Rankins v Beaman
[2000] WASCA 269
•21 SEPTEMBER 2000
RANKINS -v- BEAMAN [2000] WASCA 269
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2000] WASCA 269 | |
| Case No: | SJA:1088/2000 | 6 SEPTEMBER 2000 | |
| Coram: | MILLER J | 21/09/00 | |
| 10 | Judgment Part: | 1 of 1 | |
| Result: | Appeal dismissed | ||
| PDF Version |
| Parties: | TROY BENJAMIN RANKINS MICHELLE ANN BEAMAN |
Catchwords: | Criminal law Sentence Burglary Whether sentence of imprisonment to be served immediately Only disposition open Firming up of sentences for offence Principles to be applied |
Legislation: | Criminal Code, s 401(2) Sentencing Act 1995, s 6(4), s 39 s 62, s 67, s 76(2) |
Case References: | Cheshire v The Queen, unreported; CCA SCt of WA; BC8900866; 7 November 1989 Fisher v R [1999] WASCA 122 Heferen v R [1999] WASCA 81 Lowndes v The Queen (1999) 73 ALJR 1007 Pezzino (1997) 92 A Crim R 135 R v Liddington (1997) 18 WAR 394 R v GP (1997) 18 WAR 196 Thompson v The Queen (1992) 8 WAR 387 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CIVIL
- Appellant
AND
MICHELLE ANN BEAMAN
Respondent
Catchwords:
Criminal law - Sentence - Burglary - Whether sentence of imprisonment to be served immediately - Only disposition open - Firming up of sentences for offence - Principles to be applied
Legislation:
Criminal Code, s 401(2)
Sentencing Act 1995, s 6(4), s 39 s 62, s 67, s 76(2)
Result:
Appeal dismissed
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Representation:
Counsel:
Appellant : Mr C L J Miocevich
Respondent : Ms A C Johnson
Solicitors:
Appellant : Aboriginal Legal Service
Respondent : State Crown Solicitor
Case(s) referred to in judgment(s):
Cheshire v The Queen, unreported; CCA SCt of WA; BC8900866; 7 November 1989
Fisher v R [1999] WASCA 122
Heferen v R [1999] WASCA 81
Lowndes v The Queen (1999) 73 ALJR 1007
Pezzino (1997) 92 A Crim R 135
R v Liddington (1997) 18 WAR 394
Case(s) also cited:
R v GP (1997) 18 WAR 196
Thompson v The Queen (1992) 8 WAR 387
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1 MILLER J: The appellant was charged in the Court of Petty Sessions, Northam with the offence of burglary: Criminal Code, s 401(2). He appeared before a Magistrate in the Court of Petty Sessions at Northam on 10 April 2000 and faced in addition to the charge of burglary charges of driving a motor vehicle whilst legally disentitled to hold a licence and giving to a member of the police force a false name. To all offences he pleaded guilty. On the driving charge he was fined $400 with disqualification from holding a licence for 9 months and on the charge of giving a false name he was fined $150.
2 In relation to the charge of burglary the facts put before the learned Magistrate were as follows:
"In relation to the burglary and committal offence, on Monday, 22nd November 1999, between the hours of 8 am and 10 am in the morning, the defendant attended at 314 Caulfield Street in Gosnells. The defendant went to the rear of the premises and gained entry by smashing the rear glass sliding door with a screwdriver.
Once inside the premises, he removed a Sanyo video recorder, valued at $1000, a Yamaha amplifier valued at $1000, a Technics tuner valued at $500, a Pioneer compact disc player valued at $700, and wrapped all these items up in a quilt which he removed from the main bedroom. He has then decamped the premises via the front window and placed these items in his vehicle, which was parked in the complainant's driveway and then driven off.
On Monday, 27th March 2000, the defendant attended at the Northam police station and wanted to hand himself into the police in relation to the above offence. A video record of interview was conducted with him where he admitted the offence. There is a request for restitution, your Worship, of $3275 for the unrecoverable property."
3 Counsel for the appellant put before the learned Magistrate that the appellant had no prior convictions (there being only Children's Court convictions which could not be taken into account); that he was in a de facto relationship with a woman who was five months pregnant and in a stable situation; that he had been a drug user in the past but had ceased using drugs since residing with his de facto for six or seven months; that he was studying at Northam TAFE and in receipt of an Abstudy
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- allowance of $330 a fortnight and that he had pleaded guilty at the first opportunity and volunteered to police the fact that he had committed the burglary offence. Counsel urged the Court to impose a community-based order to ensure his rehabilitation and to impose a community service requirement: Sentencing Act 1995, s 62, s 67.
4 The learned Magistrate proceeded to deal with the matter and said:
"HIS WORSHIP: Well, I will need to impose a penalty which reflects the seriousness of the offence. I don't believe a community-based order does. I believe a term of imprisonment does. I would be prepared to suspend that term of imprisonment, in the scheme of things, bearing in mind the amounts that he has got to pay now, but I don't believe I can impose anything less than a suspended term of imprisonment.
Ms Williams if it wasn't for some of the factors that you have mentioned in his prior record I wouldn't have been considering suspending the term of imprisonment. Just stand up, Mr Rankins. A burglary of this nature is a serious offence. Members of the community are sick and tired of leaving their properties, going out and finding that when they get home someone like you has been in by breaking a window or a door and then taking property that people save for and accumulate by their efforts. There is just far too much of it. As I say, if it weren't for some of the mitigating circumstances that were mentioned, I would not be suspending the term of imprisonment I intend to impose.
In relation to the burglary charge, you will be sentenced to 12 months' imprisonment. That term will be suspended for 2 years and there will be an order that you pay compensation of $3275 and costs of $38."
5 On 9 June 2000, Heenan J granted the appellant leave to appeal the sentence imposed by the learned Magistrate on the following grounds:
"(a) The learned Magistrate erred by failing to give adequate consideration to imposing options other than a term of imprisonment, particularly having regard to:
(i) the legislative direction contained in Section 6(4) and Section 76(2) Sentencing Act 1995 (WA);
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- (ii) the fact that it is the Applicant's first offence as an adult;
(iii) the fact that the Applicant has never been subject to a community based disposition;
(iv) the Applicant's personal circumstances and antecedents; and
(v) the nature of the offence and the circumstances in which the offence was committed.
- (b) The learned Magistrate erred in that the sentence was manifestly excessive in all the circumstances particularly having regard to:
(i) the standards of sentencing customarily observed for offences of this nature;
(ii) the place in which the criminal conduct in question occupies in the scale of seriousness of crimes of this nature;
(iii) the circumstances in which the offence was committed; and
(iv) the Applicant's personal circumstances and antecedents.
(c) The learned Magistrate erred by ordering that the sentence of imprisonment be suspended for 2 years."
6 On the hearing of the appeal counsel for the appellant conceded that the offence of burglary was a serious offence and that in recent times the Court of Criminal Appeal has made it clear that sentences for that offence should be firmed up in the light of the increase in 1996 of the maximum penalty for burglary from 14 years to 18 years' imprisonment. However, counsel contended that the learned Magistrate had, in the present case, erred in law in ignoring the requirements of the Sentencing Act 1995, in particular by failing to take into account the provisions of s 6(4) of the Act which provides that a court must not impose a sentence of imprisonment on an offender unless (inter alia) it decides that the seriousness of the offence is such that only imprisonment can be justified. Further, it was contended that the learned Magistrate failed to take proper account of the provisions of s 39 of the Act which, by s 39(2), sets out the range of
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- sentencing options available to a court and by s 39(3) provides that a court must not use a sentencing option in s 39(2) unless satisfied, having regard to the matters set out in s 6 to s 8 of the Act that it is not appropriate to use any of the options listed before that option. As counsel put it, s 39(3) of the Act requires a court before imposing a sentence of imprisonment to go through the process of eliminating other possible sentencing options whilst bearing in mind the provisions of Div 1 of Pt II of the Act.
7 Counsel for the appellant pointed out that there were a number of mitigating factors which told heavily in favour of the appellant, they being that he was 23 years of age; had pleaded guilty on the second appearance date; was a first offender; had never been subject to a community-based order; cooperated fully with police; handed himself in in relation to the charge of burglary and had a past problem with amphetamines from which he was successfully rehabilitating himself. For these reasons it was submitted that the learned Magistrate ought to have considered a community-based order and ordered the release of the appellant. Counsel pointed out that s 76(2) of the Act provides that suspended imprisonment is not to be imposed unless imprisonment for a term or terms equal to that suspended would, if it were not possible to suspend imprisonment, be appropriate in all the circumstances.
8 The thrust of counsel's submission was that in the present case, for the all of the reasons given in mitigation, it could not be said that imprisonment was the only disposition of the matter which was open. Reliance was placed upon the decision of the Court of Criminal Appeal in Cheshire v The Queen, unreported; CCA SCt of WA; BC8900866; 7 November 1989 where (at 10), Malcolm CJ said:
"For the offences of breaking and entering with intent which involves the theft of property to the value of less than $10,000.00 the range of sentences commonly imposed would appear to be of the order of 12 to 18 months. The circumstances of the individual case could justify up to 2 years. Where the amount of the property exceeds $10,000.00-$15,000.00 the range of sentences currently imposed would seem to be about 3 years. A break and enter of a more professional kind would justify a sentence of 4 years and upwards, depending on the seriousness of the offence. These penalties are more commonly imposed where the offender is relatively mature, probably with some significant criminal record. In the case of a first offender or a young offender without any significant prior record the court could well
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- consider a non-custodial sentencing option. Where the offender was shown to be a drug addict and there are positive indications that a drug treatment programme could be successful to redirect the offender away from criminal behaviour to become a worthwhile member of the community, a non-custodial option may also be worthy of consideration, particularly in the case of young offenders."
- Whilst counsel for the appellant conceded that since the decision in Cheshire there has been a firming up of the range of sentences appropriate for the offence of burglary, it was submitted that the observations of the Chief Justice in relation to the case of a first offender without any significant record are still relevant. It is, however, to be observed that the Chief Justice said only that in the case of a first offender or young offender without any significant prior record the Court "could well consider a non-custodial sentencing option". It was not said that such a disposition of the matter would necessarily be open, nor of course could it have been so said.
9 Counsel for the respondent submitted that the offence of burglary committed by the appellant was a very serious offence and one of increasing prevalence in relation to which the Court of Criminal Appeal had recently given clear indication that the courts will need to continue to firm up sentences for the offence. Reliance was placed upon the observations of Anderson J in Heferen v R [1999] WASCA 81 where his Honour said (at [35]):
"I do not consider it is open to the courts now to regard home burglaries as anything but very serious offences. The courts in this State have recognised for some time now that the offence has become prevalent and is causing considerable community concern. Quite apart from that, which would in itself be a reason for the courts to continue to firm-up sentences in home burglary cases, parliament has recently singled out the offence for special treatment. Prior to 1996, the maximum penalty for burglary was 14 years' imprisonment. In 1996, amendments were made which increased the maximum penalty for domestic burglaries by 28.5% from 14 years to 18 years. It is, of course, the duty of the courts to give effect to the policy behind this change: R v Peterson [1984] WAR 329 per Burt CJ at 334; R v O'Neil, unreported; CCA SCt of WA; Library No 960172; 29 March 1996; Sentencing Act 1995 s 6(2)(a)."
(Page 8)
- His Honour also made reference to the observations of Franklyn J in Pezzino (1997) 92 A Crim R 135 where at 138 it was said:
"The invasion of the privacy of the home has its own impact on the victims … the value of the goods taken in most cases will be of only limited relevance. The offender takes either what he came specifically to take or what he can find and, in the particular circumstances, chooses or is able to remove."
"So far as the burglary being in residential premises unoccupied and during the day-time is concerned, it has been recognised for a number of years that such offences cannot simply be regarded as property offences. Those whose homes are invaded, whether there are persons present or not, are left with a great sense of insecurity about the invasion of their premises and it has a dramatic impact upon the occupants when their houses are burgled. This has been recognised by the courts in recent years.
Notwithstanding the fact that the offence was committed during the day, it fell into the category of offences for which the maximum penalty was increased in 1996 by Parliament from 14 years to 18 years. This was the subject of comment by this Court in Little v R, unreported; CCA SCt of WA; Library No 970041; 3 February 1997, in my judgment in which I said at 6:
'It is now clear that the prevalence of the offence of burglary is very great, particularly in the case of burglaries which are being committed for the purpose of obtaining money to buy drugs. This may mean that the range of sentences commonly imposed, which was dealt with by this court in Cheshire v R, unreported; CCA SCt of WA; Library No 7924; 7 November 1989, may need to be reconsidered and sentences firmed up in the manner referred to by Burt CJ in the context of armed robbery and R v Peterson [1984] WAR 329 at 331-332'."
- After making reference to Heferen v R his Honour added (at [15]):
"Reference should also be made to Pezzino v R (1997) 92 A Crim R 135 at 136 per Franklyn J and at 148 per White J; Nguyen v R and Tran v R [1999] WASCA 54 at 55 per Kennedy
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- J. The Courts have taken this view because of both the increased prevalence of the offence and the need to protect the community on the one hand, and the fact that Parliament has increased the penalties for the offence, on the other hand."
11 It is true that in the cases of Heferen and Fisher the offender had a prior record of offences and came before the Court in entirely different circumstances, but what cannot be ignored is that the Court of Criminal Appeal has stressed the seriousness of burglary of unoccupied residential premises during the daytime and rated the offence as an extremely serious one of increasing prevalence.
12 Against this background the observations of the learned Magistrate when sentencing the appellant were entirely correct. The offence was serious, prevalent and extremely distressing for persons who returned home to find that their properties had been burgled. The learned Magistrate turned his mind to the question of a community-based order but formed the view that such an order would not reflect the seriousness of the offence and that only a term of imprisonment would. In this respect his Worship properly applied the provisions of s 39 and s 6 of the Sentencing Act. In my view there was every justification for the learned Magistrate taking the view that he did. The decisions of the Court of Criminal Appeal to which I have referred amply supported his view of the seriousness of the offence and this notwithstanding the lack of any prior conviction of the appellant and the other relevant mitigating circumstances. The learned Magistrate saw fit to suspend the sentence of imprisonment and clearly did so on the basis that it would encourage the rehabilitation of the appellant. Rehabilitation, if not the primary consideration in the imposition of a suspended term of imprisonment is at least one of the most important factors: R v Liddington (1997) 18 WAR 394 per Malcolm CJ at 397 - 8 and Steytler J at 405.
13 It may have been open in this case for another Magistrate to have imposed a community-based order, but in my view it was open to the learned Magistrate to take the view that the offence committed by the appellant was so serious that only a sentence of imprisonment was justified and that such sentence should be suspended. The decision of the learned Magistrate was entirely in accordance with authority of this Court. It goes without saying, of course, that this Court cannot substitute its opinion for that of the learned Magistrate merely because it would have exercised its discretion in a different manner: Lowndes v The Queen (1999) 73 ALJR 1007. However, my own view is that the sentence was,
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- in all the circumstances, an appropriate one. For these reasons the appeal will be dismissed.
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