. The complainant, realising he had been stabbed, stepped back and the two respondents ran from the scene yelling threats directed at the complainant and his family.
5 While the stomach wound inflicted on the victim was potentially life threatening, it turned out not to be. The victim made a reasonably good physical recovery, apart from residual and abnormal sensation around the area of the wound. As might be expected, the trauma of the incident has had a long-term psychological impact on the victim.
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6 Barbis was sentenced by Martino DCJ on 16 January 2003. His Honour imposed a sentence of imprisonment of 12 months on the first count and 8 months on the second count. The sentences were directed to be served cumulatively. His Honour noted that the maximum penalty for unlawful wounding contrary to s 301(1) of the Criminal Code (WA) (the "Code") was imprisonment for 5 years. The maximum penalty for aggravated burglary under s 401(a) was imprisonment for 20 years. The learned Judge commented on the seriousness of the offence of aggravated burglary and said that:
"Parliament has set that high maximum penalty to reflect its belief and concern and the community's belief and concern that someone is entitled to feel safe in their own home and when a person enters their home without consent intending to commit an offence in company with another, a very serious offence has been committed.
The circumstances of these offences, and I mean the basis upon which I am sentencing you, are these: you believe that you were cheated by the son of the victim, not by the victim, and the victim had no part in the events that led you to feel aggrieved. You felt you had lost $2000 in a disputed motor vehicle sale with the victim's son."
7 It was then recounted that on the night of Friday, 13 September 2002 at approximately 9.20 pm, Barbis and the co-offender, Rouse, went to the house for the purpose of demanding money it was alleged Barbis was owed by the victim's son and confronting him about it. The learned sentencing Judge found that it was intended to demand money by threats if necessary. The co-offender, Rouse, was armed with a short knife, but this was unknown to Barbis at that stage.
8 In passing sentence on Barbis, Martino DCJ, while addressing his sentencing remarks to Barbis, said:
"The victim answered the door and was confronted by you and [Rouse], and you and [Rouse] started swearing and abusing the victim. The victim told you to leave but you entered the premises and the victim, not surprisingly, feared for his safety and reached for a stick and he tried to push you out the door.
You then grabbed the victim's hand and [Rouse] then produced a knife. You then saw the knife and you maintained the hand of the victim and [Rouse] stabbed the victim with the knife in a
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- punching motion into the stomach. You then left with [Rouse]. You returned the next day to confront the victim's son again and you were then arrested.
The victim had an injury to his stomach which had the potential to be life threatening. They were potentially serious injuries but after appropriate medical care, the victim has made a reasonably good physical recovery although he still has some abnormal sensation around the area of the wound. By far the greatest long-term impact on the victim is the psychological impact, again something entirely to be predicted after a person has been stabbed in their own home by intruders and he doesn't feel safe in his own home any more. He has lost confidence in his ability to be comfortable.
Your personal circumstances are that you are a young man. You are aged 22. Until today you didn't have a significant record of offending and you have pleaded guilty. You have co-operated to a significant extent with police so far in that I have seen the video of the interview with the police. You didn't appreciate how serious the offence you had committed was but you were to a significant extent prepared to accept responsibility for what you had done and it's very significant that you have told me through your lawyer that you are prepared to give evidence in the case against the other offender if the Crown wishes you to do so, and it's also significant that you have been in custody since 14 September 2002.
The sentence I am imposing reflects your willingness to assist authorities. If you renege on that promise, you can be brought back for resentencing although I have no doubt that you have no intention of reneging on that promise and that you will not do so.
The offences are so serious that I have concluded that a term of imprisonment is necessary to be imposed but it's far less than would have been imposed if not for the mitigating factors which I've set out, so the sentence I impose is 12 months' imprisonment on count 1, 8 months' imprisonment on count 2, those terms of imprisonment to be served concurrently because they were all part of the same transaction. The sentence is to be taken to have commenced being served on 14 September 2002 and I order that you be eligible for parole."
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9 Unfortunately, Mr Barbis was not represented by counsel on the appeal. I will explain later how that came about.
Rouse
10 There were four circumstances of aggravation alleged against Mr Rouse in relation to the first count of burglary, namely that:
(1) Rouse was armed with an offensive weapon, namely, a knife;
(2) Rouse was in company with another;
(3) immediately before the commission of the offence, Rouse knew or ought to have known that there was another person in the place; and that
(4) the place was ordinarily used for human habitation.
11 In these circumstances also, the maximum penalty was imprisonment for 20 years under s 401(1)(a) of the Code.
12 The second count was that on the same date and at the same place, Rouse unlawfully wounded a Mr Lunny contrary to s 301(1) of the Code.
13 In my opinion, it is highly desirable that whenever possible, co-offenders should be sentenced by the same Judge. Unfortunately, Mr Rouse, was not sentenced by the same District Court Judge.
14 On 22 January 2003, the respondent, Mr Rouse, pleaded guilty in the Court of Petty Sessions to one count of aggravated burglary and one count of unlawful wounding. On 13 March 2003, he was convicted on his plea of guilty in the District Court to those offences and sentenced by Deane DCJ to imprisonment for 12 months for the aggravated burglary contrary to s 401(1) of the Code, and a cumulative term of 2 years and 6 months for unlawful wounding contrary to s 301(1) of the Code. The total term of 3 years and 6 months was suspended for a period of 2 years.
15 In sentencing Rouse, her Honour said on 13 March 2003:
"On the evening of 13 September you and [Barbis] went to the complainant's home in order to collect a debt apparently owed by his son to [Barbis] regarding the sale of a motor vehicle. The complainant answered the door but recognised [Barbis] as the same person who had abused the complainant over the
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- phone two nights earlier. In light of this the complainant refused you entry and told you to leave.
Your response to this was to begin yelling at and abusing the complainant. You moved towards him through the door of the premises uninvited. He, quite understandably, picked up a piece of wood which was nearby and tried to push you out of the house by pushing the wood into your stomach area. In response, [Barbis] grabbed the complainant's arm and took the wooden object from him.
It was at this point that the offence of unlawful wounding was committed. You pulled out a small silver coloured fold-knife from your person and proceeded to stab the complainant in the abdominal area with the weapon using a fairly forceful motion. You then pulled the knife up and out of the complainant's abdomen. Realising he had been stabbed the complainant stepped back and you and your co-offender fled the scene.
The complainant noted that one of you yelled back at him at that time words to the effect that the complainant's mother, father and son were all going to be stabbed with the same knife. Apparently the knife was thrown onto the rooftop of a neighbouring house and you and your co-offender were driven off in a vehicle by your girlfriend."
16 Her Honour went on to note that the complainant was taken to hospital with a fairly large open wound in the abdomen measuring seven centimetres in length and three centimetres in depth. There was a relatively detailed and comprehensive medical report in evidence, which described the complainant's injuries and subsequent treatment. On 14 September 2002, the complainant underwent exploratory surgery to the abdominal wound where a peritoneal laceration was identified.
17 The learned sentencing Judge had the benefit of photographs of the wound which were tendered in evidence. Her Honour then commented as follows:
"Fortunately, perhaps more by good luck than anything else, there was no damage to the liver, stomach or any other vital organs in the area. The prognosis for the complainant's recovery, at least his physical recovery, was positive and a few days after his admission he was discharged from hospital. That, however, is certainly not the end of the matter as far as the
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- complainant is concerned. I have had the opportunity this morning of reading the victim impact statement prepared by the complainant regarding the impact that this vicious attack has had upon his life. It was, without any doubt, a serious injury.
You are lucky, and he is lucky also, that he did not die. If that had happened you would be facing a much more serious charge than you already are. He suffered significant physical distress and significant psychological distress. He may well recover from the physical wound you inflicted upon him but psychologically his recovery might be quite questionable. He is depressed, lethargic and socially withdrawn. He is very much alone with his grief and his ongoing fear. His wife has also suffered greatly because she was present in the house at the time of this offence. You had literally nearly ruined this man's life."
The Crown Appeals
18 In the case of Barbis, the Crown appealed on two grounds. The first was that the learned sentencing Judge was in error in that the totality of the sentences imposed failed to adequately reflect the seriousness of the offences. The second was that the Judge failed to indicate the extent of the reduction of sentence given in respect of the undertaking by Barbis to assist law enforcement authorities, as required by s 8(5) of the Sentencing Act.
19 Being Crown appeals against sentence under s 688(2)(d) of the Code, these appeals must be considered and determined in accordance with the principles applicable to appeals by the prosecution. These have in recent years been restated by the High Court in such cases as Pearce v The Queen (1998) 194 CLR 610; Lowndes v The Queen (1999) 195 CLR 665; Dinsdale v The Queen (2000) 202 CLR 321; and Wong v The Queen (2001) 207 CLR 584. In the latter case, Gleeson CJ referred at [8] to one of the reasons for giving the Crown a right of appeal of the kind in s 688(2)(d) as being to "secure consistency in sentencing" as stated by McHugh J in Everett and Phillips v The Queen (1994) 181 CLR 295 at 306. The Chief Justice also referred in Wong (supra) at [8] to the statement by King CJ in R v Osenkowski (1982) 30 SASR 212 at 213, namely:
"The proper role for prosecution appeals, in my view, is to enable the courts to establish and maintain adequate standards of punishment for crime, to enable idiosyncratic views of
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- individual Judges as to particular crimes or types of crime to be corrected, and occasionally to correct a sentence which is so disproportionate to the seriousness of the crime as to shock the public conscience."
20 The task of the Court of Criminal Appeal in a Crown appeal is to determine whether there was an error in the exercise of the sentencing discretion as explained in House v The King (1936) 55 CLR 499 at 504 – 505 per Dixon, Evatt and McTiernan JJ.
21 As recently as the decision in Herbert v The Queen [2003] WASCA 61 in March 2003, this Court has stressed the duty of the Court to give effect to the legislative policy behind the 1996 amendments to the Criminal Code substantially increasing the maximum sentence for aggravated burglary under s 401 of the Code. This echoes what was said earlier by this Court in Pezzino (1997) 92 A Crim R 135 shortly after the maximum penalties were increased. These increases were a consequence of the increasing prevalence of the offence. As I pointed out in Herbert (supra) at [5] in the calendar year ended 2001, Western Australia had the highest rate in Australia for offences involving unlawful entry of premises at 3250.9 per 100,000 of the population, compared with New South Wales 2480.6, Victoria 1678.4, Queensland 2031.9, South Australia 2332.8, Tasmania 1967.6, Northern Territory 3243.6 and the ACT 2246.9 per 100,000.
The Barbis Appeal
22 I have had the advantage of reading in draft the reasons prepared by Pullin J in respect of the appeal against the sentence imposed upon Barbis. I agree with those reasons and only wish to add some comments of my own.
23 This case was not a typical aggravated burglary case. As Pullin J has pointed out, the respondent Barbis considered that he had lost $2000 in a disputed sale of a motor vehicle transaction with the victim's son. The purpose of Barbis going to the house was to confront the son and press his demand for payment backed up by threats, if necessary. He was unaware that Rouse had armed himself with a knife. As I have already indicated, when the son's father confronted Barbis and Rouse when they forced their way into the house, Rouse disarmed the complainant and while Barbis still held the complainant's arm, the latter was stabbed by Rouse.
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24 It is clear that Barbis was sentenced on the basis that he had no knowledge that Rouse was in possession of a knife until he saw him take it out and stab the victim.
25 The learned sentencing Judge did not indicate a starting point for his sentence. A Judge is not necessarily bound to do so, except in relation to specific legislative provisions such as s 8(5) of the Sentencing Act which specifically requires that the Judge indicate the extent of the reduction in sentence given in respect of an undertaking by an affidavit to assist law enforcement authorities. Unfortunately, the sentencing Judge failed to comply with this provision.
26 Section 8 of the Sentencing Act provides that:
"(1) Mitigating factors are factors which, in the court's opinion, decrease the culpability of the offender or decrease the extent to which the offender should be punished.
(2) A plea of guilty by an offender is a mitigating factor and the earlier in proceedings that it is made, or indication is given that it will be made, the greater the mitigation.
(3) The fact that property derived or realized, directly or indirectly, by the offender, or that is subject to the effective control of the offender, as a result of the commission of the offence is forfeited to the Crown under a written law is not a mitigating factor.
(4) If because of a mitigating factor a court reduces the sentence it would otherwise have imposed on an offender, the court must state that fact in open court.
(5) If because an offender undertakes to assist law enforcement authorities a court reduces the sentence it would otherwise have imposed on the offender, the court must state that fact and the extent of the reduction in open court."
27 The learned sentencing Judge correctly stated the nature of the assistance but not the extent of the reduction. This necessarily requires the adoption of the "two-tiered" approach to the determination of the penalty in the manner described in Verschuren v The Queen (1996) 17 WAR 467 at 472 – 474 per Malcolm CJ with whom Pidgeon J agreed at
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- 475, subject to a qualification which does not apply in the present case, by reason of the express provisions in s 8(5) of the Sentencing Act.
28 I agree with Pullin J for the reasons that his Honour has stated that upon a reconstruction of the sentencing process, taking into account the objective circumstances of the offences, before considering any circumstances of mitigation, the offence would have justified a sentence of 3 years. The early plea of guilty would have warranted a reduction of 25 per cent, as would the undertaking to co-operate with the authorities. This would have reduced the sentence to 18 months. A further reduction of 6 months on account of the youth of Barbis producing a sentence of 12 months was also justified.
29 For these reasons, I would dismiss the appeal in the case of Barbis.
The Rouse Appeal
30 In the case of Rouse, the Crown contended that the learned sentencing Judge erred in suspending the terms of imprisonment imposed, but did not contend that the sentences themselves were inadequate. It was submitted that for reasons of general deterrence and parity, in particular, a punishment by way of immediate imprisonment was required, as the offences were far too serious "to order suspension".
31 In this context, counsel for the Crown referred to the comments of Kirby J, in Dinsdale v The Queen (supra) at [86], that the exercise of the discretion to impose a term of suspended imprisonment conferred by ss 39(2) and 76 of the Sentencing Act requires a reconsideration of all of the circumstances of the case. Section 39(2) authorises the imposition of a term of actual imprisonment only if the Court is satisfied that it is inappropriate to impose a term of suspended imprisonment. As the High Court held in Dinsdale (supra), the first step for the sentencing Judge is to determine that a sentence of imprisonment is called for. It needs to be borne in mind that it was also held in Dinsdale (supra) that the suspension of a term of imprisonment is only available under s 76(1) of the Sentencing Act where, first, the Court has concluded that a sentence to a term of imprisonment is warranted and, secondly, where the term of the sentence or the aggregate of two or more terms, is not more than 5 years. Within those limitations, the discretion is very wide. By s 76(1), a Court "may order" suspended imprisonment. By s 76(2), it may not do so unless imprisonment for the term or terms equal to that suspended would, if it were not possible to suspend the sentence, be appropriate "in all the
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- circumstances". In Dinsdale (supra), it was held that two steps were involved. As Kirby J expressed at [79]:
"The first is the primary determination that a sentence of imprisonment, and not some lesser sentence, is called for. The second is the determination that such term of imprisonment should be suspended for a period set by the court. The two steps should not be elided. Unless the first is taken, the second does not arise. It follows that imposition of a suspended term of imprisonment should not be imposed as a "soft option" when the court with the responsibility of sentencing is "not quite certain what to do [R vO'Keefe [1969] 2 QB 29 at 32]."
"Moreover, the scheme of the legislation, and the two steps which s 76(1) and (2) of the Act requires, suggest, as a matter of construction, that the same considerations that are relevant for the imposition of the term of imprisonment must be revisited in determining whether to suspend that term [Thomas, Principles of Sentencing, 2nd ed (1979) at 244-245; R v P (1992) 39 FCR 276at 285]. This means that it is necessary to look again at all the matters relevant to the circumstances of the offence as well as those personal to the offender. It would be surprising if the legislation were to warrant, at the second step, concentration of attention only on matters relevant to the offender, such as issues of the offender's rehabilitation and the Court's mercy [cfR v Shueard (1972) 4 SASR 36 at 43; R v Prindable (1979) 23 ALR 665 at 669; R v Davey (1980) 2 A Crim R 254 at 259-260]. On the contrary, the structure and language of s 76(2) of the Act support the view that what is required by a proposal that a term of imprisonment should be suspended is reconsideration of "all the circumstances". This necessitates the attribution of "double weight" to all of the factors relevant both to the offence and to the offender - whether aggravating or mitigating - which may influence the decision whether to suspend the term of imprisonment [R v Liddington (1997) 18 WAR 394 at 402 per Ipp J].
33 His Honour went on to say at [86]:
"Adopting this approach, then, permits attention to be given not only to the circumstances personal to the offender but also to
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- the objective features of the offence. These may, in a particular case, outweigh the personal considerations of rehabilitation and mercy. They may require that the prison sentence be immediately served, despite mitigating personal considerations. This approach is consonant with the recognition in jurisdictions other than Western Australia of the "complete discretion" [R v Davey (1980) 2 A Crim R 254 at 262] which, subject to the statute, the primary judge has in suspending a sentence of imprisonment. In other States, it has been considered undesirable to attempt to circumscribe the language of the statute by reference to supposed formulae, particular considerations or any other gloss [cf R v Wacyk (1996) 66 SASR 530 at 534; Police v Cadd (1997) 69 SASR 150 at 169]."
34 His Honour noted that the approach which he favoured appeared more consistent with subsequent decisions of this Court in R v Shaharuddin[1999] WASCA 229 and van de Worp v The Queen[2000] WASCA 154.
35 In every case where the possibility of a sentence of imprisonment not exceeding 5 years to be served immediately is in contemplation, s 39(3) requires the Court not to impose imprisonment to be served immediately unless the Court is first satisfied that it would not be appropriate to impose a sentence of suspended imprisonment: Etrelezis v The Queen [2001] WASCA 327 per Malcolm CJ at [12] – [22] with the agreement of Wallwork and Templeman JJ; and see Miller v The Queen [2001] WASCA 426 at [48] – [54] per Olsson AUJ (with whom Wallwork and Parker JJ agreed).
36 In the present case, it was contended by counsel for the Crown that the decision to suspend the terms of imprisonment was erroneous in four respects. First, it was submitted that the learned sentencing Judge, having been provided with a copy of the sentencing transcript in relation to co-offender Barbis, observed that Rouse had more references than Barbis. In his case, there was apparently only a letter from his employer. There were, however, some other references.
37 In the case of Rouse, there was a letter from his mother which explained some details of the family background. His family had migrated to Australia from England when Rouse was 15 and his brother 17. It was discovered that his father had been living a double life with another woman for 10-12 years. Devastated, the brothers and their mother returned to England. A year later they came back to Australia. This was
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- extremely disruptive and resulted in Rouse changing schools three times in 15 months. His mother began to suffer deep depression. As a result of guilt, his father attempted suicide by slashing his wrists in front of Rouse and his mother. His mother also attempted to commit suicide by overdosing on antidepressants the same night. Rouse called an ambulance to take them both to hospital.
38 As a result of these events, Rouse suffered severely and left school with no job and no prospects. Eventually he got a job, but then was knocked down by a car and broke his pelvis which put him out of work for a year. At the time of the offence, he had turned his life around, completing the fourth year of his apprenticeship and had rented his own flat. He was then four months away from the completion of his apprenticeship as a painter and decorator.
39 At the time of the commission of the offences, he had been in a steady relationship with his girlfriend for two years and a member of his local church. Apart from some minor traffic offences and one offence in 1997 for driving with a blood alcohol content in excess of 0.08%, for which he was sentenced to perform 20 hours of community work, he had no prior criminal record.
40 Rouse had a very favourable reference from his employer for whom he had worked for some three years in the building trade. His employer said he was proud to employ him. He was very helpful to older employees and his employer had received "great feedback" from homeowners, other supervisors and his employer's own staff who had always found him helpful. His employer said:
"[Rouse] is a pleasure to teach, and very good at his trade, and he will make an excellent tradesman in the painting and decorating industry. Total Coverage is very proud to employ him. He is a very valuable member of our team.
We have approached [Rouse] that on completion of his apprenticeship we would like [Rouse] to stay with us to work as a tradesman.
We were shocked and amazed when [Rouse] phoned that night, this is not the [Rouse] we know, it was far from his character, this quiet well-spoken young man, without hesitation we put up [Rouse's] bail. We think very highly of [Rouse]. He has been invited to family barbecues at our house."
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41 There was also a report from North Metro Community Drug Services Team, which is part of the St John of God Health Care at Subiaco, who reported that Rouse had voluntarily attended the Team in relation to his use of alcohol. This has enabled him to cut down on his alcohol use significantly. He no longer drinks on a daily basis. When he does so, he drinks low alcoholic drinks. He has had the same girlfriend for a number of years. He attends a church group regularly. His counsellor says he finds the support from the church invaluable. The counsellor will support him for as long as required.
42 The supportive reference provided by Rouse's mother was supported by his brother who indicated that as a schoolboy Rouse had represented the State at basketball. He had provided great support to his mother when his parents separated. Since leaving TAFE, his brother had always been in full-time employment as a painter and decorator. He confirmed that since the incident giving rise to the offences, he had sought and obtained counselling for his drinking and attended church twice a week. He had always been a placid and consistent person and the offences were completely out of character.
43 The reference from Rouse's girlfriend said she has known him for almost three years during which he had never showed any signs of violence. She says that on the night the offence occurred she got home from work about 8.30 pm. The two respondents were very drunk. Barbis wanted to go to the house of the son of the victim to collect money which he claimed the son owed him. Rouse's girlfriend offered to drive them because they were "extremely intoxicated". She said that Rouse had no recollection of the incident. As a result of the counselling he had attended regularly since the incident, his excessive drinking had stopped.
44 A Mr Coetsee who attends the same church as Rouse and who also attended the same high school as Rouse, says he first met him at school and described Rouse as:
" … hard working and motivated. [Rouse] has always been a loyal person and true to his word. He is sincere, caring and considerate of others. He has an excellent relationship with his family, girlfriend and friends.
To my knowledge he has never displayed any aggressive or violent behaviour. I was extremely surprised when I heard about this incident as it is out of character for him."
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45 In relation to the unlawful wounding count, the learned sentencing Judge was informed of the restricted role of Barbis. Although her Honour initially regarded the two offenders as equally culpable, she went on to consider that the respondent Rouse was less culpable, as the original idea to go to the complainant's house was thought not to be his and she had less material before her in relation to Barbis. It was submitted that these observations did not account for the imposition of a sentence of 3½years on Rouse when compared to the sentence of imprisonment for 12 months imposed on Barbis, nor for the suspension of the sentence imposed on Rouse in contrast to the imposition of a sentence of immediate imprisonment for Barbis. Counsel for the Crown submitted that both offenders were young, had relatively good antecedents, had pleaded guilty and there was nothing exceptional to justify dealing with Rouse more favourably.
46 In the case of Rouse, Deane DCJ, having noted that while general statements of principle may be made, the Court was required to consider each case individually before passing sentence on an offender. Her Honour then quoted the following passage in the judgment of Kirby J in Dinsdale (supra) at [68]:
"… there is no absolute rule. Each case must be judged on its own facts. The adoption of a blanket rule would itself be an error of sentencing principle. A discretion must be left to permit those with the responsibility of sentencing to take into account the peculiar circumstances of the case [Allpass (1993) 72 A Crim R 561 at 563], any exceptional circumstances affecting the prisoner, and in some cases the prisoner's family [See eg Anderson v The Queen (1996) 18 WAR 244], or some feature of the matter that reasonably arouses a judicial decision that a measure of mercy is called for in the particular case [R v Osenkowski (1982) 30 SASR 212 at 213; R v Clarke [1996] 2 VR 520 at 523; cf R v Cuthbert (1967) 86 WN (Pt 1) (NSW) 272 at 274]."
47 Deane DCJ then concluded that a term of imprisonment was the only appropriate sentencing option, given the overall gravity of the offending.
48 Her Honour went on to say that, having reached that conclusion, she proceeded to consider whether or not in all of the circumstances the sentence should be suspended, saying:
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- "Again, fully considering not only the objective gravity of your offending but also taking into account your relative youth, your good antecedents, your early pleas of guilty and evident remorse, as well as the fact that this offending is out of character for you and that you have made substantial steps towards rehabilitation I take the view, although it is a very finely balanced one, that the period of 3 and a half years' imprisonment I have imposed upon you should be suspended.
You are fortunate that if you can remain law-abiding you have the opportunity to make a life for yourself and contribute to the community. You have family support. You are in a stable relationship and you have the opportunity of stable and fulfilling employment in the future. You have developed a degree of insight into your alcohol abuse and to your credit you are addressing that through counselling.
As I see it you stand at the threshold and you can go either way. You can continue to abuse alcohol and I suspect almost inevitably find yourself in trouble again and going to prison or you can take advantage of the supports and opportunities that you most fortunately have.
Whilst I regard you and your co-offender as being equally culpable in many instances and certainly in the eyes of the law that is the case, I do note that this was not a debt owing to you and it would appear that the original idea to attend the debtor's premises did not arise from you. Whilst that is not determinative of your culpability I accept that this behaviour and offending is out of character for you.
The issue in this regard, that is, the issue of parity, is complicated to a degree because I do not have an enormous amount of information before me regarding your co-offender, although I note his antecedents whilst similar to yours contain convictions for more offending, albeit that he had not offended violently either. I do not know what material the court had before it by way of references when he came to be sentenced, but certainly the material I have before me regarding your lifestyle and the people that you associate with you in your family is positive."
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49 It was for these reasons that the learned Judge suspended the term of imprisonment of 3½ years for a period of 2 years and directed that in the event that it was necessary to order in the future that he serve the term immediately, he would be eligible for parole.
50 While the imposition of a suspended sentence for an offence of aggravated burglary is likely to be relatively rare, I do not consider that it was beyond the scope of the sentencing discretion. Suspended sentences imposed for this offence are not unknown and have also been imposed for more serious offences such as robbery and armed robbery.
51 In James v The Queen (1985) 14 A Crim R 364 at 366, Burt CJ (with whom Wallace J agreed) said in relation to an offence of armed robbery:
"It was a serious offence. It was, I think, an offence calling for a deterrent punishment. But on the other hand, it was a first offence committed by a man aged 41. There is no reason to suppose that it will be repeated by him and in argument this was accepted by counsel for the Crown whose end and central submission was that imprisonment was the only appropriate sentence because the offence called 'for the use of the most highly deterrent form of disposition known to the criminal law'. In that submission counsel was specifically speaking of a general deterrence, that is to say, of the deterrence of persons other than the appellant as the Crown accepted 'the proposition that this person does not need personal deterrence as of today'. As to that, in my opinion, in a case such as this a sentence other than imprisonment cannot be said to be inappropriate upon the single ground as asserted, and it may not be the fact, that it will not sufficiently deter others from committing a like offence.
This applicant is in steady employment. He is a confessed homosexual which may colour the opinion that some may form of him but nevertheless as far as one can judge from the reference which was tendered to the court, he has a good reputation.
In all the circumstances I do not think that this is a case in which a non-custodial sentence was not appropriate …"
52 There have been a number of cases in which, because the offenders were young first offenders, sentences of an intensive supervision order or suspended imprisonment have been imposed for armed robbery.
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- Although in about 90 per cent of cases of armed robbery a sentence of imprisonment is imposed, the Court of Criminal Appeal has indicated that, absent any particular features of aggravation or mitigation, the usual sentence should be in the range of 6 – 9 years with a loading of 1 year where the weapon used was a blood-filled syringe: Miles v The Queen (1997) 17 WAR 518 at 521 per Malcolm CJ (with whom Pidgeon J agreed); and per White J at 523 – 524; Taylor v The Queen, unreported; CCA SCt of WA; Library No 980152; 6 April 1998; and Cork v The Queen, unreported; CCA SCt of WA; Library No 970664; 2 December 1997 at 6 per Ipp J (with whom Pidgeon and Wallwork JJ agreed). Watson v The Queen [2002] WASCA 8 is an example of a successful appeal in which sentences of immediate imprisonment were varied by suspending the sentences for 2 years in a case of armed robbery. Mobilia v The Queen [2002] WASCA 130 is another example in which there were no prior offences of armed robbery and the sentence was suspended by this Court. The sentencing Judge gave careful consideration to the suspension of imprisonment for 4 years for armed robbery, but decided not to suspend it. This Court, by a majority, concluded that the sentence should be suspended.
53 For these reasons, I do not consider that either of the sentences imposed was beyond the scope of the discretion of either of the Judges who sentenced the respondents in this case. It follows that both of these Crown appeals against sentence should be dismissed.
Lack of Representation for Barbis
54 It is necessary to add to these reasons for judgment some comments concerning the duties of legal practitioners and their obligations to the Court arising out of the conduct of Mr Glenn, a legal practitioner who practises as a barrister and solicitor. When this case was called on at 10.30 am on 1 May 2003, there was no appearance by Mr Glenn.
55 Mr Glenn was instructed by Barbis to act on his behalf. On 17 February 2003, Mr Glenn informed the office of the Director of Public Prosecutions ("DPP") that he would accept service on behalf of Barbis. The DPP enclosed with that letter by way of service an endorsed copy of the Notice of Crown appeal which was filed on 4 February 2003 and had been listed for hearing in the sittings commencing on 1 May 2003. The letter concluded:
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- "If you have not already done so please ensure that you file and serve a Notice of Intention to Act so that you are formally on the record."
56 Mr Glenn failed to act on this request. As a result, all correspondence emanating from the Court was sent directly to Barbis at his last known address which was the same address as that which the Crown had for him. By a letter dated 24 April 2003, Mr Barbis was informed of the need for submissions and a list of authorities to be filed four working days prior to the date noted for the hearing, namely, 1 May 2003, or earlier, if possible. By a letter dated 28 April 2003, the Crown sent to Mr Glenn copies of the Crown's submissions and list of authorities. Mr Glenn was informed by my Associate that he had not been able to contact Mr Barbis on his mobile telephone to confirm his attendance and remind him of the need for submissions and a list of authorities to be provided. Unfortunately, Mr Barbis' telephone number had been disconnected.
57 The appeal books in this case were filed by the DPP on 24 April 2003. Mr Glenn's firm, Glenn & Co, is noted on the documents as the solicitors for Barbis. When the case was called on, there was no appearance by Mr Glenn. Shortly after the case had been called on, Mr Glenn appeared. He said that he had seen Barbis that morning for the first time since he had been sentenced. He confirmed that he had informed the DPP on 17 February 2003 that he would accept service. He wrote to Mr Barbis and received a fax from him in March saying that he would contact him but nothing further happened. He received the letter dated 17 February from the DPP which asked him to file and serve a notice of intention to act so that he was formally on the record.
58 Mr Glenn said that he did not intend to get on the record because he could not get instructions from Barbis. He confirmed that he had received a fax from Barbis at the beginning of March saying that he could not get in contact with him. He provided telephone numbers and a mobile telephone number. He claimed that Barbis "didn't follow that up and when I tried he didn't get in touch with him". Given that he had received a fax from Barbis, he should have known the fax number to which he could have sent a reply. In any event, the appeal books were duly served at his office on 28 April and Mr Glenn took no steps to inform the Court or the DPP of his position. Mr Glenn agreed that at the latest he should have notified the DPP that he was not acting. Given that the appeal books showed his firm as solicitors on the record, he should also have notified the Court that he was not.
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59 In the result, his conduct led to a situation where Barbis was unrepresented in a context where it was clearly desirable that the two Crown appeals be heard together. The hearing was adjoined so that Mr Glenn's instructions could be clarified by Barbis. In the result, Mr Glenn was instructed by Barbis that he no longer wished him to act. In these circumstances, Mr Glenn was given leave to withdraw.
60 The Court appreciates that practitioners are sometimes placed in a difficult position if they have difficulty in obtaining instructions. For example, agreement to act may be contingent on a grant of legal aid. In such circumstances, it is necessary for practitioners to make their situation clear to both the DPP and the Court at the earliest opportunity and to notify them if there is any difficulty.
61 In the result, Barbis indicated that he was content for the Crown appeal against his sentence to proceed without the benefit of legal representation.
MCKECHNIE J:
Dejan Barbis
62 The sentence imposed for Barbis was explained by the learned sentencing Judge at 20:
"Your personal circumstances are that you are a young man. You are aged 22. Until today you didn't have a significant record of offending and you have pleaded guilty. You have cooperated to a significant extent with the police so far in that I have seen the video of the interview with the police. You didn't appreciate how serious the offence you had committed was but you were to a significant extent prepared to accept responsibility for what you had done and it's very significant that you have told me through your lawyer that you are prepared to give evidence in the case against the other offender if the crown wishes you to do so, and it's also significant that you have been in custody since 14 September 2002.
The sentence I am imposing reflects your willingness to assist authorities and if you renege on that promise, you can be brought back for resentencing although I have no doubt that you have no intention of reneging on that promise and that you will not do so.
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- The offences are so serious that I have concluded that a term of imprisonment is necessary to be imposed, but it's far less than would have been imposed if not for the mitigating factors which I've set out, so the sentence I impose is 12 months' imprisonment on count 1, 8 months' imprisonment on count 2, those terms of imprisonment to be served concurrently because they were all part of the same transaction. The sentence is to be taken to have commenced being served on 14 September 2002 and I order that you be eligible for parole. …"
63 In my opinion the Judge fell into error in three areas.
Excessive deduction for cooperation
64 Ground 2 of the grounds of appeal states:
"2. The learned sentencing Judge erred in failing to indicate the extent of the reduction of sentence given in response to the offender's submission in the plea in mitigation that he undertook to assist law enforcement authorities, as required by s8(5) of the Sentencing Act."
65 Section 8(5) of the Sentencing Act provides:
"If because an offender undertakes to assist law enforcement authorities a court reduces the sentence it would otherwise have imposed on the offender, the court must state that fact and the extent of the reduction in open court."
66 I have some doubt whether s 8(5) is intended to apply to a situation where the person has simply offered to give evidence on behalf of the prosecution. The DPP is separately defined within the Sentencing Act and I am not sure whether it is relevantly a "law enforcement agency". However, that issue is not decisive. On the assumption that s 8(5) did apply, the Judge certainly failed to articulate the precise discount and in doing so was in error. That error of itself does not however reflect error in the actual sentence. It would only have relevance in the event that a person was brought back for failing to cooperate or wished to challenge the extent of the discount for the cooperation. It cannot affect the success of the Crown appeal in this case. However, the Judge's comments disclose a more fundamental error in ascribing significant weight to the promise to give evidence.
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67 Once Barbis had pleaded guilty, he would have had difficulty resisting a Crown subpoena to give evidence. The authorities on cooperation are conveniently gathered together by Parker J in Barany v The Queen [2000] WASCA 240. True cooperation is an important tool for law enforcement agencies and its currency should not be devalued by an over-ready indulgence by Judges in generous discounts for claimed future cooperation, especially when the cooperation would amount to nothing more than giving evidence in accordance with a video record of interview and the plea of guilty.
68 That said, Barbis was clearly entitled to some reduction of sentence on the basis that his offer for cooperation represented a concrete expression of remorse. However, I am of opinion that the Judge was unduly generous to the point of error in his reduction of sentence on this account.
Insufficient sentence for unlawful wounding
69 The second error is the sentence of 8 months for unlawful wounding. The basis of the guilt of Barbis for this offence was the subject of some discussion at the time of sentence and the Judge allowed an adjournment for further discussion to take place between the prosecution and the defence. In the event it was submitted and accepted that Barbis did not know in advance that Rouse was carrying a knife. However, he became a principal offender pursuant to the Criminal Code s 7 when he attacked the complainant by grabbing his arm and thus became liable for the use of the weapon by Rouse. On this basis, having regard to the injuries suffered, while I do not assess Barbis' liability as equal to that of Rouse, I consider a sentence of 8 months to be manifestly inadequate.
Failure to recognise the serious nature of the home invasion
70 For the reasons I express in the case of Rouse, I consider the Judge failed to take into account the very serious nature of the home invasion and its consequences in settling on a concurrent sentence of 12 months imprisonment. Such a sentence tends to fly in the face of decisions of this Court over the time - see for example Heferen v The Queen [1999] WASCA 81.
71 In my opinion a starting point of 3 years would be appropriate for the offence of burglary notwithstanding that the offenders only entered a short distance into the house. Specifically, Barbis went to the complainant's house to continue his demands for money and to confront the
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- complainant's son. When the complainant, aged 55, answered the door, he was confronted by two people, Barbis and Rouse, swearing and abusing him and demanding to see his son. Despite being asked to leave, they entered the house with violence in mind. After the wounding, one of the men yelled a threat to the complainant.
72 In the circumstances this was a most serious invasion of an innocent person's home.
73 To take account of the plea of guilty, and other personal factors including youth, and lack of a prior record, I would however reduce the sentence to one of 2 years imprisonment.
74 I would allow the appeal, set aside the sentences imposed, and in lieu thereof impose sentences as follows:
Count 1: 2 years imprisonment
Count 2: 1 years imprisonment
75 In the normal course, these sentences ought to be served cumulatively because they represent quite distinct criminal conduct, even though occurring close in time. However, in view of the fact that this is a Crown appeal and some moderation is indicated, I would impose each sentence concurrently so that the total sentence is one of 2 years imprisonment, backdated to 16 September 2002.
Tony Rouse
76 The Crown does not challenge the sentences of 12 months imprisonment for the offence of aggravated burglary, and 2-1/2 years imprisonment for the count of unlawful wounding, to be served cumulatively, making a total of 3-1/2 years imprisonment. The Crown submits that the subsequent suspension of the sentence was wrong in principle: Dinsdale v The Queen (2000) 202 CLR 321 at [6].
77 The exercise of the discretion to suspend a sentence is not to be lightly interfered with and cannot be overturned simply because an appeal court might have imposed a term of immediate imprisonment.
78 Nevertheless, I have reached the conclusion that the decision to suspend imprisonment was an error in the circumstances of the case.
79 This was a home invasion of a markedly serious type. Rouse and Barbis went to the complainant's house prepared to use violence towards
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- his son. Rouse had forearmed himself with a knife which he very quickly used in a forceful punching motion, pulling the knife up, and then out of the complainant's abdomen. These injuries occurred to a home owner in peaceful possession of his house. In Everett v The Queen (1994) 181 CLR 295, McHugh J said at 306:
"…Uniformity of sentencing is a matter of great importance in maintaining confidence in the administration of justice in any jurisdiction. Sentences that are higher than usual create justifiable grievances in those who receive them. But inadequate sentences also give rise to a sense of injustice, not only in those who are the victims of the crimes in question but also in the general public. Inadequate sentences are also likely to undermine public confidence in the ability of the courts to play their part in deterring the commission of crimes. …"
81 I would allow the appeal by setting aside the order for suspension of sentence.
PULLIN J:
Barbis
82 This is a Crown appeal against sentences imposed by Martino DCJ in the District Court on 16 January 2003. The respondent was convicted on his own plea of aggravated burglary and unlawful wounding.
83 The details of the charges were:
"(1) On 13 September 2002 at Sorrento Dejan Barbis entered the place of Raymond Arthur Lunny without his consent, with intent to commit an offence therein
And that Dejan Barbis was in company with another
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- And that immediately before the commission of the offence Dejan Barbis knew or ought to have known that there was another person in the place
And that the place was ordinarily used for human habitation.
(2) And further that on the same date and at the same place Dejan Barbis unlawfully wounded Raymond Arthur Lunny."
84 In relation to the first charge the respondent was sentenced to 12 months' imprisonment, and in relation to the second charge he was sentenced to 8 months' imprisonment, to be served concurrently.
85 The facts as found were as follows.
86 The respondent believed that he had been cheated by the son of the person who was wounded. The respondent felt that he had lost $2,000 in a disputed motor vehicle sale with the victim's son. On the night of Friday, 13 September 2002, at approximately 9.20 pm, the respondent and a co-offender, Rouse, went to the home of the victim to continue his demands for money and to confront the victim's son. The respondent intended to demand money by threats, if necessary. Rouse was armed with a short knife, but that was something not known to the respondent.
87 The victim answered the door and was confronted by the respondent and Rouse, both of whom started swearing and abusing the victim. The victim told them to leave, but the two offenders crossed the threshold and the victim, fearing for his safety, reached for a stick and tried to push them both out the door.
88 The respondent grabbed the victim's left hand, and Rouse then produced the knife. It was only at that point that the respondent saw the knife. He continued to hold the hand of the victim, and Rouse then stabbed the victim with the knife in a punching motion into the stomach. The respondent and Rouse then left.
89 The respondent returned the next day to confront the victim's son, and he was arrested.
90 The victim had an injury to his stomach which had the potential to be life threatening but was not, in fact, so. After medical care, the victim has made a reasonably good physical recovery, although he still has some
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- abnormal sensation around the area of the wound. The victim is suffering from the not unusual long-term impact of a psychological kind arising out of these offences.
91 Out of the respondent's personal circumstances the learned trial Judge detected four significant points in mitigation. They were:
(a) His youth. He was aged 22 years at the time he was sentenced.
(b) He did not have a significant record of offending.
(c) He pleaded guilty at the earliest opportunity.
(d) He co-operated with the authorities to a significant extent, this being a mitigating factor of the type referred to in s 8(5) of the Sentencing Act.
92 The learned trial Judge recognised the seriousness of the offences. Burglary involving home invasion is a serious offence, and that cannot be doubted. This Court said in 1997 that sentences for burglary of a habitat should be "firmed up": See Pezzino v The Queen [1997] 92 A Crim R 135. In Herbert v The Queen [2003] WASCA 61, counsel for the accused pointed to cases where the sentence for burglary was well below 5 years, which was the sentence imposed in Herbert's case. Anderson J commented as follows:
"Whilst in Pezzino this Court held that the time had come to 'firm up' sentences of burglary of a habitat, owing to the prevalence of the particular offence, I think it must be accepted that there have been many cases decided since Pezzino in which on a plea of guilty the penalty for burglary (even aggravated burglary) has been much less than 5 years."
93 His Honour then referred to several cases between 1999 and 2002 where sentences of between 18 months and three-and-a-half years had been imposed for burglaries of homes. He said, however, that it should not be lost sight of that in 1996 Parliament amended the Criminal Code to increase the maximum penalty for burglary from 14 years to 18 years. The Chief Justice also referred to this and referred to Heferen v The Queen [1999] WASCA 81, where Anderson J had pointed out the duty of courts to give effect to the legislative policy behind the amendments. The court in Herbert's case did not say, however, that all sentences of 18 months to three-and-a-half years were manifestly inadequate. Herbert's case held that 5 years' imprisonment in the circumstances of that case was not manifestly excessive. It is, of course, well known that a
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- sentence in one case on different facts cannot govern the outcome in another case.
94 It is important to note that as the respondent was originally charged, a circumstance of aggravation was that the respondent was armed with an offensive weapon. There was discussion between the learned trial Judge and counsel in which it became clear that the respondent contended that he did not know that his co-offender was armed with a knife when the home invasion began. The respondent said he only knew about the knife when it was produced by Rouse during the struggle with the victim. The hearing was then adjourned, and then the prosecution amended the charge to delete from it the allegation that a circumstance of aggravation relating to the burglary was that the respondent was armed. The respondent then pleaded guilty to that amended charge. These events must mean that the respondent was sentenced on the basis that he did not know about the knife until it was produced by Rouse during the altercation.
95 The fact that the respondent only had knowledge of the existence of the knife when Rouse produced it, is important in relation to both charges.
96 This is an appeal by the prosecution under s 88(2)(d) of the Criminal Code. An appeal by the prosecution must show that there was an error in sentencing as understood inHouse v The King(1936) 55 CLR 499 at 505; see Dinsdale v The Queen (2000) 202 CLR 321.
97 In short, the prosecution must show specific error in the reasoning of a sentencing Judge, or alternatively it must demonstrate that the sentence is manifestly inadequate: Dinsdale (supra) [5]. If a sentence is manifestly inadequate, this will frequently not admit of amplification except by stating the respect in which it is so. It may be inadequate because it is manifestly too short: Dinsdale (supra) at [6]. In this case, the first ground of appeal is that the sentence is inadequate because it is manifestly too short.
98 In deciding whether the sentences were manifestly too short, this Court must avoid looking only at the end result without paying close attention to the strong mitigating factors which were at play. I will deal first with the burglary sentence.
99 If the respondent had not earned a discount for an early plea of guilty, and if the respondent had not earned a discount for his co-operation with the prosecuting authorities, then the sentence would have been much higher. If the respondent's record had been a lengthy one, or had revealed violence, the sentence would doubtless have been higher. If the learned
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- sentencing Judge had found that the respondent had no reason to go to the house other than to commit burglary, it would have been higher. If the respondent had knowledge that Rouse was armed with the knife before he went to the premises, the sentence would have been higher.
100 However, all these conditions did not apply. Each of the factors I have mentioned worked a reduction in what would otherwise have been the appropriate sentence. These factors brought it to what was, in the particular circumstances, a sentence which while on the low side was not, in my opinion, manifestly too short.
101 The eight months' sentence for the unlawful wounding charge is not, in my view, manifestly inadequate, given the mitigating factors I have already mentioned and in view of the fact that the respondent did not know that the co-offender was armed with the knife until the altercation began.
102 The second ground of appeal is that the learned sentencing Judge erred in that he failed to comply with s 8(5) of the Sentencing Act, 1995 in that he did not indicate the extent of the reduction of sentence given in response to the respondent's undertaking to assist law enforcement authorities.
103 It is true that the learned sentencing Judge did not indicate the extent of the reduction of sentence as a result of this mitigating factor. There is no doubt that this was an error on the part of the trial Judge. Section 8(5) is mandatory in its terms. Section 8 states what mitigating factors are in general terms, states some matters which are not mitigating factors, and states certain matters which the court must state during sentence. The mandatory requirement in s 8(5) is that if an offender undertakes to assist law enforcement authorities and a court reduces the sentence it would otherwise have imposed on the offender, "the court must state that fact and the extent of the reduction in open court".
104 On some occasions it may be appropriate to keep confidential the precise particulars of the assistance which is being given, but the fact that assistance is being, or has been, given to law enforcement authorities must be stated. In this case it was openly stated. There was no error in that respect. The error which occurred was the failure to state the extent of the reduction.
105 The learned sentencing Judge said:
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- "The sentence I am imposing reflects your willingness to assist authorities and if you renege on that promise, you can be brought back for resentencing although I have no doubt that you have no intention of reneging on that promise and that you will not do so."
106 This reference to "reneging" and "resentencing" was a reference to the court's powers under s 37A of the Sentencing Act, 1995, which authorises the court to recall the sentence imposed and impose a sentence based on the "full sentence". If a person reneges on an agreement to assist, it is important to know the extent to which the sentence was reduced so that the "full sentence" can be imposed when the offender is re-sentenced under s 37A.
107 The second ground of appeal therefore succeeds. His Honour erred in law in not complying with the mandatory requirements of s 8(5). That then leaves the court to exercise the powers in s 689(3) of the Criminal Code. It is not necessary under that section to quash the sentence and to re-sentence. This will only occur if this Court thinks that a different sentence should have been imposed. I will therefore review the sentence which was imposed.
108 In my opinion, in the circumstances of this case, an appropriate sentence without regard to mitigating circumstances would have been within the range of three to four years. I will settle on three years. There was no finding made that the respondent went to the premises intending to commit the burglary. The entry into the premises occurred following an altercation, and the entry was for a short distance only. As already mentioned, the respondent pleaded guilty at an early stage, and that warranted a reduction, in my view, of 25 per cent of the sentence which might otherwise have been imposed. The co-operation with authorities would have warranted a further reduction of up to 25 per cent, or nine months. That brings the sentence back to one-and-a-half years, and the other mitigating factors of youth and no significant record are factors which, in my opinion, justified a sentence of one year on the burglary charge.
109 On the unlawful wounding charge, a reasonable sentence without mitigating factors would have been 18 months. The early plea of guilty attracted a discount, and in my view a 25 per cent discount was reasonable, and further a 25 per cent discount (or four-and-a-half months) was reasonable for the respondent's co-operation with the authorities. That suggests a reduction to nine months, and the respondent's youth and
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- relatively good record warranted a further reduction to eight months. I agree that the sentences should have been concurrent because this respondent did not know about the knife until it was produced. The result would have been different if he had known about the knife when he set out for the premises.
110 The result is that the sentences imposed should not be disturbed, and I would therefore dismiss the appeal.
Rouse
111 I agree with the reasons and conclusions of the Chief Justice.
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