Young v The State of Western Australia

[2011] WASCA 100

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT :   THE COURT OF APPEAL (WA)

CITATION:   YOUNG -v- THE STATE OF WESTERN AUSTRALIA [2011] WASCA 100

CORAM:   McLURE P

MAZZA J

HEARD:   5 APRIL 2011

DELIVERED          :   19 APRIL 2011

FILE NO/S:   CACR 220 of 2010

BETWEEN:   ANDREW HARLEY YOUNG

Appellant

AND

THE STATE OF WESTERN AUSTRALIA
Respondent

ON APPEAL FROM:

Jurisdiction              :  DISTRICT COURT OF WESTERN AUSTRALIA

Coram  :KEEN DCJ

File No  :IND 923 of 2010

Catchwords:

Criminal law - Appeal against sentence - Aggravated burglary - Whether sentence manifestly excessive - Whether sentencing judge erred in failing to suspend the term of imprisonment imposed

Legislation:

Criminal Appeals Act 2004 (WA), s 27(1), s 27(2)
Criminal Code (WA), s 401(2)
Young Offenders Act 1994 (WA), s 189

Result:

Leave 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):

Chan v The Queen (1989) 38 A Crim R 337

Moody‑Jackamarra v The State of Western Australia [2007] WASCA 7

Samuels v The State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473

Wilson v The State of Western Australia [2010] WASCA 82

1. McLURE P:  I agree with Mazza J.

2. MAZZA J: This is an application for leave to appeal against sentence. Leave to appeal is required on each ground of appeal: s 27(1) of the Criminal Appeals Act 2004 (WA). The court must not grant leave to appeal on a ground, unless it is satisfied that the ground has a reasonable prospect of succeeding: s 27(2) of the Criminal Appeals Act.  To have a reasonable prospect of succeeding, a ground must have a rational and logical prospect of succeeding or a real prospect of success:  Samuels v The State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473 [56].

3. The appellant was convicted, after a trial before Keen DCJ and a jury, in the District Court at Perth, of one count of aggravated burglary, contrary to s 401(2) of the Criminal Code (WA). On 16 November 2010, he was sentenced to 15 months' immediate imprisonment with eligibility for parole.

4. The appellant seeks to appeal on two grounds.  The effect of those grounds is to allege that the sentence was manifestly excessive, in that his Honour erred in failing to suspend the term of imprisonment he imposed.

Background

1. The complainant, CF, suffers from a serious genetic disease called osteogenesis imperfecta, otherwise known as brittle bone disease.  He stands only about four feet tall and, although he is able to walk, he is physically vulnerable.  He occupied premises in Belmont with a man named AB.  AB had previously shared accommodation with the appellant and his mother.  According to the appellant, AB owed the appellant's mother money for rent and for damage done to her car. 

2. On 15 June 2009, the appellant went to the Belmont premises and spoke to AB, apparently about the money AB allegedly owed to the appellant's mother.  On the following day, 16 June 2009, the appellant and two others returned to those premises.  The appellant spoke to the complainant and asked for AB.  The complainant told the appellant that AB was not there and that he should come back later. 

3. The appellant left, but very shortly afterwards returned.  When the complainant opened the flywire door, the appellant's two co‑offenders entered the house with the intention of stealing items to enable the appellant's mother to pay her bills. 

1. The appellant stayed with the complainant at the door, while the co‑offenders took the complainant's PlayStation 3 and wallet.  Because of his disability, the complainant was unable to do anything to prevent the theft of his property. 

2. Keen DCJ found that the offence was a serious example of its type.  He said:

   The present case in my view was a serious example.  I have described your involvement.  It was one where it can only be described as a home invasion, and involved a victim who was exceedingly vulnerable and could do nothing to protect himself or his property.  Not only that, but the man's condition was known to you at the time, and you took advantage of it (ts 241 ‑ 242).

3. At the time of the offending, the appellant was just 18 years of age. He left home at the age of 15, having experienced domestic violence by his mother's partner. After he left home, he began to associate with negative peers and progressed into alcohol and substance abuse. He committed a series of serious offences between 22 December 2007 and 16 April 2008, including offences of aggravated burglary, armed robbery, assault occasioning bodily harm and criminal damage. On 28 July 2008, he was sentenced in the Perth Children's Court to a 9‑month intensive youth supervision order with detention. His Honour was entitled to have regard to those convictions, pursuant to s 189 of the Young Offenders Act 1994 (WA).

4. Since the commission of the aggravated burglary, the appellant had relocated to Geraldton with his girlfriend, to get away from adverse influences in Perth and to start a new life.  He had secured accommodation there, and some employment. 

5. His Honour found the appellant was not remorseful for his offending. 

6. His Honour considered that general and specific deterrence were matters of importance.

7. His Honour concluded that the offence was so serious as to warrant only a term of imprisonment.  He considered whether that sentence should be suspended.  He took into account all relevant matters, including the appellant's age and prospects of rehabilitation.  He concluded that the offending was too serious to warrant suspension. 

8. The principles applicable to an appeal against sentence are well‑known and are set out in Wilson v The State of Western Australia [2010] WASCA 82 [2]. This court can only intervene if the appellant establishes that his Honour made an express or implied error. The grounds of appeal allege implied error.

9. In his written and oral submissions, the appellant emphasised his age, his move to Geraldton and his prospects of rehabilitation.  The appellant submitted that the sentence of immediate imprisonment that was imposed upon him did not reflect these matters and that the sentence should have been suspended. 

10. To determine whether a sentence is excessive, it is necessary to view it in the perspective of the maximum sentence for the offence, the standards of sentencing customarily observed, the place which the criminal conduct occupies in the scale of seriousness of crimes of that type, and the personal circumstances of the offender:  Chan v The Queen (1989) 38 A Crim R 337, 342.

11. Aggravated burglary is a serious offence which carries a maximum penalty of 20 years' imprisonment.  Although no violence was used in the present offence, his Honour was right to regard it as a serious example of its type, having regard to the vulnerability of the complainant.

12. McLure JA (with whom Steytler P agreed) observed in Moody‑Jackamarra v The State of Western Australia [2007] WASCA 7 [14] that the range of sentences imposed for burglary offences have firmed up in recognition of the fact that the prevalence of the offence has caused considerable community concern. Ordinarily, the offence attracts a term of immediate imprisonment, although, there are examples where a non‑custodial sentence is imposed in the appropriate circumstances.

13. His Honour had regard to the appellant's personal circumstances.  He was not a first offender.  Nevertheless, he was very young and has prospects for rehabilitation.  The appellant's youth and his prospects for rehabilitation were powerful mitigating factors.  These factors were reflected in the relatively short term of imprisonment that was imposed upon the appellant. 

14. His Honour adopted the correct two‑step process in considering whether to suspend the term of imprisonment.  Having regard to the complainant's vulnerability and the need for deterrence, a term of immediate imprisonment of 15 months was within the range of a sound sentencing discretion.

15. The sentence imposed upon the appellant was not manifestly excessive.  The proposed grounds of appeal do not have a reasonable prospect of success. 

16. The appeal must be dismissed.

17. The orders I would make are:

    1.Leave to appeal is refused.

    2.The appeal is dismissed.