Mason v. The State of Western Australia

Australia

04.04.2018

Criminal

Offence of aggravated burglary attracts a term of immediate imprisonment

The Appellant appeals against the suspended term of imprisonment imposed upon him on his conviction, following his plea of guilty, of an offence of aggravated burglary. The Appellant contends that, it was not open to the sentencing judge to conclude that a sentence of imprisonment was the only appropriate sentencing decision. The sole ground of appeal asserts implied error. The ground contends that, having regard to all the relevant circumstances, it was not the case that only a sentence of imprisonment could be justified.

In essence, the Appellant submits that, having regard to all relevant sentencing factors, the appropriate disposition was not a sentence of imprisonment, suspended or otherwise. The Appellant emphasises that, imprisonment is a sentence of last resort and cannot be imposed unless the Court is satisfied that only imprisonment can be justified. He submits that this offence was towards the lower end of the scale.

The offence of aggravated burglary carries a maximum sentence of 20 years' imprisonment, reflecting its seriousness. 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 to reflect the prevalence of the offence.

Ordinarily, the offence of aggravated burglary attracts a term of immediate imprisonment. The Appellant has pointed to cases in which sentences other than imprisonment were imposed for one or more offences of aggravated burglary. The circumstances of the offenders in those cases were markedly different from the circumstances of the Appellant. In any event, the fact that, as with many serious offences, examples can be found where a non-custodial sentence is imposed, does not demonstrate that the penalty of imprisonment in this case was outside the range of a sound sentencing discretion.

While considerably more serious examples of aggravated burglary can readily be imagined, the Appellant's offence was not without serious features. He entered a home at 3.30 am when, as was to be expected, the occupants were sleeping. In doing so, the Appellant created the real potential for confrontation and the possibility of un-intended injury and damage. That was magnified by the fact that the Appellant was under the influence of drugs when he committed the offence. Further, the Appellant disturbed a 12-year-old girl who was asleep in her bedroom. These features of the Appellant's offence engage considerations that underpin the seriousness of home burglary offences in general, reflected in the maximum penalty. Home burglaries are apt to create a sense of intrusion and fear for people whose home is the subject of a burglary. Those responses are liable to be heightened where, as here, the occupants are present, when the offence is committed.

The Appellant had significant mitigating factors in his favour. These included his plea of guilty at the first reasonable opportunity, his remorse, his co-operation with the police, and his significant intellectual disability which was causally relevant to the offence. However, it was open to the sentencing judge to form the view that, when these were weighed against the seriousness of the offence, a conditionally suspended imprisonment was the appropriate disposition. It was open to conclude, as the sentencing judge did, that any lesser option than imprisonment, including an intensive supervision order, would not have been commensurate with the seriousness of the offence. While the Appellant's mental impairment meant that, the significance of general deterrence was substantially reduced, it could not be said to be eliminated, particularly bearing in mind that, the Appellant was acting under the influence of prohibited drugs when he committed the offence. Moreover, the Appellant's use of illicit drugs was relevant to his risk of re-offending. Personal deterrence was a material factor in the sentencing process.

Tags : Home burglary Sentence Validity

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