Rowsell v The State of Western Australia
[2015] WASCA 2
•9 JANUARY 2015
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: ROWSELL -v- THE STATE OF WESTERN AUSTRALIA [2015] WASCA 2
CORAM: McLURE P
NEWNES JA
MAZZA JA
HEARD: 9 SEPTEMBER 2014
DELIVERED : 9 JANUARY 2015
FILE NO/S: CACR 3 of 2014
BETWEEN: JOSHUA ZANE ROWSELL
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram :STONE DCJ
File No :IND 1201 of 2013
Catchwords:
Criminal law - Appeal against sentence - Aggravated burglary - Burglary of dwelling when occupant home - Plea of guilty - Whether appellant showed remorse - Remorse a question of fact - Plea of guilty not assumed to be indicative of remorse - Finding of no remorse open to sentencing judge - Repeat offender under s 401(4) Criminal Code (WA) - Whether aggravating factor - s 7(1) Sentencing Act 1995 (WA) - Whether sentence of 30 months' immediate imprisonment manifestly excessive
Legislation:
Criminal Code (WA), s 400, s 401(1)(b), (2a), (4) - (5)
Sentencing Act 1995 (WA), s 7(1) - (3), s 9AA
Result:
Leave to appeal on ground 2 refused
Appeal on grounds 1 and 3 dismissed
Appeal dismissed
Category: B
Representation:
Counsel:
Appellant: In person
Respondent: Mr J A Scholz
Solicitors:
Appellant: In person
Respondent: Director of Public Prosecutions (WA)
Case(s) referred to in judgment(s):
Ashworth v The State of Western Australia [2006] WASCA 36
Beins v The State of Western Australia [No 2] [2014] WASCA 54
Cameron v The Queen [2002] HCA 6; (2002) 209 CLR 339
Chan v The Queen (1989) 38 A Crim R 337
Forkin v The State of Western Australia [2013] WASCA 51
House v The King [1936] HCA 40; (1936) 55 CLR 499
Lynch v The State of Western Australia [2011] WASCA 243
Miles v The State of Western Australia [2013] WASCA 156
Moody-Jackamarra v The State of Western Australia [2007] WASCA 7
Morris v The State of Western Australia [2011] WASCA 47
Munda v The State of Western Australia [2013] HCA 38; (2013) 302 ALR 207
Munmurrie v Western Australia [2013] WASCA 167
Nguyen v The State of Western Australia [2007] WASCA 114
Papertalk v The State of Western Australia [2011] WASCA 229
Siganto v The Queen [1998] HCA 74; (1998) 194 CLR 656
The State of Western Australia v Akizuki [2008] WASCA 267; (2008) 192 A Crim R 373
Veen v The Queen [No 2] [1988] HCA 14; (1988) 164 CLR 465
Wroth v The State of Western Australia [2013] WASCA 155
Zimmerman v The State of Western Australia [2009] WASCA 211
McLURE P & NEWNES JA: This is an appeal against sentence. On 10 December 2013, the appellant pleaded guilty in the District Court to one count of aggravated burglary and was sentenced by Stone DCJ to 30 months' immediate imprisonment.
The appellant contends that the sentencing judge erred in three respects, namely, that his Honour found the appellant had shown no remorse for the offending (ground 1); treated the appellant's criminal record as an aggravating feature of the offending (ground 2); and imposed a sentence which was manifestly excessive (ground 3).
On 9 April 2014, Mazza JA granted the appellant leave to appeal on grounds 1 and 3, and referred the application for leave to appeal on ground 2 to the hearing of the appeal.
Background
The material facts were as follows. Between 7.00 pm and 7.15 pm on 26 July 2013, the appellant went to a block of units in Ballajura. One of the units in the block of 20 was the victim's unit. The appellant used a hammer to smash the kitchen window of the victim's unit. The kitchen light was on at the time. The victim, a 72‑year‑old woman, was in another room and on hearing noises came into the kitchen to find the appellant entering through the window holding the hammer. She ran out her front door to a neighbour's unit.
The appellant stole two $20 notes from the victim's purse, which was on the kitchen bench, and then left the unit. He cut himself entering the unit through the broken window, and left droplets of blood on the kitchen bench. A swab of the blood was analysed and the DNA profile found to match the appellant's reference DNA sample.
The appellant was arrested by police on 8 August 2013. He declined to participate in an electronic record of interview, telling police, 'I just want to take the charges'. He subsequently pleaded guilty to one count of aggravated burglary, contrary to s 401(2)(a) of the Criminal Code (WA).
The sentencing remarks
The sentencing judge noted that the appellant was 19 years old and was in a relationship, with his partner expecting their child. Although this was the first time the appellant had been convicted of a serious offence as an adult, as a juvenile he had numerous convictions for stealing, burglary, drug offences, and weapon offences. His Honour observed that the appellant had been offending continuously since late December 2010 and that previous periods of detention had failed to deter him. The appellant was a repeat offender within the meaning of s 401(4) of the Criminal Code, so that the minimum sentence which could be imposed for this offence was one of 12 months' immediate imprisonment.
The sentencing judge noted that the appellant had pleaded guilty at the first reasonable opportunity but did not accept that the appellant was remorseful. It is implicit in his Honour's sentencing remarks that he considered the guilty plea reflected no more than recognition by the appellant that conviction was inevitable as his DNA had been found inside the unit.
His Honour went on to say:
You've shown no remorse. And I don't accept the submission by your counsel that you are remorseful. Not once have you shown an interest in the proceedings today. You've stared vacantly towards the back of the courtroom totally ignoring what's going on around you (ts 17).
The sentencing judge took into account the appellant's youth, which he described as a powerful mitigating factor. Pursuant to s 9AA of the Sentencing Act 1995 (WA), in respect of the appellant's guilty plea his Honour reduced the sentence he would otherwise have imposed by 20%. The appellant was sentenced to 30 months' immediate imprisonment and made eligible for parole.
The grounds of appeal
The grounds of appeal are as follows:
1.The learned sentencing judge erred in fact in finding that the appellant had not shown remorse.
2.The learned sentencing judge erred in law in considering the record of the appellant as an aggravating feature to the offending.
3.The sentence imposed was manifestly excessive having regard to the circumstances of the offending, the personal circumstances of the appellant, his guilty plea and sentencing standards.
Disposition of the appeal
Ground 1
In his written submissions, the appellant contended that signs of his remorse were to be found in his fast‑track plea of guilty, his statement to police when arrested that 'I just want to take the charges', and statements he made through his counsel at the sentencing hearing that he felt 'ashamed of his actions and he feels sorry for any fear or harm he may have caused' (ts 9). It was also submitted, in effect, that the sentencing judge had erred in attributing what the appellant described as his lack of eye contact in court to a lack of interest in the proceedings, as it is now accepted that an Aboriginal person may avoid eye contact not out of a lack of interest or respect but in order to show respect and politeness. In that connection, reference was made to a benchbook for courts in this State.
Under the sentencing regime which preceded the enactment of s 9AA of the Sentencing Act, a plea of guilty was ordinarily a matter to be taken into account in mitigation first, because it is usually evidence of some remorse on the part of the offender and may indicate acceptance of responsibility and a willingness to facilitate the course of justice, and, secondly, on the pragmatic ground that the community is spared the expense of a contested trial: Siganto v The Queen [1998] HCA 74; (1998) 194 CLR 656, 663 ‑ 664 [22]; Cameron v The Queen [2002] HCA 6; (2002) 209 CLR 339 [11].
Now, s 9AA provides, relevantly:
(2)If a person pleads guilty to a charge for an offence, the court may reduce the head sentence for the offence in order to recognise the benefits to the State, and to any victim of or witness to the offence, resulting from the plea.
…
(6)This section does not prevent the court from reducing the head sentence for an offence because of any mitigating factor other than a plea of guilty.
Section 9AA(2) exhaustively states the matters which can be taken into account in determining whether a discount is to be given for a plea of guilty and, if so, the extent of the discount: Forkin v The State of Western Australia [2013] WASCA 51. Remorse and other subjective considerations which previously informed the weight to be given to a guilty plea do not fall for consideration under s 9AA(2), but may be relevant considerations under s 9AA(6): Beins v The State of Western Australia [No 2] [2014] WASCA 54 [54].
It is no longer the case, however, that a plea of guilty is to be assumed to be indicative of some remorse. That assumption was connected with the primacy given to subjective factors in Cameron. The nexus has been broken by s 9AA. There is no basis under the current statutory framework for an assumption that a plea of guilty is indicative of some remorse. That is confirmed in the second reading speech for the Sentencing Amendment Act 2012 (WA) which introduced s 9AA. It describes the assumption of remorse as a rationalisation for rewarding a plea of guilty with a significant sentencing discount.
The offender bears the onus of establishing remorse on the balance of probabilities. In determining whether an offender is remorseful, a sentencing judge is entitled to have regard to the appellant's conduct as a whole. Remorse, if genuine, will generally be an important consideration in sentencing and a sentencing judge is not bound to take at face value an offender's statement that he or she is remorseful. Nor will a plea of guilty of itself establish remorse although, together with other relevant evidence, it may be a relevant factor in enabling an inference of remorse to be drawn.
In the present case, the sentencing judge was not required to accept that any of the factors referred to by the appellant evidenced remorse and we do not consider it has been shown that the sentencing judge erred in rejecting them.
The case against the appellant was very strong. The presence of the appellant's DNA in the unit obviously did not lend itself to an innocent explanation. His Honour was also entitled to take into account the appellant's attitude to the sentencing proceedings, in which his Honour concluded the appellant had demonstrated a complete lack of interest. We do not accept the submission that in reaching that conclusion his Honour overlooked the cultural factor relied upon by the appellant. His Honour's description of the appellant's conduct during the sentencing proceedings went well beyond simply an avoidance of eye contact to a demonstrable lack of any interest in the proceedings. The cultural factor referred to is well‑known to judges and there is nothing to suggest that his Honour was unaware of it or failed to take it into account. Finally, the appellant's plea of guilty was not a relevant factor. It is evident that it came about not as a result of any remorse but simply because the appellant accepted the inevitability of conviction.
In the circumstances, the sentencing judge was entitled to conclude that the appellant was not remorseful and to reject the assertion of remorse conveyed by the appellant through his counsel.
We would dismiss this ground of appeal.
Ground 2
The appellant contends the sentencing judge erred in law in considering the record of the appellant as an aggravating feature to the offending.
Three passages in the sentencing judge's reasons support the contention that the appellant's prior record was treated as an aggravating factor. They are as follows:
There are aggravating features to your offending. You are a repeat offender. You have a number of previous convictions for burglary of a dwelling. And I'll say more about that in a moment. You broke into the home whilst the complainant was there. You stole from a 72‑year‑old woman. She was entitled to feel safe in her own home, [...], and not have you smashing in her window and gaining entry to her unit (ts 16).
This is the first time that you've been convicted of any serious offence as an adult. However, your juvenile record reveals numerous convictions for stealing, burglary, drugs and weapons. You've been offending continuously since late December 2010. Previous sanctions imposed by the court have not deterred you. You are a dishonest man (ts 17)
In assessing the extent of your culpability I bear in mind that burglary is a prevalent offence and there has been a firming‑up of the sentences imposed upon burglars. You are a third-striker. Previous periods of detention have not deterred you from offending. There is a need in your case for specific and general deterrence (ts 17 ‑ 18).
Aggravating factors are factors which, in the court's opinion, increase the culpability of the offender: s 7(1) of the Sentencing Act. Section 7(2) and (3) relevantly provide:
(2)An offence is not aggravated by the fact that ‑
…
(b)the offender has a criminal record; or
(c)a previous sentence has not achieved the purpose for which it was imposed.
(3)If the statutory penalty for an offence is greater if the offence is committed in certain circumstances than if it is committed without the existence of those circumstances, then ‑
(a)an offender is not liable to the greater statutory penalty unless he or she has been charged and convicted of committing the offence in those circumstances; and
(b)whether or not the offender was so charged, the existence of those circumstances may be taken into account as aggravating factors.
Section 7(3)(b) permits aggravating factors to be taken into account as general sentencing considerations whether or not they are charged in the indictment, provided they are proven: Zimmerman v The State of Western Australia [2009] WASCA 211 [14].
The appellant was charged with aggravated burglary contrary to s 401(2)(a) of the Criminal Code. One of two circumstances of aggravation was that he burgled a place ordinarily used for human habitation (s 401(1)(b)). The maximum penalty for the offence is 20 years' imprisonment.
Under s 401(4), if a person convicted of an offence against s 401(2) committed in respect of a place ordinarily used for human habitation was a repeat offender at the time of committing the offence, the court sentencing the person is required to impose a mandatory minimum term of at least 12 months' imprisonment.
Under s 401(5) a court is prohibited from suspending a term of imprisonment imposed under s 401(4).
The expression 'repeat offender' is defined in s 400(3) and (4) of the Criminal Code. The appellant was a repeat offender and thus the sentencing judge in this case was obliged to sentence the appellant to at least 12 months' imprisonment.
It is clear that s 7(3) of the Sentencing Act applies to the circumstances of aggravation pleaded in this case which have the effect of increasing the statutory maximum penalty for the offence.
It is arguable that the text of s 7(3)(b) is wide enough to extend to the mandatory minimum penalty for repeat offenders in s 401(4) of the Criminal Code. However, as that issue was not addressed in submissions, its determination can be left to another day. What is clear is that being a 'repeat offender' for the purpose of s 401(4) is analogous to a circumstance of aggravation and that it too can be taken into account as an aggravating factor under s 7(1) of the Sentencing Act. That is, the effect of s 401(4) is that prior relevant offending increases the culpability of the offender. It is to the appellant's status as a repeat offender under s 401(4) that the sentencing judge's remarks set out above refer.
Although the appellant's prior offences that are unrelated to his status as a repeat offender, do not aggravate the offence, they can and in this case do, increase the weight to be given to the sentencing objectives of personal deterrence and the protection of society. Thus a person with a prior relevant criminal record will ordinarily receive a greater sentence than a first offender who committed the same offence.
We are not persuaded that the sentencing judge erred.
Ground 3
The relevant principles are well‑established. An appellate court may not interfere with a sentence simply because it would have exercised the sentencing discretion differently from the sentencing judge. It may intervene only if there is a material error of law or fact. Error may be inferred if the result is unreasonable or unjust. A ground of appeal asserting that a sentence was manifestly excessive relies on inferred error.
In determining whether or not a sentence is unreasonable or unjust, in the sense that it is manifestly excessive, the sentence must be viewed in the light of the maximum sentence prescribed for the offence (in this case, 20 years' imprisonment); the standards of sentencing customarily observed with respect to the offence; the place which the criminal conduct occupies on the scale of seriousness of crimes of that type; and the personal circumstances of the offender: Chan v The Queen (1989) 38 A Crim R 337, 342.
While for consistency it is necessary to have regard to sentences customarily imposed in cases involving similar offending, the range of sentences that have been imposed in the past does not fix the boundaries within which judges must, or even ought, to sentence in the future: see The State of Western Australia v Akizuki [2008] WASCA 267; (2008) 192 A Crim R 373 [3]; Munda v The State of Western Australia [2013] HCA 38; (2013) 302 ALR 207 [39] ‑ [40]. The fact that lesser sentences have not been disturbed on appeal does not establish inconsistency and does not establish that a sentence is outside the range of a sound exercise of the sentencing discretion: Lynch v The State of Western Australia [2011] WASCA 243 [10].
The standards of sentencing customarily observed for aggravated burglary offences were discussed in Ashworth v The State of Western Australia [2006] WASCA 36 [85] ‑ [90] and in Nguyen v The State of Western Australia [2007] WASCA 114 [12] ‑ [14]. In his written submissions, the appellant referred to a large number of cases for comparative purposes, although he relied principally upon Moody‑Jackamarrav The State of Western Australia [2007] WASCA 7; Morrisv The State of Western Australia [2011] WASCA 47; Papertalk v The State of Western Australia [2011] WASCA 229; Wroth v The State of Western Australia [2013] WASCA 155; and Miles v The State of Western Australia [2013] WASCA 156.
It is unnecessary to canvass all of the cases referred to. A consideration of those cases reveals that most of them involved multiple offending and provide no real assistance. It is sufficient for present purposes to describe two of the cases.
In Miles, the 40‑year‑old female offender had climbed over a side fence of the victim's yard in the early hours of the morning and forced open a closed bathroom window of the victim's house. The offender climbed through the window, apparently intending to steal items from the house. The 71‑year‑old complainant, hearing the offender entering his house, got up and confronted her in the kitchen. He then telephoned the police, who subsequently found the offender standing in front of the victim's house. She had made no attempt to flee on becoming aware that the police had been called. The offender pleaded guilty on the fast track to one count of aggravated burglary. She had an extensive record of offences of dishonesty and home burglary, and was a repeat offender under s 401(4) of the Criminal Code. She had had a difficult upbringing and suffered from epilepsy, depression and bipolar disorder. An appeal against a sentence of 22 months' imprisonment was dismissed.
In Papertalk, the 28‑year‑old male offender had climbed over the back fence of the complainant's house at approximately 1.30 pm and knocked on the back door. He then entered the house through that (unlocked) door. The female complainant disturbed the offender, who then left the premises empty‑handed. The offender pleaded guilty on the fast track to one count of aggravated burglary. He had a lengthy record of burglary offences and was a repeat offender under s 401(4) of the Criminal Code. He came from a disadvantaged background and had entrenched drug and alcohol problems. An appeal against a sentence of 2 years' imprisonment was dismissed.
In the present case, the offending, while not the most serious kind of aggravated burglary, was nevertheless serious. The appellant must have appreciated from the time of day and the fact the kitchen light was on that someone was likely to be home. In proceeding to break in as he did, the appellant must have been aware that a confrontation with the occupant was possible, if not probable. As it turned out, the elderly victim entered the kitchen to be faced with the sight of the appellant climbing through the smashed window carrying a hammer. It was undoubtedly a very frightening encounter for the victim who was entitled, as the sentencing judge pointed out, to feel safe in her own home. And while there was no injury to the victim or damage to property beyond the broken window, the potential for serious injury or damage to occur was obvious.
The appellant has a record as a juvenile of persistent offending since late 2010 and periods of detention have failed to deter him from continuing to offend. There is little by way of mitigation apart from the appellant's youth. While that is undoubtedly an important factor, it must be weighed against the seriousness of the offending, the need to protect the public, and the need for personal and general deterrence: Munmurrie v Western Australia [2013] WASCA 167 [62]. In this case, the offending was serious and considerations of personal deterrence and protection of the public are particularly significant.
In our view, in the circumstances the sentence of 30 months' imprisonment did not fall outside a sound exercise of his Honour's sentencing discretion. We would dismiss this ground of appeal.
There is one further matter. Although not squarely raised in the grounds of appeal, it was implicit in the appellant's written submissions that he contended that the deduction of 20% allowed by the sentencing judge under s 9AA of the Sentencing Act was inadequate and that his Honour should have made a deduction of 25%.
There is no substance in that. The amount of the deduction was a matter of discretion and it is therefore necessary to demonstrate error in the exercise of the discretion in accordance with the principles in House v The King [1936] HCA 40; (1936) 55 CLR 499. No error has been identified. While the appellant pleaded guilty at the first reasonable opportunity, it does not follow that, as his submissions suggest, he was entitled to the maximum deduction of 25%. The amount of the deduction will always depend upon the particular circumstances of the case. A relevant circumstance in this instance was the very strong State case. As McLure P explained in Beins:
It is of benefit to the State to secure the conviction of people who offend against the criminal law. The strength of the State case is directly relevant to the prospect of securing a conviction. The stronger the case, the greater the prospect of securing a conviction absent a plea of guilty. The strength of the State case also has the potential to impact on the time and expense
required by the State in the preparation and conduct of its case at trial. As a general rule, the stronger the State case the smaller the benefit to the State in the extent of the savings [58].
In this case, the deduction of 20% clearly fell within a proper exercise of the discretion under s 9AA.
Conclusion
We would:
1.refuse leave to appeal on ground 2;
2.dismiss grounds 1 and 3; and
3.dismiss the appeal.
MAZZA JA: I have read in draft the reasons of McLure P and Newnes JA. I respectfully agree that this appeal must be dismissed.
All of the background to the case has been described by their Honours and it is unnecessary for me to repeat it.
With respect to ground 1, I agree with their Honours' reasons, but I wish to make some additional comments of my own.
Remorse is a mitigating factor which may be considered under s 9AA(6) of the Sentencing Act 1995 (WA). Remorse is not to be equated with sorrow for being caught, an acknowledgement that conviction is inevitable or regret on the offender's part that he or she faces some kind of sanction. Remorse, if it is to be mitigating, at least requires a realisation by the offender that what he or she did was morally wrong and some sign of sorrow for the impact or consequences of the offence.
It is frequently the case that in the course of a plea in mitigation defence counsel will express remorse on the part of an offender. It may be that no issue is taken with it. A sentencer may act on the submission but is not required to accept it. As with any mitigating factor, if remorse is put in issue by the prosecutor or a sentencer indicates he or she may not be prepared to accept it, the offender bears the onus of establishing the fact by evidence on the balance of probabilities.
In the present case, his Honour indicated to defence counsel that he was not prepared to accept the expression of remorse made on behalf of the appellant from the bar table. Counsel pointed to the factors which she said demonstrated remorse. As McLure P and Newnes JA's analysis
makes clear, his Honour was entitled to conclude that the appellant was not remorseful.
The appellant raised the appropriateness of the learned sentencing judge's reference to the appellant's demeanour during the sentencing proceedings. A sentencer will naturally be careful before drawing anything adverse from an offender's demeanour during sentencing proceedings. Such proceedings are, for many, stressful and intimidating. There may also be cultural factors and the like in play. Judges and magistrates in this State are aware of such matters. Having carefully considered his Honour's comments, I am unable to conclude that they were, in the circumstances of the case, unjustified.
With respect to ground 2, his Honour did not make the error alleged in that ground.
McLure P and Newnes JA have identified those parts of his Honour's sentencing remarks which are relevant to a consideration of this ground.
When assessing what his Honour said, it must be kept in mind that his Honour was making remarks that were primarily directed to the appellant. He was endeavouring to explain in non‑technical language why he was imposing the sentences he later announced.
His Honour drew attention to the facts that the appellant:
(a)was a repeat offender; and
(b)had been continuously offending since late December 2010.
It is clear from the context in which these matters were considered by the learned sentencing judge that he did so because, in respect of the aggravated burglary offence, the appellant was subject to a mandatory minimum term of immediate imprisonment of at least 12 months: s 401(4) of the Criminal Code (WA). Further, his Honour's comments about the appellant's other offending grounded his conclusion that there was a need for personal and general deterrence. His comments in this regard were consistent with sentencing principle: see Veen v The Queen [No 2] [1988] HCA 14; (1988) 164 CLR 465. They did not infringe s 7(2)(b) of the Sentencing Act.
As to ground 3, I respectfully agree with the reasons given by McLure P and Newnes JA.
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