Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA

Criminal law - Application for leave to appeal against sentence - Aggravated burglary of a dwelling - Stealing a motor vehicle - Driving recklessly - Deprivation of liberty - Whether sentence imposed manifestly excessive - Whether learned judge erred by breaching the first limb of the totality principle

Criminal Appeals Act 2004 (WA), s 27(2), s 27(3)

Brown v The State of Western Australia [2010] WASCA 228

Forbes v The State of Western Australia [2006] WASCA 164

Jones v The State of Western Australia [2006] WASCA 181

Karolides v The State of Western Australia [2006] WASCA 240

Miller v The State of Western Australia [2006] WASCA 163

O'Bryan v The State of Western Australia [2005] WASCA 43

Penny v The State of Western Australia [2006] WASCA 249

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

2 MAZZA JA: This is an application for leave to appeal against sentences imposed by Goetze DCJ on 3 May 2012.

3 On that day, the appellant pleaded guilty at an early stage to three offences which were all committed, close in time to each other, on 28 February 2011, being aggravated burglary of a dwelling, stealing a motor vehicle and driving recklessly and deprivation of liberty.

4 On 3 May 2012, his Honour imposed on the appellant 18 months' imprisonment for the aggravated burglary offence, 2 years' imprisonment for the stealing and driving recklessly offence and 12 months' imprisonment for the deprivation of liberty offence.

5 His Honour ordered that all of the sentences be served cumulatively, resulting in a total effective sentence of 4 years and 6 months' imprisonment. The appellant was made eligible for parole and the sentences were backdated to commence on 2 March 2011.

6 In addition, the appellant was disqualified from holding or obtaining a driver's licence for a period of 12 months.

7 The appeal only concerns the sentences of imprisonment. The grounds allege that the sentence of 2 years' imprisonment imposed for the stealing of a motor vehicle and driving recklessly was manifestly excessive (ground 1), and that the total effective sentence of 4 years and 6 months' imprisonment infringed the first limb of the totality principle (ground 2).

8 There is no challenge to his Honour's findings of fact which may be summarised in this way.

9 The appellant and the complainant had been in a de facto relationship, but had separated. The complainant and the four children of the relationship were living in a dwelling in a suburb of Perth. As a result of a number of domestic violence incidents, the appellant was, at the time of the offending, subject to a violence restraining order which had been taken out by the complainant. The appellant had already, in the days preceding the offending, breached that order twice.

10 At approximately 8.30 pm, he attended the complainant's residence, in breach of the violence restraining order and in an intoxicated state. After knocking at the door and being refused entry, the appellant entered

the premises by removing a flyscreen and climbing through a partially opened window and began abusing the complainant. The appellant demanded that he be given the complainant's car keys, but she refused. In response, the appellant tried to forcefully take them from her and bit both her hands. Upon obtaining the keys, he dragged the complainant out of the house and forced her into the car. The complainant attempted to escape, but the appellant prevented her from doing so: ts 10.

11 The appellant then drove off in the complainant's car at high speed, fishtailing violently. The car door nearest to the complainant had been left open, and the complainant who had been unable to put her seatbelt on, feared she would fall out of the car. She managed to pull the door closed and fasten her seatbelt. The appellant proceeded to drive the car erratically and at high speed. The complainant pleaded with the appellant to stop and let her out. The appellant angrily refused. He drove onto Tonkin Highway, swerving through traffic and said to the complainant 'we are going to die'. Eventually, he lost control of the vehicle, narrowly avoiding a collision with another car and eventually struck a tree causing the destruction of the front of the car. The vehicle was later written off. Fortunately, the complainant did not suffer any serious injury as a result of the collision. The appellant left the scene and as he did so, he apologised to the complainant. The complainant remained there in a hysterical state: ts 11.

12 The following day, the appellant handed himself in to the police.

13 The complainant suffered whiplash and bruising as a result of the offending. She has had to borrow money to buy another car and has incurred expense in relocating herself and the children, as she no longer felt safe in the home she had occupied. She was, at the time of sentencing, experiencing nightmares and anxiety as a result of her ordeal. Moreover, since the incident, the children have been experiencing behavioural problems at school.

14 With respect to his antecedents, the appellant was, at the time of sentencing, 37 years of age. He had a moderate record of prior offending and had not previously been sentenced to a term of immediate imprisonment. The record showed, what had been indicated in the various reports made available to his Honour, that the appellant had a long-standing addiction to alcohol. He had prior offences for driving under the influence of alcohol, reckless driving, dangerous driving causing bodily harm, common assault and disorderly conduct. He told the pre-sentence report author that he gets 'drunk to escape reality' and did not think that his use of alcohol was problematic. He told the psychologist who prepared a report for his Honour that he 'enjoys it (drinking alcohol) too much - it's my way to escape'. The psychologist noted that psychometric testing revealed an elevation on the thought disorder scale which indicated the presence of inconsistent, bizarre, fragmented and disorganised thought processes. There were also elevations indicating a depressive, schizoid and borderline personality process. Although the appellant has made some expressions of remorse to the pre-sentence report author, he denied responsibility for his behaviour, blaming the offences on the victim placing a violence restraining order on him and her refusal to have it removed.

15 His Honour found that the appellant did not 'really show any remorse': ts 7, 3 May 2012.

16 He also found that because of the appellant's alcohol addiction, he was at risk of further offending. His Honour found that the appellant had a continuing attitude of disobedience of the law, saying:

In which case retribution, deterrence and protection of society may indicate that a more severe penalty is warranted: ts 6, 3 May 2012.

17 His Honour had regard to the appellant's early pleas of guilty and made express reference to the one transaction rule and the totality principle: ts 8, 3 May 2012. With respect to the totality principle, the learned sentencing judge reduced the sentence that he would otherwise have imposed for the deprivation of liberty by 6 months.

Ground 1 - Was the sentence for the offence of stealing a motor vehicle and driving recklessly manifestly excessive?

18 To decide whether a sentence is manifestly excessive, regard is had to the maximum penalty for the offence, the range of sentences customarily imposed, the criminality involved and the appellant's antecedents.

19 The maximum penalty for stealing a motor vehicle and driving recklessly is 8 years' imprisonment.

20 The cases relied upon by the appellant do not demonstrate that a sentence of 2 years' imprisonment was outside the range of sentences customarily imposed.

21 The appellant cited Jones v The State of Western Australia [2006] WASCA 181; Brown v The State of Western Australia [2010] WASCA 228; Penny v The State of Western Australia [2006] WASCA 249; Karolides v The State of Western Australia [2006] WASCA 240; Forbes v The State of Western Australia [2006] WASCA 164; Miller v The State of Western Australia [2006] WASCA 163 and O'Bryan v The State of Western Australia [2005] WASCA 43. Insofar as these cases include an offence of stealing a vehicle and driving recklessly, the sentence imposed at first instance was after a plea of guilty. It is unnecessary to examine each of these cases in detail, but I note the following:

(1) In Jones v The State of Western Australia the appellant was sentenced to 15 months' immediate imprisonment for stealing a motor vehicle and driving it recklessly and other offences. The antecedents of the appellant in that case are not referred to. The only issue to be decided, was whether the sentencing judge had considered the possibility of a suspended sentence.

(2) In Brown v The State of Western Australia the appellant was sentenced to 16 months' immediate imprisonment for stealing a motor vehicle and driving it recklessly in circumstances which were less serious than the circumstances in the present case.

(3) In Penny v The State of Western Australia, the appellant received 3 years and 6 months' imprisonment for stealing a motor vehicle and driving recklessly.

(4) In Karolides v The State of Western Australia, the appellant received 3 years' imprisonment for stealing a motor vehicle and becoming involved in a high-speed police chase.

(5) In Forbes v The State of Western Australia, individual sentences of 3 years' imprisonment were imposed for offences of stealing a motor vehicle and driving recklessly. The offender was a relatively young man.

(6) In Miller v The State of Western Australia, the individual sentence imposed for the offence of stealing a motor vehicle and driving recklessly was not specified.

(7) In O'Bryan v The State of Western Australia the appellant received 1 year's imprisonment for stealing a motor vehicle to facilitate an armed robbery and then evading a police pursuit.

22 All of the cases referred to by the appellant, save for Jones v The State of Western Australia, concerned issues associated with totality and not the individual sentence for the offence of stealing a motor vehicle and driving recklessly.

23 In terms of the seriousness of the offence committed by the appellant, it must be viewed as a serious example of its type. The appellant forcibly stole the vehicle and then drove it in a manner which had the real potential of endangering the complainant and other road users. The complainant might have fallen out of the car at the beginning. It is only by good luck that the complainant was not seriously injured or killed when the vehicle struck the tree. The offence was aggravated by the fact that he drove the vehicle in an angry and intoxicated state.

24 Although the appellant had not been sentenced to an immediate term of imprisonment in the past, there is nothing in his antecedents which could be said to be mitigatory. His prospects for rehabilitation are not good because of his inability to recognise the adverse effect that alcohol has upon him and those around him.

25 In my opinion, it is not reasonably arguable that 2 years' immediate imprisonment, even having regard to the appellant's early plea of guilty, is manifestly excessive.

Ground 2 - Was the total effective sentence manifestly excessive?

26 The first limb of the totality principle provides 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: Roffey v The State of Western Australia [2007] WASCA 246 [24]. The overall circumstances of the appellant's offending were plainly very serious. The appellant, in an angry and intoxicated state, and in breach of a violence restraining order, forced his way into his former partner's home, terrifying both her and their four children. He bit his partner in order to obtain the keys to her car and then dragged her against her will into that car. He then drove off in a manner which, given that the appellant left the car door nearest to the complainant open and that she was not in a seatbelt, exposed her to the real danger of falling out of the car. The appellant ignored the complainant's pleas to slow down, stop and let her out. The complainant was totally captive whilst in the car and she was understandably terrified. That terror would undoubtedly have been heightened by the appellant's statement 'we are going to die'.

27 I have already observed, the appellant's antecedents are not favourable. The learned sentencing judge rightly found that the appellant posed a risk of further offending. He also gave proper emphasis to personal and general deterrence. With regard to general deterrence, the clear message must be delivered to the community that offences involving violence on family members cannot be tolerated.

28 As Kennedy J said in R v Kerr (Unreported, WASCA, Library No 970402, 15 August 1997):

It has been said repeatedly by this Court that the fact that a crime occurs against a domestic background is not a mitigating factor, as appears in the past sometimes to have been suggested. On the contrary, in the majority of cases of domestic violence a deterrent sentence, both personal and general, will be called for. ...

29 Although not pressed by Mr Watters, I have considered whether the sentence infringes the so-called 'one transaction' rule. Of course, the one transaction rule is not a rule at all, but only a handy rule of thumb, which often, but not always, results in offences which are committed as one transaction or in a spree, resulting in concurrent sentences. Here, to run the sentences concurrently would not have been an appropriate reflection of the appellant's total criminality.

30 I have examined his Honour's sentencing remarks to ensure that there is no double punishment. I do not see any aspect of double punishment in his Honour's sentencing remarks. Further, Mr Watters did not suggest there was any.

31 In my view, the total effective sentence of 4 years and 6 months' imprisonment cannot reasonably be said to have infringed the first limb of the totality principle. Ground 2 must be dismissed.

32 Neither proposed ground of appeal has a reasonable prospect of succeeding. Accordingly the appeal must be taken to have been dismissed: s 27(2) and (3) of the Criminal Appeals Act.