Winmar v The State of Western Australia - [2018] WASCA 155

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT :   THE COURT OF APPEAL (WA)
CITATION:   WINMAR -v- THE STATE OF WESTERN AUSTRALIA [2018] WASCA 155
CORAM:   BUSS P
MAZZA JA
MITCHELL JA

HEARD:   4 MAY 2018
DELIVERED          :   3 SEPTEMBER 2018
FILE NO/S:   CACR 201 of 2017
BETWEEN:   CARL DESMOND ROBERT WINMAR
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent

ON APPEAL FROM:
Jurisdiction              :   DISTRICT COURT OF WESTERN AUSTRALIA
Coram:   STEVENSON DCJ
File Number             :   IND 312 of 2017

Catchwords:

Criminal law - Appeal against sentence - Appellant convicted of home burglary and stealing on plea of guilty - Appropriate reduction in sentence under s 9AA Sentencing Act 1995 (WA) - Grant of 10% discount under s 9AA plainly unreasonable or unjust - Benefits to State and victim in early plea of guilty - Strength of prosecution case - Whether no different sentence should have been imposed

Legislation:

Criminal Appeals Act 2004 (WA), s 31(4)(a)
Criminal Code (WA), s 401(2)(b)
Sentencing Act 1995 (WA), s 9AA, s 11

Result:

Leave to appeal on ground 4 refused
Appeal allowed
The sentence imposed by the primary judge on count 1 set aside
Appellant resentenced

Category: B

Representation:

Counsel:

Appellant	:	Mr A J Robson
Respondent	:	Mr J A Scholz

Solicitors:

Appellant	:	Legal Aid - Criminal Law Division
Respondent	:	Director of Public Prosecutions for Western Australia

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

Abraham v The State of Western Australia [2014] WASCA 151; (2014) 244 A Crim R 1
Beins v The State of Western Australia (No 2) [2014] WASCA 54
Burnes v The State of Western Australia [2017] WASCA 77
Buxton v The State of Western Australia [2009] WASCA 6
Conley v The State of Western Australia [2013] WASCA 95
Cummins v The State of Western Australia [2017] WASCA 135
Fullgrabe v The State of Western Australia [2013] WASCA 130
Gobetti v The State of Western Australia [2017] WASCA 130
Harding v The State of Western Australia [2015] WASCA 27
Herbert v The Queen [2003] WASCA 61; (2003) 27 WAR 330
House v The King (1936) 55 CLR 499
Hume v The State of Western Australia [2017] WASCA 205
Humphreys v The State of Western Australia [2017] WASCA 208
Jolly v The State of Western Australia [2017] WASCA 181
Jones v The State of Western Australia [2018] WASCA 105
Kirby v The State of Western Australia [2016] WASCA 199
Mamkin v The State of Western Australia [2017] WASCA 61
McGarry v The Queen [2001] HCA 62; (2001) 207 CLR 121
McIntyre v The State of Western Australia [2016] WASCA 150
Mussarri v The State of Western Australia [2018] WASCA 46
Newport v The State of Western Australia [2015] WASCA 224
Nguyen v The State of Western Australia [2007] WASCA 114
Page v The State of Western Australia [2018] WASCA 76
Pham v The State of Western Australia [2013] WASCA 203
Pollock v The State of Western Australia [2004] WASCA 280
R v Barbis [2003] WASCA 107
Sartori v The State of Western Australia [2014] WASCA 98
Sulejmani v The State of Western Australia [2005] WASCA 95
The State of Western Australia v Miller [2005] WASCA 53; (2005) 30 WAR 38
The State of Western Australia v Peacock [2013] WASCA 248
The State of Western Australia v Tittums [2018] WASCA 23; (2018) 83 MVR 476
Wragg v The State of Western Australia [2013] WASCA 198; (2013) 234 A Crim R 380

BUSS P & MAZZA JA:

This is an appeal against sentence.
The appellant was convicted upon his pleas of guilty of two counts in an indictment. The pleas were entered at the earliest reasonable opportunity.
Count 1 alleged that on 11 January 2017, at Nedlands, the appellant, while in the place of SF without her consent, committed the offence of stealing, and that the place was ordinarily used for human habitation, contrary to s 401(2)(b) 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 appellant stole numerous electronic, jewellery and clothing items the property of SF, contrary to s 378 of the Code.
On 1 September 2017, Stevenson DCJ sentenced the appellant to 3 years 3 months' immediate imprisonment on count 1. His Honour ordered, pursuant to s 11 of the Sentencing Act 1995 (WA), that there be no further punishment on count 2. The sentence of imprisonment was backdated to 26 January 2017. A parole eligibility order was made.
We would allow the appeal, set aside the sentence on count 1 and resentence the appellant. Our reasons are as follows.

The facts and circumstances of the offending

On 11 January 2017, between 10.30 am and 3.05 pm, the appellant went to the complainant's home in Nedlands. He smashed the rear glass door of the home and entered the premises. No‑one was at home. The appellant rummaged through a number of rooms. He opened doors and cupboards and tipped their contents onto the floor. He stole electronic equipment, jewellery and clothing having a total value of $59,183. None of the stolen items was recovered. The burglary involved a serious invasion of the complainant's privacy and the security of her home.
On 26 January 2017, the appellant was apprehended by police after his fingerprint was identified on a printer cartridge box in the study of the complainant's home. The appellant declined to participate in an interview with the police. He was then charged with the offences in question.

The appellant's personal circumstances and antecedents

The appellant was aged 22 at the time of the offending and was 23 when sentenced.
The appellant was raised by his grandmother. When he was aged 15, his mother died. He suffered grief as a result of her death. The appellant has no contact with his father, but he has had ongoing support from his grandmothers and an aunt.
The appellant completed year 10 at school. He had some difficulties academically. The appellant worked for a period of about 12 months after leaving school. He was then in receipt of Centrelink benefits apart from one further period of employment.
The appellant commenced consuming alcohol and using cannabis at the age of 15. His consumption of alcohol and his use of illicit drugs, including methamphetamine from the age of 18, increased. When the current offending occurred he was consuming alcohol occasionally but was using cannabis and methamphetamine on a daily basis.
The appellant has a significant prior criminal record. His previous offences as an adult include attempted burglary with intent; breach of bail undertaking (multiple offences); possession of prohibited drugs; breach of an intensive supervision order (multiple offences); stealing a motor vehicle and driving recklessly; threats to injure, endanger or harm any person; aggravated burglary and committing an offence in a dwelling (multiple offences); stealing a motor vehicle; stealing (multiple offences); carrying an article with intent to cause fear; wilfully and unlawfully destroying or damaging property (multiple offences); common assault; disorderly behaviour in public; and possession of a controlled weapon. The appellant had previously been sentenced to terms of immediate imprisonment.
The sentencing judge said that the appellant was 'still comparatively a young person' (ts 32). His Honour took the appellant's age into account in determining the appropriate sentence. His Honour expressed concern, however, that the appellant did not appear to have any insight into the seriousness of his offending or evince any remorse for his conduct.

The grounds of appeal

The appellant relies on four grounds of appeal.
Ground 1 alleges 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 pursuant to s 9AA of the Sentencing Act, notwithstanding a plea of guilty at the earliest reasonable opportunity.
Ground 2 alleges that his Honour erred in determining the reduction in the head sentence pursuant to s 9AA by taking into account an irrelevant consideration, namely that the appellant had refused to cooperate with the investigating police officers.
Ground 3 alleges that his Honour erred by concluding that the appellant did not have youth as a mitigating factor.
Ground 4 alleges that the sentence of 3 years 3 months' immediate imprisonment was manifestly excessive.
On 19 November 2017, Mazza JA granted leave to appeal on grounds 1, 2 and 3 and referred the application for leave to appeal on ground 4 to the hearing of the appeal.

Ground 1: the State's submissions

Counsel for the State submitted that a sentencing judge retains a discretion, even where a plea is entered at the first reasonable opportunity, in deciding upon the discount to be afforded, in a particular case, under s 9AA.
It was submitted that, in the present case, the sentencing judge's view of the strength of the State case against the appellant was correct.
Counsel argued that his Honour had not made any material error in deciding upon the discount of 10%. No error could be implied or inferred in accordance with House v The King.[1]
[1] House v The King [1936] HCA 40; (1936) 55 CLR 499, 505 (Dixon, Evatt & McTiernan JJ).

Ground 1: its merits

Section 9AA provides:
(1)In this section -
fixed term has the meaning given in section 85(1);
head sentence, for an offence, means the sentence that a court would have imposed for the offence if -
(a)the offender had been found guilty after a plea of not guilty; and
(b)there were no mitigating factors;
victim has the meaning given in section 13.
(2)If a person pleads guilty to a charge for an offence, the court may reduce the head sentence for the offence in order to recognise the benefits to the State, and to any victim of or witness to the offence, resulting from the plea.
(3)The earlier in the proceedings the plea is made, the greater the reduction in the sentence may be.
(4)If the head sentence for an offence is or includes a fixed term, the court must not reduce the fixed term under subsection (2) ‑
(a)by more than 25%; or
(b)by 25%, unless the offender pleaded guilty, or indicated that he or she would plead guilty, at the first reasonable opportunity.
(5)If a court reduces the head sentence for an offence under subsection (2), the court must state that fact and the extent of the reduction in open court.
(6)This section does not prevent the court from reducing the head sentence for an offence because of any mitigating factor other than a plea of guilty.
The principles relevant to the proper construction and application of s 9AA are set out in Mussarri v The State of Western Australia.[2] It is unnecessary to repeat them.
[2] Mussarri v The State of Western Australia [2018] WASCA 46 [42] - [52] (Buss P).
In the present case, the sentencing judge reduced the 'head sentence' (as defined in s 9AA(1)) by 10% in recognition of the appellant's plea of guilty at the earliest reasonable opportunity. His Honour said:
You have pleaded guilty. That is a mitigating factor. You are entitled to a reduction in sentence by reason of the plea. I accept that it was made on 17 February 2017 and that it was at the earliest reasonable opportunity.
It was of course, in the face of a strong State case. The plea is also inconsistent with your refusal at the first opportunity to assist with the investigating officers. But it is to your credit that you have entered the plea and in doing so, you have saved the State the time and cost of a trial and also avoided the continuing impact of the offence on the victim, of having to participate in a trial process.
In my view, having regard to the relevant considerations, the appropriate discount for the plea is 10 per cent. This requirement does not prevent the court from reducing the head sentence because of any other mitigating factors (ts 30).
As the appellant had entered his plea of guilty at the earliest reasonable opportunity, it was open to his Honour to reduce the 'head sentence' by up to 25% pursuant to s 9AA.
It is apparent from the passage in the sentencing judge's sentencing remarks, which we have set out at [26] above, that his Honour reduced the discount he afforded for the plea because the State had a 'strong' case against the appellant.
The strength of the State case was relevant to the extent of the benefits to the State consequent upon the appellant's plea and, thus, to the extent of the discount. See Abraham v The State of Western Australia.[3] In the present case, his Honour was correct in characterising the State case against the appellant as 'strong'. The appellant's fingerprint on the printer cartridge box in the study of the complainant's home was a powerful piece of evidence which implicated him.
[3] Abraham v The State of Western Australia [2014] WASCA 151; (2014) 244 A Crim R 1 [57] ‑ [58] (Buss JA; McLure P agreeing).
Nevertheless, despite the strength of the State case, the plea of guilty at the earliest reasonable opportunity conferred substantial benefits on the State and the complainant.
It is important, in evaluating the appropriate discount to be given under s 9AA, to bear in mind the underlying purpose or object of the provision. In Gobetti v The State of Western Australia,[4] Mazza JA and Hall J observed:
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 [79].
See also Jones v The State of Western Australia.[5]
[4] Gobetti v The State of Western Australia [2017] WASCA 130.
[5] Jones v The State of Western Australia [2018] WASCA 105 [22] (Buss P, Mazza & Beech JJA).
In the present case, there is some ambiguity as to whether his Honour also reduced the discount he afforded for the plea of guilty because of the appellant's refusal at the first opportunity to assist the investigating officers.
It is sufficient, for present purposes, to note that nothing in the text of s 9AA or the underlying purpose or object of the provision authorises a sentencing judge to reduce the discount because of the offender's exercise of his or her right to silence or the offender's refusal to cooperate with the law enforcement authorities.
The appellant's refusal to participate in an electronically recorded interview with the police when he was apprehended on 26 January 2017 was not a relevant consideration in determining the discount to be afforded under s 9AA.
In our opinion, after taking into account all of the circumstances relevant to the evaluation of the appropriate discount under s 9AA, including the fact that the appellant had entered the plea of guilty at the earliest reasonable opportunity and the fact that the State had a strong case, it was not open to the sentencing judge, on a proper exercise of his discretion, to afford a discount of only 10%. The extent of the discount was inconsistent with the object or purpose of s 9AA and was, in all of the circumstances, unreasonable or plainly unjust.

Ground 1 has been made out.
We are satisfied, having regard to the facts and circumstances of the offending and all relevant sentencing principles, that a sentence different from and lower than 3 years 3 months' immediate imprisonment should have been imposed. See s 31(4)(a) of the Criminal Appeals Act 2004 (WA).
The appeal should be allowed, the sentence imposed by the sentencing judge on count 1 set aside and the appellant resentenced.

Grounds 2, 3 and 4

It is unnecessary, in view of our decision based on ground 1, to deal with ground 2, 3 or 4. Leave to appeal on ground 4 should be refused.

The resentencing of the appellant

This court has the material necessary to resentence the appellant.
The so‑called tinkering principle does not, of course, apply where this court's jurisdiction to resentence an offender is enlivened and the court re‑exercises the sentencing discretion. See The State of Western Australia v Tittums;[6] Jones.[7]
[6] The State of Western Australia v Tittums [2018] WASCA 23; (2018) 83 MVR 476 [114] (Buss P & Mazza JA).
[7] Jones [28].
The maximum penalty for count 1 (that is, the home burglary contrary to s 401(2)(b) of the Code) is 18 years' imprisonment.
We have had regard to the sentencing pattern revealed by:
(a)previous cases of home burglary, contrary to s 401(2)(b) of the Code, including Fullgrabe v The State of Western Australia;[8] Pham v The State of Western Australia;[9] Harding v The State of Western Australia;[10] Newport v The State of Western Australia;[11] Burnes v The State of Western Australia;[12] Cummins v The State of Western Australia;[13] and the case

referred to in those decisions and other cases referred to by counsel for the appellant; and
(b)previous cases of aggravated home burglary, contrary to s 401(2)(a) of the Code (taking into account the aggravating aspect of the offence and that the maximum penalty is 20 years' imprisonment), including Mamkin v The State of Western Australia;[14] Hume v The State of Western Australia;[15] Humphreys v The State of Western Australia;[16] and Jolly v The State of Western Australia.[17]
[8] Fullgrabe v The State of Western Australia [2013] WASCA 130.
[9] Pham v The State of Western Australia [2013] WASCA 203.
[10] Harding v The State of Western Australia [2015] WASCA 27.
[11] Newport v The State of Western Australia [2015] WASCA 224.
[12] Burnes v The State of Western Australia [2017] WASCA 77.
[13] Cummins v The State of Western Australia [2017] WASCA 135.
[14] Mamkin v The State of Western Australia [2017] WASCA 61.
[15] Hume v The State of Western Australia [2017] WASCA 205.
[16] Humphreys v The State of Western Australia [2017] WASCA 208.
[17] Jolly v The State of Western Australia [2017] WASCA 181.

We would afford the appellant a discount of 20% on the 'head sentence' (as defined in s 9AA(1)) for his plea of guilty.
After applying that discount, and taking into account the facts and circumstances of the offending, the appellant's relative youth as a mitigating factor and all other relevant sentencing factors and principles, we would impose a sentence of 3 years' immediate imprisonment for count 1. The new sentence should be backdated to 26 January 2017. The appellant should remain eligible for parole.
As to count 2, we would not interfere with the sentencing judge's decision to order, pursuant to s 11 of the Sentencing Act, that there be no further punishment in respect of that count.

MITCHELL JA:

For the following reasons, I agree with Buss P and Mazza JA that this appeal should be allowed. I agree that a sentence of 3 years' immediate imprisonment should be substituted for the sentence of 3 years 3 months' imprisonment which the sentencing judge imposed for count 1 on the indictment.

Introduction

At some time between 10.30 am and 3.05 pm on 11 January 2017, the appellant forced entry into a residence in Nedlands by smashing a rear glass door with an unknown item. Inside, the appellant rummaged through numerous rooms, opening drawers and cupboards and tipping the contents onto the floor. The appellant stole electronic items,

jewellery and items of clothing, to the value of $59,183. He traded these items for drugs and other items of minimal value which did not reflect the true worth of the stolen property.[18] The appellant's fingerprint was located on a printer cartridge box located in the study of the premises. No-one was at home at the time of the burglary. The sentencing judge inferred that the invasion of privacy would have an ongoing psychological and emotional impact on the complainant.[19]

[18] Sentencing ts 8 - 9.
[19] Sentencing ts 30.

The appellant was arrested on 26 January 2017. He refused to participate in a recorded interview with police.[20] The appellant was charged with one count of burglary, contrary to s 401(2) of the Criminal Code, and one count of stealing. He pleaded guilty to both offences on 17 February 2017.
[20] Sentencing ts 8.
The sentencing judge accepted that the appellant pleaded guilty to the offences at the first reasonable opportunity. However, his Honour only allowed a discount of 10% under s 9AA of the Sentencing Act 1995 (WA). The sentencing judge gave the following reasons for allowing that discount:[21]
You have pleaded guilty. That is a mitigating factor. You are entitled to a reduction in sentence by reason of the plea. I accept that it was made on 17 February 2017 and that it was at the earliest reasonable opportunity.
It was of course, in the face of a strong State case. The plea is also inconsistent with your refusal at the first opportunity to assist with the investigating officers. But it is to your credit that you have entered the plea and in doing so, you have saved the State the time and cost of a trial and also avoided the continuing impact of the offence on the victim, of having to participate in a trial process.
In my view, having regard to the relevant considerations, the appropriate discount for the plea is 10 per cent. This requirement does not prevent the court from reducing the head sentence because of any other mitigating factors. (emphasis added)
[21] Sentencing ts 30.
The sentencing judge sentenced the appellant to 3 years 3 months' immediate imprisonment for the burglary offence, and, pursuant to s 11 of the Sentencing Act, imposed no penalty for the stealing offence.[22] The sentence was backdated to 26 January 2017 to take account of time spent in custody on remand, and the appellant was made eligible for parole. The appellant now appeals against this sentence.

Grounds 1 and 2: application of s 9AA of the Sentencing Act

[22] Sentencing ts 33.

Ground 1 contends that the sentencing judge erred in determining that the strength of the prosecution case was such that a reduction of only 10% was appropriate under s 9AA of the Sentencing Act.
Ground 2 contends that the sentencing judge erred by taking into account an irrelevant consideration, namely the appellant's refusal to cooperate with investigating officers, in determining the reduction under s 9AA of the Sentencing Act. The appellant contends that the sentencing judge took that consideration into account in the sentence emphasised in the passage quoted at [50] above.
On 19 November 2017, Mazza JA granted leave to appeal on grounds 1 - 3, and referred the application for leave to appeal on ground 4 to the hearing of the appeal.

Section 9AA of the Sentencing Act

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.[23] The court may reduce the head sentence:
[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.[24]
[23] Section 9AA(1) of the Sentencing Act (definition of 'head sentence').
[24] Kirby v The State of Western Australia [2016] WASCA 199 [24] and cases there cited.
The benefits to the State which may result from a plea would ordinarily include the matters in the following non-exhaustive list:[25]
(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.
[25] Abraham v The State of Western Australia [2014] WASCA 151; (2014) 244 A Crim R 1 [56].
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.[26]
[26] Sentencing Act s 9AA(4)(b).
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.[27]
[27] Abraham [62]; Kirby [25].
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 [56](a) above. The strength of the prosecution case may also effect the length of a trial and the legal resources it requires, although this will not always be the case.[28]
[28] Beins v The State of Western Australia (No 2) [2014] WASCA 54 [58]; Abraham [58] - [61]; Kirby [26].
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.[29]
[29] House v The King (1936) 55 CLR 499, 505.

Ground 1: inferred error

In my 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 appellant's plea of guilty was made at the first reasonable opportunity. His plea of guilty meant that the complainant was not required to testify at trial. The State obtained all of the kinds of the benefits identified at [56](a) - (e) above.
It may be accepted that the State's case was strong as, in the absence of anything to explain how his fingerprint came to be on the printer cartridge box, a jury might well conclude that the only reasonable inference is that it was left as the appellant conducted the burglary. However, it would still be necessary for the State to call forensic evidence of the location of the fingerprint, and expert evidence to identify the appellant as the person whose fingerprint was located on the printer box. If the State proved that the appellant's fingerprint was on the printer cartridge box, the prosecution case still required the jury to draw an inference from the presence of the fingerprint that the appellant committed the burglary, and be satisfied that this was the only reasonable inference open on all the evidence. While it may be characterised as strong, the prosecution case was not so overwhelming as to make conviction inevitable, such as might occur where an offender is clearly shown committing the offence on CCTV video or makes a full confession of the offence to police. The value of the plea in securing the appellant's conviction remained, as did the avoidance of the expenses associated with a trial.
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 complainant 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: irrelevant consideration

Both parties accept that the appellant's failure to cooperate with police was an irrelevant consideration under s 9AA in the present case.[30]
[30] Appellant's Submissions [21]; Appeal ts 11.
The existence or absence of cooperation with police will not always be a completely irrelevant consideration. For example, a confession made to police will tend to increase the strength of the prosecution case, which may reduce the value of the benefits to the State resulting from the plea. In that manner, the making of a confession may be a factor which tends to reduce the extent of the discount which a sentencing judge may consider appropriate under s 9AA. Of course, in such a case, the sentencing judge will also take into account the mitigating effect of cooperation, which may counterbalance the reduction in discount under s 9AA attributable to the increased strength of the prosecution case resulting from a confession.
However, the absence of cooperation with police can only tend to weaken the prosecution case and make the case more difficult to prosecute. At least ordinarily, the absence of cooperation will not diminish the benefits to the State resulting from a subsequent plea of guilty, so as to lead to a reduction of the discount given under s 9AA of the Sentencing Act. That was so in the present case. In these circumstances, the concession by the State noted at [64] above was correctly made.
The parties adopted different positions as to whether the sentencing judge took the lack of cooperation into account in determining the appropriate discount under s 9AA of the Sentencing Act.[31] It is not entirely clear whether, by the emphasised part of the passage set out at [50] above, the sentencing judge was using a lack of cooperation as a reason for reducing the discount, or was merely referring to the absence of another mitigating factor. Given that ground 1 has been established, it is unnecessary to resolve this question of construction of the sentencing judge's remarks.
[31] Appellant's Submissions [20]; Respondent's Submissions [28] - [31]; Appeal ts 11 - 12.

Grounds 3 and 4

The appellant also appeals on the grounds that the sentencing judge erred in concluding that the appellant did not have youth as a mitigating factor (ground 3), and by imposing a sentence which was manifestly excessive (ground 4). The success of ground 1 means that it is also unnecessary to resolve these other grounds.

Whether a different sentence should be imposed

This court may allow an appeal against sentence if, in its opinion, a different sentence should have been imposed.[32] Where an error of principle has been established, this court must consider afresh the sentence which, in its view, ought to have been imposed. 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.[33] 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 sentence which is commensurate with the seriousness of the appellant's burglary offence.
[32] Section 31(4)(a) of the Criminal Appeals Act 2004 (WA).
[33] McGarry v The Queen [2001] HCA 62; (2001) 207 CLR 121 [8] - [9].
Under s 401(2) of the Criminal Code, 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. The indictment charged that, on 11 January 2017 at Nedlands, the appellant while in the place of the complainant without her consent, committed the offence of stealing. It was pleaded that the place was ordinarily used for human habitation.
If the offence is a home burglary not committed in circumstances of aggravation, the maximum penalty for an offence against s 401(2) of the Criminal Code is imprisonment for 18 years.[34] That is the maximum penalty applicable in the present case. Where one of the circumstances of aggravation specified in s 400(1) of the Criminal Code is established (which was not the case here), then the maximum penalty is 20 years' imprisonment.[35]
[34] Section 401(2)(b) of the Criminal Code.
[35] Section 401(2)(a) of the Criminal Code.
Although the appellant had prior home burglary convictions to which reference is made at [75] below, he was not a 'repeat offender' for the purposes of s 401 of the Criminal Code.[36] Had he been a repeat offender, the minimum penalty would have been 2 years' immediate imprisonment.[37]
[36] 'Repeat offender' is defined in s 401B of the Criminal Code.
[37] Section 401(4)(b)(i) and s 401(5) of the Criminal Code.
The circumstances of the offence are described at [48] above. The appellant's personal circumstances must also be considered.
The appellant was 22 years old at the time of the offence, and 23 years old at the time of sentence. He is a young Aboriginal man who had a comparatively supportive upbringing in the care of his paternal grandmother, but had little contact with his parents. He completed year 10 in school and has engaged in limited employment since that time. At the time of the offending, the appellant was using cannabis and methamphetamine on a daily basis.
The appellant had a significant criminal record as both an adult and juvenile. Most significantly, his prior offences included four aggravated home burglary offences committed on 27 December 2013, for which the appellant initially received intensive supervision and suspended imprisonment orders. He subsequently breached those orders and received a total effective sentence of 9 months' immediate imprisonment from 20 April 2015.
In a finding unchallenged on appeal, the sentencing judge concluded that the appellant lacked remorse and insight in relation to the seriousness of his offending.[38] In his presentence interview, the appellant himself doubted his capacity to abstain from substance abuse on his release from custody. These matters elevated the significance of personal deterrence and community protection as sentencing considerations. The extent of the appellant's prior offending and his poor prospects of immediate rehabilitation moderate what would otherwise be the mitigating effect of his relative youth.
[38] Sentencing ts 32.
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.[39]
[39] 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].
The present case involves a home burglary where the occupants were absent at the time, and so is not in the most serious of the categories discussed above. Nonetheless, it represents a serious offence, particularly given what the sentencing judge referred to as the appellant having 'trashed' the house,[40] and the very significant value of the property stolen. Further, the stolen property included items which would be of irreplaceable sentimental or personal value to the complainant, such as personal jewellery and electronic devices containing personal data and images.
[40] Sentencing ts 29.
The prevalence and seriousness of this kind of burglary, involving breaking into and rummaging through an empty home in a search for property to steal, was emphasised by the Court of Criminal Appeal in Herbert v The Queen.[41] The court also emphasised the need for a firming up of sentences for the offence.[42] In that case, sentences of 5 years' imprisonment (equivalent to 3 years 4 months post-transitional) in respect of each of 4 counts of a home burglary, following a plea of guilty, were held not to be manifestly excessive. The decision in Herbert has been approved by subsequent cases.[43]
[41] Herbert v The Queen [2003] WASCA 61; (2003) 27 WAR 330.
[42] Herbert [5] - [7], [133], [168] - [171].
[43] Pollock v The State of Western Australia [2004] WASCA 280 [49]; Sulejmani v The State of Western Australia [2005] WASCA 95 [21]; Buxton v The State of Western Australia [2009] WASCA 6 [17] and Conley v The State of Western Australia [2013] WASCA 95 [29] - [31].
A subsequent review of the cases by Steytler P, in Nguyen v The State of Western Australia,[44] noted a number of cases where sentences for burglary offences of between 18 months and 2 years 8 months' imprisonment were imposed or upheld on appeal. In Nguyen, Steytler P, with whom other members of the court agreed, observed that it was difficult to suggest that any of the individual sentences of between 18 months and 2 years 8 months' imprisonment imposed in that case for non-aggravated home burglaries were manifestly excessive.[45] Since that time there have been few appeals to this court concerning challenges to individual sentences imposed for offences of non-aggravated home burglary.[46]
[44] Nguyen v The State of Western Australia [2007] WASCA 114 [14].
[45] Nguyen [15].
[46] See Pham v The State of Western Australia [2013] WASCA 203; Newport v The State of Western Australia [2015] WASCA 224; Harding v The State of Western Australia [2015] WASCA 27.
By comparison, sentences imposed for the generally more serious home invasion offences were reviewed by Hall J in Wragg. His Honour noted that the sentence of 4 years 6 months' immediate imprisonment imposed on an offender with poor antecedents was 'towards the higher end of the range for a home invasion accompanied by an assault' but did not stand outside the range customarily imposed.[47]
[47] Wragg [62]. See also Page; Humphreys v The State of Western Australia [2017] WASCA 208; Jolly v The State of Western Australia [2017] WASCA 181; McIntyre.
Of course, a sentencing range for comparable cases does not fix the range of a sound exercise of the sentencing discretion in a particular case. Further, the outcome in Herbert, adjusted to take account of the transitional provisions and the fact that there were pleas of guilty, suggests that 4 years 6 months' imprisonment may be an appropriate 'head sentence' (within the meaning of s 9AA(1)) in some cases where an offender is convicted after trial of a serious non-aggravated home burglary and there are no mitigating circumstances. The review of cases in Wragg suggests that a sentence of 4 years 6 months on a plea of guilty stands towards the higher end of the range of offences imposed for the generally more serious category of violent home invasions. This contrast in turn suggests that the need for a firming up of burglary sentences identified in Herbert may not have been implemented in the more serious cases of home invasion burglary accompanied by violence to the occupants. It may be noted that the cases reviewed in Wragg involved appeals by offenders against their sentence. The dismissal of those appeals reflects the court's view that those sentences were not unreasonable or plainly unjust, but does not, of itself, fix the upper or lower limit of a range of appropriate sentences.

Although there have been a number of State appeals against sentence since the decision in Herbert, none are comparable to the present case.[48]
[48] R v Barbis [2003] WASCA 107 and The State of Western Australia v Miller [2005] WASCA 53; (2005) 30 WAR 38 (a total effective sentence of 6 years' imprisonment imposed for sexual penetrations committed during a home burglary) were decided at a time when special rules governed prosecution appeals against sentence. In The State of Western Australia v Peacock [2013] WASCA 248 (suspended sentence of 2 years 6 months' imprisonment imposed after trial) a longer term of immediate imprisonment would have been imposed but for a State concession that it was appropriate to suspend the sentence and parity considerations: see [38] - [39].
Ultimately, as Mazza JA (Newnes JA agreeing) noted in Conley,[49] each case must be decided on its own facts.
[49] Conley [31].
In the present case the appellant's offence consisted of rummaging through the complainant's home in a highly intrusive manner. The property taken was of significant financial value, and much of it would have been or included material that was of high personal value. The property was not recovered. There was an elevated need for general and personal deterrence, and for community protection. Apart from the appellant's plea of guilty at the first reasonable opportunity, there were no mitigating factors to which significant weight could be given. A sentence of immediate imprisonment is clearly the only appropriate sentencing option.
In my view, in all the circumstances of this case, the appropriate sentence for the burglary offence is 3 years' immediate imprisonment, which incorporates a discount of 25% under s 9AA of the Sentencing Act. I am therefore of the view that a different sentence should have been imposed.

Orders

For these reasons, I would make the following orders in the appeal:
(1)Leave to appeal on ground 4 is refused.
(2)The appeal is allowed.
(3)The sentence imposed by the District Court of Western Australia for count 1 on indictment 312 of 2017 is set aside and there is substituted a sentence of 3 years' immediate imprisonment.
(4) The sentence imposed by order 3 is taken to have begun on 26 January 2017.
(5)The appellant is eligible for parole.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
ET
RESEARCH ASSOCIATE/ORDERLY TO THE HONOURABLE JUSTICE MITCHELL
3 SEPTEMBER 2018