The State of Western Australia v Sabek - [2005] WASCA 207

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT : THE COURT OF APPEAL (WA)

CITATION: THE STATE OF WESTERN AUSTRALIA -v- SABEK [2005] WASCA 207

CORAM: ROBERTS-SMITH JA
MILLER AJA

HEARD: 22 AUGUST 2005

DELIVERED : 4 NOVEMBER 2005

FILE NO/S: CACR 31 of 2005

BETWEEN: THE STATE OF WESTERN AUSTRALIA
Appellant
AND
AMRO YOUSSEF MAHMOUD SABEK
Respondent

ON APPEAL FROM:
Jurisdiction              :  DISTRICT COURT OF WESTERN AUSTRALIA
Coram  :EATON DCJ
File No  :IND 568 of 2004

Catchwords:

Criminal law - Sentencing - State appeal - Attempted aggravated burglary and threats to unlawfully harm - Whether error in considering letter written to the Court by complainants prior to trial - Whether error in suspending term of imprisonment - Whether sentences manifestly inadequate

Legislation:

Nil

Result:

Appeal allowed

Category: D

Representation:

Counsel:

Appellant: Ms L Petrusa & Mr A D Sullivan
Respondent: Mr S B Watters & Ms F R Veltman

Solicitors:

Appellant: State Director of Public Prosecutions
Respondent: Michael Tudori & Associates

Case(s) referred to in judgment(s):

Blair v Miller [1988] WAR 19
Dinsdale v The Queen (2000) 202 CLR 321
Everett v The Queen (1994) 181 CLR 295
Griekspoor v Scott (2000) 23 WAR 530
Harvey v The State of Western Australia [2005] WASCA 117
House v The King (1936) 55 CLR 499
Malvaso v The Queen (1989) 168 CLR 227
R v Allpass (1993) 72 A Crim R 561
R v Clarke [1996] 2 VR 520
R v Dodd (1991) 56 A Crim R 451
R v GP (1997) 18 WAR 196
R v Patrick, unreported; CCA SCt of WA; Library No 980157; 6 April 1998
R v Ward (1999) 109 A Crim R 159
State of Western Australia v ABM [2004] WASCA 90

Case(s) also cited:

Green v The Queen, unreported; CCA SCt of WA; Library No 950592; 8 November 1994
Herbert v The Queen (2003) 27 WAR 330
Lowndes v The Queen (1999) 195 CLR 665
R v Latham (2000) 117 A Crim R 74
R v Wright (1997) 93 A Crim R 48

ROBERTS-SMITH JA: This is a State appeal against sentence.
The respondent was charged on indictment with one count of receiving a Foglio .40 calibre semi-automatic handgun (count 1), one count of attempted aggravated burglary (count 2) and three counts of making threats to harm (counts 3, 4 and 5). He pleaded guilty to count 1 and following a two-day trial, was further convicted on counts 2, 4 and 5. The jury returned a verdict of acquittal on count 3. On count 2, he was sentenced to a term of 18 months' imprisonment, suspended for 18 months. He also received fines of $1000 in respect of count 1 and $4000 in respect of each of counts 4 and 5. The relevant maximum statutory penalties are 10 years' imprisonment for attempted aggravated burglary and 3 years' imprisonment for making threats to harm.
In September 2003, Daniel Grant was living at an address in Dianella with his girlfriend, Katherine Kerekes, and her brother, Peter Kerekes. Some 18 months prior to the commission of the offences, Mr Grant had borrowed about $3000 from a Mr Tony Moran to pay some bills. At the time, Mr Moran was in a relationship with Mr Grant's sister, Jean. Over the intervening period, Mr Grant had repaid about $1700 of the money. However, about a week before the commission of the offences, Mr Moran and Ms Grant went to Mr Grant's workplace and demanded repayment of the balance. There was an argument and Mr Grant said that he would repay the balance when he was able. Later that night, Mr Moran and the respondent arrived at Mr Grant's home in Dianella. Although Mr Grant was at home, Mr Kerekes answered the door and told Mr Moran and the respondent that Mr Grant was not there. The respondent said that Mr Kerekes should tell Mr Grant to repay the money or he, the respondent, would be back. Mr Moran and the respondent then left in different vehicles. Mr Kerekes and Mr Grant got the registration number of the vehicle driven by the respondent, which was a white Commodore.
The circumstances of count 2, the attempted aggravated burglary, were as follows. On Monday, 29 September 2003, just before midday, all three occupants of the Dianella house were at home when a vehicle pulled into the driveway. Mr Grant looked out the window and saw a white Mitsubishi L300 van. The respondent got out and came to the door. Mr Grant answered the door. The respondent asked if he was Daniel, to which Mr Grant replied that he was. The respondent asked Mr Grant about repaying some money and then tried to force his way past Mr Grant into the house. He pushed Mr Grant in the chest and with the door. Mr Grant resisted and Mr Kerekes came to his assistance, lunging at the respondent with a knife in his hand. The pushing and shoving continued and Mr Grant was pushing the respondent back out through the door. The respondent reached for something on his belt. Mr Grant thought it was a gun or a knife, but didn't get a clear view of it. Mr Grant managed to push the respondent outside the door and slam it shut. He yelled out to his girlfriend, Ms Kerekes, to call the police.
Mr Grant then went to check whether Ms Kerekes was calling the police. Ms Kerekes had gone to the window to see if she could get the registration number of the van. As she did that and appeared in the window, the respondent swung a gun around from where he was sitting in the driver's seat of the van and pointed it at her, laughing and smiling as he did so. Mr Kerekes was also curious to see what was happening and went to the window. As he did so, the respondent swung and pointed the gun at Mr Kerekes in a similar fashion. It was this conduct that was the subject of counts 4 and 5.
After a while the respondent drove away. The police attended at the Dianella house and Ms Kerekes gave them the registration number of the van. The vehicle was traced to the respondent who was living at a nearby address. The police executed a search warrant in the respondent's presence and found a loaded hand gun on a shelf above the bed. Police also searched the respondent and two knives were found on his belt. Finally, the police searched the van and found ammunition and another loaded hand gun, which they later ascertained had been reported as stolen. That was the subject of count 1.
Upon being interviewed by police, the respondent admitted that he had been to the Dianella house, first on the earlier date with Mr Moran (in case any threats were made to Moran, he said) and secondly, on 29 September. He denied that on 29 September he had tried to enter the house or that he had a gun with him at the time. He said that he had only more recently acquired the gun found in the vehicle.
It is convenient at this point to refer to the events that occurred on the morning the trial was due to commence. A letter signed by each of the three complainants was delivered to the trial Judge via the prosecutor, with copies addressed to both counsel, the contents of which were as follows:
"This correspondence is to explain the absence of the Witnesses for this Trial.
The Witnesses… Will not attend this Trial due to the unnecessary complications it will bring to the lives of a number of parties should action continue. The Witnesses are fully aware that we shall each incur a penalty of some description imposed by The District Court of Western Australia if we do not appear at this Trial; hence we are prepared to accept this on account of the distress we believe the continuance of this Trial will bring.
The Witnesses wish to explain the reasons for this decision.
The Accused… was an unfortunate, innocent victim of a nasty family dispute arising in the family of Witness, DANIEL MacLEOD GRANT. Mr Sabek was told deceitful untruths about Mr Grant which resulted in a regrettable misunderstanding. This situation has since been resolved.
The events of Monday 29th September 2003 occurred on the provocation of an unstable family member and we believe that continuance of this Trial would unfairly punish Mr Sabek for the lies and fabrication of another. Soon after the charges against Mr Sabek were filed, the aforementioned Witnesses requested the charges pertaining to this case be discontinued, but the Police stipulated that it could not be done. A second request was recently made to cease action in relation to this case, but the Witnesses were again refused.
Due to the distress continuance of this court action would cause to a number of parties involved, and the far-reaching and serious consequences of this, we respectfully decline to testify at this Trial.
The Witnesses sincerely apologise Your Honour if these actions appear disrespectful to the Court; but this is most certainly not the intention. Unfortunately, as previously stipulated, we feel that our attendance could have unjust ramifications."
The trial prosecutor also informed his Honour that shortly prior to the trial, Mr Grant and Ms Kerekes had made attempts to persuade the Office of the Director of Public Prosecutions and the trial prosecutor himself that the matter should be discontinued on the basis that they were scared. The complainants had told the prosecutor that they had received indirect threats over the past year and as late as the week before the trial. The prosecutor spoke to two of the complainants on the morning of the trial and they assured him they would be attending. However, following the delivery of the letter at approximately 9:15 am that morning, none of the complainants presented at the Court in accordance with their subpoenas.
The respondent denied interfering with the complainants. Defence counsel said Mr Grant had telephoned him on the Friday afternoon before the trial and said the whole incident had been a misunderstanding and they did not want to proceed with it. Mr Grant also allegedly said they had spoken to the police about the matter and the police had threatened them.
The trial judge directed that bench warrants issue; however, following a brief adjournment, the complainants attended voluntarily and the trial was able to commence. The trial prosecutor explained (AB 36):
"They have come voluntarily. The warrants were not executed although they knew that that was there in the background. They were contacted and told what the position was and they said they would come in. They have come in. They have told me that they are no longer scared. They had been scared. They are no longer scared and they will give evidence, truthful evidence, but they do feel that this thing arose out of a family misunderstanding which at base was not the accused's fault."
In sentencing the respondent, his Honour outlined the facts of the offences and made specific reference to the respondent attending the premises armed with a pistol that was somewhere on his person, readily available, either in his waistband or jacket. He also stated that Mr Kerekes had said he saw the respondent with the pistol in his hand at the front door. His Honour went on to emphasise the seriousness of the offences and described the particular circumstances of the offending. He noted that by their verdict on count 2 the jury had clearly found the respondent intended to enter the residence and commit an offence therein, which offence could only have been that described by the prosecutor at the outset, namely to commit an assault with a view to obtaining money or repayment of a debt. He quite correctly described this as "standover tactics or thuggery … not to be condoned in our community."
In response to a submission on behalf of the respondent that guns are not viewed in the same way in his culture as they are in Australia, his Honour said that it may have been that for cultural or ethnic reasons he had chosen to have unlicensed pistols and ammunition, but there is a Firearms Act in this State "of which [the respondent was] well aware" and the possession of unlicensed firearms is not condoned and is regarded seriously.
His Honour reiterated that for a person who had been in Australia since 1996 and was 42 or 43 years of age when the offences were committed, what the respondent had done was very serious indeed - as was indicated by the statutory maximum penalties.
The Judge then turned to the letter from the complainants (at AB 249):
"I don't quite understand how it is that you allowed this to happen. There was sent to me at the beginning of the trial in circumstances which did not impress me a letter from each of the three complainants, Mr Grant and Ms Kerekes and Mr Kerekes, which suggests that what happened on 29 September 2003 was something of a misunderstanding perhaps. I quote:
'The events of Monday, 29 September 2003 occurred on the provocation of an unstable family member and we believe that continuance of this trial would unfairly punish Mr Sabek for the lies and fabrication of another.'
It is apparent that they attempted to bring the prosecution to an end at some earlier stage. They went on to say:
'Due to the distress continuance of this court action would cause to a number of parties involved and the far‑reaching and serious consequences of this, we respectfully decline to testify at this trial.'
They also say that you were told deceitful untruths about Mr Grant which resulted in 'a regrettable misunderstanding'. They tell me that the situation has been resolved. Well, I find all of that a bit perplexing. As I have said - and as I said too those witnesses when they gave their evidence, at least Ms Kerekes and - at least Mr Kerekes and Mr Grant, their behaviour was unacceptable in the sense that it's not open to them to decide whether or not to comply with a subpoena, but putting that to one side there does seem to be some suggestion there that there's something - that the complainants at least don't regard the matter with - now with the same degree of seriousness that they regarded it with on the day in question when they quite understandably called the police." (My emphasis).
His Honour said that the respondent would turn 45 years of age in a week or so, that he was a businessman with a reasonably substantial income from two separate businesses, had never been to prison before, had no dependants and was essentially a first offender. He then continued (AB 250 ‑ 251):
"The state [sic] quite understandably urges upon me that I send you to prison now – impose a sentence of imprisonment to be served immediately.
Having regard to all of your circumstances and the material that I have just referred to from the complainants, I am inclined not to do so. I don't want to in any way suggest to you that these offences are not serious. They are serious offences. I am, however, inclined on balance not to send you to prison immediately." (My emphasis).
His Honour then imposed the sentences I have outlined above.
At the time of the offences, the respondent was 43-years-old. Born in Egypt, he has been in Australia for nine years and is an Australian citizen. As stated above, he is divorced with no dependents and has two businesses from which he derives a good income.
A notice of appeal was filed on 22 March 2005. Essentially, the ground of appeal is that the sentences imposed on counts 2, 4 and 5 were manifestly inadequate, given the circumstances of the offending and the serious nature of the offences. The appellant submits that the sentencing Judge erred in placing undue emphasis on the respondent's personal circumstances and lack of any relevant prior convictions; in failing to have sufficient regard to the need for punishment, protection of the community and specific and personal deterrence; and in taking into account irrelevant material – namely, the complainants' letter referred to above. In particular, the appellant relies on his Honour's remarks at AB 250-251 as outlined above.
Although s 27 of the Criminal Appeals Act 2004 (WA) now requires leave to appeal to be granted in all cases, this appeal, commenced prior to 2 May 2005, was brought as of right under s 688(2)(d) of the Criminal Code (WA) (the "Code"). Nevertheless, the principles to be applied on a State or Crown appeal against sentence are well established and it is not necessary for me to restate them here in any great detail. Suffice to say that the State should only bring an appeal against sentence in "rare and exceptional" cases, having regard to the "deep‑rooted notions of fairness which underlie the common law principle against double jeopardy": Everett v The Queen (1994) 181 CLR 295 at 305 per Brennan, Deane, Dawson and Gaudron JJ; see also Malvaso v The Queen (1989) 168 CLR 227 at 234, per Deane and McHugh JJ. In State of Western Australia v ABM [2004] WASCA 90, Wheeler J (Malcolm CJ agreeing) said (at [16]):
"Even where an appellate court is of the view that a sentence imposed demonstrates some error of principle, or some manifest inadequacy, it does not follow that, in relation to a State appeal, it will necessarily allow the appeal. It will do so only where it appears that it is necessary to lay down principles for the guidance of the exercise of sentencing discretion, or to correct idiosyncratic views of individual Judges, or to correct a sentence which is so disproportionate as to shock the public conscience, or otherwise where it is necessary in order to ensure that appropriate sentencing standards are maintained and there is public confidence in the administration of justice (cf R v Osenkowski (1982) 30 SASR 212 at 212-3)."
(See also R v Clarke [1996] 2 VR 520 at 522 per Charles JA, Winneke P and Hayne JA agreeing).
In the present case, before considering whether the sentences imposed were manifestly inadequate in all the circumstances, it is first necessary to determine whether the sentencing Judge erred in law in two respects: firstly, in taking into consideration at all, or alternatively placing too much weight upon, the complainants' letter; and secondly, in imposing a suspended term of imprisonment when on a proper exercise of the sentencing discretion an immediate term of imprisonment was the only disposition open to him. Unless the latter can be demonstrated, it cannot be shown that the sentence was manifestly inadequate and that a different sentence ought to have been passed.

The complainants' letter

On sentencing, the complainants' letter was not tendered by counsel (it was tendered by the prosecutor earlier during the trial as part of a hostile witness application ‑ AB 58 - but was only tendered for the specific purpose of that application). Rather, defence counsel's only submission in relation to the letter was this (AB 231-232):
"In terms of this whole event I think your Honour needs to take into consideration the letter provided by the three complainants at the beginning of the trial. There's certainly no victim impact statement and we wouldn't expect to see one after that letter.
At the end of the day what I submit is this is a family matter that has gone horribly wrong between Grant and Moran that this man has been caught up in. I don't detract from the jury's findings - or verdict, I can't, and there's not much more I can really say about the offences in light of the jury's verdict."
At AB 233, counsel agreed with his Honour's proposition that he should view the offending as a misguided attempt to assist a friend.
In reply to the proposition that this was in some way the result of an unfortunate family dysfunctional misunderstanding (which must have been a reference to the defence submission about the letter), the State prosecutor submitted that the motive for the offences committed in pursuit of recovery of a debt, whether rightly owing or not, did not detract in any way from the serious criminal nature of the offences. It did not matter at all because the respondent simply should not have done it.
The appellant submits that correspondence of the type received from the complainants could never be relevant in relation to sentence and even if it were relevant in this case, that his Honour misconstrued the use he could make of it. In particular, the appellant reiterates the submission made by the State prosecutor on sentencing: that the letter was irrelevant to the matter of sentence because its contents did not suggest that the offending behaviour did not actually occur, nor did it provide any explanation to minimise the objective seriousness and criminality of the offences. The background to the presentation of the letter to the Court was that the complainants had been fearful of giving evidence and indeed, their sworn evidence at the trial was that they were frightened at the time the offences occurred. Further, although the letter was not a victim impact statement made pursuant to s 24 of the Sentencing Act 1995 (WA), the appellant relies on s 25(2) of the Sentencing Act which states that a victim impact statement is not to address the way in which or the extent to which an offender ought to be sentenced, in support of a broader submission that complainants ought not dictate sentences to the court.

The respondent submits that his Honour properly took the letter into account on sentence because it "sheds light" on the circumstances of and motive for the offending and likened it to written references often received by the court on sentencing.
Although the State prosecutor could have objected to the letter being relied upon at all by his Honour on sentencing, he did not do so. Indeed, he seems to have accepted that it was properly before his Honour, although he argued no reliance should have been placed on it.
Section 15 of the Sentencing Act provides that in deciding on the proper sentence to be imposed, a court may inform itself in any way it thinks fit. That does not mean a sentencing court may have resort to material without reference to the parties and without giving them an opportunity to be heard on it (R v GP (1997) 18 WAR 196; Griekspoor v Scott (2000) 23 WAR 530), but that is not what happened here. The letter was properly before his Honour under s 15 of the Sentencing Act.
However, given the circumstances in, and purpose for which the letter came before the Court and what had been said about the position of the complainants by the State prosecutor, it was something to which I think his Honour could properly have given no mitigatory weight at all. Yet he did do so. He took it as "some suggestion" that the complainants did not then regard the matter with the same degree of seriousness with which they regarded it on the day of the offences. That, combined with the respondent's personal circumstances, were the factors which "inclined" his Honour not to impose a sentence of immediate imprisonment. Given that was one of the specific considerations which his Honour identified as inclining him "on balance" not to send the respondent to prison immediately, his Honour attributed to the "suggestion" he perceived in the complainants' letter, a degree of weight which it could not properly carry.
However, notwithstanding error being identified in the sentencing process, if it is not also shown that the sentences were manifestly inadequate, the Court cannot be satisfied that a different sentence should have been passed (s 689(3) of the Criminal Code; now replaced by s 31(4)(a) of the Criminal Appeals Act) and the appeal must fail. And so I turn to the question of manifest inadequacy.
One of the circumstances of the offending which his Honour found made it particularly serious, was that the respondent was armed with a handgun at the time. That was not a circumstance of aggravation charged on the indictment. Initially it was submitted by counsel for the respondent that because it had not been charged as a circumstance of aggravation his possession of the handgun could not be taken into account in sentencing. However the submission was eventually expressed (at appeal t/s 25) in this way:
"WATTERS MR: I'm not putting to your Honours that his Honour couldn't take it into account, because he's found it as a fact. But what I'm drawing your Honours' attention to is that it was not a case - his Honour found that the respondent was armed. His Honour didn't find that he pulled the gun out and brandished or pointed it at anyone at the door. I think there's a difference there between the degree of aggravation as to whether someone is armed, has it inside their jacket, or whether they pull it out and point it at someone. That would be the distinction that I'd seek to draw on that point. …"
The finding made by his Honour (at AB 247) was that the respondent went to the house and knocked on the front door armed with the pistol, which was either in his waistband or jacket, but somewhere on his person readily available.
Counsel was right to concede that the Judge could properly take into account the fact (having found it to be so) that the respondent had a gun with him at the front door. That was not a circumstance relied upon by the State as increasing the statutory maximum penalty applicable (see s 1 of the Code).
The relevance of non‑pleaded circumstances of aggravation on sentence was recently discussed in Harvey v The State of Western Australia [2005] WASCA 117 at [50]:
"There are two difficulties with this in the present case. The first is that no circumstance of aggravation was stated in the indictment with respect to count 2. In R v De Simoni (1981) 147 CLR 383 it was held that if a circumstance of aggravation as defined (that is, one which increased the maximum sentence available) was intended to be relied upon, it had to be stated in the indictment. Unless that were done, the maximum sentence applicable was that which applied to the offence without the circumstance of aggravation. However, the decision in De Simoni turned on the fact that s 582 of the Code at the time provided that 'if any circumstance of aggravation is intended to be relied upon, it must be charged in the indictment'. That provision was removed by the Acts Amendment (Criminal Penalties and Procedure) Act 1982 (WA) (No 20 of 1982, s 5). Nonetheless, as a matter of procedural fairness, if a circumstance is intended to be relied upon as increasing the maximum penalty available, it should be stated in the indictment." (My emphasis)
In Blair v Miller [1988] WAR 19, Wallace J said at 28:
"Surely the citizen is entitled to know the full implication of all charges brought against him so that when a plea of guilty is taken it can properly be said to establish not only the elements of the charge but the liability of the respondent to increased punishment."
In this case however, the circumstance of aggravation of being armed would not have made the respondent liable to any higher maximum penalty, as count 2 had already charged a circumstance of aggravation pursuant to s 400(1)(b) of the Code - namely, that immediately before the commission of the offence the respondent knew or ought to have known that there was another person in the place.
Further, s 7(3)(b) of the Sentencing Act, which deals with what are aggravating factors for the purpose of the imposition of sentence, answers this point quite simply. It provides:
"(3)If the statutory penalty for an offence is greater if the offence is committed in certain circumstances than if it is committed without the existence of those circumstances, then -
(a) an offender is not liable to the greater statutory penalty unless he or she has been charged and convicted of committing the offence in those circumstances; and
(b) whether or not the offender was so charged, the existence of those circumstances may be taken into account as aggravating factors."
It now falls to be determined whether his Honour afforded sufficient weight to the aggravating factor of being armed, amongst other factors, in considering the circumstances of the offences and ultimately, in sentencing the respondent. The appellant submits that in all the circumstances of the offending, the only relevant mitigating factor was the respondent's lack of prior relevant offending, although even that is tarnished with convictions for possessing unlicensed firearms and ammunition. The other aggravating factors that the appellant submits are serious enough to have required the imposition of more severe sentences (that is, terms of immediate imprisonment), are:
•the premeditated nature of the offending, which involved going to the complainants' home in the respondent's van - a vehicle that the complainants would not recognize - with Mr Moran hiding in the back;
•the intent to assault with a view to obtaining repayment of the debt;
•the physical force used in the attempt to gain entry to the premises;
•the threats made to Mr Grant about a week before the offences;
•pointing the gun at the complainants in counts 4 and 5, while laughing and smiling; and
•denying possessing any guns when police executed the search warrant on his house and consequently being found with weapons on his person and unlicensed and stolen firearms in his possession.
By way of mitigation, defence counsel submitted that the respondent's cultural background had influenced the views he held about possessing firearms, that he had acquired weapons for his own protection and that there was no evidence that the respondent had intended to actually carry out the harm the subject of the threats.
The prosecutor maintained the submission throughout that a term of immediate imprisonment was required on the bases of the seriousness of the offences, personal and general deterrence and protection of the community. In response to his Honour's comment that the possession of firearms was a "cultural thing", the prosecutor said that there could be no cultural excuse for such offences in this community and while it was one thing to possess firearms, it was the use of them that attracted the submission that a custodial penalty was the only appropriate disposition.
Following counsel's sentencing submissions, his Honour made the following comment before imposing sentence (AB 244):
"I appreciate the seriousness of the events but I am reluctant, given that effectively he is a first offender if you put aside the receiving as having occurred at some earlier time which of itself wouldn't attract a sentence of immediate imprisonment, I'm reluctant to impose upon a person who is effectively a first offender a term of imprisonment to be immediately served. …"
The principles which apply to determine whether an error occurred in sentencing, as enunciated in House v The King (1936) 55 CLR 499 at 505, are the same in both appeals against excess and inadequacy: Dinsdale v The Queen (2000) 202 CLR 321 at [4]. In R v Clarke [1996] 2 VR 520 at 522, Charles JA (with whom Winneke P and Hayne JA agreed) said:
"Occasions may arise for the bringing of a Crown appeal (a) where a sentence reveals such manifest inadequacy or inconsistency in sentencing standards as to constitute error in principle (Everett at 300 [supra]); (b) where it is necessary for a court of criminal appeal to lay down principles for the governance and guidance of courts having the duty of sentencing convicted persons (Griffiths at 310 [Griffiths v The Queen (1976) 137 CLR 293]); (c) to enable the courts to establish and maintain adequate standards of punishment for crime; (d) to enable idiosyncratic views of individual judges as to particular crimes or types of crimes to be corrected; (e) to correct a sentence which is so disproportionate to the seriousness of the crime as to shock the public conscience (Osenkowski at 213 [R v Osenkowski (1982) 30 SASR 212]); (f) to ensure, so far as the subject matter permits, that there will be uniformity in sentencing (Everett at 306 [supra])."
Further, in Dinsdale (supra) at [6]:
"Manifest inadequacy of sentence, like manifest excess, is a conclusion. A sentence is, or is not, unreasonable or plainly unjust; inadequacy or excess is, or is not, plainly apparent. It is a conclusion which does not depend upon attribution of identified specific error in the reasoning of the sentencing judge and which frequently does not admit of amplification except by stating the respect in which the sentence is inadequate or excessive. It may be inadequate or excessive because the wrong type of sentence has been imposed (for example, custodial rather than non‑custodial) or because the sentence imposed is manifestly too long or too short."
Section 39(2) of the Sentencing Act 1995 (WA) sets out the hierarchy of sentencing options and s 39(3) states that a court "must not use a sentencing option in subs (2) unless satisfied, having regard to Div 1 of Pt 2, that it is not appropriate to use any of the options listed before that option."
The principle that immediate imprisonment is the sentence of last resort is well-established at common law and embodied in s 6(4) of the Sentencing Act:
"A court must not impose a sentence of imprisonment on an offender unless it decides that -
(a) the seriousness of the offence is such that only imprisonment can be justified; or
(b) the protection of the community requires it."
Generally, a suspended term of imprisonment is imposed where the offence is deserving of imprisonment but the prevailing circumstances justify the imposition of a lesser sentence: s 76(2) of the Sentencing Act.
That is the background of legal principle against which the question -whether a term of immediate imprisonment was the only option open to his Honour in a proper exercise of the sentencing discretion in the circumstances of this case - is to be decided.
The attempted aggravated burglary carried a statutory maximum penalty of 10 years' imprisonment (s 401(1) and s 552 Code).
A home invasion which is committed with the intent to intimidate the occupants by threatening them is more serious than a burglary which involves simply an intent to steal (R v Ward (1999) 109 A Crim R 159 per Malcolm CJ (Ipp and White JJ agreeing) at [8]). Here, as his Honour found, the whole purpose was an attempt to physically force his way into the residence with a handgun, knowing of the occupants inside, with an intent to assault Grant so as to intimidate him into handing over some $1200.
This was not a spontaneous reaction by the respondent to a situation of genuine emergency. Whether as the result of misinformation or misunderstanding or not, the offence came 10 days after the respondent and Moran went to Grant's home and made a serious threat that he pay the money "or else". The offence itself was deliberate and premeditated. Moran remained hidden in the van so as not to be seen by the occupants of the house when the respondent approached the door.
The respondent's conduct immediately after the offence in pointing the gun at Ms and Mr Kerekes whilst laughing and smiling put his possession of it at the house in a much more serious light, as did the fact that three days later, having denied to the police that he had any guns, he was found to have two knives on his person, a loaded, unlicensed handgun in his bedroom, a loaded, unlicensed and stolen handgun under the seat of his van and extra ammunition for the gun in the van.
It is plain the respondent took it upon himself to use threats of violence, force and an illegal handgun to act as a criminal enforcer and that he committed the offences in that capacity. Whatever the motivation for it may have been, this is egregious conduct in respect of which the need to impose sentences which individually and in combination were proportionate to the conduct which constituted the offending inevitably called for a term of immediate imprisonment.
The offences were such that the principles of just punishment, denunciation and protection of the community by way of both personal and general deterrence completely outweighed the fact that the respondent was a middle‑aged man with a small personal business and no previous convictions. There was of course no mitigation to be attributed to a plea of guilty.
The grounds of appeal have been made out and the appeal must be allowed.
Because this is a State appeal against sentence, it brings into consideration the principle of double jeopardy. That principle will ordinarily require that any sentence imposed by this Court following a successful State appeal be less than that which would have been imposed at first instance (R v Dodd (1991) 56 A Crim R 451; R v Allpass (1993) 72 A Crim R 561, 562 ‑ 563; R v Patrick, unreported; CCA SCt of WA; Library No 980157; 6 April 1998). It is for that reason alone that I would allow the fines of $4000 imposed in respect of each of counts 4 and 5 (threats to unlawfully harm) to stand. I assume they have been paid.
On count 2, the attempted aggravated burglary, for the reasons expressed above, I would impose a sentence of 12 months' immediate imprisonment. The reduction in the term from 18 to 12 months is on account only of the principle of double jeopardy. I would order that the respondent be eligible for parole.

MILLER AJA: I have had the opportunity of reading a draft of the reasons for judgment of Roberts‑Smith JA. I agree with those reasons, and I agree that the appeal should be allowed. The sentence imposed by the learned trial Judge on count 2 in the indictment should be quashed and in lieu thereof the respondent should be sentenced on that count to a term of 12 months' immediate imprisonment.