Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA

File No : IND 494 of 2015, IND 1049 of 2015

Criminal law - Application for leave to appeal against sentence - Totality - Reckless and dangerous driving to escape pursuit, burglaries and aggravated assaults on public officers committed while subject to suspended imprisonment for unlicensed driving - Total effective sentence of 6 years' imprisonment - Turns on own facts

Road Traffic Act 1974 (WA), s 49AB(1)(c), s 60, s 61

AJ v The State of Western Australia [2016] WASCA 13

Chadd v The State of Western Australia [2013] WASCA 99

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

Roffey v The State of Western Australia [2007] WASCA 246

Worthington v The State of Western Australia [2016] WASCA 57

1 The appellant seeks leave to appeal against a total effective sentence of 6 years' imprisonment. That sentence was imposed for offences of reckless and dangerous driving to escape police pursuit, aggravated assault of public officers and five counts of aggravated burglary. Those offences were all committed while the appellant was subject to suspended imprisonment orders imposed for five counts of unlicensed driving. She contends that the total effective sentence infringes the first limb of the totality principle of sentencing.

2 For the following reasons, this ground of appeal has no reasonable prospect of success. Leave to appeal must be refused and the appeal dismissed.

Circumstances of the offences Dangerous driving on 20 February 2014

3 At about 6.30 pm on 20 February 2014, the appellant was driving a white BMW motor vehicle in Karawara, with a passenger in the car. The appellant refused to stop when a patrolling police vehicle activated its emergency lights to signal for her to pull over. She accelerated away, swerving around the police vehicle. At one point, the appellant drove on the wrong side of a busy road, and swerved in and out of traffic on another busy road while travelling at about 100 km per hour. Eventually, the BMW became caught in traffic, and the police car caught up and was positioned to stop the appellant from driving away.

4 Uniformed police officers ran to the BMW, and an officer reached in through an open window of the BMW and attempted to disengage the stop/start button. The vehicle stalled. Police told the appellant and her passenger that they were under arrest and to get out of the vehicle. An altercation ensued. The appellant attempted to wind up the car's window, which police smashed with a baton. The appellant and her passenger attempted to turn the ignition on, and police attempted to turn it off. The passenger was able to start the vehicle and the appellant drove off, throwing the two police officers to the ground. One officer suffered bruising and swelling to the bicep and rib area, but did not require medical treatment. The other officer had swelling to the right elbow and grazing to the knee and required medical treatment.

5 The appellant was convicted on her plea of guilty of one count of driving a motor vehicle in a manner that was dangerous to the public to escape police pursuit. She was also convicted of two counts of assault of a public officer, aggravated by the circumstance that she was in company.

6 Between 9 and 27 June 2014, the appellant committed five offences of aggravated burglary.

7 At about 8.30 am on 9 June 2014, the appellant entered a residence in Marangaroo by an unlocked door, while the 73-year-old resident was taking recycling items to her garage. The appellant rummaged through several drawers in two bedrooms, and stole items including jewellery. The occupier of the house returned and noticed that the rear door was ajar and heard noise from the bedroom.

8 At about 4.00 pm on 22 June 2014, the appellant and two co-offenders broke into a house in Dianella by breaking a rear window with a rock. The occupants of the house were not at home. Inside the house, the appellant stole a handbag and jewellery items before leaving the scene.

9 At about 5.00 pm on 22 June 2014, the appellant entered another house in Dianella by smashing a rear bedroom window and stole items of jewellery. The 74-year-old owner of the house arrived home to see the appellant or one of her associates coming out of a window carrying a bag and running to a car which drove away.

10 At about 4.25 pm on 23 June 2014, the appellant and two co-offenders entered a house in Gwelup by an unlocked rear gate and back door. Inside, they stole items including jewellery and a small television. The 78-year-old occupier of the house returned home and saw the appellant or one of her associates leaving the property carrying something, and entering a car which immediately drove away.

11 At about 12.45 pm on 27 June 2014, the appellant and a co-offender entered a house in Mount Lawley through an unlocked front door and stole the occupier's handbag containing cash and other items. The victim, who was outside the front of her house, saw the appellant and her co-offender leaving the house and fleeing over a rear fence.

12 The appellant used a stolen Toyota Camry bearing false licence plates to commit the burglary offences on 22 and 23 June 2014.

13 At about 12.50 pm on 24 June 2014, detectives saw the appellant driving from a shopping centre in Girrawheen and activated their vehicle's emergency lights to stop the Camry.

14 The Camry accelerated away at high speed, mounting a verge to avoid a car blocking the road. The appellant attempted to move to the wrong side of a busy road but was blocked by other cars. She travelled through a red traffic light at speed, causing other vehicles to brake to avoid a collision. The appellant drove down the wrong side of two busy roads for a number of kilometres, at one point forcing a car with a young child as a passenger to swerve and narrowly miss other vehicles. At another point, the appellant struck a police vehicle as she was attempting to go around it. She was chased by a police vehicle with its lights and sirens activated, but did not stop. Eventually, police ceased their pursuit and lost sight of the Camry.

15 The appellant was charged with reckless driving to escape police pursuit in respect of this incident.

16 The appellant was 29 years old at the time of sentence. At the time of the offences, she was using methylamphetamine on a daily basis. She committed the burglaries to fund her drug use.

17 The appellant's early life was dysfunctional. She suffered sexual abuse and used illicit drugs from a young age. She completed year 9 at school, but had not engaged in any paid employment. At the time of sentence, the appellant had three children and was expecting another child. She suffered from depression.

18 The sentencing judge noted that the appellant had taken positive steps towards rehabilitation and was reported to be well-motivated. The appellant had worked voluntarily in an organisation, in which her current partner was involved, that provided mentoring, support and counselling to Aboriginal people.

19 The appellant had a significant adult criminal record, including a prior conviction for burglary and convictions for assault. At the time of committing the offences she was subject to sentences of 8 months' imprisonment suspended for 12 months. The suspended sentences were imposed by the Magistrates Court in January 2014 for five counts of unlicensed driving.

20 The appellant was in custody from her arrest on 30 June 2014 until her release on bail on 26 September 2015. The appellant was sentenced on 24 June 2016.

21 The sentencing judge allowed a 15% reduction in the sentences for the offences committed on 20 February 2014, under s 9AA of the Sentencing Act 1995 (WA), to take account of the appellant's pleas of guilty about a week before trial. He allowed a discount of 20% under s 9AA to take account of the appellant's pleas of guilty to the other counts entered five days before trial, on the basis that a number of the victims of the burglaries were elderly persons, and so the benefit of the appellant's plea was 'very real'.

22 The sentencing judge regarded the driving offences as serious, presenting a danger to the appellant's passenger, police officers and other road users. He said that the overriding consideration must be the need to impose a deterrent penalty. He also regarded the burglaries as serious offences, and said that sentencing considerations of just punishment, deterrence and retribution demanded a term of immediate imprisonment for all the offences. The sentencing judge also referred to the need to take account of the 'total sentence I'm imposing'.

23 The sentencing judge imposed the following sentences:

24 The sentences were backdated to 26 March 2015 to take account of time spent on remand, and the appellant was made eligible for parole. The sentencing judge activated the sentences of imprisonment which the Magistrates Court had suspended, but ordered that they be served concurrently with each other and the other sentences he imposed.

25 The appellant's sole ground of appeal is that the sentencing judge imposed an aggregate sentence that was of a length that did not bear a proper relationship to the overall criminality of the appellant's conduct, having regard to all relevant circumstances, including those referable to the appellant personally. That ground alleges a breach of the first limb of the totality principle of sentencing. No complaint is made of any of the individual sentences.

26 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 relevant offences, viewed in their entirety and after having regard to the circumstances of the case, including those circumstances referable to the offender personally. An alleged breach of the totality principle does not rely on any express error. Rather, the question is whether error can be inferred because the end result is not one that could have been reached in the proper exercise of sentencing discretion. This requires consideration of all relevant sentencing factors to determine whether the sentence imposed was open in the circumstances: Roffey v The State of Western Australia [2007] WASCA 246 [24] - [26]; AJ v The State of Western Australia [2016] WASCA 13 [69].

27 The overall criminality involved in the offences which the appellant committed was high. She drove in a manner which placed police officers and other road users at very high risk of death or serious injury on two occasions. The assaults on the two police officers, although not resulting in serious injury, placed them at risk when performing their important public duties and called for a cumulative sentence. The burglary offences were aggravated by the fact that the appellant was in company, and by the impact of the offences on often elderly victims. All of the offences were aggravated by the fact that they were committed while the appellant was subject to a suspended sentence of imprisonment. A significant degree of accumulation of the sentences for the two driving offences, the assaults on police, the burglaries and the suspended sentences was clearly justified. In all the circumstances, a total effective sentence which would have a significant general and personal deterrent effect was warranted.

28 At the age of 29 years at the time of sentence, the appellant no longer enjoyed the mitigating effect of youth. She had a significant criminal record, and so did not have the mitigating effect of prior good character. Her pleas of guilty were mitigating but entered at a late stage. The other mitigating factors were the appellant's dysfunctional upbringing and the recent steps she had taken towards rehabilitation, demonstrating remorse and acceptance of responsibility.

29 The appellant refers to the decisions in Pennetta v The State of Western Australia [2013] WASCA 234 and Worthington v The State of Western Australia [2016] WASCA 57. Both cases concerned sentences imposed for multiple offences, including multiple burglaries.

30 The appellant also referred to Chadd v The State of Western Australia [2013] WASCA 99 [45], where Mazza JA observed:

It is relevant to refer to comparable cases when considering whether the totality principle has been infringed. However, their utility is limited. They may provide broad guidance, but it must be borne in mind that there will often be significant differences in the circumstances of the offending and the offenders. In the end, each case must be determined having regard to its own particular circumstances.

31 The decisions in Pennetta and Worthington, and cases cited in those decisions, are of limited utility in this appeal, due to the different mix of offences (which did not include dangerous or reckless driving to escape pursuit) and the different circumstances of the offenders. Having regard to all relevant circumstances, the total effective sentence imposed on the appellant is broadly consistent with those cases.

32 The total effective sentence did not fail to bear a proper relationship to the criminality involved in all of the offences, viewed together, after having regard to all relevant facts and circumstances (including those personal to the appellant) and all relevant sentencing factors. No error by the sentencing judge can be inferred, based on the first limb of the totality principle, from the sentencing outcome.

33 The appellant requires an extension of time in which to appeal. That extension should be granted in light of the short delay, which has been adequately explained.

34 However, as the sole ground of appeal does not have any reasonable prospect of success, leave to appeal on that ground must be refused and the appeal dismissed.