The State of Western Australia v Quartermaine - [2021] WASCA 145

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT :   THE COURT OF APPEAL (WA)
CITATION:   THE STATE OF WESTERN AUSTRALIA -v- QUARTERMAINE [2021] WASCA 145
CORAM:   BUSS P
BEECH JA
MORRISON AJA

HEARD:   21 MAY 2021
DELIVERED          :   16 AUGUST 2021
FILE NO/S:   CACR 175 of 2020
BETWEEN:   THE STATE OF WESTERN AUSTRALIA
Appellant
AND
KENNETH ERIC QUARTERMAINE
Respondent

ON APPEAL FROM:
Jurisdiction              :   DISTRICT COURT OF WESTERN AUSTRALIA
Coram:   LONSDALE DCJ
File Number            :   IND 1662 of 2020

Catchwords:

Criminal law - State appeal against sentence - Respondent convicted on his pleas of guilty of six offences - Offences included three counts of aggravated burglary - Individual sentences of 2 years, 2 years 6 months and 2 years' immediate imprisonment for the aggravated burglary offences - Total effective sentence of 3 years' immediate imprisonment - Manifest inadequacy - Totality principle

Legislation:

Criminal Code (WA), s 317(1), s 371A, s 378, s 401(1)(a), s 401(2)(a), s 401(4)

Result:

Appeal allowed
Sentencing judge's sentencing decision, including the sentences imposed by the judge, set aside
Respondent resentenced

Category: D

Representation:

Counsel:

Appellant	:	Ms A L Forrester SC & Ms K C Cook
Respondent	:	Mr S B Watters & Mr W C Yoo

Solicitors:

Appellant	:	Director of Public Prosecutions (WA)
Respondent	:	Aboriginal Legal Service - Perth

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
Dickie v The State of Western Australia [2016] WASCA 88
Dos Santos v The State of Western Australia [2016] WASCA 46
Eldridge v The State of Western Australia [2020] WASCA 66
Green v The Queen [2011] HCA 49; (2011) 244 CLR 462
Humphreys v The State of Western Australia [2017] WASCA 208
Jolly v The State of Western Australia [2017] WASCA 181
Kickett v The State of Western Australia [2019] WASCA 147
Law v The Queen [2019] WASCA 81
Mamkin v The State of Western Australia [2017] WASCA 61
McAlpine v The State of Western Australia [2018] WASCA 195
McGarry v The Queen [2001] HCA 62; (2001) 207 CLR 121
Moore v The State of Western Australia [2019] WASCA 35
Munda v The State of Western Australia [2013] HCA 38; (2013) 249 CLR 600
Panicciari v The State of Western Australia [2020] WASCA 154
Robson v The State of Western Australia [2020] WASCA 153
Sartori v The State of Western Australia [2014] WASCA 98
Sathitpittayayudh v The State of Western Australia [2015] WASCA 152
Serukai v The State of Western Australia [2020] WASCA 159
Smith v The State of Western Australia [2014] WASCA 238
The State of Western Australia v Cairns [2006] WASCA 178
The State of Western Australia v Doyle [2017] WASCA 207
The State of Western Australia v Murray [2020] WASCA 190; (2020) 94 MVR 426
The State of Western Australia v Richards [2020] WASCA 129
The State of Western Australia v Wilkins [2020] WASCA 149
YDN v The State of Western Australia [2018] WASCA 62

JUDGMENT OF THE COURT:

This is a State appeal against sentence.
The respondent was charged on indictment with six offences.
Count 1 alleged that on 1 February 2020, at Ballajura, the respondent, while in the place of the complainant without his consent, stole a shoulder bag and contents belonging to another occupant of the place and that, 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 ordinarily used for human habitation, contrary to s 401(2)(a) of the Criminal Code (WA) (the Code).
Count 2 alleged that on the same date and at the same place as in count 1, the respondent stole a motor vehicle, namely a BMW sedan, contrary to s 371A read with s 378 of the Code.
Count 3 alleged that on 1 February 2020, at Beckenham, the respondent entered or was in the place of the complainant without his consent, with intent to commit an offence therein, and that 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 ordinarily used for human habitation, contrary to s 401(1)(a) of the Code.
Count 4 alleged that on the same date and at the same place as in count 3, the respondent unlawfully assaulted the complainant and thereby did him bodily harm, contrary to s 317(1) of the Code.
Count 5 alleged that on 22 February 2020, at Westminster, the respondent, while in the place of the complainant without his consent, committed the offence of stealing, and that 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 ordinarily used for human habitation, and that the respondent was a repeat offender, contrary to s 401(2)(a) of the Code.
Count 6 alleged that on the same date and at the same place as in count 5, the respondent stole a set of car keys, contrary to s 378 of the Code.
On 12 November 2020, the respondent was convicted, on his pleas of guilty before Lonsdale DCJ, of all of the counts.
The maximum penalty for each of counts 1, 3 and 5 was 20 years' imprisonment. The maximum penalty for each of counts 2 and 6 was 7 years' imprisonment. The maximum penalty for count 4 was 5 years' imprisonment. The mandatory minimum penalty for count 5 was 2 years' immediate imprisonment.
On 12 November 2020, her Honour imposed individual sentences of immediate imprisonment as follows:
(a)count 1: 2 years;
(b)count 2: 6 months;
(c)count 3: 2 years 6 months;
(d)count 4: 6 months; and
(e)count 5: 2 years.
Her Honour imposed no penalty for count 6.
The sentencing judge did not reduce for totality reasons any of the individual sentences she would otherwise have imposed.
Her Honour ordered that the individual sentences for counts 2 and 4 be served cumulatively upon each other and cumulatively upon the individual sentence for count 5 and that the individual sentences for each of counts 1 and 3 be served concurrently with each other and concurrently with the accumulated sentences for counts 2, 4 and 5. The total effective sentence was therefore 3 years' immediate imprisonment. The total effective sentence was backdated to 20 March 2020 to take account of time the respondent had spent in custody in relation to the offences in question. A parole eligibility order was made.
The State relies upon three grounds of appeal. Ground 1 alleges, in essence, that the individual sentence for count 1 was manifestly inadequate. Ground 2 alleges, in essence, that the individual sentence for each of counts 3 and 5 was manifestly inadequate. Ground 3 alleges, in essence, that the total effective sentence infringed the first limb of the totality principle. On 22 February 2021, Buss P granted leave to appeal on each ground of appeal.
We would allow the appeal. The sentencing judge's sentencing decision, including the sentences imposed by her Honour, should be set aside. This court should resentence the respondent.

The facts and circumstances of the offending

The facts and circumstances of the offending were not in dispute before the sentencing judge or this court.
As to counts 1 and 2, between midnight and 3.00 am on 1 February 2020, the respondent went to the home of the victims in Ballajura. The victims, who were married, lived at the home with their 2 year old son. They were asleep in the home at the time of the burglary.
The respondent removed a flyscreen from an open lounge room window. He then climbed through the open window and entered the house. Once inside, the respondent stole the male victim's car keys for a BMW sedan. Using a remote control attached to the key ring, the respondent opened and entered the victims' garage. Once inside, the respondent stole the female victim's shoulder bag from her vehicle. The bag contained the female victim's wallet, various bankcards and membership cards and sunglasses. The total value of those items was about $400.
Next, the respondent stole the male victim's BMW sedan. The respondent drove the vehicle to Beckenham where he crashed the vehicle. The airbags deployed. The respondent abandoned the vehicle. The female victim's shoulder bag and contents, apart from her wallet, were recovered near the abandoned vehicle.
Police found the respondent's fingerprints on the exterior surface of the flyscreen removed from the open lounge room window at the victims' home. The respondent was identified as a contributor to mixed DNA profiles recovered from the driver's side airbag of the BMW sedan and the female victim's handbag.
Police found the BMW sedan with its airbags deployed. The front left wheel had been severely damaged and misaligned. The keys were in the ignition.
On 20 March 2020, police interviewed the respondent. He admitted entering the victim's home after removing the flyscreen, stealing the male victim's car keys, stealing the BMW sedan and crashing the vehicle in Beckenham.
As to counts 3 and 4, at about 3.00 am on 1 February 2020, the respondent went to the home of the victims in Beckenham. The victims, who were married, lived at the home with their 20 year old daughter. They were asleep in the home at the time of the burglary.
The respondent kicked open the locked front door to gain entry to the premises. The victims awoke. The male victim got out of bed, entered the hallway and turned on the lights. He was confronted by the respondent, who shouted at the victim and demanded the victim's keys. The respondent threatened to kill the victim. The victim told the respondent to leave the premises. The respondent then 'shaped up' to the victim as he if wanted to fight. A scuffle ensued between the male victim and the respondent. The respondent punched the male victim to the face about three times. The victim suffered soreness around his nose and a mark on his right cheek.
The respondent then ran from the victims' home. While he was running, the respondent approached neighbouring houses and shouted 'give me your keys'.
The respondent was captured on CCTV footage from neighbouring houses. On 3 February 2020, the female victim identified the respondent on a Digiboard. On 20 March 2020, when he was interviewed by police, the respondent did not make any admissions in relation to counts 3 and 4.
As to counts 5 and 6, at about 2.20 am on 22 February 2020, the respondent went to the home of the victim in Westminster. The victim was asleep in the home at the time of the burglary.
The respondent kicked open the front door to gain entry. The victim awoke. Once inside, the respondent stole keys to the vehicle of the victim's housemate. The victim got out of bed and confronted the respondent, who was walking through the house. The respondent then left the premises.
A DNA profile matching that of the respondent was recovered from a blood sample on the floor of the premises. On 20 March 2020, when he was interviewed by police, the respondent made no admissions in relation to counts 5 and 6.

The sentencing judge's sentencing remarks

The sentencing judge recounted in her sentencing remarks the facts and circumstances of the offending.
Her Honour noted that the prosecutor had accepted that the respondent had entered his pleas of guilty at the earliest reasonable opportunity. Her Honour decided to discount each of the head sentences she would otherwise have imposed by 25%, pursuant to s 9AA of the Sentencing Act 1995 (WA), in recognition of the pleas.
The sentencing judge took into account that the respondent was remorseful for the offending.
Her Honour characterised the respondent's offending as 'very serious' (ts 25).
The sentencing judge referred to a victim impact statement from the victims of counts 3 and 4. The victims said that since the offending they had no longer felt safe in their own home and had not slept well. Her Honour observed that she had no doubt that the other victims of the respondent's offending (who had not provided victim impact statements) would, like the victims of counts 3 and 4, have felt very frightened.
Prior to committing counts 1, 2, 3 and 4 on 1 February 2020, the respondent had been drinking with his partner at his mother's house. The respondent drank to excess and was ejected from the house. He was some distance from his home. The respondent wanted to steal a motor vehicle to drive home.
Her Honour noted that on the night of 1 February 2020 the respondent '[was] not in a right state of mind' (ts 25). Her Honour added that 'unfortunately, drinking and taking drugs or being upset is not a good reason to go breaking into people's houses' (ts 25). Her Honour then acknowledged, in relation to the offending generally, that the respondent did not have a weapon, he was not in company with other people, he did not use a disguise and none of the victims suffered serious injuries.
The sentencing judge summarised the respondent's personal circumstances and antecedents. He was born on 28 December 1997. At the time of the offending the respondent was aged 22. Her Honour said that there was some mitigation available to him on account of his youth. The respondent had a 'difficult upbringing'. He grew up in a family environment marred by domestic violence and drug and alcohol abuse. The respondent had difficulty with his education. He changed schools on a number of occasions and finished his schooling when he was aged 13.
Her Honour observed that the respondent had numerous previous convictions for fraud, traffic offences, stealing, unlawful assault, aggravated burglary, possession of drugs and attempted aggravated robbery. He had previously been imprisoned.
The sentencing judge noted the maximum penalties for the offences. Her Honour also noted the mandatory minimum penalty for count 5.
Her Honour was not provided with any expert reports in relation to the respondent. However, defence counsel told her Honour that there was no indication that the respondent suffered from any intellectual disability or mental health problems. However, her Honour said that it was obvious that the respondent had substance abuse issues. He had been consuming alcohol since the age of 14.
At the time of sentencing the respondent was in a relationship. He and his partner had two children. One was aged 5 years and the other was a newborn.
The sentencing judge said that, based on his prior criminal record, the respondent's risk of reoffending was high. It was necessary that the respondent addressed the causes of his offending; in particular, his abuse of alcohol and drugs.
Her Honour was of the view that the main sentencing factor was general deterrence. However, 'an element of personal deterrence' was also important (ts 27).

The State's submissions on the appeal

Counsel for the State submitted in relation to grounds 1 and 2 that the individual sentences of 2 years' immediate imprisonment for counts 1 and 5 and the individual sentence of 2 years 6 months' immediate imprisonment for count 3 were so low as to demonstrate error, taking into account:
(a)the maximum penalty of 20 years' imprisonment for each offence;
(b)as to count 5, the respondent's status as a repeat offender who was subject to a mandatory minimum term of 2 years' imprisonment;
(c)as to counts 3 and 5, the forcible, confrontational and frightening entry to the homes of the victims;
(d)as to count 3, the respondent's threat to kill the male victim;
(e)as to count 3, the lasting adverse impact of the offending upon the victims;
(f)the importance of personal and general deterrence as sentencing factors; and
(g)the standards of sentencing customarily observed with respect to offences of the kind in question.
Counsel submitted in relation to ground 3 that the respondent's offending involved three separate and distinct aggravated home burglaries. The overall criminality of his offending was significant. Counsel argued that the total effective sentence of 3 years' immediate imprisonment failed adequately to reflect the overall criminality and seriousness of the respondent's offending. There was nothing in his personal circumstances and antecedents which justified leniency.

The respondent's submissions on the appeal

Counsel for the respondent submitted that none of the individual sentences for counts 1, 3 and 5 was manifestly inadequate and the total effective sentence did not infringe the first limb of the totality principle.
Counsel emphasised the respondent's pleas of guilty, youth, deprived upbringing and remorse. It was argued that, having regard to the facts and circumstances of each of counts 1, 3 and 5, reasonably comparable cases, the seriousness of the offending and the respondent's personal circumstances and antecedents, none of the individual sentences for counts 1, 3 and 5 was unreasonable or plainly unjust.
Counsel accepted that the total effective sentence was 'low' and, arguably, 'very low' (appeal ts 9). However, according to counsel, the total effective sentence was not 'so low' as to require the implication of error (appeal ts 9).

The merits of the appeal: general sentencing principles

In the present case, the State does not assert that the sentencing judge made any express error.
The general sentencing principles applicable to a ground of appeal which alleges that a sentence is manifestly inadequate are well established. See, for example, The State of Western Australia v Murray.[1]
[1] The State of Western Australia v Murray [2020] WASCA 190; (2020) 94 MVR 426 [47] ‑ [54].
Similarly, the general sentencing principles applicable to a ground of appeal which alleges that a total effective sentence infringes the first limb of the totality principle are well established. See, for example, Murray [68] ‑ [69], [71].
If in a particular case where manifest inadequacy is alleged, there are no directly comparable cases, this court is not precluded from deciding that an individual sentence is manifestly inadequate. It merely has the consequence that this court has no directly comparable cases to provide a yardstick against which to assess the sentence. Previous sentencing ranges are only one pointer to the inadequacy of a sentence. See Munda v The State of Western Australia;[2] The State of Western Australia v Doyle;[3] McAlpine v The State of Western Australia.[4]
[2] Munda v The State of Western Australia [2013] HCA 38; (2013) 249 CLR 600 [38] - [39].
[3] The State of Western Australia v Doyle [2017] WASCA 207 [36].
[4] McAlpine v The State of Western Australia [2018] WASCA 195 [54].
Similarly, if in a particular case where an infringement of the first limb of the totality principle is alleged, there are no directly comparable cases, this court is not precluded from deciding that a total effective sentence does infringe the first limb of the totality principle. It merely has the consequence that this court has no directly comparable cases to provide a yardstick against which to judge the adequacy of the total effective sentence imposed at first instance. See Moore v The State of Western Australia.[5]

The merits of the appeal: specific sentencing principles concerning aggravated burglary of residential premises

[5] Moore v The State of Western Australia [2019] WASCA 35 [51].

Chapter XXXIX of the Code is headed 'Offences in or in respect of buildings etc' and comprises s 400 to s 407.
Section 401(1)(a) of the Code provides that a person who enters or is in the place of another person, without that other person's consent, with intent to commit an offence in that place is guilty of a crime and is liable, if the offence is an aggravated home burglary, to 20 years' imprisonment.
In s 1(1) of the Code:
(a)the term 'home burglary' is defined to mean an offence against any provision of ch XXXIX (as enacted at any time) other than s 407 committed in respect of a place (within the meaning given in s 400(1)) ordinarily used for human habitation; and
(b)the term 'aggravated home burglary' is defined to mean a home burglary committed in circumstances of aggravation (within the meaning given in s 400(1)).

In s 400(1) of the Code:
(a)the term 'place' is defined to include a building or structure or a part of a building or structure; and
(b)the term 'circumstances of aggravation' is defined to include circumstances in which, immediately before the commission of the offence, the offender knew or ought to have known that there was another person (other than a co-offender) in the place.
Section 401(2)(a) of the Code provides that a person who commits an offence in the place of another person, when in that place without that other person's consent, is guilty of a crime and is liable if the offence is an aggravated home burglary to 20 years' imprisonment.
By s 401A of the Code, relevantly, for the purposes of ch XXXIX a person's conviction for a home burglary is a 'relevant conviction' for that person if certain conditions specified in s 401A are satisfied.
By s 401B of the Code, relevantly, for the purposes of ch XXXIX a person who is being sentenced for a home burglary (the current offence) is a 'repeat offender' if the person has at least three relevant convictions.
By s 401(4) of the Code, relevantly, where a person convicted under s 401 of a home burglary (the current offence) is a repeat offender, whether or not the conviction for the current offence is a relevant offence, the court sentencing the person for the current offence, if the person is an adult offender and notwithstanding any other written law, must impose a term of immediate imprisonment of at least 2 years.
In Brindley v The State of Western Australia,[6] it was observed:
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 (Wragg v The State of Western Australia [2013] WASCA 198; (2013) 234 A Crim R 380 [44]; Sartori v The State of Western Australia [2014] WASCA 98 [31]; McIntyre v The State of Western Australia [2016] WASCA 150 [15]; Page v The State of Western Australia [2018] WASCA 76 [40]).
[6] Brindley v The State of Western Australia [2019] WASCA 153 [39].
In Eldridge v The State of Western Australia,[7] this court said:
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.
[7] Eldridge v The State of Western Australia [2020] WASCA 66 [63] ‑ [64].
Subsequently, the necessity for a firming up of sentences for aggravated home burglary offences has been emphasised in The State of Western Australia v Richards;[8] The State of Western Australia v Wilkins;[9] Robson v The State of Western Australia;[10] Panicciari v The State of Western Australia;[11] and Serukai v The State of Western Australia.[12]
[8] The State of Western Australia v Richards [2020] WASCA 129 [28] ‑ [29].
[9] The State of Western Australia v Wilkins [2020] WASCA 149 [67], [76].
[10] Robson v The State of Western Australia [2020] WASCA 153 [20] ‑ [22].
[11] Panicciari v The State of Western Australia [2020] WASCA 154 [42] ‑ [44].
[12] Serukai v The State of Western Australia [2020] WASCA 159 [44].
In Wilkins [70], 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 Serukai [46], 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 [62] above) is general in nature and must, in a particular case, give way to an assessment of what the offender has actually done.
In Eldridge [48] ‑ [57], this court explained the correct approach to sentencing a 'repeat offender', as defined in s 401B of the Code, where, as we have mentioned, an adult offender must be sentenced to a term of immediate imprisonment of at least 2 years:
Section 6(1) of the Sentencing Act provides that a sentence imposed on an offender must be commensurate with the seriousness of the offence. Pursuant to s 6(2) of the Sentencing Act, the seriousness of an offence must be determined by taking into account, amongst other things, the statutory penalty for the offence. The expression 'statutory penalty' is defined in s 4 of the Sentencing Act to mean, in relation to an offence, the penalty specified by a written law for an offence. Section 9 of the Sentencing Act, which deals with the effect of the statutory penalty, relevantly provides in subsection (3) that:
If the statutory penalty for an offence specifies a minimum and a maximum penalty, the penalty to be imposed for the offence must be at least that minimum and not more than that maximum.
It follows from these provisions that the expression 'statutory penalty' in s 6(2) of the Sentencing Act obliges a sentencer, when ascertaining the seriousness of an offence, to take into account not only the maximum penalty for that offence, but also, if applicable, the minimum penalty. The effect of the minimum penalty and the maximum penalty is that these factors operate as a floor and ceiling within which the sentencing discretion must be exercised.
Subject to s 401(4)(b) and s 401(5) of the Code, the manner in which the sentencing discretion operates within the floor and ceiling is in accordance with the general sentencing principles set out in the Sentencing Act, including the fundamental sentencing principle of proportionality (contained in s 6(1) of the Sentencing Act), as supplemented by the common law.
Thus, as in Bahar, it would be positively inconsistent with the statutory framework which exists under State law for a sentencer to make their own assessment of the seriousness of an offence by ignoring the maximum penalty or the mandatory minimum penalty, then to impose something other than a sentence (whether as to length or type) which was incommensurate with the seriousness of the offence in order to bring it up to the statutory minimum.
A question remains as to the circumstances of an offence which may properly attract the statutory minimum sentence. The approach to this question should be consistent with the reasoning of the High Court in R v Kilic ([2016] HCA 48; (2016) 259 CLR 256) in respect of the maximum sentence for an offence. As the High Court observed in Kilic [18], both the nature of the crime and the circumstances of the offender are to be considered in determining whether the case is of the worst type.
Similarly, both the nature of the crime and the circumstances of the offender are to be considered in determining whether the case is of the least serious type.
Consideration of the nature of the crime and the circumstances of the offender include all aggravating factors and all mitigating factors in the context that the offender will previously have committed at least two home burglaries, in addition to the home burglary for which he or she is to be sentenced.
The statutory minimum sentence may be imposed for an offence contrary to s 401(2)(b), where the offender is a 'repeat offender' as defined in [s 401B] of the Code, if the case is of the least serious type.
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.
We have had regard to a number of previous cases in which this court has considered sentences for aggravated home burglary, including Sartori v The State of Western Australia;[13] Smith v The State of Western Australia;[14] Dos Santos v The State of Western Australia;[15] Dickie v The State of Western Australia;[16] Mamkin v The State of Western Australia;[17] Humphreys v The State of Western Australia;[18] Jolly v The State of Western Australia;[19] Kickett v The State of Western Australia;[20] Brindley; Richards; Wilkins; Robson; Panicciari; and Serukai.
[13] Sartori v The State of Western Australia [2014] WASCA 98.
[14] Smith v The State of Western Australia [2014] WASCA 238.
[15] Dos Santos v The State of Western Australia [2016] WASCA 46.
[16] Dickie v The State of Western Australia [2016] WASCA 88.
[17] Mamkin v The State of Western Australia [2017] WASCA 61.
[18] Humphreys v The State of Western Australia [2017] WASCA 208.
[19] Jolly v The State of Western Australia [2017] WASCA 181.
[20] Kickett v The State of Western Australia [2019] WASCA 147.
In the present case:
(a)The objective facts of the respondent's offending on count 1 were very serious. The respondent entered the victims' home in the early hours of the morning after removing a flyscreen from an open lounge room window. The victims were asleep in their beds. None of the victims awoke while the respondent was in their home. The respondent then stole the female victim's shoulder bag and its contents. Next, the respondent committed count 2 by stealing the BMW sedan, which he later crashed and abandoned.
(b)The objective facts of the respondent's offending on count 3 were egregious. The respondent entered the victims' home in the early hours of the morning (after committing counts 1 and 2) by kicking open the locked front door. The victims were asleep in their beds. They awoke. The male victim confronted the respondent, who shouted at the victim and demanded the victim's keys. The respondent threatened to kill the male victim. That was a significant aggravating factor. The male victim told the respondent to leave the premises. The respondent then 'shaped up' to the male victim as if he wanted to fight. That was also a significant aggravating factor. The respondent then committed count 4 by punching the male victim to the face about three times.
(c)The objective facts of the respondent's offending on count 5 were very serious. The respondent entered the victim's home in the early hours of the morning. He kicked open the front door to gain entry. The victim awoke. The victim confronted the respondent, who then left the premises. The respondent committed count 6 by stealing the keys to the vehicle of the victim's housemate.
The statutory circumstances of aggravation in relation to each of counts 1, 3 and 5 resulted in the respondent's offending on each of those counts being subject to a maximum penalty of 20 years' imprisonment.
The respondent's status as a 'repeat offender' in relation to count 5 resulted in the respondent's offending on that count being subject to a mandatory minimum penalty of 2 years' immediate imprisonment.
The respondent has a significant criminal record. His previous convictions as an adult include:
(a)attempted aggravated robbery committed on 28 December 2015;
(b)unlawful assault occasioning bodily harm in circumstances of aggravation committed on 27 November 2016;
(c)aggravated burglary committed on 27 March 2018;
(d)stealing a motor vehicle and driving recklessly and aggravated reckless driving committed on 31 March 2017;
(e)stealing a motor vehicle committed on 19 May 2018;
(f)stealing a motor vehicle committed on 21 May 2018;
(g)aggravated home burglary committed on 23 May 2018;
(h)four counts of possession of stolen or unlawfully obtained property committed on 7 June 2018; and
(i)two counts of gaining a benefit by fraud committed on 14 March 2020.
Although the respondent's prior criminal record and the failure of previous attempts to facilitate his rehabilitation did not aggravate the seriousness of the current offending, the respondent was not entitled to any mitigation on the basis that the current offending was an aberration or that he was a person of previous good character.
However, the respondent's previous convictions for aggravated burglary (committed on 27 March 2018) and aggravated home burglary (committed on 23 May 2018), and his high risk of reoffending if he did not address the causes of his offending (in particular, his abuse of alcohol and drugs), underscored the importance of personal deterrence as a sentencing factor. The sentences to be imposed on the respondent for the current offending did not merely require, as the sentencing judge stated, 'an element of personal deterrence' (emphasis added) (ts 27).
The principal mitigating factor was the respondent's pleas of guilty at the earliest reasonable opportunity. As we have mentioned, her Honour discounted each of the head sentences she would otherwise have imposed by 25%, pursuant to s 9AA of the Sentencing Act, in recognition of the pleas.
There was also other mitigation; in particular, the respondent's relative youth (he was aged 22 at the time of the offending), his remorse and his 'difficult upbringing' (which was marred by domestic violence and drug and alcohol abuse).
Denunciation of the respondent's criminal conduct and personal and general deterrence were important sentencing considerations.
In our opinion, the sentence for each of counts 3 and 5 was not commensurate with the seriousness of the offence. The offending on count 5 was not the least serious type of aggravated home burglary and, consequently, a sentence in excess of the statutory minimum penalty should have been imposed. See Eldridge [55]. We are satisfied, having regard to all relevant facts and circumstances and all relevant sentencing factors (including the mitigating factors), that the length of each sentence was unreasonable or plainly unjust.
We consider that, when the sentence imposed by the sentencing judge for each of counts 3 and 5 is viewed from the perspective of:
(a)the maximum penalty;
(b)in the case of count 5, the mandatory minimum penalty;
(c)the facts and circumstances of the offence;
(d)the vulnerability of the victims;
(e)the general pattern of sentences for offences of this kind;
(f)the importance of denunciation and personal and general deterrence; and
(g)all mitigating factors,
the sentence was not merely 'lenient' or 'at the lower end of the available range'.
The sentence for each of counts 3 and 5 was substantially less than the sentence that was open to her Honour on a proper exercise of her discretion. Each sentence was manifestly inadequate.
Ground 2 has been made out.
We have already recounted the features of each of the offences, including counts 2, 4 and 6, the mitigating factors and the respondent's personal circumstances and antecedents.
In our opinion, the total effective sentence imposed on the respondent did not bear a proper relationship to the overall criminality involved in all of his offences, viewed together, and having regard to all relevant facts and circumstances and all relevant sentencing factors. As we have mentioned, in the course of considering grounds 1 and 2, denunciation of the respondent's criminal conduct and personal and general deterrence were important sentencing considerations. The objective facts and circumstances of the respondent's offending, viewed as a whole, were grave. The total effective sentence imposed on him was unreasonable or plainly unjust. It was not merely 'lenient' or 'at the lower end of the available range'. The total effective sentence was substantially less than the total effective sentence that was open to the sentencing judge on a proper exercise of her discretion.
Ground 3 has been made out.
It is well established that where a sentencing judge's discretion has miscarried in respect of one component of a sentence including, as in the present case, two of the individual sentences forming part of the total effective sentence, the whole of the sentencing judge's sentencing decision (including all of the sentences) must be set aside, and the offender resentenced. See, for example, McGarry v The Queen;[21] The State of Western Australia v Cairns;[22] Sathitpittayayudh v The State of Western Australia;[23] YDN v The State of Western Australia;[24] and Law v The Queen.[25]
[21] McGarry v The Queen [2001] HCA 62; (2001) 207 CLR 121 [9].
[22] The State of Western Australia v Cairns [2006] WASCA 178 [42].
[23] Sathitpittayayudh v The State of Western Australia [2015] WASCA 152 [28] ‑ [29].
[24] YDN v The State of Western Australia [2018] WASCA 62 [53].
[25] Law v The Queen [2019] WASCA 81 [134].
In the present case, we are satisfied, for the reasons we have given, that the sentence imposed by the sentencing judge for each of counts 3 and 5 was manifestly inadequate and that the total effective sentence infringed the first limb of the totality principle. Subject to the possible exercise of the residual discretion, this court must re-exercise the sentencing discretion in relation to all of the individual offences (that is, counts 1, 2, 3, 4, 5 and 6) and must make its own decision as to the appropriate total effective sentence.
It is therefore unnecessary for this court to arrive at a conclusion as to whether ground 1 has been made out; that is, whether the sentence imposed by her Honour for count 1 was manifestly inadequate.

The residual discretion: should it be exercised?

The difference in the approach of this court 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. See Green v The Queen[26] and CMB v Attorney‑General (NSW).[27]
[26] Green v The Queen [2011] HCA 49; (2011) 244 CLR 462 [1].
[27] CMB v Attorney‑General (NSW) [2015] HCA 9; (2015) 256 CLR 346 [55].
If this court is to allow a State appeal against sentence and to impose a heavier sentence on the offender, the State must establish two matters. First, the State must make out an appellable error in the exercise by the sentencing judge of his or her discretion. Secondly, the State must negate any reason why the residual discretion of this court under s 31(4) of the Criminal Appeals Act 2004 (WA) not to interfere should be exercised.

In the present case, counsel for the respondent disclaimed any reliance upon the residual discretion (appeal ts 19).
We are of the opinion that the intervention of this court in the appeal is necessary to maintain adequate standards of sentencing. In particular, the individual sentences for counts 3 and 5 and, consequently, the total effective sentence were substantially less than the sentences open on a proper exercise of the sentencing discretion. Appellable error has been very clearly established. The public interest in the maintenance of appropriate sentencing standards for grave offending of the kind charged in counts 3 and 5 requires that the appeal be allowed and the respondent resentenced.

The outcome of the appeal and the resentencing of the respondent

The appeal should be allowed.
The sentencing judge's sentencing decision, including the sentences imposed by her Honour, should be set aside.
This court has the material necessary to resentence the respondent. Counsel for the respondent did not seek to put before this court any additional information for the purposes of any resentencing that may occur (appeal ts 19).
Like her Honour, we have discounted each of the head sentences that we would otherwise have imposed by 25%, pursuant to s 9AA of the Sentencing Act, in recognition of the pleas of guilty.
We have also reduced each sentence that we would otherwise have imposed for each offence to reflect the other mitigating factors referred to at [76] above.
We would exercise the sentencing discretion afresh in relation to the respondent as follows:
(a)count 1: 12 months' immediate imprisonment (discounted from 2 years 8 months' immediate imprisonment in the application of the totality principle);
(b)count 2: 15 months' immediate imprisonment;
(c)count 3: 4 years' immediate imprisonment;
(d)count 4: 10 months' immediate imprisonment;
(e)count 5: 3 years 6 months' immediate imprisonment; and
(f)count 6: no penalty.

As we have indicated, we have reduced the new sentence for count 1 from 2 years 8 months' immediate imprisonment to 12 months' immediate imprisonment in the application of the totality principle.
The new sentence for count 1 should be served cumulatively upon the new sentence for count 3. The new sentences for counts 2, 4 and 5 should be served concurrently with each other and concurrently with the new sentence for count 3.
The new total effective sentence is therefore 5 years' immediate imprisonment. The new sentence for count 3 and the new total effective sentence should be taken to have taken effect on 20 March 2020. The respondent remains eligible for parole. He will be eligible to be considered for release on parole when he has served 3 years in custody calculated from 20 March 2020.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
TW
Associate to the Honourable President Buss
16 AUGUST 2021