Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA

Criminal law - Appeal against sentence - Stealing a motor vehicle and driving dangerously and other offences - Whether the sentencing judge failed to reconsider all the relevant sentencing considerations in determining whether or not to suspend the term of imprisonment - Whether sentences manifestly excessive - Whether first limb of totality principle infringed - Turns on own facts

Criminal Code (WA), s 313(1)(a), s 371A, s 378, s 378(2)(b), s 401(2)(c), s 445

Road Traffic Act 1974 (WA), s 49(1)(a), s 49(3)(d), s 55(1), s 61(1), s 64(1)

Sentencing Act 1995 (WA), s 6(1), s 6(2), s 6(4), s 32, s 39(2), s 39(3), s 59

Boyle v The State of Western Australia [2010] WASCA 97

Buxton v The State of Western Australia [2009] WASCA 6

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

Drake v The State of Western Australia [2006] WASCA 209

Duong v The State of Western Australia [2006] WASCA 110; (2006) 32 WAR 246

Fennell v Somerville [2009] WASC 214

Forward v Bower [2007] WASC 205

Furber v The Queen [2008] WASCA 233

Giglia v The State of Western Australia [2010] WASCA 9

Henderson v The State of Western Australia [2007] WASCA 198

Hibbs v The Queen [2002] WASCA 204

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

Lopes v Carter [2006] WASC 197; (2006) 47 MVR 18

MacPherson v The Queen [2002] WASCA 287

McColl v The Queen [1999] WASCA 306

McDonald v White [2007] WASCA 213

Quartermaine v The Queen [2000] WASCA 107

Re The State of Western; Ex Parte Richards [2005] WASCA 176

Rodenburg-Hill v WA Police [2009] WASC 330

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

Skipworth v The State of Western Australia [2008] WASCA 64

Soulos v The State of Western Australia [2004] WASCA 182

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

3 MAZZA J: This is an appeal against sentence. Leave to appeal was granted on 30 April 2010.

4 On 15 September 2009, the appellant entered fast-track pleas of guilty to an offence of stealing a motor vehicle and driving dangerously contained in indictment 1198 of 2009 (the indictable offence) and eight offences contained in a notice pursuant to s 32 of the Sentencing Act 1995 (WA) (the s 32 notice).

5 After hearing the facts and submissions from prosecuting and defence counsel, the sentencing judge immediately proceeded to sentence the appellant as follows:

Section 32 notice

Steal motor vehicle and drive recklessly - s 378(2)(b), s 371A Criminal Code (WA) (Code)

Fail to stop - s 55(1) Road Traffic Act 1974 (WA) (RTA)

$200 fine (s 59 Sentencing Act to apply)

Dangerous driving - s 61(1) RTA

$500 fine (s 59 Sentencing Act to apply)

Driving with BAC >0.8 (0.117) - s 64(1) RTA

$600 fine (s 59 Sentencing Act to apply) and 4 months' MDL disqualification

Driving without a valid vehicle driver's licence (fine suspension) - s 49(1)(a) & s 49(3)(d) RTA

12 months / $200 - $1,500 fine and 3-year MDL disqualification

3 months' immediate imprisonment cumulative and 12 months' cumulative MDL disqualification

6 The appellant was sentenced to a total effective term of 2 years 4 months' imprisonment to be served immediately backdated to commence on 13 September 2009 with eligibility for parole. He was also ordered to pay $1,300 in fines and disqualified from holding or obtaining a motor driver's licence for a period of 16 months. The appellant's appeal is only against the terms of immediate imprisonment. The grounds are as follows:

1. The learned sentencing Judge erred in law by failing to appropriately consider suspending the sentence of imprisonment by reconsidering all of the relevant sentencing factors.
2. The learned sentencing Judge erred through imposing sentences of imprisonment for the individual offences which were manifestly excessive and a total sentence which was disproportionate to the overall criminality.

(a) The individual sentences were manifestly excessive when consideration is given to the circumstances of the offences, the personal circumstances of the Appellant and sentencing standards.

(b) The total sentence was disproportionate to the total criminality when sentencing standards are considered.

7 It is apparent from the appellant's written and oral submissions that these grounds are designed to allege both express and implied errors.

8 The alleged express error is that the sentencing judge failed to reconsider all the relevant sentencing considerations in deciding whether or not to suspend the terms of imprisonment he imposed.

9 The alleged implied errors are that the individual sentences of imprisonment are manifestly excessive because they are too long and should have been suspended, and that the total effective sentence offended the first limb of the totality principle.

10 The general principles applicable to this appeal are well known and need not be restated. They are succinctly set out in Wilson v The State of Western Australia [2010] WASCA 82 [2] at points 1 - 3.

11 All of the offences were committed on 2 October 2008.

12 At that time, the appellant was in a de facto relationship with KJD although they were not living together under the one roof.

13 On the day in question, the appellant and KJD had been drinking alcohol since about lunchtime at KJD's sister-in-law's house. While there they had an argument and left separately. The appellant walked off and KJD was given a lift home by her sister-in-law.

14 KJD and her 6-year-old daughter arrived home to find that the appellant was already there. After a short argument between the appellant and KJD's sister-in-law, the appellant went inside the house and started yelling at KJD and her daughter. He continued drinking and was intoxicated and aggressive. KJD tried to call the police but the appellant hung up the telephone and later snapped it in half (count 8 on the s 32 notice).

15 The appellant then got a can of lighter fluid and went out to the front of the house where he poured the fluid over his jacket and jumper and set fire to them. He then went into the kitchen and, when KJD had her back turned, the appellant squirted her back with lighter fluid and yelled 'shut up or I'll light you too' (count 7 on the s 32 notice). KJD then asked the appellant to leave, which he did.

16 Between 4.45 pm and 5.00 pm, the appellant walked into the workshop area of some business premises in Malaga. He walked into the premises through the rear door and opened a large roller door. He then got into a utility which belonged to the business and, using the key inside the vehicle, started it and drove off. The appellant did not have permission to be on the premises or to use the vehicle (count 1 on the s 32 notice, and the stealing aspect of the indictable offence).

17 The appellant drove the vehicle into the carpark area of the Malaga Tavern at high speed and lost control of it. The vehicle mounted a kerb and crashed into the rear of a Toyota Camry sedan. The appellant immediately reversed the vehicle, narrowly missing two pedestrians, and then drove away at high speed. The appellant made no attempt to stop the vehicle or to speak to the owner of the damaged vehicle, who was one of the pedestrians who had to take evasive action to avoid being hit by the vehicle driven by the appellant (counts 3 and 4 on the s 32 notice).

18 The appellant then drove the vehicle on Pintail Parade, Ballajura in what was described by the State prosecutor as an aggressive and violent manner constituted by accelerating heavily and then braking hard resulting in the screeching of the vehicle's tyres. He drove in this manner up and down Pintail Parade for a few minutes (this is the dangerous driving aspect of the indictable offence).

19 Eventually the vehicle broke down. The appellant got out of the car and, as he did so, he stole a number of items from the vehicle, including nine rolls of masking tape, an empty mobile phone box, a small black torch, a Micro SD card reader and a child's jacket (count 2 on the s 32 notice). Soon afterwards he was found by police on the side of the road. He was breathalysed and gave a blood alcohol reading of 0.117% at the time of driving (count 5 on the s 32 notice).

20 The appellant had no authority to drive a motor vehicle, as his licence had been suspended for non-payment of fines (count 6 on the s 32 notice).

21 The appellant told the author of the pre-sentence report that he had little recollection of the day in question, because he had been drinking heavily (approximately two bottles of spirits) throughout the day with KJD. He was 36 years of age at the time of the offending . He had a history of working in the housing industry. He had a reasonably lengthy history of prior convictions dating back to 1992, which included convictions for unlawful wounding, stealing, possession and cultivation of cannabis, and three prior convictions for driving under suspension, although two of those convictions occurred in 1996. He also had a prior conviction for driving without a valid driver's licence.

22 On 30 December 2008, after the commission of the offences, the appellant was sentenced to 6 months and 1 day's imprisonment suspended for 12 months for an offence of receiving, which he committed on 31 October 2008. On that day, he was also given a 12-month community based order as a result of breaching a community based order imposed on 30 May 2007. The offences committed on 2 October 2008 did not breach the order made on 30 May 2007. The author of the pre-sentence report said that the appellant had complied satisfactorily with the community based order and was attending a programme designed to address a number of criminogenic needs including impulsivity, risk taking, aggression, drug use and consequential thinking.

23 The author of the pre-sentence report said that the appellant was suitable for a community based disposition and recommended that any such disposition include supervision, programme and community work requirements.

24 The appellant's then counsel, in her plea in mitigation, drew the sentencing judge's attention to the aspects of the pre-sentence report to which I have already referred. She submitted that the appellant was remorseful and was doing well on the community based order imposed on 30 December 2008. She told the sentencing judge that KJD had spoken to her and had asked defence counsel to convey to the court that she was 'incredibly supportive of her de facto'.

25 Defence counsel submitted to the sentencing judge that an intensive supervision order, or alternatively a conditional suspended term of imprisonment, should be imposed.

26 The State prosecutor submitted that the offences warranted a term of immediate imprisonment with eligibility for parole.

27 There is no need to set out his Honour's sentencing remarks at any length. His Honour gave a succinct account of the facts of the appellant's offending. He noted that the appellant was on the day 'essentially out of control'. His Honour expressly referred to the main mitigating factors, being the fast-track pleas of guilty, the appellant's remorse, his good work history and the progress he had made on the community order. His Honour also expressly referred to the totality principle.

28 His Honour regarded the aggravated assault upon KJD and the indictable offence as the most serious features of the appellant's offending. Shortly before imposing the sentences, his Honour made the statement which the appellant submits constitutes the alleged express error. At ts 19 he said:

A court should not impose a term of imprisonment except where the court considers that the seriousness of the offending is such that only imprisonment can be justified. In this matter, I have considered all sentencing options and I conclude that in view of the seriousness of the offending, an immediate term of imprisonment is the only appropriate sentence. (emphasis added)

29 After his Honour concluded his sentencing remarks, the following exchange took place between his Honour and defence counsel, Ms Seif:

SEIF, MS: ... Did your Honour make mention of exercising your discretion to refuse to consider suspension?

SLEIGHT DCJ: Of the sentence?

SEIF, MS: Yes.

SLEIGHT DCJ: I said that I'd concluded that the only appropriate sentence was an immediate term of imprisonment.

SEIF, MS: Thank you, your Honour (ts 21).

Did his Honour make the alleged express error?

30 The appellant submitted that, in the paragraph of his sentencing reasons to which I have referred, his Honour used the word 'seriousness' in the sense that he was only referring to the circumstances of the commission of the offences. It was submitted that this is demonstrated by the failure of his Honour to refer, at this point of his sentencing remarks, to any of the other relevant sentencing considerations, particularly the mitigating factors. It is submitted that as his Honour was required to take into account all of the relevant sentencing considerations and not just the circumstances of the offending in deciding whether or not to suspend the sentences of imprisonment, as required by the High Court in Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321, he had fallen into error.

31 Section 6(1) of the Sentencing Act (the Act) provides that any sentence imposed on an offender must be commensurate with the seriousness of the offence.

32 Section 6(2) of the Act requires a sentencing court to determine the seriousness of an offence by taking into account:

(b) the circumstances of the commission of the offence, including the vulnerability of the victim of the offence;

33 Section 6(4) of the Act commands that a court must not impose a sentence of imprisonment unless the seriousness of the offence is such that only imprisonment can be justified, or the protection of the community requires it.

34 Section 39(2) of the Act sets out the various sentencing options open to a sentencer, ranging from imposing no sentence to a term of immediate imprisonment. Apart from a term of immediate imprisonment, the most serious sentencing options are a conditional suspended imprisonment order followed by a suspended imprisonment order without conditions: s 39(2)(f), (g) and (h).

35 Section 39(3) of the Act provides that a court must not use a sentencing option in s 39(2) unless satisfied that it is not appropriate to use any of the options listed before it.

36 The effect of these provisions is that a court cannot impose a sentence of imprisonment of any kind unless satisfied that no other lesser sentencing option is appropriate. If a court is satisfied that imprisonment is the only proper sentence, immediate imprisonment cannot be imposed unless the court is further satisfied that suspended imprisonment, with or without conditions, is inappropriate. The same considerations that are relevant to the decision to impose imprisonment must be revisited in determining whether to suspend the term: Dinsdale v The Queen; Duong v The State of Western Australia [2006] WASCA 110; (2006) 32 WAR 246 [40]; Skipworth v The State of Western Australia [2008] WASCA 64 [8]; Furber v The Queen [2008] WASCA 233 [84]; Boyle v The State of Western Australia [2010] WASCA 97 [44]. This is what is frequently referred to in cases as the two-stage process.

37 In my opinion, it is clear from the statement made by his Honour during his sentencing remarks, and from the exchange with counsel at the conclusion of those remarks, that he complied with s 39(3) of the Act. His Honour expressly stated on each of those occasions that the only appropriate sentence was an immediate term of imprisonment. In my opinion, those words can only mean that his Honour considered that it was not appropriate to impose any other sentencing option short of immediate imprisonment.

38 I do not accept the appellant's submission that when his Honour used the word 'seriousness', in the passage of his sentencing reasons to which I have referred, he was only referring to the circumstances of the commission of the offence and not all of the relevant circumstances of the case.

39 The words used by his Honour, 'the seriousness of the offending', are almost identical to the language used in s 6(1), (2) and (4) of the Act, which refer to 'the seriousness of the offence' or 'the seriousness of an offence'. Moreover, the context in which the words were used was at the point in the sentencing remarks when his Honour was deciding whether or not to impose a term of imprisonment and whether that term should be served immediately. That is, he was speaking at the point where he was setting out the principles which had to be applied to the case and not in some general sense.

40 His Honour used the words 'the seriousness of the offending' twice. First, in reference to the decision to impose imprisonment, and second, in forming the view that immediate imprisonment was the only appropriate sentence. In light of all this, it is clear that when his Honour used those words, he was using them in accordance with the meaning of that expression in s 6(2) of the Act. It is true, as the appellant points out, that his Honour did not make any express reference to the two-stage process in coming to his decision not to suspend the terms of imprisonment. It may be desirable, for the sake of clarity, for a sentencer to explicitly state that he or she has again taken into account all relevant sentencing considerations before rejecting the option of a suspended imprisonment order under s 39(2)(f) and s 39(2)(g). However, it is not an error to fail to do so if it is evident from a consideration of the sentencing remarks as a whole that the two-stage approach required by the Act has been undertaken. It is plain from what his Honour said that he adopted the correct approach and he did not make the alleged express error.

41 These allegations can be dealt with together. The totality principle comprises two limbs. The first limb is that the total effective sentence must bear a proper relationship to the overall criminality involved in all the offences, viewed in their entirety and having regard to the circumstances of the case, including those referable to the offender personally. The second limb is that the court should not impose a crushing sentence. The word 'crushing' in this context connotes the destruction of any reasonable expectation of a useful life after release. It was not submitted that the total effective sentence imposed on the appellant was crushing.

42 The practical effect of the totality principle is ordinarily to arrive at an aggregate sentence that is less than that which would be arrived at by simply adding up all the terms appropriate for the individual offences. Where the totality principle comes into effect, it is of little importance how the ultimate aggregate is made up. The real issue is whether the total effective sentence offended the totality principle, not whether one or more of the individual sentences were excessive: Roffey v The State of Western Australia [2007] WASCA 246 [24] - [26]; and Giglia v The State of Western Australia [2010] WASCA 9 [39] - [40].

43 The appellant, in his written submissions, referred to a number of cases where offenders were sentenced for multiple offences, which in a very general sense are of the type under consideration here. The cases referred to were: Fennell v Somerville [2009] WASC 214; Buxton v The State of Western Australia [2009] WASCA 6; Rodenburg-Hill v WA Police [2009] WASC 330; Forward v Bower [2007] WASC 205; Henderson v The State of Western Australia [2007] WASCA 198; McDonald v White [2007] WASCA 213; Drake v The State of Western Australia [2006] WASCA 209; Lopes v Carter [2006] WASC 197; (2006) 47 MVR 18; Re The State of Western; Ex Parte Richards [2005] WASCA 176; Soulos v The State of Western Australia [2004] WASCA 182; Hibbs v The Queen [2002] WASCA 204; MacPherson v The Queen [2002] WASCA 287; Hume v The Queen [2000] WASCA 306; (2000) 33 MVR 203; Quartermaine v The Queen [2000] WASCA 107; and McColl v The Queen [1999] WASCA 306. None of these cases involved the same combination of offending and were, in many cases, very different from the case at hand. Little assistance can be gained from these cases and there is no point in embarking on a detailed analysis of them.

44 The circumstances of the appellant's overall offending in this case are serious. I agree with his Honour's assessment that the two most serious offences were the aggravated assault on KJD and the indictable offence. However, the burglary and the driving under suspension were also serious and cannot be overlooked.

45 The appellant, having consumed a large quantity of alcohol, was in such a state that he was, as his Honour described it, essentially out of control. While in that state, he assaulted his de facto partner in the presence of her 6-year-old daughter. He acted in a way which would have terrified his victim and gave rise to the potential for severe injury. He then, without consent, entered business premises to which he had no connection and brazenly drove off with one of the business' vehicles. He drove the vehicle on a suburban street in such a manner as to cause danger or potential danger to other road users, all the while being affected by alcohol and in circumstances where his driver's licence was under suspension. The appellant's offending was truly multifaceted and it is unchallenged that some cumulation of the sentences was justified.

46 I have already outlined the mitigating factors in the appellant's favour.

47 In my view, I do not think that the total effective sentence of 2 years and 4 months was disproportionate to the appellant's offending in all of the circumstances of the case, and it properly reflected the objectives of punishment, retribution, deterrence and rehabilitation. I regard the total sentence imposed upon the appellant as within the range of sound sentencing discretion and I see no reason to interfere with it.

48 As I have already explained, his Honour's approach to the question of suspension was correct. It seems to me that his Honour exercised his discretion having regard to all the relevant circumstances. I am unable to say that he was incorrect in his conclusion that suspension of the terms of imprisonment was inappropriate.

49 In my opinion, none of the errors alleged by the appellant have been established. I would dismiss the appeal.