Ainsworth v D (A Child) (1992) 7 WAR 102

Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321

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

Mill v The Queen (1988) 166 CLR 59

Miller v The Queen [2001] WASCA 426

Pieri v The Queen [2002] WASCA 288

R v VC (A Child), unreported; CCA SCt of WA; Library No 990142; 23 March 1999

R v Ward [1999] WASCA 157; (1999) 109 A Crim R 159

Vlek v The Queen, unreported; CCA SCt of WA; Library No 990153; 29 March 1999

Yates v The Queen [1985] VicRp 3; [1985] VR 41

1 MALCOLM CJ: I would ask Murray J to deliver his reasons first.

2 MURRAY J: This is an application for leave to appeal against sentences of imprisonment aggregating a term of 7 years in respect of a series of offences before the District Court on indictment and by way of a notice to take pending charges into account under s 32 of the Sentencing Act.

3 The application proceeds on two grounds. The first is that the term in its aggregate of 7 years imprisonment for a first adult offence is manifestly excessive, taking into account the appellant's age and prospects for rehabilitation, and the second ground is that "the sentence imposed is crushing in that certain sentences were imposed cumulatively that ought to have been imposed concurrently, and therefore offends the totality principle in sentencing."

4 It is necessary to briefly describe the various offences which were before the District Court, but before doing so I should observe that the applicant was born on 16 February 1984. He had a lengthy criminal history dating from May 1997 when he was aged 13. The history involves offences not dissimilar from those committed on the occasions which brought him before the District Court. They are very much offences of dishonesty, mainly burglary offences, but there are offences of violence in the history, particularly with respect to police officers or persons in authority.

5 The pre-sentence report which was obtained in respect of the applicant contains the observation that the applicant indicated that his main problem was with heroin use and he described a habit upon which he would invest about $3500 a week. He is said to have remarked to the author of the report that he enjoyed using heroin, stating that he did not enjoy life when not under the influence of heroin, and there is a reference to his limited insight into his drug use. When he was questioned about abstaining from using the drug he displayed little motivation to do so, claiming the positives of his drug use outweighed the negatives. It seems very clear that one of the principal drivers of the applicant's offending history is this addiction to illicit substances and in particular to heroin, but there are other matters to which the pre-sentence report and the associated psychological report refer which clearly have an impact upon the process of offending in which he has engaged, as I say, since he was aged 13.

6 Those matters may be generally described as pertaining to his childhood and childhood experiences and the attitude which he has developed that causes him to think it is appropriate for his own purposes

to steal from those he perceives to be able to afford the loss of their property, and his use of their property, because, as he has put it himself, rich people deserve to have their things stolen and they have insurance.

7 The lack of empathy towards the victims of his offences is made manifest by that observation. But it is true, as counsel for the applicant puts to this Court, that there is much in the reporting upon him which demonstrates his very considerable immaturity.

8 I shall now refer to the offences for which the applicant came before the District Court upon expedited committal for punishment. He first appeared in that Court on 22 October. There was an indictment before the Court at that time which contained 16 counts. They very much run in groups. For example, counts 1 and 2 were respectively an aggravated burglary committed upon a dwelling house in company and the stealing of car keys and a motor vehicle from that house.

9 Similarly, counts 3 and 4 are the same group of offences. That was an even more aggravated form of burglary in that it was alleged, and the applicant admitted, that he ought to have known that there would be a person at home, and indeed I think there was more than one person at home at the time that he committed the offence. Again there was the theft from the house of a motor vehicle, damaged ultimately in a high-speed vehicle chase, I think, in which the applicant was not involved. Nonetheless the property was damaged in that way.

10 Counts 5 and 6 were a similar group of offences and on this occasion the vehicle stolen from the house was indeed damaged by the applicant during his use of it. Counts 7 and 8, again a similar group of offences. On this occasion a $30,000 motor car was stolen and after using it for some time the applicant sold it, apparently for $1000. Counts 9 and 10 are the same group. The dates of those different groups are respectively 13 June 2002, 2 July, 3 July, 9 July and 12 July.

11 Then we come to a group of offences committed on 18 July, again typically an aggravated burglary committed upon a house, not in company this offence, but alone, and the theft of a motor vehicle from that place. A further theft on the same day of another, different motor vehicle which was accompanied by the circumstance of aggravation that he drove it recklessly. That offence of reckless driving is in fact reflected as an offence the subject of the s 32 notice, the reckless driving then occurring in circumstances which involved a high-speed chase.

12 The description of some of the factual elements of these chases leaves one's hair standing on end, as to the danger, not only to police officers, but to other members of the public, which would have been involved in the driving behaviour of the applicant. Typically there was a failure to stop when called upon, initiating the process of the chase, the reckless driving involved in the chase, and ultimately it was established and the applicant was charged with the offence of driving without the appropriate motor driver's licence. That is a group then of no less than six offences so described, committed on 18 July.

13 There is a single offence, count 14 on the indictment, which was committed on about 20 July, the theft of a motor vehicle. On 21 July, and so it seems on the following day or perhaps later in the same night, a group of five offences was committed, again initiated typically by an aggravated burglary and the theft of a motor vehicle from the house, an act of reckless driving in that vehicle when the applicant was chased by police officers who eventually, because of the danger involved, aborted the chase and he got away. That conduct was accompanied by the offence of failing to stop and driving without the appropriate motor driver's licence.

14 The applicant was apparently encountered again on 23 July when again in the car stolen during the burglary on 21 July. He was further chased by police officers. There was a failure to stop. Determined efforts had to be made to get him to stop, involving the use of devices to puncture the tyres of the vehicle.

15 Eventually the vehicle was stalled during some manoeuvre that the applicant was undertaking and he was at that time, or at least shortly afterwards, apprehended.

16 It is true that when he was apprehended and interviewed by the police he confessed to all of these offences, including the groups of reckless driving, failure to stop and driving without the motor driver's licence offences, which were the content of the s 32 notice. But it is also true, as the learned sentencing Judge observed during the course of his Honour's sentencing remarks, that the attitude displayed during the course of his interview and the making of his confession to police officers was one which continued the demonstration of considerable immaturity and also continued the demonstration of lack of remorse and lack of concern for the danger involved to others arising out of the offences that he was committing.

17 In essence there were, therefore, some 25 offences of the order of seriousness which I have described committed over a period of about five weeks. In respect of those offences the punishments imposed by the District Court were the sentences imposed on 6 November 2002, but ultimately to date from 30 October 2002. The sentences were 18 months imprisonment in respect of each of the seven aggravated burglaries. Each of those sentences was imposed concurrently with the other such sentences. Sentences of 12 months imprisonment were imposed for each of the seven offences of stealing motor vehicles and again each of those sentences was allowed to run concurrently with each other and with the offences imposed for the burglary offences.

18 At that point the aggregate term was one of 18 months imprisonment for a whole series of offences. One may readily include in that term all of the sentences imposed with respect to the offences on the s 32 notice. The failure to stop offences were the subject of $20 fines, but in respect of each of the other offences of reckless driving and driving without the appropriate motor driver's licence, sentences of 3 months imprisonment, again running concurrently, were imposed with motor driver's licence disqualifications of 2 years for each of the relevant traffic offences, again the disqualifications running concurrently, but ordered to be served cumulatively upon any other terms of disqualification which might then apply. So it remains the case that after the consideration of all of those offences an aggregate term of 18 months imprisonment is the result.

19 There are two offences which stand out from that group. They were counts 13 and 16 on the indictment. They were aggravated thefts of motor vehicles, aggravated particularly by the circumstance that the stolen vehicle was then driven recklessly. In relation to each of those offences his Honour, after an adjustment ultimately made in respect of time served in custody, imposed sentences of 2 years and 9 months imprisonment to be served cumulatively on the other sentences. So those two together result in an aggregate term of 5-1/2 years imprisonment to be added to the 18 months imprisonment otherwise imposed for the other offences. The final aggregate is therefore that complained of in this application, an aggregate of 7 years imprisonment.

20 His Honour described the offences. I wish to refer briefly to that description because, with respect, it seems to me to encapsulate briefly the seriousness of the conduct in question and to demonstrate that the principal task before his Honour was not only to impose appropriate punishment in relation to the circumstances of the commission of the offence, not overlooking those personal to the applicant himself, but to do so for deterrent purposes, general deterrence certainly, and particular deterrence very pointedly in this case.

21 His Honour said that it was disturbing to see that the offences commenced only about five weeks after the applicant's release from detention and at that time the applicant was only 18 years of age. Indeed, as counsel before us points out, it was the first group of offences that he had committed as an adult. His Honour the sentencing Judge said:

"It is again trite to say that there are a number of aspects of this offending, namely, the violation of people's homes, very often at night, the stealing of property, but thirdly, and overwhelmingly, there is the element of the reckless driving offences which in this instance have an enormous capacity for danger to the innocent public. The details of the driving which I have referred to in connection with counts 13 and 16 are dangerous driving incidents with a total and absolute disregard for anybody else on the road. It is entirely by good luck that there were no collisions, because obviously the consequences would have been disastrous. I must make the observation that this five week crime spree was not only a spree of property offences involving vehicles, but it involved offending that endangered lives. If one looks back at the detail of the driving offences that I have described, they are truly disturbing."

22 His Honour turned to and did not overlook the fact that the applicant was a youthful person of only 18 years of age, but his Honour also, in my opinion quite rightly, considered that the applicant was a danger to the community and that the sentencing exercise needed to have regard to the seriousness of the offences and the need to impose proper punishment for deterrent purposes in respect of those offences, despite the age of the applicant.

23 He was given credit for the pleas of guilty on the fast-track system, although his Honour took the view, and there was ample support for it in the evidence by way of the pre-sentence report and psychological report, that the applicant had not demonstrated any true remorse or concern in respect of the commission of the offences which I have described.

24 His Honour took the view, and assured the applicant that taking into account to such matters led to the result, that the sentences imposed would total about two-thirds of the result which would have been achieved, as his Honour put it, in other and different circumstances. In other words, without those matters of mitigation being available to the applicant. It seems to me that there can be no complaint that they were not looked at and given proper weight, and indeed counsel accepts that his Honour adverted to the appropriate sentencing principles because his Honour went on to observe that the issue of totality also required attention.

25 The sentences his Honour imposed were accompanied by an order of eligibility for parole. That was guardedly recommended in the pre-sentence report because, although it was put that the applicant remained a clear and present danger of committing further such offences, it was hoped that in time, with appropriate counselling and treatment for substance abuse, a cognitive skills based program and psychological counselling to address his behavioural patterns and poor emotional circumstances, he might be brought to the state where he could be released into the community with some degree of assurance that he would maintain a law-abiding way of life.

26 Indeed, it appeared that there was, as counsel put to us, some concrete prospect that the applicant may already have made a start upon efforts in that regard. It was put to the sentencing court, and we are reminded of it by counsel, that since his time recently in Acacia Prison, an adult prison, he had undertaken drug rehabilitation courses and had begun studying information technology and computer science.

27 That was obviously an important factor. It was said that the applicant wished to engage in a mechanical apprenticeship, if and when he is able to do that, either in custody or while on parole. In addition, in the pre-sentence report, there was a reference to the indication given by the applicant's father, Mr Gordon Barr, that he was supportive of his son and willing to provide employment and accommodation for him upon his release; that Mr Barr senior thought his son had turned a corner and that his son was now genuinely motivated to cease his heroin use. Those were encouraging signs. That his Honour accepted the encouragement of those signs is in my opinion clearly reflected in the fact that he determined that there was sufficient there to make an order of parole eligibility.

28 The first ground of application, as I have said, looks to the aggregate term and makes the assertion that it is manifestly excessive, having regard to the applicant's age and prospects for rehabilitation. In my opinion that ground cannot be made out. It seems to me that although it is true to say that the applicant was a youthful offender, he had when he committed these offences reached the point that he must have been aware that he was

to be now dealt with for the offences that he was committing as an adult and within the framework and structure of adult punishment.

29 That did not mean that he lost the mitigation of youth, but this was a case, in my opinion, where the seriousness of the offending and the need to impose a sentence proportionate to the total criminality limited the extent to which that mitigation could be allowed to have operation. The first ground of application is not made out in addition, in my opinion, because it seems to me that his Honour allowed appropriately for such prospects of rehabilitation as there were by the making of an order of parole eligibility.

30 Then it is put that the sentence imposed is crushing, by which I take it to be put that when one has regard to the total criminality involved in the pattern of offences committed over the five-week period and matches that against the aggregate term of 7 years imposed, it ought to be the view of this Court that the discretion has miscarried because his Honour's sentence is simply too great in its total to satisfy and discharge the appropriate purposes of punishment and sentencing. In my opinion that ground cannot be made out either. It seems to me that this is not a case where it must be said that the discretion miscarried having regard to such considerations. I would dismiss the application.

31 MALCOLM CJ: I agree that this application for leave to appeal against sentence should be dismissed. I have reached that conclusion for the reasons which have been stated by Murray J. It needs also to be borne in mind that the applicant has a history of offending dating back to the age of 13 when he was first convicted in the Children's Court on 14 May 1997 of an offence of stealing. He has been dealt with, while a juvenile, for some eight offences of burglary as well as a series of other offences including unlawful possession, on premises of a curtilage, without lawful excuse and similar offences.

32 He reached the age of 18 on 16 February 2002. These offences followed. I note that the Chief Judge in the District Court was of the view that the attitude of the applicant to society was such that there would need to be a very major change in his attitude and behaviour if he was to become an appropriate member of society.

33 His Honour took into account the psychological report which indicated that the main reason for the offending behaviour was to fund the applicant's heroin habit. There was also, however, a finding that the applicant was preoccupied with money and resentful of individuals whom

he considered to be wealthy. As the Chief Judge put it in his sentencing remarks, "He appears to have a total disregard for rules, authority and social norms."

34 Not only were each of the burglary offences serious, so were the offences relating to the stolen motor vehicles and, in particular, the very serious danger to which members of the public were exposed by the extraordinarily reckless and high speed chases. Particularly where the burglary at Salter Point was committed on the night of 8, 9 July, stolen keys were used to steal a Mazda motor vehicle parked in the driveway and the vehicle was later seen to be driving in an easterly direction on Welshpool Road, East Cannington, in a manner which constituted reckless driving.

35 An unmarked police vehicle was passed at a speed in excess of 60 kilometres per hour. The police then gave chase, activating their emergency lights. The applicant accelerated heavily and continued along Hale Road at a speed in excess of 100 kilometres per hour. He turned into Tonkin Highway and continued at speeds in excess of 140 kilometres per hour, before turning left onto Roe Highway where he reached speeds again in excess of 140 kilometres per hour, drove through roadwork barriers located at Roe Highway and Welshpool Road.

36 When approaching the dead end he partially lost control of the vehicle, swerving several times in the gravel. He then slowed and began heading in a northerly direction along the new overpass section of Roe Highway and then approached the vehicle head on and swerved toward police who were coming in the opposite direction. He entered the northbound lane of Roe Highway on the incorrect side of the road. At this time the police were forced to abort the pursuit in order to avoid a collision. There were other occasions when a complete disregard of road safety and of the property rights of individuals was demonstrated on more than one occasion.

37 The traffic offences were referred to by his Honour as "horrendous driving offences". The pre-sentence report indicated that the applicant lacked accountability for his actions and, for some bizarre reason, had attempted to place the blame on the Department of Justice for the series of offences which he committed.

38 It was noted that the offender was totally cooperative with the police at the time, but, as the learned Chief Judge noted, his attitude appeared to be extremely matter of fact, unrepentant and not particularly concerned as

to the effects of his actions on other people. As he said at one stage, "I only like burgling people who can afford it."

39 In my opinion no reason has been shown in support of the grounds of appeal which would enable leave to appeal against sentence to be granted.

40 ANDERSON J: I agree. In my opinion the aggregate sentence and each individual sentence was well within the range appropriate for the level of criminality involved in the offences committed by the applicant after proper consideration is given for all matters of mitigation, including the applicant's young age and prospects for rehabilitation.

41 I do not consider that an aggregate sentence of 7 years' imprisonment upon a man of the character and age of the applicant can be properly described as a crushing sentence in the sense in which that word is generally understood in this context, that is, as connoting the destruction of any reasonable expectation of useful life after release.

42 I agree that neither of the two grounds of appeal has been made out and I would dismiss the application for leave to appeal.