JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : SMITH -v- THE STATE OF WESTERN AUSTRALIA [2015] WASCA 234 CORAM : BUSS JA HEARD : 5 NOVEMBER 2015 DELIVERED : 20 NOVEMBER 2015 FILE NO/S : CACR 68 of 2015 BETWEEN : WILLIAM HAROLD SMITH Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
ON APPEAL FROM: Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA Coram : STONE DCJ
File No : IND 1070 of 2014
Catchwords:
Criminal law - Application for leave to appeal against sentence - Aggravated burglary - Wilful and unlawful damage to property - Total effective sentence 2 years 6 months' imprisonment - Whether sentence manifestly excessive - Whether the sentencing judge should have disqualified himself - Whether defence counsel properly represented the appellant at the sentencing hearing
Legislation:
Criminal Appeals Act 2004 (WA), s 27
Criminal Code (WA), s 401, s 444(1)(b)Sentencing Act 1995 (WA), s 9AA Result:
Leave to appeal refused
Appeal dismissed Category: B
Representation:
Counsel:
Appellant : In person
Respondent : No appearance
Solicitors:
Appellant : In person
Respondent : Director of Public Prosecutions (WA)
Case(s) referred to in judgment(s):Butler v The State of Western Australia [2012] WASCA 249Fullgrabe v The State of Western Australia [2013] WASCA 130PSS (a child) v The State of Western Australia [2015] WASCA 98Wragg v The State of Western Australia [2013] WASCA 198; (2013) 234 A Crim R 3801 BUSS JA: I agree with Mazza JA. 2 MAZZA JA: This is an application for leave to appeal against sentence.
3 On 13 February 2015, the appellant pleaded guilty in the District Court to two offences. Count 1 was an allegation of aggravated burglary contrary to s 401(1) of the Criminal Code (WA) and count 2 alleged an offence of wilful and unlawful damage to property contrary to s 444(1)(b) of the Criminal Code. These offences occurred in the one incident on 21 June 2013.
4 On 27 February 2015, Stone DCJ sentenced the appellant to 2 years 6 months' immediate imprisonment with eligibility for parole on count 1. His Honour imposed no penalty upon count 2.
5 The sole proposed ground of appeal is that the sentence imposed upon count 1 was manifestly excessive.
6 For the reasons which follow, the proposed ground has no reasonable prospect of succeeding and thus, the appeal must be dismissed: s 27(1), s 27(2) and s 27(3) of the Criminal Appeals Act 2004 (WA).
The facts of the offending
7 A young man named Robert Aherne lived with his parents at an address in Ridgewood (the Ridgewood address). Mr Aherne allegedly owed the appellant about $200.
8 On 21 June 2013, the appellant spoke to Mr Aherne's father about the debt. During the course of that conversation, Mr Aherne's father allegedly 'disrespected' the appellant. The appellant became angry and drove to the Ridgewood address.
9 At about 7 pm that evening, Mr Aherne and his father heard the screech of the appellant's tyres as he arrived. Mr Aherne's father opened the front door, but kept the mesh security screen door closed and locked. The appellant ran towards the front door with a brick paver in his left hand and a samurai sword in his right hand. He held the sword so that it was pointed downwards along his leg and the brick paver in the air. While he ran, the appellant shouted 'You are dead, where's my money you fucking dogs'. When the appellant got to the front security door, he lunged forward and thrust the sword through the mesh approximately ten times and said 'You're dead' several times. Mr Aherne's father closed the front door. Eventually, he opened it again. When he did so, the appellant picked up the brick paver and used it to break a window at the front of the house. He shouted to Mr Aherne's mother 'If you fucking call the police … you're dead, I'm going to be back with ten more people' and 'You're all fucking dead'. The appellant then thrust the sword through the mesh security door, grabbed the door handle, yanked it open and then entered the house. At this point, he appeared to ready the sword to lunge at Mr Aherne's father. In fear of his life, Mr Aherne's father pulled out a penknife and stabbed the appellant near the lip. The appellant then retreated from the house and left.
The appellant's antecedents 10 At the time he was sentenced, the appellant was 50 years of age. He has an extensive criminal history and was a repeat offender for the purposes of s 401(4)(a) of the Criminal Code. Thus, he was liable to at least 12 months' imprisonment on count 1. It is unnecessary to catalogue all of the appellant's criminal history save to say that, apart from an appalling history of traffic offences, he has been convicted of many counts of burglary as well as offences of violence, most seriously manslaughter in 1995 for which he was sentenced to 5 years 6 months' imprisonment. In 2005, he was convicted of assault occasioning bodily harm for which he was sentenced to 14 months' imprisonment.
11 The appellant has struggled for most of his life with substance abuse. At the time of committing these offences, he was abusing alcohol. According to the pre-sentence report, the appellant has used illicit substances and alcohol as a way of attempting to manage his emotions. Despite his personal difficulties, the appellant has, when in the community, consistently worked as a brick-paver, including as an independent contractor and supervisor.
12 Some months after the commission of the offences, his long-term partner became seriously ill. The appellant then became her full-time carer. As a result of his incarceration, his partner has had to be admitted into a nursing home. The appellant's incarceration has apparently had a negative effect upon his partner.
The sentencing proceedings
Events prior to sentencing
13 For reasons which will become evident, it is necessary to say something about certain events which took place prior to the appellant's sentencing.
14 Some weeks before the appellant entered his pleas of guilty, he terminated the services of his lawyer. However, he was represented by counsel before Stone DCJ. Exactly how long before the sentencing hearing his new counsel was briefed is not known. The appellant claims it was a matter of days. I will assume in the appellant's favour that this claim is correct.
Sentencing
15 The appellant's new counsel made a plea in mitigation on the appellant's behalf. As I have already mentioned, the sentencing judge already had before him a pre-sentence report. That pre-sentence report is detailed and its contents were not disputed either at first instance or before this court.
16 At the outset of the sentencing proceedings, the learned sentencing judge was told that he had been the prosecutor when the appellant was dealt with for the manslaughter offence in 1995. The learned sentencing judge said that he had no recollection 'whatsoever' of the matter (ts 12). Neither counsel asked the sentencing judge to recuse himself. Defence counsel, when asked by his Honour whether she was 'happy' for him to continue to proceed to sentence, said that she was (ts 13).
17 Counsel for the appellant acknowledged that he was a repeat offender with respect to the burglary conviction and that the only sentencing disposition available to the court was an immediate term of imprisonment of not less than 12 months. She emphasised the mitigating effect of the early pleas of guilty and referred to his acceptance of responsibility for his actions and his role as carer for his partner. She provided the court with two character references which spoke well of the appellant.
18 In his sentencing remarks, his Honour took into account as mitigating factors his early pleas of guilty (for which he received at 25% discount pursuant to s 9AA of the Sentencing Act 1995 (WA)), remorse and the effect that a term of imprisonment would have upon the appellant's partner (ts 26).
The appeal to this court
19 The appellant represented himself in this appeal. Although the only proposed ground of appeal alleges that the sentence imposed was manifestly excessive, he voiced two other complaints. The first is that his Honour should have disqualified himself on the basis that he was the prosecutor when the appellant was dealt with for manslaughter in 1995. The second was that his counsel did not properly represent him in the sentencing hearing because she did not have sufficient time to prepare his case. In fairness to the appellant, these matters will be considered.
20 I will dispose of the two other complaints first, followed by the proposed ground of appeal.
Disposition
Complaints about the sentencing judge and defence counsel's performance
21 There is no merit to the appellant's complaints with respect to the sentencing judge or the performance of defence counsel.
22 There was nothing put before the court below on this count about the learned sentencing judge's role in the appellant's sentencing 20 years ago which could give rise to an allegation of actual bias or apprehended bias, save for the bare fact that his Honour was prosecuting counsel. This was an insufficient basis for his Honour to recuse himself. The matter was raised and defence counsel took no objection to his Honour proceeding to sentence the appellant.
23 As to defence counsel's performance, while her plea in mitigation was brief, she identified all of the relevant mitigating factors and sought to explain the appellant's conduct. The case was uncomplicated and did not require lengthy preparation. There is nothing which reasonably indicates that defence counsel was not properly prepared or that she inadequately represented him.
Manifest excess
24 The legal principles governing how this court must deal with an allegation of manifest excess are well-known and uncontroversial. This court can only intervene if it is shown that the sentencing judge made an express or implied material error of fact or law. A claim of manifest excess relies upon the implication of error. The sentence must be shown to be unreasonable or plainly unjust, it being outside the range of a sound sentencing discretion. The orthodox approach to an allegation of manifest excess is to examine the sentence in light of the maximum sentence for the offence, the standards of sentencing customarily observed, the place which the criminal conduct occupies on the scale of seriousness and the personal circumstances of the offender. Sentences customarily imposed do not establish the range of a sound sentencing discretion. Rather, they provide a yardstick for ensuring broad consistency in sentencing, bearing in mind the scope for significant variations in relevant sentencing factors and the fact that there is no single correct sentence: PSS (a child) v The State of Western Australia [2015] WASCA 98 [18] - [20].
25 The maximum penalty for an offence contrary to s 401(1) of the Criminal Code is 20 years' imprisonment.
26 There is no tariff for the offence of aggravated burglary because of the wide variation in the circumstances in which the offence can be committed and the antecedents of offenders. However, in recent years, sentences for home burglary have increased to reflect the prevalence of the offence and to provide proper personal and general deterrence: Butler v The State of Western Australia [2012] WASCA 249 [40].
27 The range of sentences imposed for aggravated burglary have been discussed in a number of recent cases, including Fullgrabe v The State of Western Australia [2013] WASCA 130 [20]and Wragg v The State of Western Australia [2013] WASCA 198; (2013) 234 A Crim R 380 [44] - [62]. I will not repeat what was written in those cases. It is sufficient to say that the sentence imposed upon the appellant was not inconsistent with the range of sentences customarily imposed.
28 The offence committed by the appellant was a serious one of its kind. It involved the use of weapons, threats to kill and damage to property. The potential for serious harm was obvious. His behaviour instilled fear into the occupants of the house. The offence was executed with some persistence. The motive for the offence in no way justified its commission. In effect, the appellant went there because he felt personally slighted and for the purpose of enforcing a modest debt.
29 His Honour took into account all of the relevant mitigating factors, including the impact that an immediate term of imprisonment would have upon the appellant's partner.
30 It could not be said that the appellant's antecedents were favourable. The appellant is no stranger to violence and his conduct was hardly an aberration. Personal and general deterrence were plainly important sentencing considerations.
31 Having regard to all of the circumstances of the case, it cannot be reasonably said that the sentence imposed upon the appellant for count 1 was unreasonable or plainly unjust.
32 The proposed ground of appeal has no reasonable prospect of succeeding. I would not grant leave to appeal. The appeal must be dismissed.
Orders
33 The orders that I would make are as follows: