The State of Western Australia v Krakouer
[2022] WASCA 118
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: THE STATE OF WESTERN AUSTRALIA -v- KRAKOUER [2022] WASCA 118
CORAM: BUSS P
MITCHELL JA
VAUGHAN JA
HEARD: 19 AUGUST 2022
DELIVERED : 6 SEPTEMBER 2022
FILE NO/S: CACR 153 of 2021
BETWEEN: THE STATE OF WESTERN AUSTRALIA
Appellant
AND
JASON COLIN EDWARD KRAKOUER
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram: STEWART DCJ
File Number : IND 981 of 2021
Catchwords:
Criminal law - State appeal against sentence - Aggravated home burglary, assault occasioning bodily harm and deprivation of liberty - Where offender was a repeat offender and on bail for home burglary offences at the time of the commission of the current offences - Whether individual sentence of 2 years 8 months' immediate imprisonment for the aggravated home burglary offence is manifestly inadequate
Legislation:
Criminal Code (WA), s 317(1), s 333, s 401A, s 401B, s 401
Result:
Appeal allowed
Respondent resentenced
Category: D
Representation:
Counsel:
| Appellant | : | R F Owen |
| Respondent | : | S H King |
Solicitors:
| Appellant | : | Director of Public Prosecutions (WA) |
| Respondent | : | Legal Aid (WA) |
Case(s) referred to in decision(s):
Bahar v The Queen [2011] WASCA 249; (2011) 45 WAR 100
Brindley v The State of Western Australia [2019] WASCA 153
Bugmy v The Queen [2013] HCA 37; (2013) 249 CLR 571
Churnside v The State of Western Australia [2016] WASCA 146
CMB v Attorney-General (NSW) [2015] HCA 9; (2015) 256 CLR 346
Eldridge v The State of Western Australia [2020] WASCA 66
Herbert v The Queen [2003] WASCA 61; (2003) 27 WAR 330
Jackamarra v The State of Western Australia [2019] WASCA 150
Kabambi v The State of Western Australia [2019] WASCA 44
Kelly v The State of Western Australia [2020] WASCA 29
Kickett v The State of Western Australia [2019] WASCA 147
Panicciari v The State of Western Australia [2020] WASCA 154
Pedrochi v Brown [2021] WASC 81
R v Abbas [2019] WASCA 64; (2019) 277 A Crim R 105
Serukai v The State of Western Australia [2020] WASCA 159
The State of Western Australia v Chungarai [2021] WASCA 147
The State of Western Australia v Quartermaine [2021] WASCA 145
The State of Western Australia v Wilkins [2020] WASCA 149
Wragg v The State of Western Australia [2013] WASCA 198; (2013) 234 A Crim R 380
JUDGMENT OF THE COURT:
Summary
On 12 October 2021, the respondent was convicted, on his pleas of guilty, of the following offences committed at Maddington on 14 July 2020:
1.Aggravated home burglary, contrary to s 401(2)(a) of the Criminal Code (WA) (Code).
2.Assault occasioning bodily harm, contrary to s 317(1) of the Code.
3.Deprivation of liberty, contrary to s 333 of the Code.
The offending involved the respondent breaking into the complainant's house at about 6.15 am, assaulting her while armed with various weapons and requiring the complainant (who had the care of her 1‑year‑old son) to drive him to various locations over a 2-hour period. The 32-year-old respondent, who has a serious criminal record, was on bail at the time of committing the offences and was a repeat offender in respect of the home burglary offence.
The respondent received the following sentences for this offending:
Count
Offence
Maximum (minimum) penalty
Sentence imposed
Accumulation
1
Aggravated home burglary
20 years (2 years)
2 years 8 months
Head sentence
2
Assault occasioning bodily harm
No penalty (under s 11 of the Sentencing Act 1995 (WA))
-
3
Deprivation of liberty
10 years
1 year 2 months (reduced from 1 year 9 months for totality)
Cumulative
Total effective sentence
3 years 10 months
The respondent was made eligible for parole. His sentence was backdated to 27 August 2020 to take account of time spent in custody on remand.
The State now appeals against these sentences. Ground 1 contends that the individual sentences imposed for each of counts 1 and 3 were manifestly inadequate. Ground 2 contends that the total effective sentence infringes the first limb of the totality principle. Leave to appeal on these grounds has been granted.
In our view ground 1 (as it relates to count 1) and ground 2 are established. The appeal should be allowed. The respondent should be resentenced as follows:
Count 1: 5 years' immediate imprisonment.
Count 2:No penalty (under s 11 of the Sentencing Act).
Count 3: 1 year's immediate imprisonment (reduced from 2 years 6 months for totality) to be served cumulatively on the sentence for count 1.
Total effective sentence: 6 years' imprisonment.
The respondent should remain eligible for parole and his sentence backdated to 27 August 2020 to take account of time spent in custody.
Circumstances of offending
The sentencing judge made the following findings as to the circumstances of the offending.[1]
[1] Sentencing ts 23 - 24.
At about 6.15 am on Tuesday 14 July 2020, the respondent arrived at the complainant's street in a ride service vehicle. He entered the rear yard of the complainant's house and gained entry to the house, possibly through an unlocked door. The complainant was asleep inside her house with her infant son. The complainant's partner had left for work five minutes prior to the respondent entering.
Once inside the house, the respondent took possession of a carving knife, a baseball bat and a pair of scissors. He put on a hooded dressing gown belonging to the complainant. He partially covered his face with a pair of orange underpants belonging to the complainant's partner.
At about 7.15 am, the complainant awoke to the sound of her son crying. As she entered the kitchen area to make him a feed bottle, the respondent appeared from behind a bench top and tackled her downward onto the hard tile floor. The complainant fell against the edge of a wooden table. The respondent also fell to the ground, landing on top of the complainant. The complainant banged the back of her head, causing pain to her scalp and neck. She also sustained bruising and swelling to her shoulder and knee, requiring medical attention.
The complainant began screaming. The respondent placed a hand across her mouth and told her to stop. Once the complainant stopped screaming, the respondent let her go to attend to her infant son who was in another room.
The respondent asked to use the complainant's mobile phone to make a call, and accidentally dialled the complainant's sister before terminating the call. The respondent told the complainant to call her sister back and tell her she had dialled by accident, and that everything was okay.
The respondent then told the complainant she was going to drive him around to some addresses to help him find his partner. The complainant obliged out of fear. The respondent, the complainant and the complainant's infant son got into the complainant's vehicle. As the complainant and her child were entering the car, the respondent removed various items from within the house and placed them into a duffel bag. The items consisted of a mobile phone and two hats, with a total estimated value of $150.
The respondent placed the duffel bag in the car. He then directed the complainant to drive him to locations in Huntingdale, Kelmscott, Gosnells, and Armadale. On two occasions the respondent got out of the car and took the car keys with him.
At about 9.30 am, the respondent got out of the complainant's car in Armadale. He apologised to the complainant before walking off with the duffel bag previously loaded into the car.
The respondent was arrested on 27 August 2020. He has been in custody since that time.
Victim impact
The complainant's victim impact statement indicates that the respondent's offending had a severe psychological impact on her. She relives the incident every day. After the offending, she and her partner broke their lease and moved the family to a more secure house. The complainant's house at the time of the offending held too many traumatic memories and she was haunted by the fact that the respondent knew where she lived. Since the offending, the complainant has never felt safe, no matter where she is or who she is with.
The complainant has been diagnosed with post-traumatic stress disorder and has been prescribed medication to help with that condition. The offending has also had a huge impact on the complainant's partner and their 6-year-old daughter (who thankfully was not at the house at the time of the offending but fears strangers and the dark because she knows someone hurt her mum).
Personal circumstances
The respondent is an Aboriginal man who was 32 years old at the date of the offence and 33 years old at the date of sentence.[2] He was born in Perth to a young alcoholic mother and a methylamphetamine‑addicted father. His parents separated when he was still a baby, and he was raised by his maternal grandmother. His mother passed away about 10 years ago. His father was not part of the respondent's life until about three years ago. The respondent did not report exposure to domestic violence at home, but his mother and grandmother regularly fought about his mother's alcohol abuse.
[2] Sentencing ts 26. The following is taken from sentencing ts 26 ‑ 29; psychiatric report dated 26 July 2021; and criminal history report.
The respondent left school at year 9 and has not had any employment or training since that time. He has a long history of substance abuse. He reported using drugs on a daily basis in prison. He does not have any 'serious or enduring' mental illness. The respondent was in a stable relationship at the time of sentencing. He has five children from four prior relationships, with whom he did not have contact.
The respondent has a very long history of offending dating back to when he was a child. His convictions include a large number of burglary offences, as well as stealing, fraud, failure to comply with orders and violence offences. Most recently, the respondent has been sentenced for the following offences:
1.On 28 February 2014, the respondent was sentenced by the Magistrates Court to a total effective sentence of 9 months' immediate imprisonment from that date. The sentence was imposed for a range of offences which included a home burglary committed on 28 February 2013.
2.On 21 October 2016, the respondent was sentenced by the District Court to a total effective sentence of 2 years' immediate imprisonment from 17 July 2016. This sentence was imposed for two aggravated home burglary offences committed in October 2015.
3.On 6 December 2016, the respondent was sentenced by the Magistrates Court to a total effective sentence of 20 months' immediate imprisonment from that date. This sentence was imposed for various offences, including three home burglaries committed in September and October 2015 and two aggravated home burglaries committed in October 2015 and February 2016.
4.On 13 June 2017, the respondent was sentenced by the District Court to 12 months' immediate imprisonment partly cumulative from 13 June 2017. This sentence was imposed for an aggravated home burglary offence committed on 15 August 2015.
5.On 7 August 2020, the respondent was sentenced by the District Court to a total effective sentence of 6 months 1 day's immediate imprisonment from 14 November 2019. This sentence was imposed for various offences, including two aggravated home burglaries and one home burglary, committed in March and April 2015. At the time of his current offending on 14 July 2020, the respondent was on bail for these offences.
The respondent's account of the offending was that he had been released from prison and in the community for about 10 weeks.[3] He used methylamphetamine, got disoriented and went to a stranger's house believing that it was his partner's house. He reported that he wanted to find his partner and the complainant agreed to take him in her car to look for his partner.
[3] In fact, the respondent had been in the community for 33 days; see parties' agreed memorandum filed 25 August 2022.
While on remand, the respondent had completed a six-week 'Brief Intervention Group Program'. The sentencing judge accepted that a letter the respondent wrote to the court indicated his genuine remorse for the offending.
Sentencing judge's approach
After summarising the circumstances of the offending, the sentencing judge identified the following aggravating factors:[4]
[4] Sentencing ts 24 - 25.
1.At the time of the offending, the respondent was on bail for burglary offences.
2.The respondent was armed with three weapons: a carving knife, a baseball bat and a pair of scissors.
3.The respondent confronted the complainant with his face covered.
4.The complainant's child was present during the offending.
5.The respondent assaulted the complainant.
6.The complainant received pain to her scalp and neck, and bruising and swelling to her shoulder and knee requiring medical attention. It was merely fortuitous that she did not sustain more serious injuries.
7.The respondent's offending was persistent and committed over an extended period of time.
8.The respondent's offending continued even after he was aware that the complainant was caring for her infant son.
9.The incident was terrifying for the complainant.
The sentencing judge identified the following mitigating factors:[5]
1.The respondent pleaded guilty, accepted responsibility for the offending and was remorseful. The judge allowed a discount of 20% under s 9AA of the Sentencing Act.
2.The effects of the respondent's social disadvantage and childhood deprivation.
3.The respondent had completed the six-week rehabilitation program in custody.
[5] Sentencing ts 25 - 26.
The sentencing judge noted the respondent's past offending history and that he was a repeat offender for the purposes of s 401(4) of the Code. The judge said that the respondent's prior court history was not an aggravating factor but meant that he could receive no mitigation for prior good character.[6]
[6] Sentencing ts 28.
The sentencing judge noted the significance of general deterrence and personal deterrence as sentencing considerations. In doing so, the sentencing judge observed:[7]
I accept that in your case given your childhood trauma, deprivation and social disadvantage that the weight to be given to general and personal [deterrence] is moderated to a degree. However, your use of methylamphetamine is not mitigatory and indeed, as I have said, I have to protect the public, in this case a vulnerable woman from this type of offending.
I have to punish you for what took place. I have to deter you from ever going into somebody's house again or behaving in the way that you did.
[7] Sentencing ts 29.
The sentencing judge referred to the sentencing approach indicated by decisions of this court. Her Honour concluded that the seriousness of the offences was such that a term of imprisonment was the only appropriate disposition.[8]
[8] Sentencing ts 29 - 30.
The sentencing judge turned to consider the totality principle, expressing the view that a total effective sentence of 3 years 10 months' imprisonment reflected the respondent's overall criminality involved in all the offences. Her Honour then imposed the sentences referred to in the table at [3] above.
General principles
The grounds of appeal assert inferred, rather than express, error. The relevant principles are well established, and were summarised in Kabambi v The State of Western Australia:[9]
(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.
[9] Kabambi v The State of Western Australia [2019] WASCA 44 [21].
Ground 1: manifest inadequacy
It is convenient to begin by considering whether the individual sentence for the aggravated home burglary offence was manifestly inadequate.
Maximum and minimum penalty
As noted above, the maximum penalty for the aggravated home burglary offence charged in count 1 is 20 years' imprisonment.[10]
[10] Section 401(1)(a) of the Code.
The Code makes provision for minimum mandatory terms of immediate imprisonment for an adult offender who is a 'repeat offender' as defined in s 401B of the Code. A person is a repeat offender if the person has at least three 'relevant convictions' (counting the current offence) for a home burglary as defined in s 401A of the Code. For home burglaries committed after the 'commencement date' of 31 October 2015,[11] the minimum mandatory sentence is 2 years' immediate imprisonment.[12] The mandatory minimum penalty for home burglary offences committed by an adult repeat offender prior to that date is 12 months' immediate imprisonment.[13]
[11] Being the day on which s 19 of the Criminal Law Amendment (Home Burglary and Other Offences) Act 2015 (WA) came into operation (see s 400(1) of the Code (definition of 'commencement day') and Western Australia, Government Gazette, No 165 (30 October 2015) 4493).
[12] Section 401(4)(b)(i) and s 401(5) of the Code.
[13] Section 401(4)(a)(i) and s 401(5) of the Code.
The operation of the repeat offender provisions was considered by this court in Eldridge v The State of Western Australia.[14] As the court recognised,[15] it is necessary, when ascertaining the seriousness of an offence, to take into account, not only the maximum penalty for that offence, but also any applicable minimum penalty. The minimum penalty and the maximum penalty operate as a floor and ceiling within which the sentencing discretion must be exercised. The issue for the sentencing judge is to determine where, having regard to all relevant sentencing factors, the offending in question falls in the range between the least serious category of offending, for which the mandatory minimum penalty is appropriate, and the worst category of offending, for which the maximum penalty is appropriate.[16]
[14] Eldridge v The State of Western Australia [2020] WASCA 66 [30] - [57].
[15] Eldridge [49].
[16] Bahar v The Queen [2011] WASCA 249; (2011) 45 WAR 100 [58], adopted in R v Abbas [2019] WASCA 64; (2019) 277 A Crim R 105 [66] - [68] and Eldridge [37], [53].
In Eldridge,[17] the court also noted:
Since the mandatory minimum penalty for 'third‑strike' repeat adult offenders was increased in 2015 from 12 months' to 2 years' immediate imprisonment, new sentencing patterns have not been established.
Nevertheless, sentencing patterns for 'third‑strike' repeat adult offenders while the mandatory minimum penalty was 12 months' immediate imprisonment are still of some relevance as reasonably comparable cases. Sentencing patterns for home burglaries where the offender was not a 'third‑strike' repeat adult offender are of lesser and limited relevance.
Customary sentencing standards
[17] Eldridge [56] - [57].
We have located only three cases where this court has considered individual sentences for home burglaries imposed on a repeat offender under the current sentencing regime.
In Eldridge, this court upheld a sentence of 5 years' imprisonment, imposed after trial, for a non-aggravated home burglary (for which the maximum penalty was 18 years' imprisonment) by a repeat offender. The offending involved breaking into a home which was vacant while the owners were away on holiday. He rummaged through the family's belongings and took items, including some of sentimental value, of a value in excess of $14,000. The 41-year-old offender had a long history of offending associated with illicit drug addiction, which he had taken steps to address in custody.
In The State of Western Australia v Quartermaine,[18] the court was concerned with sentences imposed in respect of three home burglaries. The offender entered houses at night when the occupants were asleep. In the first case he stole a shoulder bag, keys for a vehicle and that vehicle. In the second case the offender was disturbed by an occupant with whom he engaged in a scuffle and assaulted. In the third case he was disturbed by an occupant and ran away. The offender was a 'repeat offender' for the third burglary, and so was subject to a 2-year minimum sentence for that offence. He was 22 years old at the time of the offending and had a long criminal record for offences which included burglary offences. He pleaded guilty at the first reasonable opportunity and received a discount of 25% under s 9AA of the Sentencing Act. Individual sentences of 2 years 6 months' immediate imprisonment for the second burglary and 2 years' immediate imprisonment for the third burglary were held to be manifestly inadequate. This court substituted sentences of 4 years' immediate imprisonment for the second burglary and 3 years 6 months' immediate imprisonment for the third burglary. The total effective sentence imposed by this court was 5 years' imprisonment.
[18] The State of Western Australia v Quartermaine [2021] WASCA 145.
In Kickett v The State of Western Australia,[19] the 32-year-old offender obtained the consent of an elderly couple to enter their house on the pretext of asking for a glass of water. She attempted to steal items while in the house and, after being discovered and told to leave, assaulted the male occupant in order to escape. The offender had suffered a deprived childhood and was a repeat offender with a lengthy criminal record. She received a 20% discount under s 9AA of the Sentencing Act for her early plea against the strength of the State case. This court refused leave to appeal on the ground that the sentence of 3 years 10 months' immediate imprisonment was manifestly excessive.
[19] Kickett v The State of Western Australia [2019] WASCA 147.
There is limited assistance to be gained by reference to Kickett, and some other cases referred to in the parties' submissions, where leave to appeal was refused in an offender's appeal against sentence on the ground of manifest excess. The fact that leave is refused is an indicator that the court did not consider it to be reasonably arguable that the sentence under review was manifestly excessive. It is not an indicator that the court regarded the sentence as appropriate. This point was made by Quinlan CJ in Pedrochi v Brown,[20] where his Honour observed:
Where an appeal on the ground of manifest excess is refused leave, on the basis that it has no reasonable prospect of success, it may have very little utility as a comparable sentence. Where a sentence is, in effect, not even arguably excessive, it can in no way provide a marker as to the upper limits of the proper exercise of discretion.
[20] Pedrochi v Brown [2021] WASC 81 [43].
The use to be made of decisions where leave for an offender to appeal against sentence is refused is even more limited in circumstances where, as is noted below, this court has repeatedly observed that sentences for home burglary offences need to be firmed up. Further, in some of the cases referred to by the parties the court noted the leniency of the sentence under review, or the court considered the appellant to have fallen well short of establishing inferred error.[21]
[21] See Panicciari v The State of Western Australia [2020] WASCA 154 [48]; Kelly v The State of Western Australia [2020] WASCA 29 [46].
In Jackamarra v The State of Western Australia,[22] the offender was 22 years old at the date of sentence. He was convicted of six home burglary offences and sentenced to a total effective sentence of 6 years' imprisonment. The burglary offences involved the offender breaking into houses and stealing items of value. At the time of committing five of the burglary offences, the offender was on a community-based order, as well as being on bail at the time of one of the burglaries. He had an extensive criminal history in the Children's Court which included a number of aggravated home burglaries. The offender received a 25% discount for his early plea. The offender was a 'repeat offender' and subject to the mandatory minimum penalties. Whilst this court was concerned with the question of totality, some attention was given to the individual sentences the subject of the charged counts. This court considered that whilst not in the 'worst category', a number of the burglaries were very serious. This court upheld the sentence imposed in the primary court and noted that although the total effective sentence of 6 years' imprisonment may be high, having regard to all of the circumstances, it was not unreasonable or plainly unjust.[23]
[22] Jackamarra v The State of Western Australia [2019] WASCA 150.
[23] Jackamarra [73], [74] ‑ [77].
More generally, in Brindley v The State of Western Australia,[24] the court observed:[25]
The circumstances of burglary offences can vary widely and attract a wide range of sentences. Home burglaries are viewed as being particularly serious offences, and are generally seen as requiring substantial penalties in order to recognise considerations of personal and general deterrence, and reflect the prevalence of the offence. Home invasions, which involve forcible entry into residential premises known or suspected to be occupied at the time, accompanied by threatened or actual violence, are generally significantly more serious than home burglaries which lack those characteristics. A home invasion which is committed with intent to intimidate the occupants is generally more serious than a burglary which involves simply an intention to steal.
In Brindley, a sentence of 3 years 6 months' immediate imprisonment imposed on a 34-year-old offender who received a 20% discount under s 9AA of the Sentencing Act was upheld. The offending involved forced entry into a house occupied by a mother and a number of children by a vigilante in search of a perceived offender (whom he suspected had been breaking into cars), and a punch to one of the older children in the house. The appellant in that case had a historical record for drug offences but had since turned his life around. As leave to appeal was refused, this court concluded that the sentence for the burglary offence was not arguably manifestly excessive.
[24] Brindley v The State of Western Australia [2019] WASCA 153.
[25] Brindley [39].
This court reviewed sentences imposed in cases of aggravated home burglary accompanied by an assault, which were not identified in the court's reasons as involving repeat offenders, in Wragg v The State of Western Australia.[26] Wragg involved a masked man in company with others kicking open the door of an occupied house and punching the complainant in retaliation for the conduct of one of her sons. The 26-year-old appellant in that case had a poor prior record, was on bail at the time of the offending and was convicted after trial. It was noted that in light of the review of sentences, the sentence of 4 years 6 months' imprisonment imposed in Wragg was towards the higher end of the range for a home invasion accompanied by an assault, but not outside of the range.[27] The sentence of 4 years 6 months' immediate imprisonment for the burglary offence was found not to be manifestly excessive.
[26] Wragg v The State of Western Australia [2013] WASCA 198; (2013) 234 A Crim R 380 [46] - [61]. See also the discussion in Kelly [44] - [45].
[27] Wragg [62].
In The State of Western Australia v Wilkins,[28] this court made the following comments:
The seriousness of the respondent's offending was to be evaluated having regard to his criminal acts and the circumstances in which he did those acts, and not by reference to whether the label of a 'home invasion' should or should not be applied to his offending behaviour. The seriousness of what the respondent did was to be found in his actions in entering a home occupied by other people without their consent; attempting to steal their motor vehicle by demanding their car keys; and swinging a tomahawk at the victim when the victim resisted. The fact that the victim, with the assistance of his son, was able to overpower the respondent does not detract from the seriousness of the offending.
In Wilkins, this court allowed a State appeal against sentence and set aside a sentence of 11 months' imprisonment, suspended for 18 months. The offender was resentenced to 3 years 3 months' immediate imprisonment. The offender was 24 years old with a less serious criminal record than the respondent in the current matter, as well as a traumatic upbringing. He had already spent 386 days in custody on remand. The offender in Wilkins had taken steps towards rehabilitation and was genuinely remorseful. He was given a 25% discount under s 9AA of the Sentencing Act for a plea of guilty at the first reasonable opportunity.
[28] The State of Western Australia v Wilkins [2020] WASCA 149 [70].
In Serukai v The State of Western Australia,[29] it was noted that, in considering the appropriate sentence for an aggravated home burglary offence, it is important to bear in mind the wide variety of conduct that may constitute the offence. Also, the classification of conduct referred to in Brindley (see the passage set out at [44] above) is general in nature and must, in a particular case, give way to an assessment of what the offender has actually done.
[29] Serukai v The State of Western Australia [2020] WASCA 159 [46].
In Eldridge, the court observed:[30]
The cases illustrate that there is no tariff for home burglary, whether aggravated or non-aggravated. This is hardly surprising given the vast variation of circumstances in which offences of home burglary are committed and the personal circumstances of those who commit them.
What is clear is that home burglaries are serious offences which are prevalent and which are ordinarily met with terms of imprisonment. There has long been a recognition that sentences for home burglary need to be firmed up. Whether this has in fact happened is debatable.
Seriousness of the respondent's offending
[30] Eldridge [63] - [64].
The home burglary offence charged in count 1 was aggravated by the following pleaded circumstances of aggravation:
1.The respondent was armed with offensive weapons, namely a knife, baseball bat and scissors.
2.The respondent did bodily harm to the complainant.
3.Immediately before the commission of the offence the respondent knew or ought to have known that there was another person in the place and that the place was used for human habitation.
4.The respondent is a repeat offender.
The offending was, as the sentencing judge found, terrifying for the complainant. It had a predictably severe psychological impact on her. Two other very significant aggravating features of the offending were the fact that the respondent was on bail for similar offending, and that the offending occurred in the presence of the complainant's 1‑year‑old child. The respondent persisted with his offending knowing that the complainant and her young child were present in the house, as well as tackling and assaulting the complainant when she awoke.
Matters personal to the respondent
There was limited mitigation to be found in the respondent's personal circumstances. He was not a youthful offender. He was not suffering from any mental illness or disability which was causative of the offending. The respondent's extensive criminal record meant that he did not have the mitigating benefit of prior good character. Further, that record elevated the significance of community protection and personal deterrence as sentencing considerations. While he had somewhat belatedly indicated remorse in his letter to the court, he had taken few steps towards his own rehabilitation.
The sentencing judge found that the respondent's childhood was afflicted by trauma, deprivation and social disadvantage of the kind referred to in Bugmy v The Queen.[31] Given that the finding was not challenged by the State, we will give effect to it in determining this appeal. However, as the court in Bugmy observed:[32]
An offender's childhood exposure to extreme violence and alcohol abuse may explain the offender's recourse to violence when frustrated such that the offender's moral culpability for the inability to control that impulse may be substantially reduced. However, the inability to control the violent response to frustration may increase the importance of protecting the community from the offender.
[31] Bugmy v The Queen [2013] HCA 37; (2013) 249 CLR 571.
[32] Bugmy [44].
The present case is one in which primacy should be given to the importance of protecting the community from the respondent.
Conclusion as to manifest inadequacy for count 1
The aggravated home burglary offence charged in count 1 was far from the least serious category of offending. The sentence imposed by the sentencing judge of 2 years 8 months' immediate imprisonment fails to reflect the position of the respondent's offending in the range between the least serious category of offending and the worst category of offending.
The sentencing judge's reasons appear to have adopted an unorthodox approach of determining the appropriate total effective sentence before setting the individual sentences. However, it is implicit from the fact that the sentence for count 3 was expressly reduced for totality that the sentence for count 1 was not reduced on that account. Therefore, the individual sentence imposed on count 1 is not explicable by an application of the totality principle.
Having regard to:
1.the maximum penalty of 20 years' imprisonment;
2.the minimum mandatory penalty of 2 years' immediate imprisonment;
3.the aggravating features of the offence, including the fact that the respondent assaulted the complainant in the presence of her young child and was on bail at the time of the offending;
4.the mitigating circumstances, including the respondent's plea of guilty, his expressed remorse and steps towards rehabilitation, as well as his childhood deprivation; and
5.the significance of general deterrence, and the elevated significance of personal deterrence and community protection, as sentencing considerations,
the sentence of 2 years 8 months' immediate imprisonment for count 1 is unreasonable or plainly unjust. The sentence failed by a significant measure to reflect the criminality involved in the offending charged in count 1 of the indictment. Ground 1, which contends that the individual sentence imposed for count 1 was manifestly inadequate, is established.
Manifest inadequacy and the deprivation of liberty charge
Our conclusion that ground 1 is established means that it is unnecessary to consider whether the individual sentence for count 3 is manifestly inadequate. It is necessary for this court to exercise the sentencing discretion afresh in relation to all sentences, subject to the residual discretion.
Ground 2: totality
It is also strictly unnecessary to determine whether the total effective sentence of 3 years 10 months' immediate imprisonment infringed the first limb of the totality principle. However, we would note that the total effective sentence of 3 years 10 months' imprisonment fails, in our view, to reflect the seriousness of the aggravated home burglary offence considered alone. It follows that, in our view, ground 2 is clearly established.
Residual discretion
This court has a residual discretion under s 31(4)(a) of the Criminal Appeals Act 2004 (WA) 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. 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 negative any reason why the residual discretion of this court not to interfere should be exercised.[33]
[33] CMB v Attorney-General (NSW) [2015] HCA 9; (2015) 256 CLR 346 [33] ‑ [34].
In the present case, the respondent did not contend that this court should exercise its residual discretion to dismiss the appeal if the grounds of appeal were established.[34] In our view, intervention in the present case is necessary to maintain adequate standards of sentencing. Appellable error has been clearly established, and the public interest in maintaining appropriate sentencing standards for extremely serious offending of the kind that occurred in the present case counts strongly against the exercise of the residual discretion in the respondent's favour.
[34] Respondent's submissions, par 46; appeal ts 34.
Resentencing
This court, which has the necessary materials, is in a position to resentence the respondent.
The State does not challenge the discount of 20% under s 9AA of the Sentencing Act. The discount may be regarded as generous given the respondent was charged on 28 August 2020 and did not plead guilty until 2 June 2021. However, the matter did not proceed beyond committal mention stage in the Magistrates Court. The benefit to the community in avoiding the expense of a trial, or making the complainant relive her trauma while testifying in court, is significant. In the circumstances, we are prepared to also apply a discount of 20% to each of the individual sentences.
We note that, since sentencing, the respondent has completed a Pathways program for the treatment of his addictions on 18 May 2022.
This court and its predecessor have now been referring to the need to firm up sentences for burglary offences, and to give effect to the reasons for Parliament's increase in the penalties for that offence, for well over 20 years.[35] For a long time, as in the passage in Eldridge quoted at [48] above, this court has said that it is debateable whether that firming up has occurred. The sentences imposed by the primary court in the present case strongly suggest that it has not.
[35] See Herbert v The Queen [2003] WASCA 61; (2003) 27 WAR 330 [5] - [7], [133], [168] - [171] and cases there cited.
In the meantime, Parliament has responded to the limited movement in the severity of sentences imposed for home burglary offences by increasing the maximum penalty and imposing and increasing minimum penalties for burglary in s 401 of the Code. Prior to 1996, the maximum penalty for burglary was 14 years' imprisonment. The maximum penalty was increased to 20 years for aggravated burglary and 18 years for home burglary in 1996. At the same time a minimum mandatory sentence of 12 months' immediate imprisonment for home burglary by a repeat offender was introduced. The minimum mandatory penalty for a home burglary by an adult repeat offender was increased to 2 years' immediate imprisonment in 2015. Also in 2015, mandatory minimum penalties of 75% of the maximum penalty or 15 years' imprisonment have been enacted for certain offences committed by an adult offender during an aggravated home burglary.[36]
[36] See Code s 279(5A) (murder), s 280(2) (manslaughter), s 281(3) (unlawful assault causing death), s 283(2) (attempted murder), s 294(2) (acts intended to cause grievous bodily harm), s 297(5) (doing grievous bodily harm), s 324(3) (aggravated indecent assault), s 325(2) (sexual penetration without consent), s 326(2) (aggravated sexual penetration without consent), s 327(2) (sexual coercion), s 328(2) (aggravated sexual coercion).
By enacting these provisions, Parliament has emphasised the significance of general and personal deterrence and community protection in sentencing for aggravated home burglaries. In enacting mandatory minimum penalties, Parliament has reduced the flexibility available to the courts in responding to difficult cases where special circumstances may reduce the culpability of the offender.[37] Cases where an offender causes grievous bodily harm (a term defined to include injuries with no actual continuing physical impact on the victim) during an aggravated home burglary now attract a mandatory minimum penalty of either 7 years 6 months' or 10 years 6 months' imprisonment.[38] Parliament has determined that loss of flexibility to be a justifiable price to pay in order to provide for more severe punishment in a context where the maximum penalty for aggravated home burglary has already been increased about as far as it reasonably can be and the sentences actually imposed by the courts are still regarded as inadequate.
[37] See, for example, Churnside v The State of Western Australia [2016] WASCA 146.
[38] Section 297(5) of the Code.
When this court comes to resentence an offender for an aggravated burglary in the exercise of its appellate jurisdiction, it is important that the sentence reflects the policy which has led Parliament to enact the applicable minimum and maximum penalties.
In our view, having regard to all relevant sentencing principles (and giving due consideration to the matters mentioned at [64] ‑ [67] above), a sentence of 5 years' immediate imprisonment is commensurate with the seriousness of the aggravated home burglary offence charged in count 1 of the indictment.
No penalty should be imposed on count 2, pursuant to s 11 of the Sentencing Act.
As to count 3, the customary sentencing standards for the offence of deprivation of liberty were referred to in this court's recent decision in The State of Western Australia v Chungarai.[39]
[39] The State of Western Australia v Chungarai [2021] WASCA 147 [45].
The present case involves a moderately serious example of that offence. The complainant was effectively kidnapped by an armed stranger who had already broken into her home and assaulted her. She had no choice but to take her infant son with her. The deprivation of liberty extended over a period of about 2 hours. Being confined in her vehicle with her young child and the respondent and made to drive to various locations was an extremely traumatic experience.
We accept the submission of the respondent's appeal counsel that the current offending is unusual in that the complainant was not deprived of her liberty for the purposes of the respondent committing some other offence against her. The respondent, in his drug‑affected state, merely wanted a ride. He did not make any explicit threats or offer violence to the complainant or her young son while they were in the car. This tends to reduce the seriousness of the offending in comparison to some of the other cases. However, it does not deny that it must have been a terrifying ordeal for the complainant.
In our view, having regard to all of the circumstances and all relevant sentencing principles, a sentence of 2 years 6 months' immediate imprisonment is commensurate with the seriousness of the deprivation of liberty offence charged in count 3.
Although there was some degree of overlap between the aggravated home burglary and deprivation of liberty offences, some degree of accumulation of the sentences is warranted. In our view, a total effective sentence of 6 years' imprisonment bears a proper relationship to the overall criminality involved in all of the offences, viewed in their entirety, having regard to all relevant facts and circumstances, including those referable to the offender personally, and all relevant sentencing factors. We would give effect to that view by reducing the sentence to be imposed on count 3 to 1 year's immediate imprisonment and order that sentence to be served cumulatively on the sentence for count 1.
The respondent should remain eligible for parole, and the sentence backdated to 27 August 2020 to take account of time spent in custody.
Orders
For the above reasons, we would make the following orders in this appeal:
1.The appeal is allowed.
2.The sentences imposed by the District Court of Western Australia on indictment 981 of 2021 are set aside and the following sentences are substituted:
Count 15 years' immediate imprisonment.
Count 2No penalty.
Count 31 year's immediate imprisonment.
3.The sentence imposed on count 3 is to be served cumulatively upon the sentence imposed on count 1.
4.The sentence imposed on count 1, and the total effective sentence of 6 years' imprisonment, are taken to have commenced on 27 August 2020.
5.The respondent remains eligible for parole.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
JB
Associate to the Honourable Justice Mitchell
6 SEPTEMBER 2022
6
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