The State of Western Australia v Billett
[2022] WASCA 158
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: THE STATE OF WESTERN AUSTRALIA -v- BILLETT [2022] WASCA 158
CORAM: BUSS P
MAZZA JA
HALL JA
HEARD: 4 NOVEMBER 2022
DELIVERED : 10 NOVEMBER 2022
PUBLISHED : 1 DECEMBER 2022
FILE NO/S: CACR 45 of 2022
BETWEEN: THE STATE OF WESTERN AUSTRALIA
Appellant
AND
BENJAMIN ROBERT BILLETT
Respondent
FILE NO/S: CACR 46 of 2022
BETWEEN: THE STATE OF WESTERN AUSTRALIA
Appellant
AND
AARON JAMES WALTER KLINGER
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram: SHARP DCJ
File Number : IND 2156 of 2021
Catchwords:
Criminal law - State appeals against sentence - Aggravated home burglary - Whether sentences manifestly inadequate - Whether total effective sentences in each case infringed the totality principle
Legislation:
Nil
Result:
Appeals allowed
Sentences imposed on counts 1 and 4 of indictment 2156 of 2021 set aside
Respondents resentenced
Category: B
Representation:
CACR 45 of 2022
Counsel:
| Appellant | : | R F Owen |
| Respondent | : | S H King |
Solicitors:
| Appellant | : | Director of Public Prosecutions (WA) |
| Respondent | : | Legal Aid (WA) |
CACR 46 of 2022
Counsel:
| Appellant | : | R F Owen |
| Respondent | : | K G Robson |
Solicitors:
| Appellant | : | Director of Public Prosecutions (WA) |
| Respondent | : | Evangel Legal |
Case(s) referred to in decision(s):
Brindley v The State of Western Australia [2019] WASCA 153
CMB v Attorney-General (NSW) [2015] HCA 9; (2015) 256 CLR 346
Eldridge v The State of Western Australia [2020] WASCA 66
Kabambi v The State of Western Australia [2019] WASCA 44
Miller v The State of Western Australia [2022] WASCA 50
Panicciari v The State of Western Australia [2020] WASCA 154
Robson v The State of Western Australia [2020] WASCA 153
Serukai v The State of Western Australia [2020] WASCA 159
The State of Western Australia v Quartermaine [2021] WASCA 145
The State of Western Australia v Richards [2020] WASCA 129
The State of Western Australia v Wilkins [2020] WASCA 149
Wragg v The State of Western Australia [2013] WASCA 198
REASONS OF THE COURT:
These two State appeals against sentence were heard together on 4 November 2022. On 10 November 2022, we made orders allowing both appeals, setting aside the sentences imposed in the District Court on two of the counts, and resentencing the respondents. We said that reasons for those orders would be published later.
On 24 May 2022, the respondents pleaded guilty to all counts on a joint indictment. The indictment contained seven counts arising from two home invasion burglaries committed by the respondents on 2 March 2021 in which threats were made and damage committed, and one victim was seriously assaulted. While the respondents were jointly indicted, not all the charges were identical as between them.
The respondents were sentenced to terms of immediate imprisonment as follows:
| Count | Offender | Offence type | Maximum penalty | Sentence |
| 1 | Both | Aggravated home burglary with intent (Criminal Code s 401(1)(a)) | 20 years' imprisonment | 18 months' imprisonment each |
| 2 | Billett | Threat to harm (Criminal Code 338B(b)) | 3 years' imprisonment | 12 months' imprisonment |
| 3 | Both | Unlawful damage (Criminal Code s 444(1)(b)) | 10 years' imprisonment | 7 months' imprisonment each |
| 4 | Both | Aggravated home burglary with intent (Criminal Code s 401(1)(a)) | 20 years' imprisonment | 18 months' imprisonment each |
| 5 | Billett | Doing an act with intent to harm as a result of which bodily harm was caused (Criminal Code s 304(2)) | 20 years' imprisonment | 12 months' imprisonment |
| 6 | Klinger | Assault occasioning bodily harm (Criminal Code s 317) | 5 years' imprisonment | 12 months' imprisonment |
| 7 | Klinger | Threat to harm (Criminal Code s 338B(b)) | 3 years' imprisonment | 12 months' imprisonment |
The circumstances of aggravation in respect of counts 1 and 4 were that the respondents were armed, that they were in company with each other, that immediately before the offence they knew or ought to have known that there was another person in the place and that the place was ordinarily used for human habitation.
The learned sentencing judge ordered that all sentences in the case of each of the respondents were to be served concurrently. Each respondent was also made eligible for parole. Accordingly, the total effective sentence for each respondent was 18 months' immediate imprisonment.
The State contends that the sentences of 18 months' immediate imprisonment against each of the respondents for the aggravated home burglary offences (counts 1 and 4) are manifestly inadequate. The State also contends that the sentence imposed on Billett on count 5 is manifestly inadequate. In respect of both respondents, the State also contends that the total effective sentence of 18 months' immediate imprisonment breached the first limb of the totality principle in that it failed to reflect the overall criminality of the offending conduct.
The facts
On 2 March 2021, Billett met with another man, TL, to discuss the recent death of a friend. They started drinking together at about 11.00 am that day. At about 6.00 pm they went to a bar in Armadale. Sometime later they left the bar, collected Klinger and went to the Westfield Tavern.[1]
[1] Sentencing ts 13.
During the evening, Billett was provided with an address for Kyle Scerri. Billett had been trying to locate Mr Scerri since late February 2021. At about that time, an incident had taken place involving Billett and Mr Scerri. The nature of the incident was not clearly identified, but it had caused Billett to harbour a grievance against Mr Scerri.[2]
[2] Sentencing ts 13 - 14.
Billett told TL and Klinger what had happened between him and Mr Scerri. All three then decided to go together to confront Mr Scerri at his home address.[3]
[3] Sentencing ts 14.
TL drove the respondents to the address and parked about 100 m away to avoid detection. All three got out of the vehicle. Billett had a machete, Klinger had a 15‑inch tyre wall tester, which resembled a small baseball bat, and TL had a tomahawk.[4]
[4] Sentencing ts 14.
The house they went to was occupied by Anthony Sorrell, who was house‑sitting for the owner. Mr Scerri was living in a caravan parked at the front of the house. Mr Sorrell usually left the front door unlocked so that Mr Scerri could come and use the toilet when he needed to.[5]
[5] Sentencing ts 13.
On arrival, the respondents entered the house through the unlocked front door and went to a bedroom occupied by Mr Sorrell. Billett was holding the machete and Klinger the tyre tester. TL remained outside, behind a tree in the front yard, acting as a lookout.[6]
[6] Sentencing ts 14.
Billett approached Mr Sorrell, pointed the machete at him and asked, 'Where's Kyle?' Mr Sorrell said that Mr Scerri was in the caravan. Billett said, 'Don't move. You're a dead man.' As he said this, he was pointing the machete at Mr Sorrell. Mr Sorrell was in fear for his life. Both respondents then left the bedroom. Mr Sorrell ran down the hallway and out the back door. He jumped a fence and hid in the backyard of a neighbouring house for about 90 minutes.[7]
[7] Sentencing ts 14.
Meanwhile, the respondents ran to the caravan at the front of the house. TL remained outside within sight of the caravan. It was now about 11.20 pm and Mr Scerri was about to go to bed. The respondents banged on his door and smashed windows of the caravan. The door to the caravan was forced open.[8]
[8] Sentencing ts 14.
Mr Scerri crawled onto his bed and curled into a ball to protect himself as he assumed he was going to be assaulted. He felt a couple of blows and then something harder all over his body. He heard a voice, which he recognised as that of Billett, saying words to the effect of, 'Stay away from my house. Stay away from my kids.' Klinger then screamed words to the effect of, 'Do you want to die? Who do you think you are, fucking with Benji's kids?'[9]
[9] Sentencing ts 14 - 15.
Mr Scerri attempted to get up to defend himself. At that time, he believed he saw three men in the caravan. He recognised Billett, who was then leaving. One of the men stood in front of Mr Scerri and Mr Scerri pushed him. At that point, he could see that one of the remaining men had a tomahawk in his hand. He managed to chase the men from the caravan.[10]
[10] Sentencing ts 15.
The respondents and TL then ran to the car and drove back to Billett's house. Klinger was bleeding from an injury to his hand. The injury was caused by glass from one of the broken windows of the caravan.[11]
[11] Sentencing ts 15.
Mr Scerri went to the house to find Mr Sorrell. Mr Sorrell was not there, and, shortly after, the police arrived. Mr Scerri was bleeding from a large cut to his right ankle and had numerous other cuts to his body. He was taken to Armadale Hospital by ambulance, where he was treated for various injuries. The most serious injury was a 5 cm laceration to his ankle with an underlying open fracture that required surgery.[12]
[12] Sentencing ts 15.
On 3 March 2021, a search warrant was executed at Billett's home. In the lounge room, police located an axe and a machete. Billett admitted that both weapons belonged to him and that he had handled them recently. He said he had been playing around with the machete one or two days earlier and had cut his hand on it. His fingerprint was later located on the handle of the machete. He declined to answer any questions when later interviewed.[13]
[13] Sentencing ts 15.
Klinger was arrested on 4 March 2021 at his home. He took part in two police interviews. In the first interview he stated that on the night in question he had been at the Westfield Tavern. He did not wish to give much other information but did disclose that he knew Billett and TL and had socialised with them on the occasion that he went to the Westfield Tavern. He also said that he had cut his hand on some glass and had bled on the night in question.[14]
[14] Sentencing ts 15 - 16.
In his second interview, Klinger admitted going to the house in Armadale where the offences occurred. He said that Billett had asked him to go to be an extra body to scare Mr Scerri. He said that he understood that the plan was to let Mr Scerri know that he had crossed the line and that this was what would happen if he 'fucks with someone's kids'. He admitted entering the caravan occupied by Mr Scerri, smashing a window and screaming at Mr Scerri.[15]
[15] Sentencing ts 16.
Personal circumstances - Billett
Mr Billett was 27 years old at the time of sentencing, having been born on 13 October 1994.[16]
[16] Sentencing ts 27.
Mr Billett's parents separated when he was 18 years old. He has a close relationship with his mother and sister, but little contact with his father, who was an alcoholic and is now in care, suffering dementia.[17]
[17] Sentencing ts 27 - 28.
Mr Billett struggled at school and left in year 10. He worked intermittently in hospitality after leaving school but has been unemployed for the past five years. More recently, he has completed a Certificate III in community services and aspires to do youth work. At the time of sentencing, he was undertaking volunteer work with the Salvation Army.[18]
[18] Sentencing ts 28.
Mr Billett has a long‑term history of alcohol and substance abuse. His father allowed him access to alcohol and firearms as a child. He commenced binge drinking whilst still at school.[19]
[19] Sentencing ts 29.
Mr Billett was diagnosed with ADHD when he was 8 and took medication until he was 12. He was diagnosed with depression at 15 and prescribed medication, which he continues to take. He suffers from sleep apnoea and has used cannabis to assist him to sleep.[20]
[20] Sentencing ts 28.
Mr Billett has had two significant relationships. The first commenced when he was aged 15. That relationship produced two children who are now aged 10 and 11, with whom he has ongoing contact. His second relationship has lasted some seven years and has produced a daughter, who was aged 12 months old at the time of sentencing. He has described his current partner as a positive and stable influence.[21]
[21] Sentencing ts 28.
A pre‑sentence report noted that Mr Billett showed insight into the factors that contributed to his offending, namely his use of alcohol, cannabis, and prescription medication. His reason for offending was a misguided belief that he was acting to protect his children, but he now appreciates that he has only caused them more pain. He has expressed shame and embarrassment for his behaviour. Despite a lack of recollection of the events, he accepted that he committed the offences and did not seek to shift blame to anyone else. He understood the seriousness of the offending and had taken significant steps to change his lifestyle.
A psychological report noted that Mr Billett took responsibility for his offending and expressed a positive attitude to treatment, including maintaining abstinence from alcohol and illicit substances. He accepted that over the last five years he had maintained a lifestyle of excessive drinking, cannabis use and associating with negative peers. Although he considered it harmless fun at the time, he had since come to recognise the link between his alcohol use and his negative emotionality.
The psychologist suggested in the report that Mr Billett's early behavioural problems were linked to his ADHD and this contributed to issues with social and emotional development. He had poor attachment to his father and compensated for that by providing care and interest to others at the expense of his own needs. His inability to cope with being a father at a young age and relationship challenges led to alcohol and substance abuse as a means of avoidance and as a coping mechanism. A belief that he and his children had been threatened led to heightened anxiety and a strong need to protect. When coupled with excessive alcohol use and negative company, he made the decision to challenge and scare Mr Scerri.
After being charged, Mr Billett spent 8 weeks in custody on remand. In that period, he lost weight, started exercising and developed 'a clarity' about himself and his life. After being granted bail, he undertook a 12‑week residential rehabilitation program at the Harry Hunter Recovery Centre. He spoke about this program in positive terms and said that it gave him greater insight into the links between his anxiety and alcohol use. He also participated in the Smart Program through the Palmerston Association, which he had attended almost weekly until the date of sentencing. He had distanced himself from negative influences, engaged in volunteer work, and was attempting to gain skills to enter the workforce. He had voiced a strong commitment to change and abstinence and expressed an intention to participate in a further 12‑week rehabilitation program after release from prison to strengthen his skills and remain positive.
Apart from the current offences, Mr Billett's only other violent offences occurred when he was 19 and related to his then partner. After being convicted of those offences, he engaged in a family violence court regime and completed six psychological counselling sessions. His criminal record otherwise largely consists of minor drug offences, public order offences and traffic offences, including multiple offences of driving a motor vehicle with an excess blood alcohol reading.[22]
[22] Sentencing ts 32.
Mr Billett indicated a plea of guilty to the charges at a relatively early stage. The sentencing judge was satisfied that a 25% discount under s 9AA of the Sentencing Act 1995 (WA) was appropriate. That finding was not challenged on the appeal.[23]
[23] Sentencing ts 33.
Personal circumstances - Klinger
Mr Klinger is aged 29 years, having been born on 15 December 1992.[24]
[24] Sentencing ts 29.
Mr Klinger is the third child and only son of the four children born to his parents’ relationship. He described his father as “a big drinker” and he did not have a sense of safety or predictability as a child. Both his father and mother were frequently physically and emotionally abusive towards him.[25]
[25] Sentencing ts 29.
Mr Klinger’s parents separated prior to him commencing school and he then moved with his mother and sisters to Bullsbrook. When he was aged 9 years his mother met another man and the family moved to Port Hedland. His mother continued to physically abuse him until he went to live with his father when he was aged 11 years. About a year later his sisters also came to live with their father.[26]
[26] Sentencing ts 29 - 30.
Mr Klinger attended high school until year 9, and then a special school which he left in year 10. He has had numerous jobs since his early teenage years, but has found it difficult to maintain employment due to his alcohol use. When he turned 18, he was offered a job in Kalgoorlie, but that job did not continue, and he came back to Perth. He attempted to join the army but failed an admission test. He then had a gardening job in Broome but was in a traffic accident in which he suffered an injury to his collarbone. This made it difficult for him to continue working.[27]
[27] Sentencing ts 30.
Mr Klinger slept in a caravan at the back of his father's house and survived on Centrelink benefits. He began to suffer depression and things 'started falling apart for him.' His alcohol use increased. At the time of sentencing, he was living in a tent at his father's property. In sentencing submissions, it was said that his father was not much support to him because he enables Mr Klinger to drink.[28]
[28] Sentencing ts 21.
Alcohol use has been a major issue in Mr Klinger's life. He started drinking when he was 14. His drinking increased over time to up to a carton of full‑strength beer every night. He began to engage in anti-social behaviour with friends whilst under the influence of alcohol. It was reported that he felt he had nothing to look forward to and does not have support in the community.[29]
[29] Sentencing ts 31.
In a psychological report commissioned by the defence, it was reported that Mr Klinger had been abstinent from alcohol for four weeks and that this was the first time he had been able to be so. The psychologist expressed the view that, given his protracted history of alcohol abuse, it was likely that he would need professional supports and resources if he was to abstain from alcohol in the longer term. He was assessed as having met the criteria for an alcohol use disorder. The psychologist also expressed the view that Mr Klinger’s psychological profile was such that he suppresses feelings of anger but becomes disinhibited when intoxicated. He is highly vulnerable to experiencing problems with stress, but this risk issue can also be addressed with treatment.
Mr Klinger has had a number of intimate relationships. A girlfriend he had been seeing in Perth went to live with him in Broome. That relationship lasted for five years before she decided to return to Perth. He then met an older woman who was from Vanuatu. That relationship ended when she returned to Vanuatu to visit family and was then unable to return due to COVID-19 restrictions. After returning to Perth, he met another woman who had a 3-year-old son. She became pregnant by Mr Klinger and gave birth to a son, who was born a short time prior to the sentencing date.[30]
[30] Sentencing ts 30.
Mr Klinger has a prior criminal record. It includes an offence of aggravated burglary with intent committed in 2011 and offences of wilfully and unlawfully damaging property in the same year. There are also offences of stealing and driving‑related offences, including driving under the influence of alcohol.[31]
[31] Sentencing ts 32.
It was submitted on behalf of Mr Klinger that he does have significant remorse and insight. It was said that he felt disgusted with himself in committing the offences and that the offending was alcohol related. He had been on bail and had committed no further offending in that period.[32]
[32] Sentencing ts 21 - 22.
Mr Klinger had indicated a plea to the charges at a relatively early stage and the sentencing judge allowed a discount of 25% pursuant to s 9AA of the Sentencing Act. As with Mr Billett, this finding is not challenged on the appeal.[33]
[33] Sentencing ts 33.
Sentencing remarks
As there is no allegation of express error in the judge’s sentencing remarks it is unnecessary to refer to those remarks in detail. His Honour summarised the personal circumstances of the respondents and the factors relevant in sentencing for offences of these types. His Honour noted the maximum penalties and the seriousness of the offending conduct. His Honour referred to home burglaries being serious, particularly where they involve forcible entry into premises known or suspected to be occupied and accompanied by threatened or actual violence.[34]
[34] Sentencing ts 27.
The sentencing judge identified the aggravating factors in relation to counts 1 and 4 as being that the respondents were in company with each other, that they knew or ought to have known that the premises were occupied, that they were both armed and that they both made threats and did harm. His Honour accepted that both occupants must have been in fear for their safety.[35]
[35] Sentencing ts 32.
The sentencing judge identified the mitigating factors as being that both of the respondents had pleaded guilty at an early stage, that Billett had a limited prior criminal record and supportive character references, that Klinger also had a supportive character reference (though his record precluded a finding of prior good character), that Billett had made significant changes in his life and was now considered at low risk of re-offending, that Klinger had acknowledged his alcohol problem but that he remained at low to middle risk of re-offending, and that both of the respondents had accepted responsibility and were remorseful for the offending.[36]
[36] Sentencing ts 34 - 35.
There is one other feature of the sentencing remarks that is noteworthy. The learned sentencing judge said that the facts as read out by the prosecutor had been accepted and that he was not going to reiterate them. He said that there were 'quite a lot of them' and he would merely formally incorporate them into his remarks. It may seem unnecessary to repeat facts which have been recently stated in open court and are not in dispute. However, there is often real value in a sentencing judge stating at least the salient features of the offending as these provide the factual basis for the penalty. Sentencing remarks should be capable of being analysed as a self‑contained exercise in reasoning to an outcome. Furthermore, the exercise of referring to the facts may ensure that the sentencing judge does not lose sight of the objective seriousness of the offending.[37]
[37] Sentencing ts 27.
Grounds of appeal
The State appeals against the individual sentences imposed on counts 1, 4 and 5 on the grounds that those sentences are manifestly inadequate. The State also challenges the total effective sentence in respect of each respondent on the ground that it breaches the first limb of the totality principle in that it fails to reflect the overall criminality of the offending conduct.
In each appeal, ground 1 relates to the sentence imposed on count 1 of the indictment, ground 2 relates to the sentence imposed on count 4 of the indictment and ground 4 relates to the total effective sentence. In respect of Billett, ground 3 relates to the sentence imposed on count 5 of the indictment. In respect of Klinger, ground 3, which related to the sentence imposed on count 6, was abandoned at the hearing of the appeal.
Relevant principles
The State has a right to appeal against a sentence imposed on a person convicted of a charge pursuant to s 24(1)(a) of the Criminal Appeals Act 2004 (WA). The court may allow the appeal if, in its opinion, a different sentence should have been imposed.
The general principles governing appeals contending that error should be inferred on the basis that an individual sentence is manifestly excessive or inadequate, or that the total effective sentence infringes the totality principle, are well established. Those principles were summarised in Kabambi v The State of Western Australia:[38]
(1)Sentencing is a discretionary exercise. An appellate court can intervene only if the appellant demonstrates either an express or implied material error. Express error involves acting on a wrong principle, for example by mistaking the law or facts or taking into account an irrelevant matter. Implied error arises where the end result is so unreasonable or unjust that the court must conclude that a substantial wrong has occurred. Thus, an appellate court cannot substitute its own opinion for that of the sentencing court merely because the appellate court would have exercised a sentencing discretion differently.
(2)In order to determine whether a sentence for an individual offence is manifestly excessive or inadequate, the offence should be viewed in light of the maximum sentence prescribed by law for the crime, the standards of sentencing customarily imposed with respect to it, the place that the criminal conduct occupies in the scale of seriousness of crimes of that type, and the offender's personal circumstances.
(3)The first limb of the totality principle requires that the total effective sentence imposed on an offender who has committed multiple offences bears a proper relationship to the overall criminality involved in all of the offences (including those, if any, in respect of which the offender is still serving or is yet to serve a term of imprisonment), viewed in their entirety, having regard to all relevant facts and circumstances including those referable to the offender personally (and including, for example, the desirability of accommodating any wish to rehabilitate), all relevant sentencing factors and the total effective sentences imposed in comparable cases.
(4)The range of sentences customarily imposed for a crime does not establish the range of a sound exercise of the sentencing discretion. Sentences customarily imposed in comparable cases provide a yardstick or reference point for ensuring broad consistency in sentencing, bearing in mind the scope for significant variations in relevant sentencing factors, and that there is no single correct sentence. What is important is the unifying principles which sentences imposed in comparable cases reveal and reflect.
(5)When this court dismisses an appeal against sentence and when it resentences on a successful appeal, its decision does not fix the upper or lower limit of the range.
(6)Where there is a challenge on totality grounds, the severity of a sentence imposed on an individual count generally falls to be assessed in light of the sentences imposed in respect of the other counts and its contribution to the total effective sentence. A heavy individual sentence (which is not manifestly excessive) may be softened by an order that it be served concurrently with sentences imposed in relation to the other counts. A relatively light sentence (which is not manifestly inadequate) may, as a practical matter, have increased severity if it is ordered to be served cumulatively. The real question is whether the total effective sentence is unreasonable or plainly unjust.
[38] Kabambi v The State of Western Australia [2019] WASCA 44 [21].
Grounds 1 and 2: manifest inadequacy on the burglary counts
The maximum penalty for the aggravated burglaries the subject of counts 1 and 4 is 20 years' imprisonment.[39]
[39] Criminal Code s 401(1)(a).
There is no established range for home burglaries given the wide range of circumstances in which such offences can be committed and the varying personal circumstances of those who commit them. However, home burglaries are serious offences that are prevalent and should ordinarily result in terms of imprisonment. This court has observed that there has long been a recognition that sentences for home burglary need to be firmed up. The necessity for the firming up of sentences for aggravated home burglary offences has been repeatedly emphasised since 2020.[40] That necessity should be reflected in an increase in sentences over time.
[40] Eldridge v The State of Western Australia [2020] WASCA 66 [63] - [64]; Miller v The State of Western Australia [2022] WASCA 50 [50]; The State of Western Australia v Richards [2020] WASCA 129 [28] ‑ [29]; The State of Western Australia v Wilkins [2020] WASCA 149 [67], [76]; Robson v The State of Western Australia [2020] WASCA 153 [21]; Panicciari v The State of Western Australia [2020] WASCA 154 [43] - [44].
Home invasions on occupied premises accompanied by threatened or actual violence with an intention to intimidate the occupants are generally significantly more serious than those that involve a simple intention to steal. This court has reviewed sentences for aggravated burglary involving the use of violence or threats of violence in Wragg v The State of Western Australia[41] and more recently in Serukai v The State of Western Australia.[42]
[41] Wragg v The State of Western Australia [2013] WASCA 198; 234 A Crim R 380.
[42] Serukai v The State of Western Australia [2020] WASCA 159.
Other cases referred to by the parties as being useful comparators were Miller v The State of Western Australia;[43] The State of Western Australia v Richards;[44] The State of Western Australia v Wilkins;[45] Panicciari v The State of Western Australia; The State of Western Australia v Quartermaine[46] and Brindley v The State of Western Australia.[47] It is unnecessary to refer to the individual sentences and specific circumstances of each of those cases. It is sufficient to say that these decisions demonstrate that the sentences of 18 months' immediate imprisonment imposed for each of the burglaries the subject of counts 1 and 4 cannot readily be reconciled with the sentences imposed in cases of comparable seriousness. Furthermore, they are inconsistent with the recognition in the appellate decisions that sentences for home burglary need to be firmed up.
[43] Miller v The State of Western Australia [2022] WASCA 50.
[44] The State of Western Australia v Richards [2020] WASCA 129.
[45] The State of Western Australia v Wilkins [2020] WASCA 149.
[46] The State of Western Australia v Quartermaine [2021] WASCA 145.
[47] Brindley v The State of Western Australia [2019] WASCA 153.
In this case, the seriousness of the offending was self‑evident from the facts and the prosecution brief. There were a significant number of aggravating features:
a.this was not opportunistic offending, but, rather, planned conduct with the respondents agreeing to attend at the premises and arming themselves with weapons before arriving;
b.the offences were committed in company and at night;
c.the offences were at residential premises where it was likely, and indeed the respondents fully expected, residents to be present;
d.the purpose of the burglary offences was to enter and, at least, intimidate the occupant by threatening him with weapons;
e.the burglary on the house involved threats to Mr Sorrell, and threatening behaviour with weapons;
f.the burglary on the caravan involved forcible entry and the breaking of windows;
g.the burglary on the caravan involved threats to Mr Scerri and a serious assault upon him;
h.Mr Scerri was outnumbered and trapped, and thus vulnerable to the attack upon him; and
i.the offences were, in essence, a revenge or vigilante attack by Billett, in which he was actively assisted by Klinger and TL.
As to the last factor, offences committed as vigilante action are particularly serious. Such conduct is a challenge to the rule of law and general deterrence must be an important factor. In the case of Billett, he had been seeking Mr Scerri’s address for some weeks prior to the offending. In messages to Billett from his partner two hours prior to the offending, she remonstrated with him and said that what he was intending to do would result in imprisonment. Despite those warnings, he persisted with his actions and involved others in them. Plainly, Klinger was a willing and active participant in what he believed to be a revenge attack.
There was a suggestion in sentencing submissions that the only intention was to intimidate the victim, however the fact that Mr Scerri was immediately set upon when the respondents entered the caravan leads to the inevitable conclusion that the purpose was always to assault him. In any event, there was a clear and obvious risk that breaking into a residence with the intention of intimidating a person whilst armed with dangerous weapons was very likely to meet with resistance and the probability of injury was high.
The second burglary, that to the caravan, was particularly serious because it involved forced entry and the smashing of windows and an assault upon an outnumbered victim on his bed at night. Both respondents participated in the assault upon Mr Scerri and were acting in a highly aggressive way. The fact that Mr Scerri curled up on his bed in an effort to protect himself is a good indication of the ferocity of the attack.
As to the motivation behind the offending, it would seem that Billett had a grievance against Mr Scerri, and Klinger believed that this related to Billett's children. Such beliefs could not in any way mitigate or excuse the conduct. Indeed, as noted earlier, a vigilante response to a perceived threat or grievance raises a heightened need for general (and, indeed, specific) deterrence.
The personal circumstances of the respondents included some significant matters of mitigation, in particular the early pleas of guilty, expressions of remorse and Billet’s efforts towards rehabilitation. However, factors of this type are not unusual. Some of the cases referred to earlier involved offenders who had similar favourable personal circumstances. The respondents’ personal circumstances did not justify sentences that failed to reflect the objective seriousness of the offences and were so markedly inconsistent with those imposed in comparable cases.
The maximum penalty for the burglary offences, the fact that the sentences imposed were inconsistent with sentences imposed for comparable offences, the objective seriousness of those offences and the personal circumstances of the respondents together establish that the sentences imposed on counts 1 and 4 were so inadequate as to be plainly unreasonable or unjust.
Ground 3 (Billett) - manifest inadequacy on count 5
As regards count 5, it is a notable feature of the sentencing proceedings that there was no clarification as to the precise act that was the subject of this count, nor was there any explanation as to why Billett was charged with doing an act with intent to harm as a result of which bodily harm was caused, whereas Klinger was charged with the offence of assault occasioning bodily harm arising from the same conduct.
At face value, count 5 might be thought to allege that Billett was responsible for inflicting the most serious injury to Mr Scerri, being the laceration to the ankle which caused an ankle fracture. However, that was not expressly referred to in the prosecutor’s statement of facts, nor was there anything in the prosecution brief that indicated which of the offenders had inflicted the injury, apart from the fact that Billett had the machete.
At the hearing of the appeal, counsel for the State conceded that as it had not been clearly asserted in the sentencing proceedings that any individual had inflicted the ankle wound it could not be asserted that either Klinger or Billett were directly responsible for it. The difference in the charges was explained as being the result of negotiations entered into by the lawyers for each of the respondents. It was not due to any alleged difference in their culpability. Thus, although the respondents were charged with different offences relating to the assault on Mr Scerri, which carried different maximum penalties, the State accepted that the criminal conduct and liability of each of them was essentially the same.[48]
[48] Appeal ts 8 - 9.
In these circumstances, bearing in mind that the State does not challenge the sentence of 12 months' imprisonment imposed on Klinger for the assault offence (count 6), it would be inappropriate to increase the sentence on count 5 simply because Billett was charged with a different offence that carried a higher maximum penalty. That is not to say that in other circumstances a sentence of 12 months' imprisonment for an offence of this nature would be appropriate. However, in the circumstances of this case, and given the concession made by the State, the challenge to the sentence on count 5 cannot succeed.
Ground 4 - totality
As the sentences were all made concurrent the total effective sentence imposed by the sentencing judge on each of the respondents was 18 months' immediate imprisonment.
The total criminal conduct, when viewed in its entirety, was of great seriousness. It involved a persistent course of conduct in which two aggravated burglaries were committed, threats were made to two victims, damage was caused to property and an occupant of one of the residences was seriously assaulted. In these circumstances, total effective sentences of 18 months' immediate imprisonment were clearly disproportionate to the total criminal conduct when viewed as a whole.
Residual discretion
This court has a residual discretion not to interfere with a primary judge's exercise of the sentencing discretion, in the context of a State appeal, notwithstanding that appellable error has been established: see s 31(4)(a) of the Criminal Appeals Act 2004 (WA). A respondent to a State appeal against sentence does not bear an onus to establish that the residual discretion should be exercised in his or her favour. Rather, it is incumbent on the State to satisfy this court that the residual discretion should not be exercised.[49]
[49] CMB v Attorney-General (NSW) [2015] HCA 9; (2015) 256 CLR 346 [33] ‑ [34] (French CJ and Gageler J).
The difference in the approach between offender appeals against sentence and State appeals against sentence is explicable by the purpose underpinning each category of appeals. Offender appeals are concerned with the correction of error in the particular case. State appeals are concerned with establishing principles for the guidance of sentencing judges.[50]
[50] Green v The Queen [2011] HCA 49; (2011) 244 CLR 462 [1] (French CJ, Crennan & Kiefel JJ); CMB [55] (Kiefel, Bell & Keane JJ).
In the present case, counsel for Klinger submitted that in the event that the State's grounds of appeal were made out, the court should exercise its residual discretion to dismiss the appeals. Billett did not contend that there were grounds for exercising the residual discretion.
On behalf of Klinger, it was submitted that the court should exercise the residual discretion because resentencing would have a negative effect on rehabilitation. It was submitted that Klinger has made good progress in rehabilitating himself in custody. In this regard additional evidence was provided on affidavit, which will be referred to further below.
Intervention in the present case is necessary to maintain proper standards of sentencing. Appellable error has been clearly established and the public interest in maintaining appropriate sentencing standards for serious offending of the type committed here weighs strongly against the exercise of the residual discretion. Furthermore, the efforts towards rehabilitation taken by Klinger are not such as to justify not correcting the plainly unjust sentences imposed in this case.
Resentencing
On the hearing of the appeal, both respondents adduced additional material relevant to the resentencing process. Both respondents have taken the opportunity in prison to participate in programs and undertake employment. The information provided shows that they have engaged well with programs and that they are continuing to make good progress toward rehabilitation. We take that into account as a mitigating factor.
It is accepted by the State that each of the respondents entered pleas of guilty at a relatively early stage and that the discount of 25% under s 9AA of the Sentencing Act allowed by the sentencing judge was appropriate. Accordingly, we have allowed that discount in determining the appropriate sentences for counts 1 and 4.
On the other hand, the aggravating features of the offences as referred to above and the importance of general and particular deterrence require that sentences significantly greater than those imposed by the sentencing judge should be substituted. Count 4 was the more serious of the two aggravated burglaries as it involved forcible entry, damage to property and actual violence to the occupant.
The individual sentences imposed by the sentencing judge for counts 2, 3, 5, 6 and 7 should not be disturbed.
Having regard to all relevant factors and factual circumstances the appropriate sentences for counts 1 and 4 are those referred to below. As the offences were all committed as part of the same course of conduct it would be usual for there to be some degree of concurrency in the sentences. In the circumstances of this case an increase in the sentences on counts 1 and 4 and orders that all sentences be served concurrently would achieve an appropriate total effective sentence in each case.
Conclusion
For the reasons given, on 10 November 2022 we made the following orders.
In CACR 45 of 2022 (Billett):
1.Appeal allowed.
2.The sentences imposed on the respondent by the District Court of Western Australia on counts 1 and 4 of indictment 2156 of 2021 are set aside.
3.The primary judge's order for concurrency in relation to the individual sentences for counts 1, 2, 3, 4 and 5 is set aside.
4.The following sentences are substituted: count 1 - 3 years' imprisonment; count 4 - 4 years 3 months' imprisonment.
5.The sentences imposed on counts 1, 2, 3 and 5 are to be served concurrently with the sentence imposed on count 4.
6.The total effective sentence of 4 years 3 months' imprisonment is taken to have commenced on 17 April 2022.
7.The respondent is eligible for parole.
In CACR 46 of 2022 (Klinger):
1.Appeal allowed.
2.The sentences imposed on the respondent by the District Court of Western Australia on counts 1 and 4 of indictment 2156 of 2021 are set aside.
3.The primary judge's order for concurrency in relation to the individual sentences for counts 1, 3, 4, 6 and 7 is set aside.
4.The following sentences are substituted: count 1 - 3 years' imprisonment; count 4 - 4 years 3 months' imprisonment.
5.The sentences imposed on counts 1, 3, 6 and 7 are to be served concurrently with the sentence imposed on count 4.
6.The total effective sentence of 4 years 3 months' imprisonment is taken to have commenced on 27 February 2022.
7.The respondent is eligible for parole.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
JS
Associate to the Honourable Justice Hall
1 DECEMBER 2022
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