Worthington v The State of Western Australia

[2016] WASCA 57

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT :   THE COURT OF APPEAL (WA)

CITATION:   WORTHINGTON -v- THE STATE OF WESTERN AUSTRALIA [2016] WASCA 57

CORAM:   BUSS JA

MAZZA JA

HEARD:   17 MARCH 2016

DELIVERED          :   8 APRIL 2016

FILE NO/S:   CACR 205 of 2015

BETWEEN:   MICHAEL SEAN WORTHINGTON

Appellant

AND

THE STATE OF WESTERN AUSTRALIA
Respondent

ON APPEAL FROM:

Jurisdiction              :  DISTRICT COURT OF WESTERN AUSTRALIA

Coram  :PETRUSA DCJ

File No  :IND 611 of 2015

Catchwords:

Criminal law - Offences of aggravated burglary, burglary, stealing and fraud - Application for an extension of time within which to appeal - Application for leave to appeal against sentence - Total effective sentence 6 years 6 months' imprisonment - Totality

Legislation:

Criminal Code (WA), s 371A, s 378, s 400, s 401, s 409
Sentencing Act 1995 (WA), s 9AA

Result:

Extension of time granted
Leave to appeal refused
Appeal dismissed

Category:    B

Representation:

Counsel:

Appellant:     In person

Respondent:     No appearance

Solicitors:

Appellant:     In person

Respondent:     Director of Public Prosecutions (WA)

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

Burrows v The State of Western Australia [2014] WASCA 147

Howorth v The State of Western Australia [2007] WASCA 78

Pennetta v The State of Western Australia [2013] WASCA 234

Spry v The State of Western Australia [2013] WASCA 68

Whitby v The State of Western Australia [2014] WASCA 99

1. JUDGMENT OF THE COURT:    Before the court is the appellant's application for an extension of time within which to appeal and, if granted, his application for leave to appeal against sentence. 

Application for an extension of time within which to appeal

1. The appeal was filed approximately five weeks out of time.  The appellant's affidavit in support of the application for an extension of time adequately explains the delay.  We would grant an extension of time. 

Background

1. On 25 September 2015, the appellant pleaded guilty before Petrusa DCJ to an indictment containing 20 counts, being two counts of aggravated burglary of a dwelling, three counts of burglary of a dwelling, three counts of stealing, one count of stealing a motor vehicle and 11 counts of fraud. 

2. On the same day, he was sentenced by her Honour to a total effective sentence of 6 years 6 months' imprisonment.

3. The appellant does not challenge the individual sentences imposed upon him; rather, his sole proposed ground of appeal alleges that his total effective sentence infringed the first limb of the totality principle. 

Facts of the offending

1. The charges relate to conduct engaged in by the appellant over a seven‑week period between 22 August 2014 and 16 October 2014.  During this period, the appellant broke into five houses from which he stole property; on one occasion, he stole a boat, a trailer and a motor car.  He also used credit cards taken from two of the houses to purchase various items.  Her Honour described the essential features of the appellant's offending in these terms:

   With respect to count 1, you broke into the victim's home through an unlocked garage door at about 8.20 in the morning and stole $4,100 worth of property.  The pregnant householder and her two‑year‑old daughter were at home at the time.  You were identified by fingerprints.

   In respect of count 2, you broke into the occupant's home at 1.10 in the morning by entering through an unlocked garage door and stole about $770 worth of property.  You were disturbed and came face to face with an occupant. You were identified by DNA.

   In relation to counts 3 to 5 on the indictment, you gained entry to the house at about 7 o'clock at night by smashing a rear glass sliding door.  Once inside, you stole a large amount of property, and you stole a trailer and a boat to a total value of $35,000.  You then took a car from the house valued at $11,000, making the total value of the property that you took about $46,000.  And you were identified by DNA.

   In relation to count[s] 6 and 7, you gained entry to a house by smashing the laundry door and taking property valued at about $9,900.  You were identified when items of property from this burglary were located during the search of your house conduct [sic] - or at least where you were living - on 15 October 2014.

   One of the items you stole was a credit card, and you subsequently used that credit card to purchase items from Telstra on three occasions.  It's that latter conduct, those three occasions, that constitutes counts 8 to 10.  In total you obtained $137.21 worth of property when you used the credit card.

   In relation to count 11, you gained entry to the house by smashing a rear glass window, and stole property belonging to the owner, to a total value of about $4,000.  During this burglary you also stole a credit card belonging to the householder's son, and that's the subject of count 12.

   You then used that stolen credit card on eight occasions to purchase items. You purchased items from Telstra in four separate transactions, and then from Woolworths, Kmart, Coles and McDonald's.  The use of the credit card on those occasions constitutes counts 13 to 20 on the indictment.  The total value of the property you obtained using that credit card was $380.09 (sentencing ts 30 ‑ 31).

2. The appellant's offending led to gross property losses of at least $60,000.  Some of the property stolen by the appellant was recovered.  The victim of the offences constituted by counts 3 to 5 provided a victim impact statement in which she stated that some of the items stolen by the appellant had considerable sentimental value. 

Individual sentences imposed

1. The individual sentences of imprisonment imposed upon the appellant were as follows:

Offences charged				Sentence of imprisonment
Count	Date of the offence	Description of the offence	Section of the Criminal Code (WA)
1	22 August 2014	Aggravated burglary of a dwelling	s 401(2)(a)	18 months (cumulative)
2	9 September 2014	Aggravated burglary of a dwelling	s 401(2)(a)	20 months (concurrent)
3	On or about 27 September 2014	Burglary of a dwelling	s 401(2)(b)	3 years 6 months (cumulative)
4	On or about 27 September 2014	Stealing	s 378	18 months (concurrent)
5	On or about 27 September 2014	Stealing a motor vehicle (as defined in section 371A of the Criminal Code)	s 371A, s 378	12 months (concurrent)
6	On a date unknown between 7 October 2014 and 13 October 2014	Burglary of a dwelling	s 401(2)(b)	18 months (concurrent)
7	On a date unknown between 7 October 2014 and 13 October 2014	Stealing	s 378	12 months (concurrent)
8	12 October 2014	Gained a benefit by fraud	s 409(1)(c)	3 months (concurrent)
9	13 October 2014	Gained a benefit by fraud	s 409(1)(c)	3 months (concurrent)
10	13 October 2014	Gained a benefit by fraud	s 409(1)(c)	3 months (concurrent)
11	On a date unknown between 7 October 2014 and 16 October 2014	Burglary of a dwelling	s 401(2)(b)	18 months (cumulative)
12	On a date unknown between 7 October 2014 and 16 October 2014	Stealing	s 378	1 month (concurrent)
13	14 October 2014	Gained a benefit by fraud	s 409(1)(c)	3 months (concurrent)
14	14 October 2014	Gained a benefit by fraud	s 409(1)(c)	3 months (concurrent)
15	14 October 2014	Gained a benefit by fraud	s 409(1)(c)	3 months (concurrent)
16	14 October 2014	Gained a benefit by fraud	s 409(1)(c)	3 months (concurrent)
17	14 October 2014	Gained a benefit by fraud	s 409(1)(c)	3 months (concurrent)
18	14 October 2014	Gained a benefit by fraud	s 409(1)(c)	3 months (concurrent)
19	14 October 2014	Gained a benefit by fraud	s 409(1)(c)	3 months (concurrent)
20	14 October 2014	Gained a benefit by fraud	s 409(1)(c)	3 months (concurrent)

1. As may be seen from the table, her Honour ordered that the sentences imposed on counts 1, 3 and 11 be served cumulatively upon each other and that all of the other sentences be served concurrently; thus, the total effective sentence imposed was 6 years 6 months' imprisonment.  The appellant was made eligible for parole and the sentences were ordered to commence on 15 October 2014.

The appellant's personal circumstances

1. The appellant was 37 years old at the time of the offending and 38 years old when he was sentenced.  The pre‑sentence and psychological reports noted that the appellant had a dysfunctional childhood, which her Honour described as being 'characterised by parental violence and substance misuse, parental separation, neglect and abuse' (sentencing ts 32).  At a young age, he ran away from home and associated with older persons who encouraged his offending and substance abuse.

2. The appellant has what her Honour described as an 'appalling criminal record' (sentencing ts 31). As an adult, he has been convicted of 27 prior burglary offences. Relevantly to the burglary offences, he was a repeat offender: see s 400(3) and s 401(4) of the Criminal Code.  In addition, he has convictions for various dishonesty offences, including attempting to pervert the course of justice.  He also has convictions for assault, traffic matters, breaches of bail, resisting police and drug possession.  The offending the subject of this appeal occurred only five months after the appellant completed his last term of imprisonment for assault occasioning bodily harm and burglary offences.  The psychological report noted that the appellant had become institutionalised. 

The sentencing remarks

1. The only mitigating factor of significance identified by her Honour was the appellant's pleas of guilty for which he received a discount of 15% pursuant to s 9AA of the Sentencing Act 1995 (WA). There was no mitigation to be found in his personal circumstances. The appellant did not express remorse. Her Honour said that personal and general deterrence were significant factors in the exercise of her discretion. So too was community protection. Her Honour expressly had regard to the totality principle.

The appellant's submissions to this court

1. The appellant accepts that some accumulation of the individual sentences imposed was justified.  He also concedes that, because he was a repeat offender, her Honour was required to impose sentences of immediate imprisonment of at least 12 months with respect to the burglary offences.  The appellant's principal argument was that, having regard to other cases decided in this court, his total effective sentence infringed the first limb of the totality principle. 

Disposition of the proposed ground of appeal

1. This court cannot intervene unless the appellant demonstrates that the learned sentencing judge made a material express or implied error.  An alleged breach of the totality principle is an allegation of implied error.  The first limb of the totality principle requires that the total effective sentence imposed on an offender who has committed multiple offences bears a proper relationship to the overall criminality involved in all of the offences, viewed in their entirety and after having regard to, first, the circumstances of the case, including those referable to the offender personally; and second, the total effective sentences imposed in comparable cases. 

2. The maximum penalty for the offence of aggravated burglary of a dwelling is 20 years' imprisonment; burglary of a dwelling is 18 years' imprisonment; stealing is 7 years' imprisonment; and fraud is 7 years' imprisonment.

3. As this court has already said on numerous occasions, the primary sentencing considerations in relation to home burglary are personal and general deterrence.  Ordinarily, a substantial penalty is imposed.  It is evident that sentences for home burglary have firmed up over time: Spry v The State of Western Australia [2013] WASCA 68 [36].

4. There is no tariff for home burglary because it is an offence committed in very diverse circumstances by offenders whose personal circumstances may widely differ.  In Howorth v The State of Western Australia [2007] WASCA 78, the court said, after examining a number of cases involving multiple counts of burglary and aggravated burglary:

   There are no hard and fast rules in relation to sentencing for multiple offending of this kind. Having regard to the very great variations in the number of possible offences, and in the possible combinations of offences, comparison is difficult [30].

5. It is plain from the facts of the offending that each of the burglaries committed by the appellant were serious.  The circumstances of the burglary in count 3 and the allied offences in counts 4 and 5 involved the theft of a large amount of property, valued at some $46,000.  Although count 3 was not an aggravated burglary, it was clearly the most serious of the offences committed by the appellant and warranted the longest of the individual sentences imposed for the burglary offences.  Given the number of offences and the multiple occasions upon which offences were committed, it was appropriate for the learned sentencing judge to accumulate some of the sentences imposed. 

6. Apart from the appellant's pleas of guilty, there were no other material mitigating factors.  His personal circumstances are unfavourable.  While he is not to be punished again for the offences he has committed in the past, and his prior criminal record is not an aggravating factor, the appellant's prior offending underscores the need for personal deterrence and public protection.

7. The appellant placed particular reliance on this court's decision in Pennetta v The State of Western Australia [2013] WASCA 234 to support his argument that the total effective sentence infringed the first limb of the totality principle. In that case, the appellant had pleaded guilty to a large number of offences, including multiple burglaries. He had poor antecedents. He was sentenced to a total effective sentence of 7 years' imprisonment. This court found that the total effective sentence did not infringe the first limb of the totality principle, refused his application to extend time and dismissed the appeal.

8. The outcome of one case said to be comparable does not dictate the outcome in every other case.  In any event, having regard to Pennetta and the cases cited by Hall J in his reasons at [41] ‑ [44] in that case, it may be seen that the total effective sentence imposed upon the appellant was broadly consistent with that and other comparable cases. See also Whitby v The State of Western Australia [2014] WASCA 99; Burrows v The State of Western Australia [2014] WASCA 147.

9. In our opinion, although the total effective sentence of 6 years 6 months' imprisonment was substantial, it is not reasonably arguable that it was, in all of the circumstances of the case, erroneous.  The total effective sentence bore a proper relationship to the appellant's overall criminality, viewed in its entirety and having regard to the circumstances of the case, including the appellant's personal circumstances, and the total effective sentences imposed in comparable cases. 

Conclusion and orders

1. The proposed ground of appeal has no reasonable prospect of succeeding.  We would not give leave to appeal in respect of it.  Accordingly, the appeal must be taken to have been dismissed.

2. The orders that we would make are as follows:

   1.An extension of time is granted.

   2.Leave to appeal is refused.

   3.The appeal is dismissed.