Ugle v The State of Western Australia

[2018] WASCA 97

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT :   THE COURT OF APPEAL (WA)

CITATION:   UGLE -v- THE STATE OF WESTERN AUSTRALIA [2018] WASCA 97

CORAM:   MAZZA JA

MITCHELL JA

BEECH JA

HEARD:   12 JUNE 2018

DELIVERED          :   12 JUNE 2018

PUBLISHED           :   18 JUNE 2018

FILE NO/S:   CACR 28 of 2018

BETWEEN:   CHRISTINE LEE UGLE

Appellant

AND

THE STATE OF WESTERN AUSTRALIA

Respondent

ON APPEAL FROM:

Jurisdiction              :   DISTRICT COURT OF WESTERN AUSTRALIA

Coram:   STEVENSON DCJ

File Number             :   BUN IND 151 of 2017

Catchwords:

Appeal against sentence - Operation of s 9AA of Sentencing Act 1995 (WA) - Pleas of guilty entered at first reasonable opportunity - Whether a reduction of only 10% on pleas of guilty entered at the first reasonable opportunity was unreasonable or plainly unjust - Whether sentencing judge erred in denying the appellant procedural fairness in not raising with either counsel that he rejected a submission that he should apply the maximum discount available under s 9AA

Legislation:

Sentencing Act 1995 (WA), s 9AA

Result:

Appeal allowed
Appellant re-sentenced

Category:    B

Representation:

Counsel:

Appellant	:	Ms S H King
Respondent	:	Ms K C Cook

Solicitors:

Appellant	:	Legal Aid WA
Respondent	:	The Director of Public Prosecutions for the State of Western Australia

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

Abraham v The State of Western Australia [2014] WASCA 151; (2014) 244 A Crim R 1

Apache Northwest Pty Ltd v Agostini (No 2) [2009] WASCA 231

Beins v The State of Western Australia (No 2) [2014] WASCA 54

Forrest & Forrest Pty Ltd v Minister for Mines and Petroleum [2017] WASCA 153; (2017) 51 WAR 425

Gobetti v The State of Western Australia [2017] WASCA 130

House v The King (1936) 55 CLR 499

Kirby v The State of Western Australia [2016] WASCA 199

Mather v The State of Western Australia [2017] WASCA 148

McGarry v The Queen [2001] HCA 62; (2001) 207 CLR 121

Mussarri v The State of Western Australia [2018] WASCA 46

Pantorno v The Queen (1989) 166 CLR 466, 473

Parker v Director of Public Prosecutions (1992) 28 NSWLR 282

Re Minister for Immigration; ex parte Lam (2003) 214 CLR 1

Re Minister for Resources; Ex parte Cazaly Iron Pty Ltd [2007] WASCA 175; (2007) 34 WAR 403

Seltsam Pty Ltd v Ghaleb [2005] NSWCA 208

Suleiman v The State of Western Australia [2017] WASCA 26

Toole v The Queen [2014] NSWCCA 318; (2014) 247 A Crim R 272

Va v The Queen [2011] VSCA 426; (2011) 37 VR 452

REASONS OF THE COURT:

Introduction

1. The appellant was sentenced 2 years 7 months' immediate imprisonment in respect of one count of aggravated home burglary,[1] and 12 months' immediate imprisonment in respect of one count of stealing a motor vehicle.[2]  The sentences were ordered to be served concurrently, resulting in a total effective sentence of 2 years 7 months' immediate imprisonment.  The appellant was made eligible for parole, and the sentences were backdated to 8 August 2017 to take account of time spent in custody on remand.

   [1] Contrary to s 401(2)(a) of the Criminal Code.

   [2] Contrary to s 371A and s 378 of the Criminal Code.

2. The appellant appealed against these sentences on two grounds. Ground 1 contends that the sentencing judge erred in determining that the strength of the prosecution case was such that a reduction in sentence of only 10% was appropriate under s 9AA of the Sentencing Act 1995 (WA), notwithstanding that the appellant pleaded guilty at the first reasonable opportunity. Ground 2 contends that the sentencing judge erred in denying the appellant procedural fairness when, having been invited to apply the maximum discount available under s 9AA, his Honour did not raise with either counsel that he rejected that submission on the basis that the prosecution case against the appellant was strong, thereby denying counsel the opportunity to respond. Leave to appeal was granted on both grounds.

3. At the conclusion of the hearing of the appeal, we made the following orders:

   (1)The appeal is allowed.

   (2) The sentences imposed by the sentencing judge are set aside and the following sentences substituted:

   (a)Count 1:  2 years' immediate imprisonment.

   (b)Count 2:  12 months' immediate imprisonment, to be served concurrently with the sentence for count 1.

   (3)The appellant is eligible for parole.

   (4)The substituted sentences are taken to have begun on 8 August 2017.

4. We indicated that our reasons for making those orders would be published at a later date.  What follows are our reasons for making those orders.  In summary, we were satisfied that ground 1 was established and considered that a different sentence should have been imposed.  It is unnecessary to determine ground 2.

Circumstances of offending

1. At about 6.00 am on 27 July 2017, the appellant entered the victim's residence in Dalyellup through a rear sliding door.  The victim and several children were asleep in the house.  The appellant took the victim's handbag and an iPad from the lounge area.  At about 6.10 am the victim heard her car beep as if the remote central locking system had been engaged.  About 10 minutes later, the victim got out of bed and noticed that the sliding door was open.  After looking outside, the victim noticed that her hand bag was missing from a seat in the dining area and that an iPad was also missing.  Some drawers in the lounge room had been opened.  The handbag contained keysets, bank cards and other items.

2. At about 6.50 am, the appellant was captured on CCTV footage at a 24 hour KMart Store in Eaton, where she used a bank card taken from the victim's handbag to make a fraudulent purchase. 

3. At some time between 8.00 am and 11.00 am on 27 July 2017, the appellant used keys from the victim's handbag to steal the victim's Toyota Avalon vehicle from an open carport at the rear of the victim's residence.

4. The victim's car was subsequently recovered in Dalyellup.  The appellant's fingerprint was recovered from inside the car.  The police also obtained traffic camera footage showing the appellant as a passenger in the vehicle.

5. The appellant was arrested on 8 August 2017.  When interviewed by police, she admitted using the victim's bank card to purchase items at KMart, but denied involvement in the burglary.  She said that the card had been given to her by another person, who was also seen with her in the CCTV footage.  The appellant initially denied having been in the victim's car.  When informed of the location of her fingerprint in the vehicle, the appellant accepted that she was in the vehicle but denied driving the vehicle or knowing that it was stolen.

Personal circumstances

1. The appellant was 35 years old at the time of sentencing.  She is an aboriginal woman whose childhood was marred by neglect, alcohol and substance abuse and domestic violence, including sexual violence.  The appellant has four children:  a 15‑year‑old daughter, as well as three younger children with whom the appellant was not in contact at the time of sentencing due to them having been taken interstate by their father.

2. The appellant has a significant criminal record, which includes fraud and property offences, as well as traffic and other offences.  However, she has not previously been convicted of burglary or stealing a motor vehicle.  The appellant had only been sentenced to imprisonment on one previous occasion.  That was a total effective sentence of 3 months' immediate imprisonment, which the appellant received on 9 July 2014 for a series of fraud offences.  The appellant has a poor history of complying with supervision requirements.

3. The appellant has a history of substance abuse and was a regular user of methamphetamine.  She attempted to stop using methamphetamine but relapsed after her release from custody at the conclusion of her previous sentence of imprisonment.  She attributed her relapse to the death of a nephew in a traffic accident.  The appellant was homeless and using methamphetamine at the time of the current offending.

4. At sentencing, the appellant's counsel submitted that she had committed the burglary offence because she needed money, and stole the vehicle because she wanted to drive to Perth to support her 15‑year‑old daughter at a court appearance. 

Sentencing judge's approach to the pleas of guilty

1. Before reading the facts, the prosecutor at sentencing advised the court that the matter came before the court by way of a fast track plea of guilty. The appellant's sentencing counsel submitted that the appellant had 'pleaded guilty at an early opportunity' and invited the court to consider the maximum discount under s 9AA. The prosecutor did not make any submission as to the manner in which the guilty plea should be treated under s 9AA of the Sentencing Act, or say anything about the strength of the prosecution case.

2. The sentencing judge dealt with the discount under s 9AA in the following terms:[3]

   You were subsequently identified on CCTV footage attempting to use her credit card for purchases.  Therefore, the State’s case against you was a strong case.  By reason of your plea, the court is obliged to indicate the percentage of discount which, for a plea at the first reasonable opportunity can be up to 25 per cent.  The court is also entitled to have regard to the strength of the State’s case and, in this case, it was a strong case, accepting, of course, that you made some admissions partially to the offending in your video record of interview, which is to your credit. 

   In my view, the appropriate discount for the plea in respect to each offence is 10 per cent.  This requirement does not prevent the court from reducing the head sentence because of any other mitigating factor.  I accept that there is always some utility in a plea because it removes the requirement for there to be a trial before a jury and thereby saves costs to the community.

   [3] Sentencing ts 7 - 8.

3. In the appeal, the State concedes that these comments involved a finding by the sentencing judge that the appellant pleaded guilty to the offences at the first reasonable opportunity.[4]

Section 9AA of the Sentencing Act

[4] Appeal ts 5.

1. Under s 9AA(2), if a person pleads guilty to a charge for an offence, the court may reduce the 'head sentence' for the offence. The head sentence for this purpose is the sentence that a court would have imposed if the offender had been found guilty after a plea of not guilty and there were no mitigating factors.[5]  The court may reduce the head sentence:[6]

   [i]n order to recognise the benefits to the State, and to any victim of or witness to the offence, resulting from the plea.

   These utilitarian considerations exhaustively state the matters to be taken into account in determining the extent of any discount under s 9AA for a plea of guilty.[7] 

   [5] Section 9AA(1) of the Sentencing Act (definition of 'head sentence').

   [6] Section 9AA(2) of the Sentencing Act.

   [7] Kirby v The State of Western Australia [2016] WASCA 199 [24] and cases there cited; Mussarri v The State of Western Australia [2018] WASCA 46 [48].

2. The benefits to the State which may result from a plea would ordinarily include the matters in the following non-exhaustive list:[8]

   (a) Securing the conviction of a person who has committed a criminal offence;

   (b) The Office of the Director of Public Prosecutions (WA) not having to use resources in the preparation and conduct of a criminal trial;

   (c) If the accused has been or would otherwise have been granted legal aid, the Legal Aid Commission (WA) not having to use resources in the preparation and conduct of a defence;

   (d) Avoiding the time and expense involved in summoning and empanelling jurors for a criminal trial; and

   (e) The more expeditious and efficient resolution of proceedings in the criminal justice system than would otherwise be the case.

   [8] Abraham v The State of Western Australia [2014] WASCA 151; (2014) 244 A Crim R 1 [56], cited with approval in Mussarri [51].

3. Section 9AA(3) provides that, the earlier in the proceedings the plea is made, the greater the reduction in sentence may be. Under s 9AA(4)(a), where (as is the case here) the head sentence is a fixed term, as defined by s 9AA(1), the court must not reduce the fixed term by more than 25%. Further, the court must not reduce the fixed term by 25% unless the offender pleaded guilty, or indicated that he or she would plead guilty, at the first reasonable opportunity.[9]

   [9] Sentencing Act s 9AA(4)(b).

4. A sentencing judge is not bound to allow a discount of 25% whenever the offender pleads guilty at the first reasonable opportunity. Rather, a sentencing judge has a discretion in deciding upon the discount to be given in each case. This recognises that the nature, character and extent of the benefits referred to in s 9AA may vary across particular cases where the offender has pleaded guilty at the first reasonable opportunity.[10]

   [10] Abraham [62]; Kirby [25].

5. The strength of the prosecution case can be taken into account in assessing the amount of the discount under s 9AA. This is because the strength of the prosecution case is directly relevant to the prospects of securing a conviction, and therefore the value of the benefit to the State of the kind identified at [18](a) above.[11]  The strength of the prosecution case may also affect the length of a trial and the legal resources it requires, although this will not always be the case.

   [11] Beins v The State of Western Australia (No 2) [2014] WASCA 54 [58]; Abraham [58] - [61]; Kirby [26]; Mussarri [52].

6. In order to impugn the exercise of the sentencing judge's discretion under s 9AA, the appellant must show either that the sentencing judge made an express material error of principle, or that error is to be inferred from a result of the exercise of the discretion which is unreasonable or plainly unjust.[12] 

   [12] House v The King (1936) 55 CLR 499, 505; Mussari [82], [103].

7. In evaluating the appropriate discount for a plea of guilty, the evident purpose of s 9AA should be borne in mind. The following observations in Gobetti v The State of Western Australia[13] are apposite.

   It is important to always bear in mind the underlying purpose of allowing and quantifying a discount for a plea of guilty.  The purpose is to encourage those who are guilty to enter their pleas at the earliest possible stage, and thereby maximise the benefits of those pleas to the State and any victims or witnesses.  Discounts act not merely as a reward to the individual, but as an encouragement to others.  Too parsimonious an approach to the awarding of a discount may discourage others from entering a plea of guilty.  Even when the prosecution case is overwhelming a discount should be given to ensure that accused persons do not view the entering of a plea of guilty as being pointless. 

   [13] Gobetti v The State of Western Australia [2017] WASCA 130 [79].

Ground 1:  Inferred error

1. In our view, the conclusion that a discount of only 10% was appropriate in this case could not have been reached if the principles governing the exercise of the discretion under s 9AA had been properly applied. The sentencing judge accepted that appellant's plea of guilty was made at the first reasonable opportunity. Her plea of guilty meant that the victim of the offence was not required to testify at trial. The State obtained all of the kinds of the benefits identified at [18](a) - (e) above.

2. The State's case, particularly in respect of the burglary offence, was not overwhelming, in the sense that conviction was almost inevitable.  There was no direct evidence of the appellant's participation in the burglary.  There was no forensic evidence to link the appellant to the offence.  The appellant denied committing the burglary offence when interviewed by police.  The evidence of the offence disclosed to the sentencing court consisted of the appellant's use of the victim's bank card, which she retrieved from her own handbag, about 40 - 50 minutes after the burglary.  If the appellant had pleaded not guilty, the State would have needed to exclude the inference that the appellant had been given the bank card after the burglary was committed by someone else.  The appellant was in the company of two other persons at the time of using the card at the KMart store.  In her interview with police, the appellant claimed that one of those persons had given her the card. 

3. The State submits that, if the matter had proceeded to trial, further evidence would have been available as to additional fraudulent transactions of the appellant in using the victim's stolen aged pensioner fuel card.  However, that was not information placed before the sentencing judge.

4. It may also be noted that, if the matter had proceeded to trial, the victim would have been required to give evidence.

5. The clear evidence as to the appellant's presence in the stolen car meant that the State's case that the appellant stole the vehicle was stronger than its case that the appellant committed the burglary offence.  However, the case was still not overwhelming, as it would be necessary to prove that the appellant was aware that the car was stolen, contrary to her denials in the recorded interview with police.

6. The State refers to the decision of this court in Mather v The State of Western Australia,[14] where a decision to allow only a 15% discount under s 9AA was upheld on appeal. However, in that case the plea of guilty was not entered at the first reasonable opportunity, and the prosecution case was described as 'truly overwhelming'. Mather had been caught 'red-handed' during the execution of a search warrant pouring a large quantity of methamphetamine into a spa.

   [14] Mather v The State of Western Australia [2017] WASCA 148.

7. The State also refers to the 13% discount which was upheld in Gobetti.  However, that discount was given in circumstances where the pleas, while entered 'relatively early', were not entered at the first reasonable opportunity, and the prosecution case was so strong that the offender's conviction was essentially a foregone conclusion.[15]  This court said that the 13% discount 'may have been at the lower end of what was appropriate, but it was a conclusion that was open in the proper exercise of discretion.'[16]

   [15] Gobetti [77].

   [16] Gobetti [80].

8. The outcomes in Mather and Gobetti do not support the conclusion reached by the sentencing judge in the present case. In neither case was a plea of guilty entered at the first reasonable opportunity and in both cases conviction was regarded as inevitable. The appellant pleaded guilty at the first reasonable opportunity, in circumstances where conviction was not a foregone conclusion, but received a lesser discount under s 9AA than the offenders in Mather and Gobetti.

9. Neither counsel was able to point to any case concerning s 9AA decided by this court in which a discount of less than 20% was given for a plea of guilty at the first reasonable opportunity.

10. In the present appeal, neither the strength of the prosecution case nor any other circumstances could reasonably lead to the view that the value of the benefits to the State and the victim was so low as to justify only a 10% discount under s 9AA of the Sentencing Act.  The judge's conclusion that only a 10% discount was appropriate was plainly unreasonable or unjust.  Ground 1 is established.

Ground 2: Procedural fairness

1. Our conclusion in relation to ground 1 means that it is unnecessary to determine ground 2.  We note that ground 2 was conceded by the State.  We make the following observations in relation to that ground.

2. Generally speaking, the rules of procedural fairness do not require a judge to indicate his or her view as to whether a submission made by a party is or is not accepted before making a decision in the matter.[17] Ordinarily, a judge is not required to inform counsel for an offender, who makes a submission that a particular level of discount should be applied under s 9AA, whether or not the submission is accepted before sentencing the offender. It is for counsel making the submission to make the case for the discretion under s 9AA to be exercised in a particular manner, and counsel is not entitled to take silence from the bench as an indication that the submission is accepted so that it is unnecessary to say anything more.

   [17] Forrest & Forrest Pty Ltd v Minister for Mines and Petroleum [2017] WASCA 153; (2017) 51 WAR 425 [100] (citing Commissioner for ACT Revenue v Alphaone Pty Ltd (1994) 49 FCR 576, 591 - 592); Va v The Queen [2011] VSCA 426; (2011) 37 VR 452 [24] - [25]; Apache Northwest Pty Ltd v Agostini (No 2) [2009] WASCA 231 [217] - [218].

1. The position may be different where the prosecution and defence conduct the case on a particular basis.  A judge who contemplates determining the case in a manner which departs from the basis on which both parties have conducted the proceedings must ordinarily inform the parties of this prospect so that they have an opportunity to address any new or changed issues that may arise.[18]  The application of that rule is illustrated by the decision of the New South Wales Court of Criminal Appeal in Murray v The Queen.[19]  In that case, the prosecution had submitted that a discount for a plea of guilty in the vicinity of 10 - 15% was appropriate in the circumstances of the case.  Counsel for the offender expressly noted the prosecutor's submission, and limited his own submission to the proposition that 15% was the appropriate reduction.  Contrary to the established practice of granting a reduction for a plea of guilty, the sentencing judge in that case did not give any discount for the utilitarian value of the offender's plea of guilty, which avoided the need for a trial.  Basten JA, with whom Simpson J agreed, observed:

   The matter clearly proceeded before the sentencing judge on the basis, not merely that a reduction was appropriate, but with a measure of agreement as to the extent of the reduction. It goes without saying that the judge was not bound by the approach adopted by the parties; nevertheless, the parties were entitled to act on the basis that, upon what might have been considered an uncontroversial matter, a warning would have been given were the judge considering departing from the common and conventional approach [22].

   [18] Seltsam Pty Ltd v Ghaleb [2005] NSWCA 208 [78]; Pantorno v The Queen (1989) 166 CLR 466, 473.

   [19] Murray v The Queen [2015] NSWCCA 75.

2. Different considerations may also arise where a case is determined on the basis of an adverse finding the risk of which is not inherent in the issues to be decided by the court.  In a criminal case, there is a particular need to ensure that the accused or convicted person is not taken by surprise.  He or she must be given a fair opportunity of meeting the case against him or her so far as that case has not already been put to him or her for answer.[20]  As Kirby P, with whom other members of the court agreed, noted in Parker v Director of Public Prosecutions,[21] in the context of a judge contemplating the imposition of a custodial sentence not sought by the prosecutor on an offender's appeal:

   Fair procedure requires, at least for important decisions and those critical to the determination of a case, that considerations of importance to the judicial officer's conclusions should be drawn to the notice of the parties affected or their representatives so that a fair opportunity is presented for contrary argument to persuade the judicial decision-maker to a different view.

   That statement was adopted by this court in Suleiman v The State of Western Australia,[22] in a context where a judge departed from a concession by the State as to a psychiatrist's opinion concerning the offender's mental state at the time of committing the offence.

   [20] Pantorno (473, 482 - 483).

   [21] Parker v Director of Public Prosecutions (1992) 28 NSWLR 282, 296.

   [22] Suleiman v The State of Western Australia [2017] WASCA 26 [45], but cf Toole v The Queen [2014] NSWCCA 318; (2014) 247 A Crim R 272 [44].

3. Parker and Suleiman illustrate that unfairness can arise in circumstances where:

   (1)a judge makes a finding adverse to the offender in relation to an issue that is not an inherent part of the matter which the judge is required to decide;

   (2)the prosecutor has not sought the adverse finding or contended that it should be made; and

   (3)an offender, who has not addressed the issue in submissions, might reasonably not anticipate that the judge might make that finding.

4. Whether particular proceedings are procedurally unfair will depend on an assessment of all of the circumstances of the case, including the matters which counsel should anticipate a judge will consider even if not specifically adverted to by the prosecutor.  Fairness is a practical concept and the concern of the law of procedural fairness is to avoid practical injustice.[23]

   [23] Re Minister for Immigration; ex parte Lam (2003) 214 CLR 1 [37]; Re Minister for Resources; Ex parte Cazaly Iron Pty Ltd [2007] WASCA 175; (2007) 34 WAR 403 [272].

5. In the present case, the appellant's sentencing counsel should have been aware that the judge would consider the benefits to witnesses and the State in exercising the court's discretion under s 9AA of the Sentencing Act. The State did not take any issue with the submission advanced by the appellant's sentencing counsel to the effect that the maximum discount should be applied. However, there was no concession by the prosecutor or indication by the judge that the maximum discount would be applied. The appellant had the opportunity to advance submissions as to the extent of the benefits to the State. The strength of the State's case was a factor which was recognised by the authorities as relevant to the assessment of the benefits and the discount which should be applied. Consideration of these matters was an inherent part of the exercise of the court's discretion under s 9AA of the Sentencing Act.  The appellant's sentencing counsel had the opportunity to make submissions on that issue which should have been anticipated as relevant. 

6. The appellant's sentencing counsel did not address the strength of the prosecution case in submissions. The fact that counsel did not take the opportunity to address the extent of the benefits to the State and the factors which affected the extent of that submission - but rather simply invited the judge to apply the maximum discount - does not make the proceedings procedurally unfair. That position is not altered by the fact that there was no responsive submission by the State that the strength of the prosecution case was such as to justify any significant reduction in the discount to be afforded to the appellant under s 9AA. It would have been good practice for the sentencing judge, if he had formed a provisional view that the strength of the prosecution case was a significant factor, to ask counsel about that issue which had not been addressed by either party's submissions. The judge would have gained the benefit of submissions addressing that issue. But the fact that the sentencing judge did not ask a question about a matter which counsel ought to have known his Honour was required to consider does not, of itself, necessarily result in an unfair hearing.

7. In the circumstances, breach of the rules of procedural fairness is not established merely by the fact that the sentencing judge did not give the appellant the requested maximum available discount of 25% under s 9AA of the Sentencing Act.  If it could be made good, the appellant's argument about procedural fairness must turn on her contention that the parties could not have expected the sentencing judge to give such a small discount by reason of his view of the strength of the State's case. 

8. The force of the submission that the parties could not have expected the sentencing judge to give such a small discount is affected by our conclusion that the discount afforded to the appellant was unreasonable or plainly unjust.  Therefore, to the extent that it may have merit, the appellant's argument about procedural fairness cannot be divorced from the argument in relation to ground 1.  Given that we have accepted that a discount of only 10% was unreasonable or plainly unjust, it is unnecessary and inappropriate to consider whether ground 2 might have succeeded if we had rejected ground 1.  For these reasons, in the circumstances, it is unnecessary to determine whether ground 2 is established.

Resentencing

1. This court may allow an appeal against sentence if, in its opinion, a different sentence should have been imposed.[24]  Where an error of principle has been established, this court must consider afresh the sentence which, in its view, ought to have been passed.  It conducts this review in respect of the whole of the single sentencing decision, rather than merely the component in respect of which error has been identified.[25] Consequently, in determining whether a different sentence should have been imposed in this case, the court does not attempt to predict the sentence which the sentencing judge would have imposed if an appropriate discount under s 9AA had been applied. Rather it must make its own assessment of the sentences which are commensurate with the seriousness of the appellant's burglary and stealing offences.

   [24] Section 31(4)(a) of the Criminal Appeals Act 2004 (WA).

   [25] McGarry v The Queen [2001] HCA 62; (2001) 207 CLR 121 [8] - [9].

2. The maximum penalty for a home burglary, committed in circumstances where the offender, immediately before the commission of the offence, knew or ought to have known that there was another person in the place, is 20 years' imprisonment.[26]  The maximum penalty for stealing a motor vehicle in the circumstances of this case is imprisonment for 7 years.[27]

   [26] Section 401(1)(a) of the Criminal Code.

   [27] Section 378 of the Criminal Code.

3. The circumstances of the offending are described above.  This was not an aggravated home burglary at the upper end of the range of seriousness for offences of that kind.  There was no interaction with persons in the victim's residence and the value of the items taken from the lounge area was not unusually high.  The prosecution did not allege any significant damage to the victim's house or car.  The intrusion into the victim's house consisted of entry into the lounge area, taking two items which had been left out and opening some drawers.

4. However, the offence remained serious.  It would have had a significant psychological effect on the victim, and there were children in the house.  Any burglary of an occupied residence carries with it the risk of violence if the intruder is discovered by the occupants.  This burglary was committed by the appellant at a time when it could be expected that the occupiers of the residence would be waking, increasing that risk.

5. While the appellant did not have the mitigating benefit of prior good character, her pattern of prior offending did not comprise offences of the kind for which she is to be sentenced so as to elevate considerations of personal deterrence and community protection beyond their usual significance.  The appellant had previously served only one short period of immediate imprisonment.

6. Of course, personal and general deterrence remain a significant sentencing consideration in cases of this kind.

7. The State concedes that the appellant's pleas of guilty were entered at the first reasonable opportunity.[28] In all the circumstances, we would give a 25% discount under s 9AA of the Sentencing Act for the appellant's plea of guilty at the first reasonable opportunity in respect of both offences. 

   [28] Appeal ts 5.

8. Having regard to all of the circumstances (including those personal to the appellant) we are satisfied that the seriousness of the offences are such that terms of immediate imprisonment are the only appropriate sentences.

9. In our view, the sentences which are commensurate with the seriousness of the offences are a sentence of 2 years' immediate imprisonment in respect of count 1 and 12 months' immediate imprisonment in respect of count 2.  We agree with the sentencing judge that the sentences for those counts should be served concurrently, the appellant made eligible for parole and the sentence backdated to 8 August 2017 to take account of time already spent in custody.

   I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.

   CR
   ASSOCIATE TO THE HONOURABLE JUSTICE MITCHELL

   18 JUNE 2018