Robson v The State of Western Australia

[2020] WASCA 153

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT  :   THE COURT OF APPEAL (WA)

CITATION:   ROBSON -v- THE STATE OF WESTERN AUSTRALIA [2020] WASCA 153

CORAM:   BUSS P

MAZZA JA

MITCHELL JA

HEARD:   20 AUGUST 2020

DELIVERED          :   17 SEPTEMBER 2020

FILE NO/S:   CACR 12 of 2020

BETWEEN:   SCOTT ROBSON

Appellant

AND

THE STATE OF WESTERN AUSTRALIA

Respondent

ON APPEAL FROM:

Jurisdiction              :   DISTRICT COURT OF WESTERN AUSTRALIA

Coram:   TROY DCJ

File Number            :   IND 1465 of 2019

Catchwords:

Criminal law - Sentencing - Aggravated home burglary - Whether sentence of 2 years 3 months' immediate imprisonment is manifestly excessive

Legislation:

Criminal Code (WA), s 401(2)(a)

Result:

Extension of time granted
Leave to appeal refused
Appeal dismissed

Category:    D

Representation:

Counsel:

Appellant	:	S H King
Respondent	:	J A Scholz

Solicitors:

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

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

Brindley v The State of Western Australia [2019] WASCA 153

Eldridge v The State of Western Australia [2020] WASCA 66

Herbert v The Queen [2003] WASCA 61; (2003) 27 WAR 330

Kabambi v The State of Western Australia [2019] WASCA 44

Tapper v The State of Western Australia [2016] WASCA 140

Winmar v The State of Western Australia [2018] WASCA 155

Wragg v The State of Western Australia [2013] WASCA 198; (2013) 234 A Crim R 380

JUDGMENT OF THE COURT:

Summary

1. The appellant appeals against a sentence of 2 years 3 months' immediate imprisonment imposed in respect of an offence of aggravated home burglary, contrary to s 401(2)(a) of the Criminal Code (WA). The appellant was made eligible for parole. The sentence was imposed on 21 November 2019.

2. The appellant's sole ground of appeal is that the sentence was manifestly excessive.[1]  The application for leave to appeal, and an application for an extension of time in which to appeal, were referred to the hearing of the appeal.

   [1] Another ground, which contended that the sentencing judge erred in not finding that the appellant had suffered from mental health issues which most likely had contributed to his offending, was abandoned at the hearing of the appeal.

3. For the following reasons, there is no merit in the ground of appeal.  While an extension of time should be granted, leave to appeal should be refused and the appeal should be dismissed.

Circumstances of the offending

1. At about 3 am on 26 May 2018, the appellant was in front of the victim's house in Bicton, shouting that he wanted to gain entry.  The appellant knew at this stage that someone was present in the house.  The 74-year-old female victim, who lived alone, was at home at the time and refused to allow the appellant inside.  The appellant smashed a window near the front door with a brick.  The appellant gained entry to the premises and ransacked a bedroom, from which he stole two gold watches, a silver watch, two gold chains and a wallet containing cards and $700 in cash.  The victim fled from her home in terror and sought help from neighbours.

2. The appellant was identified by DNA from blood left inside the victim's house at the point of entry.  He was arrested on 8 June 2018, and denied involvement in the offending.

3. At an interview with the Victim-Offender Mediation Unit on 25 July 2019, the appellant revealed that he had retained the property stolen from the victim, other than the $700 in the wallet which was 'lost'.  The property was subsequently returned to the victim.

4. The offending had a significant effect on the victim, who was left anxious, hypervigilant and with significantly disturbed sleep.  She does not want to live in her house anymore, and has constant emotional breakdowns.  She has lost weight as a result of loss of appetite.  The victim spent about $5,000 in upgrading security at her home.

Personal circumstances

1. The appellant was 24 years old at the time of the offending and 26 years old at the time of sentence.  He had a minor prior criminal record as an adult, comprising two drink driving offences.  He had qualified as a plumber after leaving high school in year 10.  His partner of three years had their first child about 5 months prior to sentencing.[2]

   [2] Primary ts 13, 16, 19; presentence report, p 2.

2. The appellant was heavily intoxicated at the time of the offending, and claimed not to be able to recall the offending.  He accepted that he had a problem with binge drinking, as well as a gambling problem which had caused financial distress.  He had attended counselling sessions with a clinical psychologist on a number of occasions to attempt to address his offending, and the anxiety and depression from which he suffered.[3]

   [3] Primary ts 10, 15 - 16, 19, 21.

Sentencing judge's approach

1. The sentencing judge allowed a discount of 20% under s 9AA of the Sentencing Act 1995 (WA) in respect of the appellant's plea of guilty, which was not entered at the first reasonable opportunity.[4]  His Honour accepted that the appellant had expressed remorse for his conduct, but there was no mitigation for cooperation with police.[5]

   [4] Primary ts 18.

   [5] Primary ts 19.

2. After referring to the appellant's personal circumstances, the sentencing judge observed:[6]

   I'm not satisfied that there was any mental illness that was causative of your offending.  The fact that you were very drunk at the time is not mitigatory.  There is a background that you were dealing with a gambling addiction at the time.

   And again the mitigatory weight of that is very limited indeed.

   [6] Primary ts 19.

3. The sentencing judge identified general and personal deterrence as dominant sentencing considerations for aggravated home burglary offences.[7]  His Honour also referred to a victim impact statement by the victim which gave a detailed account of the impact of the offending on her.[8]

   [7] Primary ts 19 - 20, 21.

   [8] Primary ts 20 - 21.

4. The sentencing judge indicated that he had taken into account the personal circumstances identified in counsel's address and documents he had received, including many references for the appellant.  His Honour took account of the appellant's voluntary engagement in counselling to deal with his various difficulties in terms of abuse of alcohol, gambling and depression.[9]

   [9] Primary ts 21.

5. The sentencing judge indicated that he would take into account, 'in a general sense', the potential loss of the appellant's plumbing licence and the adverse effect of incarceration on the appellant's family, although that hardship did not constitute special circumstances.  The sentencing judge said:[10]

   I accept that the burglary was unplanned and was not especially sophisticated, but it was committed at 3 o'clock in the morning when I'm satisfied that you knew, at some stage, that there was someone present.  That person who was present was a 74-year-old woman, living alone.  She fled from her home in terror.  So to that extent, there was a confrontation.

   But you continue[d] with the burglary.  You ransacked the bedroom.  You were sufficiently in control to locate, steal and retain some items which were bound to have been of value to the victim, albeit not necessarily of the greatest value that can be seen in burglaries of this type.  On any view of it … this was a bad example of an aggravated burglary.

   [10] Primary ts 22.

6. After indicating that he took account of the fact that the appellant had not been to prison previously, the sentencing judge imposed a sentence of 2 years 3 months' imprisonment for the home burglary offence.  No penalty was imposed for a stealing offence on the same indictment.  The appellant was made eligible for parole.[11]

   [11] Primary ts 22.

Manifest excess

1. The appellant's sole remaining ground contends that the sentencing judge erred in imposing a sentence that was manifestly excessive having regard to the nature and circumstances of the appellant's offending and the appellant's personal circumstances and antecedents.  This is an allegation of implied error. 

General principles

1. The principles relevant to allegations of implied error are well established, and were summarised in Kabambi v The State of Western Australia.[12]  It is unnecessary to repeat those principles here.  The issue is ultimately whether error is to be inferred from a sentence which is unreasonable or plainly unjust.

   [12] Kabambi v The State of Western Australia [2019] WASCA 44 [21].

2. As far as the appellant contends that the sentence imposed was manifestly excessive as to type, it is necessary to have regard to s 39 and related provisions of the Sentencing Act.  Those provisions require a sentencing judge to be positively satisfied that it is not appropriate to suspend or conditionally suspend a term of imprisonment before the term can be ordered to be served immediately.  The discretion to suspend or conditionally suspend a term of imprisonment is not confined by considerations relating to rehabilitation.  In a particular case, the objective features of an offence may outweigh the personal considerations of rehabilitation.[13]  On appeal, the question is whether it was reasonably open to the sentencing judge to conclude that suspended or conditionally suspended imprisonment were inappropriate sentencing options.

Maximum penalty

[13] Tapper v The State of Western Australia [2016] WASCA 140 [68] - [70] and the cases there cited.

1. The maximum penalty for an offence of aggravated home burglary is imprisonment for 20 years.  There is no minimum penalty applicable to this case.

Customary sentencing standards

1. The customary sentencing standards for that offending are referred to in recent decisions of this court in Eldridge v The State of Western Australia,[14] and Brindley v The State of Western Australia.[15]In Brindley, the court observed:[16]

   The circumstances of burglary offences can vary widely and attract a wide range of sentences.  Home burglaries are viewed as being particularly serious offences, and are generally seen as requiring substantial penalties in order to recognise considerations of personal and general deterrence, and reflect the prevalence of the offence.  Home invasions, which involve forcible entry into residential premises known or suspected to be occupied at the time, accompanied by threatened or actual violence, are generally significantly more serious than home burglaries which lack those characteristics.  A home invasion which is committed with intent to intimidate the occupants is generally more serious than a burglary which involves simply an intention to steal.

   [14] Eldridge v The State of Western Australia [2020] WASCA 66.

   [15] Brindley v The State of Western Australia [2019] WASCA 153.

   [16] Brindley [39].

2. The court in Brindley referred to a number of earlier decisions which reviewed the range of sentences commonly imposed for burglary offences, which the sentence in the present case falls under or well within.[17]  In Eldridge, the court observed:[18]

   The cases illustrate that there is no tariff for home burglary, whether aggravated or non-aggravated.  This is hardly surprising given the vast variation of circumstances in which offences of home burglary are committed and the personal circumstances of those who commit them.

   What is clear is that home burglaries are serious offences which are prevalent and which are ordinarily met with terms of imprisonment.  There has long been a recognition that sentences for home burglary need to be firmed up.  Whether this has in fact happened is debatable.

   [17] Brindley [43] - [46], citing Wragg v The State of Western Australia [2013] WASCA 198; (2013) 234 A Crim R 380, Herbert v The Queen [2003] WASCA 61; (2003) 27 WAR 330 and Winmar v The State of Western Australia [2018] WASCA 155.

   [18] Eldridge [63] - [64].

3. It cannot reasonably be argued that the length of the term of 2 years 3 months' imprisonment imposed in the present case exceeded the length of terms of imprisonment customarily imposed for reasonably comparable offending.

Seriousness of the offending

1. The appellant's offending was a serious example of an aggravated home burglary.  His victim was a 74-year-old lady who lived alone and was terrified by the experience.  She has suffered ongoing psychological and financial impacts as a result of the offending.  The appellant forced his way into a house, which he knew to be occupied, at 3 am.  The appellant ransacked the victim's bedroom and took items of both personal and financial value to her.  The criminality involved in the offending demanded a substantial term of imprisonment.

Personal circumstances

1. The appellant's personal circumstances are noted above.  There are a number of mitigating features, including his plea of guilty, remorse and steps taken towards rehabilitation.  Counsel's oral submissions emphasised these mitigating features.  However, these mitigating factors are accounted for in the length of the term of imprisonment which was lenient, having regard to the nature and circumstances of the offending.  The significance of personal and general deterrence as predominant sentencing considerations limited the weight that could be given to the personal factors emphasised by the appellant's counsel.

Disposition

1. Having regard to all of the above matters, it is not reasonably arguable that the sentence of 2 years 3 months' immediate imprisonment imposed on the appellant for the aggravated burglary offence was unreasonable or plainly unjust.  As we have mentioned, the length of the term of imprisonment imposed on the appellant was lenient.  It is not reasonably arguable that the sentencing judge erred in being satisfied that it was inappropriate to suspend or conditionally suspend the term of imprisonment.  There is no merit in the sole remaining ground of appeal.

Orders

1. The appellant requires an extension of time in which to appeal.  We would grant that extension as the delay was relatively short, and has been explained. 

2. There were also two applications to adduce further affidavits of the appellant and his solicitor as additional evidence in the appeal.  The appellant's counsel accepted that, except so far as they related to the application for an extension of time, the additional affidavits would only be relevant if this court came to resentence the appellant.[19]  As that point has not been reached, the applications in an appeal dated 23 May 2020 and 2 June 2020 should be dismissed.

   [19] Appeal ts 6.

3. For the reasons explained above, leave to appeal should be refused and the appeal should be dismissed.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.

ZMM
Associate to the Honourable Justice Mitchell

16 SEPTEMBER 2020