Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA

Criminal law and procedure - Sentencing - Leave to appeal out of time - Whether reasonable prospects of success - Turns on own facts

Criminal Appeals Act 2004 (WA), s 27(2)

Supreme Court (Court of Appeal) Rules (2005), r 28(2)

Boyd v The Queen [2002] WASCA 239

Colbung v The Queen [1999] WASCA 138

Hume v The Queen [2000] WASCA 306; (2000) 33 MVR 203

Pickett v The State of Western Australia [2004] WASCA 291

R v Dickens [2004] WASCA 179; (2004) 147 A Crim R 343

Samuels v The State of Western Australia [2005] WASCA 193

Casbolt v The State of Western Australia [2005] WASCA 41

Iveson v The State of Western Australia [2005] WASCA 25

Jarvis v The Queen (1993) 20 WAR 201

Kaye v The Queen [2004] WASCA 227

Lowndes v The Queen [1999] HCA 29; (1999) 195 CLR 665

Pieri v The Queen [2001] WASCA 357

Postiglione v The Queen [1997] HCA 26; (1997) 189 CLR 295

R v Faithful [2004] WASCA 39

R v Ruane (1979) 1 A Crim R 284

1 MCLURE JA: The appellant applies for leave to appeal against sentence out of time pursuant to rule 28(2) of the Supreme Court (Court of Appeal) Rules 2005. I would grant leave if, in accordance with section 27(2) of the Criminal Appeals Act 2004 (WA), I was satisfied that one or more of the appellant's grounds of appeal had a reasonable prospect of succeeding. What is required to satisfy that test has recently been considered by the Court of Appeal in Samuels v The State of Western Australia [2005] WASCA 193 at [55] - [60].

2 On 24 May 2005, the appellant pleaded guilty to eight charges for which he was sentenced as follows: 1 one count of stealing a motor vehicle and driving it recklessly, for which he received two years' imprisonment; 2 counts of assault with intent to prevent arrest, for which he was sentenced to 1 year imprisonment on each count. One of the terms was ordered to be served concurrently and one cumulatively on the 2-year sentence. These 3 counts were on indictment.

3 The following convictions were pursuant to a s 32 notice: 1 count of failing to stop, a $50 fine; 1 count of reckless driving, 6 months' imprisonment; 1 count of refusing a breath test, an $800 fine; 1 count of driving without a motor driver's licence, 6 months' imprisonment; and one count of attempting to steal a motor vehicle; 6 months' imprisonment. These sentences of imprisonment were all made concurrent with the sentences for the indictable offences.

4 The total effective sentence was 3 years immediate imprisonment. Eligibility for parole was refused. There is no challenge to the refusal to order eligibility for parole. The challenge is confined to the sentence appeal.

5 The grounds of appeal are in the following terms:

"(1) The single ground of appeal on which the appellant intends to rely at the hearing of the appeal is that the sentence imposed was manifestly excessive taking into account;

(a) the range of penalties imposed in respect of serious examples of the offence of stealing a motor vehicle and driving recklessly;

(b) the seriousness of the offence;

(c) the totality principle; and

(d) the 'one transaction' rule.

(2) The basis for the ground of appeal is error of law, in that the sentence imposed upon the appellant was outside the range of a proper exercise of the court's sentencing discretion."

6 Ground 2 is not an independent ground of appeal but a statement of the effect of ground 1. The relevant legal principles are clear. An appellate court is not entitled to intervene merely because it would have exercised the sentencing discretion in a manner different than the sentencing judge. However, it is entitled to intervene if a material error of fact or law is discerned in the sentencing judge's reasons; alternatively error may be inferred if the result is unreasonable or unjust (otherwise known as manifestly excessive).

7 To determine whether a sentence is manifestly excessive it is necessary to view it in the perspective of the maximum sentence prescribed by the law for the crime, the standards of sentencing customarily observed with respect to the crime, the place which the criminal conduct occupies on the scale of seriousness of crimes of that type and the personal circumstances of the offender.

8 The prosecution detailed the facts of the indictable offences which were admitted by the appellant. Those facts are as follows. At about 9.15pm a witness observed the appellant smash the rear driver's window of a vehicle using a brick. He then inserted a dipstick into the ignition to start the vehicle and drove away. At about 9.43pm police observed the appellant driving the stolen vehicle west on Albany Highway, Cannington. Police followed the vehicle through a shopping centre car park, exiting back onto Albany Highway. Police activated their emergency lights and sirens. The appellant then drove the vehicle to the incorrect side of the road. He drove towards oncoming traffic for approximately 500 metres before crossing back to the correct side of the road. The vehicle the appellant was driving approached the intersection of Albany Highway, Shepperton Road and Welshpool Road where police had blocked access to oncoming traffic at the Albany Highway exit. They had done so to ensure public safety, given the danger posed by the appellant's actions.

9 The appellant's vehicle came to a complete stop before accelerating heavily into the right rear of a police sedan. The appellant then reversed the vehicle into the front of a second police vehicle. He then again accelerated the vehicle forward, striking the first vehicle a second time. The appellant's vehicle then reversed heavily striking the second police vehicle again. Police officers were inside the cars at the time of the impacts. The appellant's vehicle accelerated a third time and struck the first police vehicle before the appellant was subdued with use of pepper spray. There was an estimated cost of damage to the police vehicles totalling $1000. The stolen motor vehicle was valued at $4300 and, due to its damage, was written off.

10 The appellant was 28 years old at the time of sentencing. He had been habitually offending since the age of 12. The indictable offences the subject of this application were committed 48 hours after he was released on parole for stealing a motor vehicle and reckless driving. The appellant has a significant record for stealing cars and driving them dangerously. I use that term not in its technical sense but in its ordinary and natural meaning. The appellant had had six periods of parole and the trial judge noted he had failed on each occasion parole was granted.

11 The maximum penalty for the offence of stealing a motor vehicle and driving it recklessly is eight years. For that offence the appellant was sentenced to 2 years' imprisonment, being 3 years less one-third for the sentencing amendment provisions.

12 In considering the standards of sentencing customarily observed with respect to the crime, the appellant referred to a number of cases (Hume v The Queen [2000] WASCA 306; (2000) 33 MVR 203; Colbung v The Queen [1999] WASCA 138; Pickett v The State of Western Australia [2004] WASCA 291; and Boyd v The Queen [2002] WASCA 239). The sentences imposed in those cases, of course, need to be considered in the context of all of the relevant factors that are taken into account when sentencing, including the personal circumstances of the offender.

13 In this case personal deterrence is a very significant factor in the sentencing discretion as is general deterrence and just punishment. The sentence of 2 years for the reckless driving of a stolen motor vehicle is, in my view, well within the range of a sound sentencing discretion. I do not understand counsel to dispute that conclusion.

14 The appellant does not rely on the totality principle and the one transaction rule as independent grounds of appeal, but as matters to be considered in considering whether the sentence is manifestly excessive. The legal principles on totality and the one transaction rule are also not in dispute. I discuss them at length in my reasons in R v Dickens [2004] WASCA 179; (2004) 147 A Crim R 343 at [11] - [16] and it is unnecessary to repeat them here. I am firmly of the view that there was no arguable error in partially accumulating the indictable offences; that is, the assaults together with the reckless driving and the stolen motor vehicle.

15 Having regard to all relevant factors, including the cases on which the appellant relies, I conclude that the claim that the total effective sentence of 3 years is manifestly excessive has no reasonable prospect of succeeding. For those reasons I would dismiss the application.