Ridley v The State of Western Australia
[2013] WASCA 45
RIDLEY -v- THE STATE OF WESTERN AUSTRALIA [2013] WASCA 45
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2013] WASCA 45 | |
| THE COURT OF APPEAL (WA) | |||
| Case No: | CACR:104/2012 | 23 NOVEMBER 2012 | |
| Coram: | McLURE P BUSS JA MAZZA JA | 22/02/13 | |
| 6 | Judgment Part: | 1 of 1 | |
| Result: | Respondent's application for leave to adduce additional evidence granted Appellant's application for an extension of time to appeal dismissed | ||
| D | |||
| PDF Version |
| Parties: | ADAM GUY RIDLEY THE STATE OF WESTERN AUSTRALIA |
Catchwords: | Criminal law Appeal against sentence Appellant sentenced to 4 years 6 months' imprisonment for burglary of commercial premises Sentence reduced by the primary judge from 5 years to 4 years 6 months in the application of the totality principle Appellant convicted after trial Appellant previously convicted of 47 burglaries Whether sentence manifestly excessive |
Legislation: | Criminal Code (WA), s 401(2)(c) |
Case References: | Ashworth v The State of Western Australia [2006] WASCA 36 Drake v The State of Western Australia [2006] WASCA 209 Hintz v The Queen [2002] WASCA 38 Krijestorac v The State of Western Australia [2010] WASCA 35 Main v The State of Western Australia [2010] WASCA 28 Nguyen v The State of Western Australia [2007] WASCA 114 R v Vletter [2004] WASCA 96 Veen v The Queen (No 2) [1988] HCA 14; (1988) 164 CLR 465 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : RIDLEY -v- THE STATE OF WESTERN AUSTRALIA [2013] WASCA 45 CORAM : McLURE P
- BUSS JA
MAZZA JA
- Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram : WISBEY DCJ
File No : IND 1255 of 2011
Catchwords:
Criminal law - Appeal against sentence - Appellant sentenced to 4 years 6 months' imprisonment for burglary of commercial premises - Sentence reduced by the primary judge from 5 years to 4 years 6 months in the application
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of the totality principle - Appellant convicted after trial - Appellant previously convicted of 47 burglaries - Whether sentence manifestly excessive
Legislation:
Criminal Code (WA), s 401(2)(c)
Result:
Respondent's application for leave to adduce additional evidence granted
Appellant's application for an extension of time to appeal dismissed
Category: D
Representation:
Counsel:
Appellant : Ms H E Prince
Respondent : Ms S H Linton
Solicitors:
Appellant : Marilyn Loveday
Respondent : Director of Public Prosecutions (WA)
Case(s) referred to in judgment(s):
Ashworth v The State of Western Australia [2006] WASCA 36
Drake v The State of Western Australia [2006] WASCA 209
Hintz v The Queen [2002] WASCA 38
Krijestorac v The State of Western Australia [2010] WASCA 35
Main v The State of Western Australia [2010] WASCA 28
Nguyen v The State of Western Australia [2007] WASCA 114
R v Vletter [2004] WASCA 96
Veen v The Queen (No 2) [1988] HCA 14; (1988) 164 CLR 465
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1 McLURE P: I agree with Buss JA.
2 BUSS JA: The appellant has applied for an extension of time to appeal against sentence.
3 On 4 April 2012, he was convicted, after a trial in the District Court before Wisbey DCJ and a jury, on one count in an indictment.
4 The count alleged that on 7 December 2010, at Kardinya, the appellant, while in the place of Eureka Operations trading as Coles Express without its consent, committed the offence of stealing, contrary to s 401(2)(c) of the Criminal Code (WA) (the Code).
5 The trial judge sentenced the appellant to 4 years 6 months' immediate imprisonment. His Honour reduced the term he would otherwise have imposed from 5 years to 4 years 6 months' imprisonment in the application of the totality principle. A parole eligibility order was made.
6 The last date for appealing was 25 April 2012. The appellant did not file his appeal notice until 27 April 2012. His application for an extension of time is supported by an affidavit sworn 29 May 2012 by his solicitor, Marilyn Ann Loveday.
The facts and circumstances of the offending
7 In the early hours of the morning on 7 December 2010, at Kardinya, the appellant entered the place of Eureka Operations trading as Coles Express. He gained access through the roof of the premises. Once inside, he dismantled an electrical security system. He forced open a safe and stole about $48,000. Of this amount, $2,400 was recovered when the appellant was apprehended by the police on 8 December 2010. In addition to the cash, the appellant stole 34 SIM cards, 12 broadband starter kits, some mobile telephones, a portable DVD player and a small amount of tobacco. None of this other property was recovered.
The ground of appeal
8 The sole ground of appeal alleges that the term of 4 years 6 months was manifestly excessive.
9 On 1 July 2012, Mazza JA granted leave to appeal.
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The merits of the ground of appeal
10 A ground of appeal which asserts that a sentence is manifestly excessive asserts the existence of an implied error. It is necessary, in determining whether a sentence is manifestly excessive, to examine it from the perspective of the maximum sentence prescribed by law for the relevant offence, the standards of sentencing customarily observed with respect to that offence, the place which the criminal conduct occupies on the scale of seriousness of offences of the kind in question, and the personal circumstances of the offender.
11 When considering the sentencing standards that are usually observed in relation to offences of the kind committed by the appellant, it is necessary to have regard to a range of comparable cases. Nevertheless, each case turns on its own particular facts and circumstances. Sentencing ranges can provide only general guidance. The limits of the guidance afforded by comparable cases are flexible rather than rigid. A sentencing range is merely one of the factors to be taken into account in deciding whether a sentence is manifestly excessive. The mere fact that a sentence is within the range of other sentences imposed for similar offences does not necessarily establish that there was an appropriate exercise of the sentencing discretion in the particular case. Similarly, the mere fact that a sentence is outside that range does not necessarily establish that the exercise of the sentencing discretion in the particular case miscarried.
12 The maximum penalty for the appellant's contravention of s 401(2)(c) of the Code is 14 years' imprisonment.
13 The primary sentencing considerations in relation to burglary are personal and general deterrence. Ordinarily, a substantial penalty is imposed. The standards of sentencing customarily imposed for burglary and aggravated burglary were reviewed by this court in Ashworth v The State of Western Australia [2006] WASCA 36, Drake v The State of Western Australia [2006] WASCA 209 and Nguyen v The State of Western Australia [2007] WASCA 114. See also Hintz v The Queen [2002] WASCA 38, R v Vletter [2004] WASCA 96, Main v The State of Western Australia [2010] WASCA 28 and Krijestorac v The State of Western Australia [2010] WASCA 35. Burglaries can be and are, of course, committed in a wide range of circumstances and the sentence to be imposed for a particular offence must be commensurate with the seriousness of the particular offence, after taking into account the maximum penalty, the circumstances of the offending (including the
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- vulnerability of any victim), any aggravating factors and any mitigating factors.
14 The offence committed by the appellant was, no doubt, serious. The offending was well-planned and demonstrated some expertise. The trial judge found that at least two people were involved in the offending. Although this was not pleaded as a circumstance of aggravation, it was, nevertheless, relevant to the sentencing disposition. As I have mentioned, the stolen property was not recovered, apart from a small amount of the cash.
15 The appellant was convicted after trial. He did not have the benefit of the mitigation that a plea of guilty would have brought. He did not evince any remorse.
16 The appellant is a seasoned and experienced criminal who has not been deterred by previous convictions and terms of imprisonment. His record of burglaries is formidable. The conviction for the offence in question was his 48th conviction for burglary. He also has numerous convictions for other offences including armed robbery, receiving, possession of weapons, stealing (multiple offences), being on premises without lawful excuse (multiple offences), loitering, possession of prohibited drugs (multiple offences) and possession of a car-breaking implement. Several of his previous burglary offences involved a method of entry to the premises which was identical to the method used in the present case.
17 The appellant was born on 14 June 1975. He was aged 35 at the time of the offending. The appellant has a lengthy history of illicit drug abuse. He has spent a significant part of his adult life in prison. He has no significant relationship, has no children and is estranged from his parents.
18 By an application filed on 22 November 2012, the State applied for leave to adduce additional evidence in the appeal. The additional evidence comprises the appellant's up-to-date criminal record. This record reveals that on 13 November 2011, and again on 19 November 2011, while the appellant was on bail awaiting trial for the offence in question, he committed yet another offence of burglary. These offences were committed, in circumstances of aggravation, contrary to s 401(2)(a) of the Code.
19 The appellant's criminal history (notably, the numerous burglaries he has committed) shows that crime is his chosen career. He manifested, in
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- his commission of the present offence, a continuing attitude of disobedience of the law. See Veen v The Queen (No 2) [1988] HCA 14; (1988) 164 CLR 465, 477 - 478 (Mason CJ, Brennan, Dawson & Toohey JJ). Although the appellant could not be (and was not being) punished again for past criminal behaviour, his prior record reflected on his moral culpability for the present offence. It also showed that this offence was not an uncharacteristic aberration.
20 It is true, as counsel for the appellant submitted, that the objective facts and circumstances of the offending in question are less serious than those discernible in some other cases where the offender has received a lesser sentence. However, matters personal to the appellant in the present case demanded a sentence of at least 4 years 6 months' immediate imprisonment. This case is unusual in that there are no mitigating factors. The principal sentencing consideration was personal deterrence.
21 As I have mentioned, his Honour reduced the term he would otherwise have imposed from 5 years to 4 years 6 months' imprisonment in the application of the totality principle. His Honour said:
One of the important sentencing considerations here is one of totality since you have spent considerable periods of time in custody over a number of years and the sentence that is imposed ought to at least offer you some hope for the future if you are prepared to take steps towards your own rehabilitation (ts 216).
22 I am satisfied that there is no merit in the appellant's assertion that the term of 4 years 6 months was manifestly excessive. When the sentence is evaluated from the perspective of the maximum penalty, the standards of sentencing customarily observed with respect to burglary offences, the place which the appellant's criminal conduct occupies on the scale of seriousness of offences of this kind, and the appellant's personal circumstances and antecedents, the only conclusion reasonably open is that the trial judge's exercise of discretion was not unreasonable or plainly unjust. No error is to be implied from the sentencing outcome.
Conclusion
23 I would grant the State leave to adduce the additional evidence in the appeal. The appellant's application for an extension of time to appeal should be dismissed.
24 MAZZA JA: I agree with Buss JA.
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