Taylor v The State of Western Australia
[2016] WASCA 38
•4 MARCH 2016
TAYLOR -v- THE STATE OF WESTERN AUSTRALIA [2016] WASCA 38
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2016] WASCA 38 | |
| THE COURT OF APPEAL (WA) | |||
| Case No: | CACR:191/2015 | 5 FEBRUARY 2016 | |
| Coram: | BUSS JA MAZZA JA | 4/03/16 | |
| 9 | Judgment Part: | 1 of 1 | |
| Result: | Extension of time to appeal granted Leave to appeal refused Appeal dismissed | ||
| B | |||
| PDF Version |
| Parties: | DANIEL EDWARD TAYLOR THE STATE OF WESTERN AUSTRALIA |
Catchwords: | Criminal law Appeal against sentence Aggravated burglary of commercial premises Late plea of guilty Sentence of 4 years' immediate imprisonment Extensive and serious prior criminal record Whether sentence manifestly excessive Leave to appeal refused |
Legislation: | Criminal Code (WA), s 401(2)(ba) |
Case References: | Anderson v The State of Western Australia [2014] WASCA 167 Ashworth v The State of Western Australia [2006] WASCA 36 Brady v The State of Western Australia [2013] WASCA 253 Butler v The State of Western Australia [2012] WASCA 249 Conley v The State of Western Australia [2013] WASCA 95 Drake v The State of Western Australia [2006] WASCA 209 Fullgrabe v The State of Western Australia [2013] WASCA 130 Gangemi v The State of Western Australia [2014] WASCA 39 Nguyen v The State of Western Australia [2007] WASCA 114 Nolan v The State of Western Australia [2013] WASCA 235 Pennetta v The State of Western Australia [2013] WASCA 234 Ridley v The State of Western Australia [2013] WASCA 45 Spry v The State of Western Australia [2013] WASCA 68 Whitby v The State of Western Australia [2014] WASCA 99 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : TAYLOR -v- THE STATE OF WESTERN AUSTRALIA [2016] WASCA 38 CORAM : BUSS JA
- MAZZA JA
- Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram : BIRMINGHAM DCJ
File No : IND 1734 of 2014
Catchwords:
Criminal law - Appeal against sentence - Aggravated burglary of commercial premises - Late plea of guilty - Sentence of 4 years' immediate imprisonment - Extensive and serious prior criminal record - Whether sentence manifestly excessive - Leave to appeal refused
Legislation:
Criminal Code (WA), s 401(2)(ba)
Result:
Extension of time to appeal granted
Leave to appeal refused
Appeal dismissed
Category: B
Representation:
Counsel:
Appellant : Mr H Sklarz
Respondent : No appearance
Solicitors:
Appellant : Sklarz Lawyers
Respondent : Director of Public Prosecutions (WA)
Case(s) referred to in judgment(s):
Anderson v The State of Western Australia [2014] WASCA 167
Ashworth v The State of Western Australia [2006] WASCA 36
Brady v The State of Western Australia [2013] WASCA 253
Butler v The State of Western Australia [2012] WASCA 249
Conley v The State of Western Australia [2013] WASCA 95
Drake v The State of Western Australia [2006] WASCA 209
Fullgrabe v The State of Western Australia [2013] WASCA 130
Gangemi v The State of Western Australia [2014] WASCA 39
Nguyen v The State of Western Australia [2007] WASCA 114
Nolan v The State of Western Australia [2013] WASCA 235
Pennetta v The State of Western Australia [2013] WASCA 234
Ridley v The State of Western Australia [2013] WASCA 45
Spry v The State of Western Australia [2013] WASCA 68
Whitby v The State of Western Australia [2014] WASCA 99
1 BUSS JA: The appellant has applied for an extension of time to appeal, and leave to appeal, against sentence.
2 He was convicted, on his plea of guilty in the District Court before Birmingham DCJ, of one count in an indictment.
3 The count alleged that on 10 April 2014, at Hillarys, the appellant, while in the place of Sunkissed Creations Australia Pty Ltd trading as Sunkissed Creations without its consent, stole a quantity of jewellery, and that the appellant was in company with another, contrary to s 401(2)(ba) of the Criminal Code (WA) (the Code).
4 The appellant was sentenced to 4 years' immediate imprisonment. A parole eligibility order was made. The sentence was backdated to 23 May 2014, being the date on which he was taken into custody for the offence.
5 The last day for appealing against sentence was 22 September 2015. The appellant did not file his appeal notice until 20 October 2015. His application for an extension of time is supported by an affidavit sworn 19 October 2015 by his lawyer, Henry Sklarz.
6 The delay in filing the appeal notice is moderate and has been adequately explained. I would grant an extension of time to appeal. However, leave to appeal should be refused and the appeal dismissed. My reasons for refusing leave are as follows.
The proposed ground of appeal
7 The proposed ground of appeal alleges that the sentence of 4 years' immediate imprisonment was manifestly excessive.
The facts and circumstances of the offending
8 The facts and circumstances of the offending were as follows.
9 On 10 April 2014, at about 3.30 am, the appellant and a co-offender (who has not been identified) entered, by force, a jewellery shop known as Sunkissed Creations in Hillarys. The forced entry caused considerable damage to the premises. The appellant and the co-offender broke the glass security panel of the front door and smashed a number of glass cabinets in the premises. They stole jewellery with a total value of about $27,000. The appellant and the co-offender then fled the scene in a motor vehicle. The burglary was captured on CCTV. Police attended and found the appellant's blood in the premises. On 23 May 2014, the appellant was arrested and interviewed by police. He made some admissions.
10 The sentencing judge noted a number of aggravating factors. First, the offending occurred in the early hours of the morning. Secondly, the appellant was in company. Thirdly, the appellant and the co-offender caused significant damage to the premises. The shop was closed while the damage was being repaired. The proprietor suffered a loss of trading revenue in addition to the loss of the jewellery. Fourthly, the total value of the stolen property was substantial. There was no indication that any of the jewellery had been recovered.
11 His Honour said there was 'some level of planning and the premises were obviously targeted by [the appellant] as somewhere where some high value jewellery could be obtained for the purpose of being later disposed of by [the appellant] so that [he] might continue to feed a drug habit or whatever' (ts 27).
12 The appellant entered a late plea of guilty. His trial had been listed to begin on 3 August 2015. The plea was entered on 22 June 2015. The sentencing judge allowed a discount of 10%, pursuant to s 9AA of the Sentencing Act 1995 (WA), on the head sentence he would otherwise have imposed. His Honour said the plea 'perhaps indicates some recognition on your part as to your culpability and acceptance of responsibility, but it's very late in the day' (ts 29).
Defence counsel's submissions at the sentencing hearing
13 Defence counsel informed his Honour at the sentencing hearing that the appellant had participated in a number of rehabilitative programmes while on remand, including an eight-week drug and alcohol therapy programme; a cognitive brief intervention programme; and a 20-hour brief intervention cognitive skills programme (ts 21). He was on a waiting list to enrol in other programmes within prison (ts 21). The appellant's intention was 'to be law-abiding upon his release' (ts 24). He was 'long tired of his offending' (ts 24).
The appellant's personal circumstances and the pre-sentence report
14 The appellant was aged 40 at the time of the offending and was 42 when sentenced.
15 He left school at the age of 13 and has always had difficulties with reading and writing. His upbringing was not marred by violence or substance abuse. He vacated the family home at the age of 16 and began residing with his peers. They were a negative influence in his life.
16 The appellant has been employed sporadically in short-term labouring work. Mostly, he has relied on Centrelink benefits.
17 At the time of sentencing the appellant was in a relationship with a woman. He has two adult children from a previous relationship. The appellant and his current partner have been together for about 12 years. They have had no children together but she has two children, who were aged 12 and 14 at the time of sentencing, from a previous relationship. The appellant has raised the children as his own.
18 The appellant has a long history of amphetamine and cannabis abuse. When he committed the offence he was using amphetamines on a daily basis and cannabis three to four times daily.
19 The appellant has an extensive and serious prior criminal record. As an adult he has been convicted of breaking and entering a dwelling with intent (multiple offences); stealing (multiple offences); stealing a motor vehicle; robbery whilst armed; burglary; aggravated burglary (multiple offences); attempting to pervert the course of justice; attempting to escape legal custody; unlawfully doing grievous bodily harm; assault occasioning bodily harm; common assault (multiple offences); breach of bail; disorderly behaviour; possessing an article with intent to cause fear that someone will be injured or disabled; carrying or possessing a controlled weapon (multiple offences); being armed in a way that may cause fear; possessing a prohibited drug (multiple offences); possessing a smoking utensil used for smoking a prohibited drug (multiple offences); unlawful damage; wilfully and unlawfully destroying or damaging property (multiple offences); breaching a violence restraining order (multiple offences); and unlawful wounding with a circumstance of aggravation. The appellant had previously served a number of terms of immediate imprisonment.
20 The appellant has previously been released on parole on five occasions. His compliance with supervision has been poor. On three occasions, his parole was cancelled. However, he completed satisfactorily his most recent period of supervision on parole, which expired on 18 March 2007.
21 The appellant expressed remorse for his current offending to the author of a pre-sentence report. He told the author that on the date of the current offence he was under the influence of amphetamines. He explained that at the time he was 'stressed' as a result of a number of incidents, including the suicide of two relatives, the suspected murder of another relative and his son being charged with murder (not related to the murder of his relative).
22 The author of the pre-sentence report made the following risk assessment:
[The appellant] has been assessed with an elevated risk of re-offending, given his history of substance misuse, serious and violence related offending, and poor compliance with supervision Orders, therefore his ability to engage fully in interventions in the community is doubtful. He presents with criminogenic needs in the areas of Education/Employment, Companions, Criminal History, Leisure/Recreation, Alcohol/Drug Problem, Pro criminal Attitude/Orientation and Antisocial Pattern (4).
The merits of the proposed ground of appeal
23 It is necessary, in determining whether a sentence is manifestly excessive, to examine it from the perspective of the maximum penalty for the offence, the standards of sentencing customarily observed with respect to the 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.
24 The guidance afforded by comparable cases is flexible rather than rigid. The mere fact a sentence is within the range of other sentences imposed for similar offending does not necessarily establish that there was an appropriate exercise of the sentencing discretion in the particular case. Similarly, the mere fact a sentence is outside the range does not necessarily establish that the exercise of the sentencing discretion in the particular case miscarried.
25 A sentencing range for comparable offences is merely one of the factors to be taken into account in deciding whether a sentence is manifestly excessive. A range of sentences customarily imposed is of significance for the purpose of ensuring broad consistency in the sentencing of offenders in broadly comparable cases. However, a sentencing range for comparable cases does not fix the range of a sound exercise of the sentencing discretion in a particular case.
26 When this court dismisses an appeal against sentence, and when it allows an appeal against sentence and resentences the offender, this court's decision on the sentencing outcome does not, of itself, fix the upper or lower limit of the range.
27 All of the propositions I have stated are well established by the case law.
28 The maximum penalty for the offence of aggravated burglary, contrary to s 401(2)(ba) of the Code, is 20 years' imprisonment.
29 The primary sentencing considerations in relation to burglary and aggravated burglary are personal and general deterrence. Ordinarily, a substantial penalty is imposed. The standards of sentencing customarily imposed for these offences 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 Butler v The State of Western Australia [2012] WASCA 249; Ridley v The State of Western Australia [2013] WASCA 45; Spry v The State of Western Australia [2013] WASCA 68; Conley v The State of Western Australia [2013] WASCA 95; Fullgrabe v The State of Western Australia [2013] WASCA 130; Pennetta v The State of Western Australia [2013] WASCA 234; Nolan v The State of Western Australia [2013] WASCA 235; Brady v The State of Western Australia [2013] WASCA 253; Gangemi v The State of Western Australia [2014] WASCA 39; Whitby v The State of Western Australia [2014] WASCA 99; Anderson v The State of Western Australia [2014] WASCA 167; and the cases cited in those decisions.
30 Burglaries and aggravated burglaries can be and are, of course, committed in a wide range of circumstances. 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 vulnerability of any victim), any aggravating factors and any mitigating factors.
31 The offence committed by the appellant in the present case involved serious offending of its kind. As the sentencing judge noted, the offending occurred in the early hours of the morning; the appellant was in company; the appellant and the co-offender caused significant damage to the premises; the shop was closed while the damage was being repaired and the proprietor suffered a loss of trading revenue in addition to the loss of the jewellery; the total value of the property stolen was substantial; there was no indication that any of the jewellery had been recovered; and there was some level of planning by the appellant and the co-offender, and the premises were specifically targeted.
32 Counsel for the appellant argued that the sentencing outcomes in Nolan and Ridley demonstrated 'the excessive nature of the appellant's sentence in this matter'. I do not accept that argument. The available sentencing range in a particular case is not defined by the sentencing outcomes in two previous cases. An appellate court is concerned with the proper application of sentencing principles and broad consistency in sentencing dispositions. In any event, the application of the first limb of the totality principle was significant to the sentencing outcomes in Nolan and Ridley.
33 The appellant's personal circumstances were very poor. As I have mentioned, he has an extensive and serious prior criminal record. Although his previous convictions do not, of course, aggravate the current offence, the appellant was not entitled to any leniency on the basis that he was otherwise of good character. The previous convictions underscored the importance of personal deterrence.
34 The principal sentencing factors in the present case were appropriate punishment and personal and general deterrence.
35 The mitigating factors were confined to the appellant's late plea of guilty, his expressions of remorse to the author of the pre-sentence report and his participation in various rehabilitative programmes since he was remanded in custody. However, the weight to be given to the expressions of remorse was tempered by the lateness of the appellant's plea and his refusal to reveal the identity of his co-offender. At the hearing before this court, counsel for the appellant acknowledged that this case was not 'the best example of remorse' (appeal ts 3). Although the appellant's participation in rehabilitative programmes was commendable and mitigating, the weight to be given to that consideration was tempered by the serious nature of the current offence in the context of his extensive and serious prior criminal record and his entrenched and lengthy abuse of illicit substances.
36 The appellant was not youthful or inexperienced for sentencing purposes.
37 The total effective sentence of 4 years' immediate imprisonment was substantial. However, I am satisfied that the sentence was within the range open to the sentencing judge on a proper exercise of his discretion. The sentence is broadly consistent with the sentencing range that is discernible from generally comparable cases. After assessing the sentence, in the context of the maximum penalty, the facts and circumstances of the offending, the standards of sentencing customarily observed, the place which the appellant's offending occupies on the relevant scale of seriousness and all aggravating and mitigating factors, I am of the opinion that it is not reasonably arguable that the sentence was unreasonable or plainly unjust. That is, it is not reasonably arguable that the sentence was manifestly excessive. The ground of appeal is without merit.
Conclusion
38 Leave to appeal should be refused because the proposed ground of appeal does not have a reasonable prospect of success. The appeal must therefore be dismissed.
39 MAZZA JA: I agree with Buss JA.
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