Whitby v The State of Western Australia
[2014] WASCA 99
•5 MAY 2014
WHITBY -v- THE STATE OF WESTERN AUSTRALIA [2014] WASCA 99
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2014] WASCA 99 | |
| THE COURT OF APPEAL (WA) | |||
| Case No: | CACR:22/2014 | 21 MARCH 2014 | |
| Coram: | McLURE P BUSS JA | 5/05/14 | |
| 8 | Judgment Part: | 1 of 1 | |
| Result: | Leave to appeal refused Appeal dismissed | ||
| B | |||
| PDF Version |
| Parties: | SHANNON CHRISTOPHER WHITBY THE STATE OF WESTERN AUSTRALIA |
Catchwords: | Criminal law Appeal against sentence Appellant convicted on his pleas of guilty of two counts of aggravated burglary Total effective sentence of 4 years 6 months' immediate imprisonment Totality principle Leave to appeal refused |
Legislation: | Sentencing Act 1995 (WA), s 9AA |
Case References: | Ashworth v The State of Western Australia [2006] WASCA 36 Brady v The State of Western Australia [2013] WASCA 253 Butler v The State of Western Australia [2012] WASCA 249 Conley v The State of Western Australia [2013] WASCA 95 Drake v The State of Western Australia [2006] WASCA 209 Fullgrabe v The State of Western Australia [2013] WASCA 130 Nguyen v The State of Western Australia [2007] WASCA 114 Nolan v The State of Western Australia [2013] WASCA 235 Pennetta v The State of Western Australia [2013] WASCA 234 Ridley v The State of Western Australia [2013] WASCA 45 Spry v The State of Western Australia [2013] WASCA 68 |
- BUSS JA
- Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram : STONE DCJ
File No : IND 684 of 2013, IND 1054 of 2013
Catchwords:
Criminal law - Appeal against sentence - Appellant convicted on his pleas of guilty of two counts of aggravated burglary - Total effective sentence of 4 years 6 months' immediate imprisonment - Totality principle - Leave to appeal refused
Legislation:
Sentencing Act 1995 (WA), s 9AA
Result:
Leave to appeal refused
Appeal dismissed
Category: B
Representation:
Counsel:
Appellant : Mr A C McIntosh
Respondent : No appearance
Solicitors:
Appellant : George Papamihail
Respondent : Director of Public Prosecutions (WA)
Case(s) referred to in judgment(s):
Ashworth v The State of Western Australia [2006] WASCA 36
Brady v The State of Western Australia [2013] WASCA 253
Butler v The State of Western Australia [2012] WASCA 249
Conley v The State of Western Australia [2013] WASCA 95
Drake v The State of Western Australia [2006] WASCA 209
Fullgrabe v The State of Western Australia [2013] WASCA 130
Nguyen v The State of Western Australia [2007] WASCA 114
Nolan v The State of Western Australia [2013] WASCA 235
Pennetta v The State of Western Australia [2013] WASCA 234
Ridley v The State of Western Australia [2013] WASCA 45
Spry v The State of Western Australia [2013] WASCA 68
1 McLURE P: I agree with Buss JA.
2 BUSS JA: This is an application for leave to appeal against sentence.
3 The appellant was convicted, on his pleas of guilty in the District Court before Stone DCJ, of one count in indictment 684/2013 and three counts in indictment 1054/2013.
4 The count in indictment 684/2013 alleged that on 5 January 2013, at Bayswater, the appellant, while in the place of Linda Colleen Hunter without her consent, committed the offence of stealing. The count also alleged that immediately before the commission of the offence the appellant knew or ought to have known that there was another person in the place, and that the place was ordinarily used for human habitation.
5 Indictment 1054/2013 alleged:
(a) as to count 1, on 6 January 2013, at Beechboro, the appellant, while in the place of Daniel Willow Garcia without his consent, committed the offence of stealing, that immediately before the commission of the offence the appellant knew or ought to have known that there was another person in the place, and that the place was ordinarily used for human habitation;
(b) as to count 2, on the same date and at the same place, the appellant stole a CD player, motor vehicle keys, an amplifier, a mobile telephone, laptop computers, a navigator, a camera, sunglasses, a watch, DVDs and wallets, the property of Mr Garcia; and
(c) as to count 3, on the same date and at the same place, the appellant stole a motor vehicle, namely an Audi S4 2000, the property of Mr Garcia.
6 On 19 December 2013, the sentencing judge imposed individual sentences as follows:
(a) as to the count in indictment 684/2013: 2 years' immediate imprisonment;
(b) as to count 1 in indictment 1054/2013: 2 years 6 months' immediate imprisonment;
(c) as to count 2 in indictment 1054/2013: no penalty as the offending conduct was part of count 1; and
(d) as to count 3 in indictment 1054/2013: no penalty as the offending conduct was part of count 1.
7 His Honour ordered that the individual terms of imprisonment be served cumulatively. The total effective sentence was therefore 4 years 6 months' immediate imprisonment. The sentence was backdated to 10 January 2013. A parole eligibility order was made.
Indictment 684/2013: the facts and circumstances of the offending
8 On 5 January 2013, at about 4.30 am, the appellant entered the dwelling of Ms Hunter and another person in Bayswater. He gained entry by opening a front sliding window and ripping the flyscreen. The complainants were asleep in the house. Once inside, the appellant committed the offence of stealing. He stole a handbag, a passport, keys to a motor vehicle, a remote control for a carport, a glass jar containing loose change and an Apple iPhone, all of which were located on the kitchen table. Ms Hunter recovered some of the items because the appellant abandoned them when he was disturbed by the complainants. She lost property to the value of about $260. When the complainants awoke and disturbed the appellant he ran from the house, got into a nearby motor vehicle and left the scene. One of the complainants pursued him but he escaped. The appellant was later identified through fingerprints at the crime scene.
9 On 10 January 2013, the appellant was arrested by police. During a video recorded interview he did not make any admissions.
Indictment 1054/2013: the facts and circumstances of the offending
10 On 6 January 2013, between midnight and 8am, the appellant entered the dwelling of Mr Garcia and another man in Beechboro. He gained entry by removing a flyscreen from the lounge room window and forcing the window open. The complainants were asleep in the house. The appellant stole the items referred to in count 2 on the indictment from the lounge room and kitchen. The total value of the stolen property was $11,503. The appellant left the dwelling in the same manner as he had entered it. He then stole Mr Garcia's Audi motor vehicle, which was parked in the carport adjacent to the house. Later, the appellant was observed driving the stolen vehicle in Huntingdale.
11 On 28 March 2013, the appellant was arrested by police. During a video recorded interview he denied having committed the offences.
The sentencing judge's sentencing remarks
12 The sentencing judge recounted in his sentencing remarks the facts and circumstances of the offending.
13 His Honour noted three aggravating features of the appellant's offending. First, he was a 'repeat' burglary offender (ts 29). Secondly, he burgled the dwellings while the complainants were at home. There was a risk of confrontation between the appellant and the complainants. Ms Hunter and the other occupant of the Bayswater house awoke and disturbed the appellant (ts 29 - 30). Thirdly, the total value of the property stolen from Mr Garcia ($11,503) was substantial (ts 30).
14 The sentencing judge referred to the appellant's personal circumstances and antecedents.
15 The appellant was born on 23 September 1987. He was 25 at the time of the offending and 26 when sentenced. He has a long history of illicit substance abuse. The appellant commenced using amphetamines when he was 13. He was expelled from school in Year 8 because of his abuse of illicit substances and his violent behaviour. Later, the appellant enrolled in but did not complete studies at TAFE.
16 The appellant has no employment history. He has relied on Centrelink benefits.
17 At the time of sentencing the appellant was taking prescribed medication for depression.
18 The appellant has a significant prior criminal record. His previous convictions include stealing (multiple offences); receiving; traffic infringements (multiple offences); breaches of community based orders, bail undertakings and protective bail conditions (multiple offences); stealing a motor vehicle (multiple offences); breach of a violence restraining order; burglary and committing an offence in a dwelling (multiple offences); aggravated burglary and committing an offence in a dwelling (multiple offences); and trespassing on a place without lawful excuse (multiple offences). The appellant has been imprisoned on several occasions. His response to community based dispositions has been poor.
19 The author of a pre-sentence report said the offending in question appeared to be related to the appellant's entrenched illicit substance abuse (which he financed through criminal activities), his unemployment and his previous failure to comply with community based orders.
20 The sentencing judge noted that the appellant had participated in several programmes, directed towards his rehabilitation, since he was remanded in custody on 10 January 2013 in relation to the offences in question. He had undertaken a cognitive skills programme and a drug and alcohol programme.
21 His Honour said the appellant had pleaded guilty 'at the first reasonable opportunity in the sense that documentation had been prepared by the prosecution but you were then in a position to receive legal advice to deal with the issues' (ts 30 - 31). His Honour allowed the appellant a discount of 20% on the individual sentences pursuant to s 9AA of the Sentencing Act 1995 (WA).
22 The appellant expressed remorse to the author of the pre-sentence report and in a letter to the sentencing judge.
The proposed ground of appeal
23 The sole proposed ground of appeal alleges that the total effective sentence of 4 years 6 months' immediate imprisonment infringed the first limb of the totality principle.
The merits of the proposed ground of appeal
24 The maximum penalty for the offence of aggravated burglary of a dwelling is 20 years' imprisonment. The maximum penalty for each offence of stealing committed by the appellant is 7 years' imprisonment.
25 The first limb of the totality principle requires that the total effective sentence imposed on an offender who has committed multiple offences must bear a proper relationship to the overall criminality involved in all of the offences (including those, if any, in respect of which the offender is still serving a term of imprisonment), viewed in their entirety, and after having regard to all relevant circumstances, including those referable to the offender personally (and including, for example, the desirability of accommodating any wish to rehabilitate), and the total effective sentences imposed in comparable cases.
26 The primary sentencing considerations in relation to burglary and aggravated burglary are personal and general deterrence. Ordinarily, a substantial penalty is imposed. The standards of sentencing customarily imposed for these offences were reviewed by this court in Ashworth v The State of Western Australia [2006] WASCA 36, Drake v The State of Western Australia [2006] WASCA 209 and Nguyen v The State of Western Australia [2007] WASCA 114. See also Butler v The State of Western Australia [2012] WASCA 249; Ridley v The State of Western Australia [2013] WASCA 45; Spry v The State of Western Australia [2013] WASCA 68; Conley v The State of Western Australia [2013] WASCA 95; Fullgrabe v The State of Western Australia [2013] WASCA 130; Pennetta v The State of Western Australia [2013] WASCA 234; Nolan v The State of Western Australia [2013] WASCA 235; Brady v The State of Western Australia [2013] WASCA 253; and the cases cited in those decisions.
27 Burglaries and aggravated burglaries can be and are, of course, committed in a wide range of circumstances. The sentence to be imposed for a particular offence must be commensurate with the seriousness of the particular offence, after taking into account the maximum penalty, the circumstances of the offending (including the vulnerability of any victim), any aggravating factors and any mitigating factors.
28 The offences committed by the appellant in the present case involved serious offending of its kind. He burgled dwellings in the early hours of the morning. He knew or ought to have known that the complainants were at home. The occupants of the Bayswater house awoke and disturbed the appellant. As the sentencing judge noted, there was, in the case of each aggravated burglary, a risk of confrontation between the appellant and the complainants. The property stolen from Mr Garcia had a substantial value. None of it appears to have been recovered.
29 The appellant's personal circumstances and antecedents were poor. He had an extensive prior criminal record. Although his previous convictions do not, of course, aggravate the offences in question, the appellant was not entitled to any leniency on the basis that he was of prior good character.
30 Appropriate punishment, retribution and personal and general deterrence were important sentencing considerations.
31 The mitigating factors were confined to the appellant's pleas of guilty at the first reasonable opportunity, his expressions of remorse and his recent participation in several programmes directed towards his rehabilitation.
32 I am satisfied that the total effective sentence of 4 years 6 months' immediate imprisonment bears a proper relationship to the overall criminality involved in all of the offences, viewed together, and after taking into account the maximum penalties, the objective seriousness of the offending, the vulnerability of the complainants and all aggravating and mitigating factors. It was appropriate in the circumstances to order that the individual sentences of imprisonment for the aggravated burglaries be served cumulatively. Each offence was separate, distinct and serious. The term of 4 years 6 months was required to satisfy all sentencing objectives including punishment, retribution and personal and general deterrence.
33 The proposed ground of appeal does not have a reasonable prospect of success.
Conclusion
34 Leave to appeal should be refused and the appeal dismissed.
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