Rhe v The State of Western Australia - [2017] WASCA 60

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT : THE COURT OF APPEAL (WA)

CITATION: RHE -v- THE STATE OF WESTERN AUSTRALIA [2017] WASCA 60

CORAM: BUSS P
NEWNES JA
MAZZA JA

HEARD: 15 FEBRUARY & 31 MARCH 2017

DELIVERED : 7 APRIL 2017

FILE NO/S: CACR 88 of 2016

BETWEEN: RHE
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent

ON APPEAL FROM:
Jurisdiction              :  DISTRICT COURT OF WESTERN AUSTRALIA
Coram  :SWEENEY DCJ
File No  :IND 1327 of 2015

Catchwords:

Criminal law - Appeal against sentence - Seven counts of receiving stolen property - One count of possessing stolen property - 26 offences on s 32 notice - Sentencing judge imposed sentence on two charges by reference to the wrong maximum penalty - Total effective term 5 years and 10 months' imprisonment - Totality principle - Appellant cooperated with police - Whether sentence infringed first limb of totality principle

Legislation:

Criminal Code (WA), s 414, s 417, s 428

Result:

Appeal allowed
Appellant resentenced on two charges by reference to the correct maximum penalty
Appellant resentenced to total effective term of 4 years and 4 months' immediate imprisonment

Category: B

Representation:

Counsel:

Appellant: Ms B J Lonsdale
Respondent: Ms K C Cook

Solicitors:

Appellant: Belinda Lonsdale
Respondent: Director of Public Prosecutions (WA)

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

Anglesey v The Queen [2002] WASCA 194
Eacott v The State of Western Australia [2009] WASCA 112
Giglia v The State of Western Australia [2010] WASCA 9
Gilmour v The State of Western Australia [2008] WASCA 42
Hellings v The Queen [2003] WASCA 208
Luckman v Leucus [2001] WASCA 57
MXP v The State of Western Australia [2010] WASCA 215; (2010) 41 WAR 149
Newport v The State of Western Australia [2015] WASCA 224
Poduti v The State of Western Australia [2011] WASCA 169
Roffey v The State of Western Australia [2007] WASCA 246
TXT v The State of Western Australia [2012] WASCA 28; (2012) 220 A Crim R 266
Wallam v The State of Western Australia [2012] WASCA 115

REASONS OF THE COURT: This is an appeal against sentence. The appellant was convicted in the District Court on his plea of guilty to eight counts on indictment, being seven counts of receiving stolen property, contrary to s 414 of the Criminal Code (WA), and one count of possessing stolen property, contrary to s 417 of the Criminal Code; and to 26 offences on a notice under s 32 of the Sentencing Act 1995 (WA). He was sentenced by Sweeney DCJ to a total effective term of 5 years and 10 months' immediate imprisonment.
The appellant appeals against the sentence on the grounds, first, that the sentencing judge failed to follow the process required by s 9AA of the Sentencing Act (ground 1); secondly, that her Honour imposed sentence on two charges on the s 32 notice by reference to the wrong maximum penalty (ground 3); and, thirdly, that the total effective sentence infringed the first limb of the totality principle (ground 2).
Details of the counts on the indictment, the charges on the s 32 notice and the facts and circumstances of the offending are set out is Schedule 1 of these reasons. Schedule 1 will be the subject of a confidentiality order. It will not be published except to the appellant and the State and their respective legal representatives.

The sentencing remarks

The sentencing judge noted that the appellant was 31 years of age. He had a stable upbringing but suffered from dyslexia and had struggled at school. After leaving school he completed an apprenticeship as a plumber and after working in the north of the State, started his own business. He had been using drugs in his early 20s but stopped doing so when he met his former wife, also in his early 20s. They purchased a home together and had two children.
The appellant's business was successful, but in time he became overwhelmed by it, including the paperwork which he found difficult because of his dyslexia, and by his mortgage and other responsibilities. Problems began to emerge in his marital relationship and he began to drink heavily and relapsed into drugs. The marriage broke down in September 2013 when his former wife left him.
The appellant then started using drugs more heavily and that took its toll on the business until the appellant ceased working. This coincided with erratic behaviour by the appellant which caused a violence restraining order (VRO) to be obtained by his former wife.
The sentencing judge noted that the appellant had a criminal record but it consisted largely of traffic offences.
The sentencing judge referred to a psychological report, dated 19 October 2015, which had been prepared in relation to the property offences. Her Honour noted that the psychologist considered that the escalation in the appellant's offending had occurred in association with poor coping skills, poor judgment and poor problem‑solving following marital distress, separation and substance abuse. The appellant was described in the report as a highly dependent person who had been shocked by the end of his marriage, the loss of which he had felt keenly and was less equipped to cope with. He had presented with depressive features, anxiety and significant distress, and appeared to lack the judgment to understand how he could have behaved in a more positive way. The psychologist had recommended that the appellant would benefit from substance abuse treatment and counselling for behavioural problems.
The sentencing judge took into account by way of mitigation the appellant's early pleas of guilty to the offences. On the indictable offences and the property and drug offences on the s 32 notice, her Honour allowed a discount of 20%, and in relation to the stalking and VRO offences a discount of 25%, under s 9AA of the Sentencing Act. In addition, her Honour took into account that the appellant was remorseful, and that he had a good work ethic and supportive parents, which gave him better prospects of rehabilitation when released from prison. Her Honour took into account too that the appellant was using his time in prison constructively to take courses directed to his rehabilitation.
The sentencing judge also took into account in mitigation the appellant's cooperation with law enforcement authorities (the Cooperation) for which she allowed a further discount of 20%.
Against that, the sentencing judge noted that the offending was very serious. The appellant had effectively been warehousing goods for people who gave him either money or drugs in exchange. The short period between when some of the items were stolen and when they were delivered to the appellant's property demonstrated that this was a business in which the appellant had played a critical role.
The stalking offence on the s 32 notice was not only very serious but had been committed in breach of the VRO and within a matter of weeks of a suspended imprisonment order having been imposed for earlier breaches of the VRO. While the appellant had not physically harmed his former wife, he had given her every reason to think that that was where his conduct was leading and that any man with whom she entered into a relationship was at risk of at least serious harm. His intimidation was an attempt to control her life. Her Honour considered that both general and personal deterrence were important factors in sentencing for the offending.
In imposing sentence, her Honour reiterated that the individual sentences reflected first, the discount for the plea of guilty, and then the further discount of 20% for the Cooperation, and finally, the additional matters in mitigation that she had mentioned. The individual sentences are set out in Schedule 2 to these reasons. Schedule 2 will be the subject of a confidentiality order. It will not be published except to the appellant and the State and their respective legal representatives. It is sufficient here to note the following:
1.the appellant was sentenced to 2 years' immediate imprisonment on each of counts 1 and 2 on the indictment, to be served cumulatively;
2.on the charge on the s 32 notice of possessing property reasonably suspected to be stolen (MI 4185/14), the appellant was sentenced to 2 years' immediate imprisonment to be served concurrently with all other sentences;
3.on charge MI 4185/14 her Honour imposed sentence in the mistaken belief that the charge alleged an offence against s 417 of the Code and, accordingly, the maximum penalty for the charge was 7 years' imprisonment, whereas in fact the charge alleged an offence against s 428(1) of the Code and, accordingly, the maximum penalty for the charge was 2 years' imprisonment and a $24,000 fine;
4.on each of counts 3 to 7 and the charges on the s 32 notice of receiving stolen property (MI 5394/14) and possessing property reasonably suspected to be stolen (MI 5393/14), the appellant was sentenced to 18 months' immediate imprisonment to be served concurrently with each other and all of the other sentences;
5.on charge MI 5393/14 her Honour imposed sentence on the same erroneous basis as the sentencing for charge MI 4185/14;
6.on count 8, the appellant was sentenced to 20 months' immediate imprisonment to be served concurrently with the other sentences;
7.on the charge on the s 32 notice of aggravated stalking, the appellant was sentenced to 1 year and 10 months' immediate imprisonment, to be served cumulatively;
8.on the charges on the s 32 notice of breaches of the VRO, no sentence was imposed; and
9.on the remaining charges on the s 32 notice, the appellant was sentenced to various terms of between 1 and 6 months' immediate imprisonment, to be served concurrently with each other and all of the other sentences.
The total effective sentence was therefore 5 years and 10 months' immediate imprisonment. Her Honour ordered that the sentence was to take effect on 12 February 2016 and made the appellant eligible for parole.

The grounds of appeal

The grounds of appeal were amended, with leave, during the hearing of the appeal. The grounds, as amended, were:
1.The learned sentencing judge erred by not undertaking the process required by s 9AA of the Sentencing Act.
2.The learned sentencing judge erred by imposing a total effective maximum sentence which infringed the totality principle resulting in a sentence which was too severe.
3.The learned sentencing judge erred in law by sentencing the appellant on charges MI 4185/14 and MI 5393/14 by stating that the maximum penalty applicable to those charges was 7 years' imprisonment when the maximum penalty applicable was 2 years' imprisonment.
On 17 July 2016, Mazza JA granted leave to appeal on ground 2 (which was then numbered differently).

The disposition of the appeal

Ground 1

Section 9AA of the Sentencing Act provides, in substance, that if a person pleads guilty to an offence, the court may reduce the 'head sentence' (as defined in s 9AA(1)) in order to recognise the benefits to the State and to any victim or witness to the offence resulting from the plea. If the head sentence for an offence is or includes a 'fixed term' (as defined in s 9AA(1)) the court must not reduce the sentence by more than 25%. If the court reduces the head sentence for an offence by reason of a plea of guilty, it must state that fact and the extent of the reduction in open court.
It was not contended by the appellant that the sentencing judge was required by s 9AA to state the head sentence before the discount was applied. It was, however, submitted that because the sentencing judge had specified the precise percentage discounts she had applied to each of the sentences, it was possible to 'reverse engineer' the sentences to calculate the head sentence that would have been imposed but for the discounts. Thus, for instance, on the sentence of 2 years' imprisonment on count 1, where a discount of 20% had been applied under s 9AA and then a discount of 20% for the Cooperation, it was possible to calculate the apparent starting point, which was 3.125 years. It was submitted that it was so improbable that the sentencing judge would have started with such a precise figure that it was to be inferred that she had not in fact undertaken the process required by s 9AA.
The problem with that submission is that the premise that it is possible to 'reverse engineer' the sentence imposed so as to arrive at the head sentence is flawed. It is flawed because it is clear that, in addition to the two specified discounts of 20% (or on the aggravated stalking charge, 25% and 20%), the sentencing judge took into account additional matters in mitigation that she had mentioned earlier in her sentencing remarks (ts 72) [AB 107]. Her Honour did not state the amount of the discount she had allowed in relation to those matters. Accordingly, it would be erroneous to calculate the head sentences for the offences by reference only to the two discounts of 20% (or of 25% and 20% on the aggravated stalking charge). In the absence of a stated amount for the further discount for additional matters in mitigation, it is impossible to calculate the head sentences.
It was not suggested that there was any other basis for the contention that the sentencing judge had failed to comply with s 9AA. It follows that this ground of appeal has no merit.
We would refuse leave to appeal on this ground.

Ground 3

The State conceded ground 3 of the appeal. The concession was properly made. However, counsel for the State submitted that, despite the sentencing errors in relation to charge MI 4185/14 and charge MI 5393/14, no different total effective sentence should have been imposed.
Ground 3 has been made out. Leave to appeal should be granted.

Ground 2

The relevant principles are well‑established and can be shortly stated.
The appellant relies upon the first limb of the totality principle which requires the total effective sentence imposed in respect of a number of offences to bear a proper relationship to the overall criminality involved in all of the offences, viewed in their entirety and having regard to the circumstances of the case, including those referable to the offender personally: Roffey v The State of Western Australia [2007] WASCA 246 [24].
Whether a sentence infringes the totality principle must depend upon the particular facts and circumstances of the case. While it is necessary to have regard to sentences imposed in other cases of offending of a similar nature in an endeavour to achieve broad consistency in sentencing, they can provide only a broad guideline because of the considerable variation in the nature and circumstances of the offending and the personal circumstances of the offender. That is particularly so in this case because of the number and range of the offences involved. Unsurprisingly, we were not referred to any cases involving comparable overall offending and our own research has not unearthed any.
Counsel for the appellant did, however, refer to a number of cases involving offences of receiving stolen property, submitting that the offending in that respect in this case was less serious than in those cases. The cases were Newport v The State of Western Australia [2015] WASCA 224; Poduti v The State of Western Australia [2011] WASCA 169; Eacott v The State of Western Australia [2009] WASCA 112; and Wallam v The State of Western Australia [2012] WASCA 115.
In relation to the charge of aggravated stalking, counsel for the appellant again referred to a number of cases in support of the appellant's contention that the sentence of 1 year and 10 months' immediate imprisonment in this case was too severe. Those cases were Gilmour v The State of Western Australia [2008] WASCA 42; Hellings v The Queen [2003] WASCA 208; Anglesey v The Queen [2002] WASCA 194; and Luckman v Leucus [2001] WASCA 57.
We have read those cases and a number of others but they are of very limited assistance. That is not only because of the variation in the nature and circumstances of the offending and the circumstances of the offender, but also because, as has been said on many occasions in this court, where there is a challenge on totality grounds, the severity of a sentence on an individual count falls to be assessed, not in isolation, but in light of the sentences imposed on other counts. The real question is whether the total effective sentence infringes the totality principle: see Giglia v The State of Western Australia [2010] WASCA 9 [40].
There is no doubt that in this case the objective facts of the overall offending were serious. The offences of receiving stolen property and possessing stolen property reflected a persistent and systematic course of dishonesty involving property of considerable value. While the theft of the property received by the appellant and its ultimate disposal was carried out by others, the warehousing of the property by the appellant was, as the sentencing judge observed, a critical role in what was a business of stealing property for parts or resale. The stalking charge was separate and serious offending, carried out in breach of a VRO and very shortly after a suspended imprisonment order had been imposed for earlier breaches of the VRO. While the offending conduct was relatively short in duration, occurring over a period of nine days, it was persistent, calculated and menacing.
There were, however, very substantial mitigating factors identified by the sentencing judge. Her Honour allowed a discount under s 9AA of the Sentencing Act of 25% for the stalking offence and 20% for each of the other offences; a discount on each sentence of 20% for the Cooperation; and an additional unspecified discount on each sentence for certain matters in mitigation mentioned in her sentencing remarks.
The principles to be applied in determining the nature, extent and value of an offender's past and promised future cooperation with law enforcement agencies, and the appropriate level of any discount on his or her sentence, were examined by this court in MXP v The State of Western Australia [2010] WASCA 215; (2010) 41 WAR 149. The rationale for allowing a sentencing discount for cooperation with law enforcement agencies is the demonstration of genuine remorse and apparent rehabilitation and, also, the public interest in the detection and successful prosecution of crime: TXT v The State of Western Australia [2012] WASCA 28; (2012) 220 A Crim R 266 [28]. We have read a letter of recognition given by the police to the Director of Public Prosecutions (WA) which sets out details of the Cooperation.
When the total effective sentence is viewed in the light of the very substantial mitigating factors, we consider that it exceeded a proper relationship to the overall criminality involved in all of the offences, viewed in their entirety and having regard to the circumstances of the case, including those referable to the offender personally.
We would uphold this ground of appeal, allow the appeal and set aside the total effective sentence imposed by the sentencing judge including the orders for concurrency and cumulacy made by her Honour.

Resentencing

This court has the material necessary to resentence the appellant and it is appropriate that it do so.
As to each of charge MI 4185/14 and MI 5393/14, we would allow a discount of 20%, pursuant to s 9AA of the Sentencing Act, on the 'head sentence' (as defined in s 9AA(1)) in order to recognise the benefits to the State and to any victim or witness to the offence resulting from the plea of guilty. We would then allow another discount of 20% on account of the Cooperation. We would then allow a further discount for the additional matters of mitigation referred to by the sentencing judge in her sentencing remarks. The new individual sentence for charge MI 4185/14 is 10 months' immediate imprisonment and for charge MI 5393/14 is 8 months' immediate imprisonment.

Having regard to the matters referred to above, we would not interfere with the other individual sentences imposed by her Honour, but would order that the sentences on counts 1 and 2 on the indictment be served concurrently with each other. The sentence on the charge of aggravated stalking (MI 11051/15) and the sentence on the charge of gaining a benefit with intent to defraud by deceit (PE 85960/14) are to be served cumulatively upon each other and upon the sentence on count 1 on the indictment. We would order that the sentences on the other counts on the indictment and the other charges on the s 32 notice (including the new individual sentences for charge MI 4185/14 and charge MI 5393/14) be served concurrently with each other and with the sentences on counts 1 and 2.
The new total effective sentence is 4 years and 4 months' immediate imprisonment, to commence on 12 February 2016. The appellant remains eligible for parole.