Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA

Appeal - Criminal law and procedure - Whether jury's verdict incapable of being supported having regard to the evidence - Wilful destruction of truck and trailer by fire - Whether covertly recorded conversation involving the appellant contained implied admissions

Appeal - Criminal law and procedure - Sentence - Error in backdating - Totality principle

Criminal Appeals Act 2004 (WA), s 30(3)(a), s 31(4)

Sentence Administration Act 2003 (WA), s 7(2)

Sentencing Act 1995 (WA), s 6(1), s 6(2), s 87, s 93(1), s 94

Sentencing Legislation Amendment and Repeal Act 2003 (WA), Sch 1, cl 2(1)

Chamberlain v The Queen (No 2) [1984] HCA 7; (1984) 153 CLR 521

Darkan & Ors v The Queen [2006] HCA 34; (2006) 80 ALJR 1250

Dearman v Dearman [1908] HCA 84; (1908) 7 CLR 549

Fox v Percy [2003] HCA 22; (2003) 214 CLR 118

GHS v The State of Western Australia [2006] WASCA 42

Lai v The Queen [1990] WAR 151

M v The Queen [1994] HCA 63; (1994) 181 CLR 487

Markarian v The Queen [2005] HCA 25; (2005) 79 ALJR 1048

MFA v The Queen [2002] HCA 53; (2002) 213 CLR 606

Morris v The Queen [1987] HCA 50; (1987) 163 CLR 454

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

R v Smith [1979] 2 NSWLR 304

Raspor v The Queen [1958] HCA 30; (1958) 99 CLR 346

Weiss v The Queen [2005] HCA 81; (2005) 80 ALJR 444

Armanasco v The Queen (1914) 16 WALR 174

Clinch (1994) 72 A Crim R 301

Griffiths v The Queen [1989] HCA 39; (1989) 167 CLR 372

Herbert v The Queen [2003] WASCA 61; (2003) 27 WAR 330

Jackman v The Queen (1914) 16 WALR 8

Jarvis v The Queen (1998) 20 WAR 201

Mill v The Queen (1988) 166 CLR 59

Samuels v The State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473

1 STEYTLER P: I have had the advantage of reading the judgment of Pullin JA. The circumstances giving rise to these appeals are set out in his judgment, as are the applicable principles and the material evidence.

2 As to the appeal against conviction, the sole question is whether the verdict of guilty on count 5, being the charge of unlawful destruction by fire on 11 October 2003 of an International prime mover ("truck") and Cope trailer ("trailer"), should be set aside because, having regard to the evidence, it is unreasonable or cannot be supported: s 30(3)(a) of the Criminal Appeals Act 2004 (WA). As Pullin JA has pointed out, in answering that question the Court must make an independent assessment of the evidence and determine whether, making due allowance for the "natural limitations" that exist in the case of an appellate court proceeding wholly or substantially on the record, the accused was proved beyond reasonable doubt to be guilty of the offence in question: Weiss v The Queen [2005] HCA 81; (2005) 80 ALJR 444 at [41].

3 There is nothing in my independent assessment of the transcript of the evidence led at the trial (which is necessarily subject to the limitations that exist in appellate proceedings) and of the exhibits tendered which leads me to doubt that the guilt of the appellant on count 5 was proved beyond a reasonable doubt.

4 As Pullin JA has said, there is now no issue as regards the proposition that the appellant was involved in the theft of the truck and trailer. The evidence established that these were stolen in Kewdale in the early hours of 10 October 2003, driven to Kenwick, then to Gooseberry Hill, then to premises at Bellevue (where the trailer was unloaded on the night of 10/11 October 2003) and then to Forrestfield, where they were found in a burned out condition. There was no direct evidence that the appellant was involved in the burning of the truck and trailer. However, in my opinion there was sufficient evidence to enable the jury to conclude that the only reasonable inference available was that the truck and trailer were deliberately destroyed and that the appellant was one of the persons who destroyed them.

5 That the truck and trailer were deliberately destroyed seems to me to be obvious from the circumstances of their destruction. Both had recently been stolen. They ignited, explosively, at 3.40 am. A jerry can was found inside the burned out trailer. Video footage from nearby security cameras shows that, shortly prior to the explosion, three sets of vehicle headlights, one of these belonging to the truck and two to motor cars, drove past a point close to where the burned out truck was found and then entered the "carpark" area in which it was found. The truck and trailer then exploded in flames and the two motor cars immediately drove away. No other sensible explanation presents itself than that the burning was deliberate.

6 That the appellant was directly involved in the burning of the truck and trailer seems to me to have been established, beyond any reasonable doubt, by the evidence taken as a whole. The evidence that has been referred to by Pullin JA reveals that:

(a) The appellant had both motive (the destruction of possible evidence implicating him in the theft in which he had been involved) and opportunity to destroy the truck and trailer.

(b) The truck and trailer were seen in Kenwick at 5.30 am on 10 October 2003, shortly after it had been stolen, and the appellant's mobile phone records establish that he was in the vicinity at that time.

(c) The truck and trailer were seen in Gooseberry Hill between 9 am and 9.15 am that day and the appellant's mobile phone records show that he was in the vicinity at that time.

(d) The truck and trailer were taken to Bellevue, where the trailer was unloaded. DNA and fingerprint evidence established that the appellant had at some time been in the shed in which the unloading took place. The appellant's mobile phone records reveal that he was in the vicinity at the material time.

(e) The transcript of the discussion between the appellant and his co-accused Halliday ("transcript"), relevant parts of which are set out in the judgment of Pullin JA, is not consistent with the words of an innocent man endeavouring to have his innocence proved. Rather, it seems to me to be consistent only with the words of a man who knows that he was responsible for the destruction of the truck and trailer but who is making every attempt to secure an acquittal by whatever means are available.

(f) The acknowledgement by the appellant (recorded in the transcript) that he was given the keys to the truck (by a person referred to as "Doddy") seems to me to be telling.

(g) It also seems to me to be telling that at no time during the recorded conversation did the appellant directly suggest that someone else had destroyed the truck and trailer. The only reference that could be pointed to by counsel for the appellant in this respect is a question asked by the appellant, in respect of the sale of some white goods that had been in the trailer, as follows:

"That was after they'd already got rid of the truck and that was it?"

That comment seems to me to be equivocal and of limited assistance to the appellant when read in the context of the whole of the transcript.

(h) Later in the transcript, the appellant suggests that, if Halliday and another co-offender, Casserley, say what is required by the appellant, "it will all come back on the Duffy cunt", Duffy having been the person who had told the police that he had given the keys to the truck to the appellant. Duffy was obviously held in very low regard by the appellant, who referred to him as a "dog" who had many enemies. That it was not Duffy who burned the truck and trailer might be inferred from a comment made by Halliday, immediately after the appellant had said that "it" would "come back on" Duffy, to the effect that "he [Duffy] can't say fuck all anyway, 'cos he wasn't there when everyone left, was he?" The appellant responded by saying "Mm". Also, the appellant's apparent assent to that comment is an indication that he was one of those who were the last to leave.

Neither Duffy nor Casserley gave evidence at the trial. Halliday gave evidence, having by then pleaded guilty to, amongst other charges, the theft of the goods that had been on the trailer (he was not charged with the arson offence). He refused to answer any questions concerning the offences charged against the appellant.

(i) The appellant's evidence at the trial was plainly not regarded by the jury as having been credible. A reading of the transcript of that evidence gives me no reason to doubt that the jury was right in its assessment. To take only one example, the appellant's attempt to explain his apparent concurrence with Halliday's remark that "Doddy" had given the keys to the truck to the appellant was not at all credible, as Pullin JA has pointed out.

7 I would consequently dismiss the appeal against conviction.

8 As to the appeal against sentence, the appellant was convicted on five counts in all. The first conviction (on count 1) related to the theft, by the appellant and others, of a Kenworth prime mover and a trailer in the early hours of 26 September 2003. The second conviction (on count 2) related to the theft of the contents of the stolen trailer, being various rugs, sunglasses, luggage, clothing, cosmetics, pharmaceuticals and other items. The third conviction (on count 3) related to the theft of the International prime mover and the Cope trailer. The fourth conviction (count 4) related to the theft of the contents of the Cope trailer, being various white goods, electrical items (including televisions) and other items. The fifth conviction (count 5) related to the destruction by fire of the International truck and Cope trailer. The total value of the stolen goods and vehicles was said to have been over $1 million and, after some of the stolen property had been recovered, there was a loss of around $464,000.

9 When sentencing the appellant in respect of counts 1 and 3 on the indictment, the sentencing Judge said that he considered that the "starting point" should be the maximum provided for by the legislation, being a term of 7 years' imprisonment. Having regard to factors which went in the appellant's favour, he reduced those terms to terms of 6 years' imprisonment and then further reduced them to terms of 4 years' imprisonment in order to take account of the provisions of cl 2(1) of Sch 1 of the Sentencing Legislation Amendment and Repeal Act 2003 (WA) ("transitional provisions"). As to counts 2 and 4, the sentencing Judge considered that a period of 3 years' imprisonment in each case was appropriate but, having regard to the transitional provisions, he reduced these to terms of 2 years each. As to count 5, he said that, were it not for the transitional provisions, he would have imposed a term of 7 years and 6 months' imprisonment but, taking those provisions into account, he reduced that term to one of 5 years' imprisonment.

10 He then turned to the question of totality. He took into account, in that respect, that in July 2004 the appellant had been sentenced to terms of imprisonment totalling 3 years and 3 months in respect of drug and firearm charges. He said that, given the appellant's relative youth (he was 26 years old at the time of sentencing), the fact that he had strong family support and his general antecedents (he had no prior convictions for stealing or destruction of property by fire and had not, before July 2004, been sentenced to a term of imprisonment), the community had a clear interest in encouraging his prospects of rehabilitation. He considered that in all the circumstances it would be appropriate that the sentences imposed in respect of counts 1 and 2 be served concurrently with each other and that the sentences imposed in respect of counts 3, 4 and 5, should also be served concurrently with each other but cumulatively upon the sentences imposed in respect of counts 1 and 2, making up a total of 9 years in prison. He ordered that the total term should be served cumulatively upon the terms previously imposed upon the appellant. In order to take account of time spent by the appellant in custody awaiting his trial on these charges (a period of some 8 months), the sentencing Judge back-dated the sentence so as to have it commence on 3 April 2005.

11 By ground 1 of the grounds of appeal the appellant contends that the sentencing Judge erred in law by taking, as his starting point for fixing sentences in relation to counts 1 and 3, the maximum penalty of 7 years' imprisonment. I agree with Pullin JA that he made no error in that respect. It is apparent from the sentencing Judge's reasons that he considered that the case was in the category of the worst of its kind, even though he did not say so expressly. In my opinion it was open to him to reach that conclusion. The stolen vehicles were not ordinary motor vehicles. They were very expensive vehicles that were being used for the important purpose of the transport of goods across Australia by road. The sentencing Judge was obliged to take into account, not only the value of the stolen vehicles, but also the considerable inconvenience that the theft of the trucks caused to their owners who operated them in the course of their business. Moreover, the theft, in each case, was a consequence of planning involving, as Pullin JA has said, a gang of not less than five members, at least one of whom was the appellant's employee. As appears from the judgment of Pullin JA, the planning appears to have been meticulous encompassing, even, the purchase of a mobile telephone by the appellant and the registration of that telephone under a false name. Also, the offences were committed by the appellant at a time when he was on bail awaiting trial in respect of the drug and firearm offences to which I have earlier referred.

12 In all of these circumstances, and contrary to the submissions made on behalf of the appellant, there was no infringement of the principles expressed by the High Court in Markarian v The Queen [2005] HCA 25; (2005) 79 ALJR 1048.

14 As to ground 2, which contends that the sentencing Judge erred in failing to take account of the appellant's remorse, I agree with what has been said by Pullin JA. I would consequently decline to uphold this ground.

15 Ground 3 contends that each of the sentences imposed by the sentencing Judge was outside the range properly available to him in the exercise of his sentencing discretion. In all of the circumstances it seems to me that, while the sentences were severe, none was so severe as to be outside the range of a sound sentencing discretion. The stolen items were, in each case, valuable. I have already said that the total value of the stolen items exceeded $1 million. Moreover, as the sentencing Judge pointed out, each theft had far-reaching consequences. The owners of the trucks and trailers had their businesses disrupted as a consequence of their inability to use those items and their business relationships were said to have suffered as a consequence. The sentencing Judge also pointed out that many of the owners of the stolen goods ran small businesses, with the consequence that their budgets would have been placed under strain by the thefts, subjecting them to anxiety and frustration. The destruction of the International prime move and Cope trailer was also very serious. It was a wanton act and, as I have said, its purpose appears to have been only that of destroying any evidence that might have been left on those items by those involved in their theft.

16 In these circumstances, and having regard for the fact that no authority was pointed to in support of the proposition that the sentences imposed were outside the ordinary range, I would dismiss this ground.

17 Before turning to ground 4, which raises the issue of totality, I should deal with the additional ground of appeal that was added by way of amendment at the time of the hearing of the appeal. That ground is to the effect that the sentencing Judge's attempt to back-date the total sentence of 9 years' imprisonment to 3 April 2005 was ineffective for reasons explained in the judgment of Pullin JA. It is enough for me to say that I agree with what Pullin JA has said in that respect and that I agree also with his conclusion that the appropriate means of giving effect to the Judge's desire to take account of the time already spent by the appellant in prison in respect of these offences is by reducing the total sentence imposed on the arson charge by a period of 8 months.

18 That leaves ground 4 which, as I have foreshadowed, is to the effect that the total sentence imposed infringed the totality principle. As Pullin JA has said, that principle requires a court, when sentencing an offender for a number of offences, to ensure that the aggregation of the sentences imposed in respect of each offence is a just and appropriate measure of the total criminality involved. Also, the total sentence should not be one which would not hold out a proper measure of hope for, and encouragement to, rehabilitation and reform of the offender: Postiglione v The Queen [1997] HCA 26; (1997) 189 CLR 295.

19 I agree with Pullin JA that the aggregate sentence imposed exceeds what is a just and appropriate measure of the appellant's total criminality and also that it does not allow a proper measure of hope for his rehabilitation and reform. However, I am, with respect, not persuaded that an appropriate result can be achieved merely by ordering that the aggregate sentence of 8 years and 4 months' imprisonment (allowing for the reduction brought about by upholding the additional ground) be effectively reduced by a period of approximately 3 years. That would have the result that the appellant would be required to serve a total term of about 9 years and 3 months' imprisonment (the total of the effective term of about 5 years and 4 months' imprisonment suggested by Pullin JA, the term of 8 months' imprisonment served while awaiting trial on the present charges and the term of 3 years and 3 months' imprisonment imposed in respect of the prior offending) after taking into account the transitional provisions. Even allowing for the seriousness of the appellant's offending, and for the other factors referred to in the judgment of Pullin JA, that seems to me to be a sentence that would hold out no sufficient measure of hope for, or encouragement to, rehabilitation and reform of the offender. It should not be overlooked, in this regard, that the appellant was only 24 years old at the time of the commission of these offences and that he had not, by then, previously been imprisoned.

20 Taking all of the circumstances into account, it seems to me that a just and appropriate punishment for the total criminality involved in the appellant's offending (including his prior offending) is a sentence of 8 years' imprisonment. In order to achieve that result I would reduce the term imposed on count 5 by a further period of 3 months, to a term of 4 years and 1 month's imprisonment. I would not interfere with the other terms of imprisonment imposed by the sentencing Judge. However, in

lieu of the orders made by the sentencing Judge as regards the issue of totality, I would order that each of the sentences imposed on counts 1 to 5 should be served concurrently with each other but cumulatively upon the sentences imposed in respect of the prior offending. This will have the consequence that the appellant will be required to serve 7 years and 4 months' imprisonment from 23 July 2004. That term, taken together with the 8 months' imprisonment already served by the appellant in respect of the current offences, gives rise to a total period of 8 years' imprisonment. The appellant should remain eligible for release on parole.

21 It follows that I would dismiss the appeal against conviction but allow the appeal against sentence. In respect of the appeal against sentence I would set aside the sentence imposed by the sentencing Judge on count 5 and sentence the appellant, in lieu, to a term of 4 years and 1 month's imprisonment in respect of that count. I would also set aside the orders made by the sentencing Judge as regards the issue of totality and substitute, in lieu, orders that each of the sentences imposed on counts 1 to 5 should be served concurrently with each other but cumulatively upon the sentences imposed in respect of the appellant's prior offending. The appellant will remain eligible for parole and the earliest date for his release on parole will, by virtue of s 93(1) and s 94 of the Sentencing Act 1995 (WA) and s 7(2) of the Sentence Administration Act 2003 (WA), be 25 November 2009, subject to adjustment due to the fine default warrants referred to in a letter dated 25 July 2006 from the Sentence Information Unit to the appellant's solicitors.

22 PULLIN JA: This is an appeal against conviction and against sentence.

(1) On or about 26 September 2003 at Kewdale the appellant stole a motor vehicle, namely a Kenworth prime mover registration number 1BLL068 and a trailer registration number YCH120 ("the Riteway trailer").

(2) On or about 26 September 2003 at Kewdale the appellant stole various rugs, sunglasses, luggage, clothing, cosmetics, pharmaceuticals and other items, these being the contents of the Riteway trailer.

(3) On 10 October 2003 at Kewdale the appellant and Darryl John Dodd stole an International prime mover registration number UHG175, and a Cope trailer registration number BFL421.

(4) On 10 October 2003 at Kewdale the appellant and Darryl John Dodd stole various whitegoods, televisions, electrical and other items, these being the contents of the Cope trailer.

(5) On 11 October 2003 at Forrestfield the appellant wilfully and unlawfully destroyed the International prime mover registration number UHG175 and the Cope trailer registration number BFL421. And that the International prime mover and the Cope trailer were destroyed by fire."

24 The appellant was convicted on all counts after a trial in the District Court before Judge O'Sullivan and a jury. He was sentenced to imprisonment, details of which are set out later in these reasons.

The appeal against conviction on count 5 - the arson conviction

25 The appellant only appeals against his conviction on count 5, the arson charge. There is one ground of appeal which reads:

"The jury's verdict of guilty upon count 5 on the Indictment is incapable of being supported having regard to the evidence, and is thereby unsafe."

26 Insofar as this ground asserts that the verdict was "unsafe", the appellant is relying on s 30(3)(a) of the Criminal Appeals Act 2004. This section, or its equivalent in other States, has been discussed and analysed on many occasions by the High Court. Some of the more important discussions may be found in Raspor v The Queen [1958] HCA 30; (1958) 99 CLR 346 , Chamberlain v The Queen (No 2) [1984] HCA 7; (1984) 153 CLR 521, Morris v The Queen [1987] HCA 50; (1987) 163 CLR 454, M v The Queen [1994] HCA 63; (1994) 181 CLR 487, MFA v The Queen [2002] HCA 53; (2002) 213 CLR 606, Weiss v The Queen [2005] HCA 81; (2005) 80 ALJR 444 and Darkan & Ors v The Queen [2006] HCA 34; (2006) 80 ALJR 1250.

27 From these cases, and other cases to which they refer, a number of propositions emerge:

(a) The words of the section should be used and not the many "judicial expositions" about what the words mean. Weiss (supra) [9] and [33]. Thus, a ground relying on s 30(3)(a) should complain that the verdict of guilty, having regard to the evidence is unreasonable or cannot be supported, rather than using phrases such as "unsafe and unsatisfactory", "unjust or unsafe", or "dangerous or unsafe": see M v The Queen at 492; MFA v The Queen at [25] and [58], or "dangerous" or "unsatisfactory": Chamberlain (No 2) at 618.

(b) The Court of Appeal may interfere with a verdict under s 30(3)(a) even though there has been no misdirection, erroneous reception or rejection of evidence, no complaint as to the course of the trial and there is some evidence on which a reasonable jury might convict: Chamberlain (No 2) at 531; Morris at 473. If the issue is that there was no evidence, then that will raise an allegation of an error of law: see Raspor (supra) at 350; M v The Queen at 492; Morris at 473.

(c) The function of the Court of Appeal in determining whether a verdict of guilty is unreasonable or cannot be supported having regard to the evidence is different from that of a trial Judge considering whether, as a matter of law, there is evidence on which the accused could be convicted: MFA v The Queen [26].

(d) The Court of Appeal, when considering an appeal under s 30(3)(a), is obliged to review the whole record of the trial and to make its own independent assessment of the evidence: M v The Queen at 492, Weiss [41] and Darkan [84]. However, in doing so it must make due allowance for the "natural limitations" that exist in the case of an appellate court proceeding on the record: Weiss at [41]; Fox v Percy [2003] HCA 22; (2003) 214 CLR 118 at [23], Darkan [84]. These "natural limitations" include the fact that:

(i) the appellate court does not typically get taken to, or read, all the evidence received at the trial: Fox v Percy [23];

(ii) the jury or Judge has had the benefit of having seen and heard the witnesses: M v The Queen at 493; Fox v Percy at [23]; Dearman v Dearman [1908] HCA 84; (1908) 7 CLR 549 at 561, but bearing in mind that "an ounce of intrinsic merit or demerit ... is worth pounds of demeanour": Fox v Percy [30] quoting Atkin LJ; and

(iii) that the jury is the body entrusted with the primary responsibility of determining guilt or innocence: M v The Queen at 493.

"Full regard" must be paid to these natural limitations: M v The Queen at 493, citing Deane J in Chamberlain (No 2) at 621.

(e) The "natural limitations" mean that on all but "rare occasions" will it be impossible to conclude that a verdict of guilt by the jury is unreasonable and cannot be supported having regard to the evidence. See Street CJ in R v Smith [1979] 2 NSWLR 304, cited by Deane J in Chamberlain (No 2) at 621; Lai v The Queen [1990] WAR 151 at 466.

(f) The task of the appellate court is not to decide what a reasonable jury, or the jury in the particular case would decide. Instead, it must decide for itself as to whether it has a reasonable doubt: Weiss at [35] and[41]. If it does, then the jury should in most cases also have experienced such doubt: M v The Queen at 494.

(g) An Appeal Court may experience doubt about the guilt of the appellant where the evidence lacks credibility for reasons which are not explained by the manner in which it was given and if the evidence upon the record itself contains discrepancies, displays inadequacies, is tainted or otherwise lacks probative force in such a way as to lead the court to conclude that even making full allowance for the advantages enjoyed by the jury, there is a significant possibility that an innocent person has been convicted. In those circumstances the court is bound to act and to set aside a verdict based on that evidence: M v The Queen at 494.

28 The evidence in relation to the other convictions are relevant to this appeal. At some time in the hours before dawn on 26 September 2003, the appellant, at a depot in Chisholm Crescent, Kewdale, stole a Kenworth prime mover. That vehicle was then driven to the Riteway Express depot at 450 Belmont Street, Belmont where the Riteway trailer was then also stolen by the appellant. The stealing of the Kenworth prime mover and the Riteway trailer was the subject of count 1.

29 The Kenworth prime mover and the Riteway trailer were then driven away from the depot at Belmont Street. The stealing of the contents of the Riteway trailer was the subject of count 2.

30 In later police investigations, premises leased by the appellant at Unit 3, 71/73 Brant Road, Kelmscott, were searched, and parts of the Kenworth prime mover were discovered, including the engine, rear end, chassis and differential. In addition, some of the contents of the Riteway trailer were found at this unit. A police search found the Riteway trailer at premises at 10 Aitken Way, Kewdale. Goods from the Riteway trailer were found at that address. Police also found further goods from the Riteway trailer at another address in Tinga Place, Kelmscott.

31 I then turn to the events concerning counts 3 and 4 on the indictment. On 10 October 2003, an International prime mover and a Cope trailer were stolen by the appellant from 15 Hodgson Way, Kewdale. This was the subject of count 3. The International prime mover and the Cope trailer were then driven to 113 Clayton Street, Bellevue where the goods from the Cope trailer were unloaded. The stealing of the goods in the Cope trailer was the subject of count 4.

32 As mentioned above, the appellant's convictions in relation to counts 1, 2, 3 and 4 are not appealed against.

33 The State's case was that the appellant was a principal offender in relation to the arson charge. The trial Judge in his summing up directed the jury as to s 7(a) of the Criminal Code (WA). There was no direct evidence that the appellant had set fire to the International prime mover and the Cope trailer.

34 Three witnesses saw the International prime mover and the Cope trailer on the morning of Friday 10 October 2003. One of these, a man, saw the truck and trailer at 5.30 am, parked in Brook Road in Kenwick. He saw two people in the truck. One he identified as being an associate of the appellant, Adam Halliday. Two other witnesses saw the International prime mover and Cope trailer in Gooseberry Hill at between 9 am and 9.15 am on 10 October 2003.

35 On the afternoon of 10 October 2003 the truck and a Cope trailer were seen at 113 Clayton Street, Bellevue by an employee of Peak Petroleum which owned these premises. Peak Petroleum let a shed on the premises to Colin Duff. Two neighbours heard goods being unloaded near these premises one morning at about 2 am. The date was not precisely identified but the evidence is consistent with the unloading taking place on the night of 10/11 October 2003. The appellant's DNA was found on some gloves and his fingerprints were found on a post pack at 113 Clayton Street. The International prime mover truck and Cope trailer were burnt out at Carolyn Way, Forrestfield on 11 October 2003. The truck catching fire and burning was recorded on the security camera located in nearby premises. The time of the explosion was about 3.40 am. Other vehicles were filmed in the vicinity at the same time.

36 Telephone records were also tendered relating to the appellant's mobile telephone. The records for this phone revealed that on 10 October 2003, calls were recorded at 3.48 am at Kewdale, 4.05 am at Kewdale, 4.16 am at Welshpool, 5.48 am at Maddington and 8.53 am at Kalamunda. This can be measured against the fact that the International prime mover was stolen from the depot in Kewdale and that the truck was observed by a witness in Kewdale and by two witnesses in Gooseberry Hill (which is the suburb next to Kalamunda) shortly after the Kalamunda call was recorded. Later calls were recorded at 9.19 am, transmitted from Midland which is the suburb next to Bellevue where the goods from the Cope trailer were found at 113 Clayton Street. There was a call logged at 15.57 (3.57 pm) on 10 October 2003 and then no further call recorded until 16.54 (4.54 pm) on 11 October 2003.

37 The telephone calls on the morning of 10 October 2003 provided evidence concerning the appellant's involvement in counts 3 and 4. The respondent submitted that something could be made of the fact that no calls were logged at the time the International prime mover and Cope trailer were burnt. It was submitted that this was consistent with the appellant having worked to steal the International prime mover and Cope trailer early in the morning of 10 October and then working during the day to unload the trailer, to burn it and then to retire to bed to get some sleep. In my opinion, the fact that no phone calls were made between 3.57 pm on 10 October and 4.54 pm on 11 October 2003 provides no evidence at all against the appellant on the arson charge.

38 The State also submits that opportunity and motive provided evidence against the appellant on the arson charge. So it did, but standing alone those factors were not enough to prove beyond reasonable doubt that the appellant committed the offence.

39 The most important, indeed the critical evidence concerning the appellant's guilt in relation to count 5, came from a discussion between Adam Halliday and the appellant which was recorded covertly on 21 January 2004, when Halliday went to visit the appellant at Hakea prison. The appellant was being held in custody there, pending trial. During the conversation the appellant and Halliday discussed the fire. The respondent submits that the appellant made statements which amount to implied admissions that he was involved as a principal in deliberately burning the International prime mover and the Cope trailer. When this conversation took place, Halliday had also been charged with stealing the Kenworth prime mover and the Riteway trailer, stealing the International prime mover and the property in the Cope trailer and arson in relation to the International prime mover and the Cope trailer. Halliday ultimately pleaded guilty to stealing the Kenworth prime mover and the property in the Riteway trailer and to stealing the property in the Cope trailer. At the time Halliday went to visit the appellant, each had been given a statement of material facts as part of the prosecution brief. There was discussion about the charges and other topics. I have extracted and set out below what I regard as the relevant parts from the transcript and I have highlighted in bold type the critical aspects in those parts. After each passage I make some observations about the significance of that part of the conversation. The appellant submits that the transcript does not reveal any admissions.

"BRUCE See what you've gotta do, is you've gotta. You have to say you where somewhere for me to be able to fuck for you to be able to stand up in court and say that I wasn't the one who set fire to the truck and shit.

HALLIDAY Yeah.

BRUCE See so you can't plead not guilty to everything, becos otherwise it fucks up. What you do have to do is plead guilty to a fucken possession charge.

HALLIDAY Yeah well I'm going for the, going for the possession and and the um....

BRUCE Helping unload.

HALLIDAY ...or yeah alright. Um 'cost I told them that we weren't there for the unloading. You know what I mean? Like I you know becos I gave them a bit of a briefing. How they, how they sort of asked me about and I said, mate there's no way was Rodney Bruce ever at that fucken Maida Vale. You know?

BRUCE Yeah but if we both if we both say we weren't there they'll just put, they will just cart us both off.

HALLIDAY Well I fucken know I went there. I seen it. But after it was already unloaded. You know?

BRUCE Mm."

41 From statements made by the appellant in evidence at the trial it appears that "Maida Vale" was how the appellant described 113 Clayton Street, Bellevue, and it appears that Halliday also used that description. This passage reveals the appellant giving instructions to Halliday about what Halliday must do if the appellant is not to be convicted on the arson charge. It also reveals the appellant as perceiving himself as having the authority, even in prison, to give instructions to Halliday about how Halliday should plead in relation to the charges against him.

"BRUCE All you do is fucken tell em say yeah alright I was there I never had any involvement in it. Right? But well you can fucken. I know you've gotta word it properly. You gotta say, yes I knew about the operation. I knew all about it but I never actually took part in it. Right?

HALLIDAY Yeah, yeah.

BRUCE That's what you'll have to say. I never actually took part in it. But I knew all the parties that were involved.

HALLIDAY Yeah.

BRUCE And fucken Mr Bruce was not one of them.

HALLIDAY Yep. Right well what they said to me, right.

BRUCE If you denied all knowledge of it then you can't help me in court then I'll stay here till fucken another three years.

HALLIDAY No, no well that's what I tried to get across to them, but without saying too much.

BRUCE Mm.

HALLIDAY You know what I mean? 'Cos..

BRUCE Well what it is, is your going to court on the twenty sixth. If you stand up and plead not guilty to everything right?

HALLIDAY Yep.

BRUCE Well then that fucks me, becos then you come to my court case next month, a month after and you turn up and say, yes I was involved and I fucken, Mr Bruce wasn't there......

HALLIDAY Yep.

BRUCE ....well you're contradicting yourself.

HALLIDAY Yep, yep. Right well this is what I want to get with you now. Right, so keep on with the story that I went there two days afterwards and seen what they had.

BRUCE If that's what you too told 'em, yeah.

HALLIDAY Yeah alright.

BRUCE Alright.

HALLIDAY And I told 'em that the reason that you come to having so much stuff from the first trailer was becos they loaded the aerodyne up that night with some shit for us.

BRUCE Mm.

HALLIDAY So I actually told them that but I wanted some bath mats there, I said chuck that shit in and I said that's what I want for helping you start the truck.

BRUCE Mm.

HALLIDAY 'Cos I definitely have to go for helping steal the truck.

BRUCE Mm.

HALLIDAY So I sort of admitted to that. And receiving the truck. Receiving goods from the truck and receiving goods from the Cope trailer, fuck the criminal damage on it.

BRUCE Mm.

HALLIDAY So I don't know how the fuck we're gonna um have you heard or talked to Casserley at all? Like about his what he actually told them he did?

BRUCE Nah. I haven't fucken got hold of him. Janine went and saw him apparently and he well, from what the coppers even said mate I don't know, ...he's pleaded guilty to fucken unloading it.

HALLIDAY Yep."

43 This reveals the appellant explaining to Halliday that he must plead guilty rather than not guilty so that Halliday can say the appellant was not involved in the "operation". It is now beyond dispute that he was involved in the "operation" because he was convicted, and has not appealed against the conviction on counts 1, 2, 3 and 4. It is clear, therefore, that he is telling Halliday to tell lies about his (the appellant's) involvement. There is also a reference to another gang member by the name of Casserley.

44 There was then discussion about what was in the statement of material facts relating to the appellant's charges:

"BRUCE But on my material facts it says that the fucken um, co-offenders were handed a roller, house paint and roller and a hair-dryer.

HALLIDAY Yeah well see I never saw that.

BRUCE You and I weren't there mate when that happened.

HALLIDAY No I, I know.

BRUCE So that would have been when fucken fucken Casserley and that were there.

HALLIDAY Yep, yep.

BRUCE And then it says that and then it says that Duffy gave and Duffy says that he gave me the keys on my material facts. Duffy reckons he gave me the key.

HALLIDAY Yea well something's wrong there. Yeah right well I wonder what his story is now?

BRUCE Well he's fucked. He's a dog mate.

HALLIDAY Yeah.

BRUCE That's all he is. That's what his fucken story is. Cos he's gone on about the house paint and roller and rah rah rah and he didn't realise it wasn't me. I wasn't there just yet. And then fucken go goes on about me fucken givin me the keys. Blah, blah, blah, blah, blah.

HALLIDAY When Doddy actually give you the keys to it.

BRUCE Mm.

HALLIDAY Fucken hell.

BRUCE So he's fucken dog mate. If he comes in here, he's dead. He's fucken dead when he gets in here. Not for me but for the other boys who want to kill him.

HALLIDAY Yeah, I'm sure there's an array of fucken people who want to kill him.

BRUCE Mm. But fucken yeah going, plead guilty to as minimum as possible that you can actually, but you can account for you being there and being a witness.

HALLIDAY Yeah.

BRUCE That's all you gotta do. You gotta go in and say, yes I was involved in the truck, rah, rah, rah, blah, blah, blah, blah, blah. But if you say you weren't there, rah, rah, rah, rah, rah. You're not a witness to say that I wasn't.

HALLIDAY Yeah I know.

BRUCE You have to say that you were there. And that when you went to fucken that place two days later....

HALLIDAY Yep.

BRUCE ... I stayed at home

HALLIDAY Yep.

BRUCE ... rah, rah, rah. You left my house. You left from my house you left....

HALLIDAY Leaving you there.

BRUCE ...and fucken yeah leaving me there.

HALLIDAY Yep, alright.

BRUCE Right?

HALLIDAY Well that's all good cos that gotta work in anyway, 'cos that's the truth to it you know?

BRUCE Yeah.

HALLIDAY They can't prove otherwise there. But um if.

BRUCE And if they say anything about a fingerprint later on right, about me the fingerprint at Maida Vale, No problem mate, I've been there before.

HALLIDAY Yeah, yeah, right.

BRUCE I've been there before."

45 This reveals the appellant advising of the sanction which awaits someone who arrives in gaol if they have said something which is not to the appellant's liking. It also reveals the appellant saying that the incident with the paint occurred before he arrived at Maida Vale ("I wasn't there yet"). It also reveals the appellant agreeing that it was Dodd who gave the keys to the appellant (Halliday saying this and the appellant making a sound signifying agreement). The keys are a reference to the International truck. This is clear from cross-examination of the appellant at trial. At t/s 1,059, when the appellant was being cross-examined, he agreed that the statement of material facts referred to the house paint and roller, which related to what happened on 10 or 11 October and agreed that the material facts said that Duffy gave him the key. Thus, when the appellant signified his agreement with Halliday's statement that "Doddy actually give you the keys to it", the reference to "it" is a reference to the truck that was involved in the 10 October incident, which is the International truck. The appellant's agreement with the statement about "Doddy" giving him the keys means that the appellant was admitting that he was given the keys to the International truck. At t/s 1060 in cross-examination the appellant said that when he said "Mm" in response to Halliday's statement that "Doddy" gave the appellant the keys, that he was "just letting [Halliday] rattle on", and that "Doddy" never gave him the keys.

46 I have listened to the recorded conversation and I conclude, and in my opinion the jury was entitled to conclude, that the appellant was signifying his agreement with Halliday's statement.

47 There was further discussion about the arson charge, and then the appellant and Halliday discussed the lawyer retained to act for Halliday:

"BRUCE When you, when you see him next tell what the go is and you can fucken say what you've gotta say.

HALLIDAY Yeah.

BRUCE To keep me out of jail.

HALLIDAY Yeah

BRUCE And fucken he'll go no fucken rah, rah, rah cos he tries to save you.

HALLIDAY Yeah.

BRUCE And you can just say, listen cunt your being paid to do this for both of us. Right?

HALLIDAY Yeah.

BRUCE And John Bougher will do the same thing for us.

HALLIDAY Alright. Well he and my lawyer have got to get together hey?

BRUCE For what? Well maybe.

HALLIDAY I don't know that's what Bougher said when Janine and I went in and said I've got to talk to Adam lawyer you know.

BRUCE Mm

HALLIDAY But I said, no I don't know if.

BRUCE But you need to fucken tell your lawyer what the go is. Straight out. And say, listen he's. I fucken (inaudible) fucked right? Your goal is to keep both of us out of fucken jail.

HALLIDAY Yeah. Yep.

BRUCE Right? And I will plead to fucken possession rah, rah, rah in order to keep him out of jail. And then you get a possession charge, I'll get a possession charge and we'll both get a good behaviour bond and we're out free.

HALLIDAY Right. Alright well I don't know how....

BRUCE See the only thing that's gonna keep us from fucken getting out like an ISO or something like that.

HALLIDAY Yeah.

BRUCE Is the fire one.

HALLIDAY Damage?

BRUCE Yeah.

HALLIDAY Yeah alright.

BRUCE Yep.

HALLIDAY Well we've gotta find out what Casserley said you know.

BRUCE Well you'll have to get in the car and go round to his house mate and get hold of him.

HALLIDAY Well apparently um that he, my lawyers entitled to his video confession, and like my lawyer can see that and I can go see it. You know? So mate do you want me to trying tee that up or what?

BRUCE Yeah.

HALLIDAY Yeah."

48 This reveals the appellant giving instructions to Halliday to find out what Casserley had said which might be damaging to him, reveals the appellant's awareness that the arson charge is the most serious charge and further reveals the appellant's plan to have Halliday give false evidence to exonerate the appellant on the arson charge and that, if that does not happen, the appellant will not be able to escape conviction on the arson charge.

"BRUCE .... And you and Cassidy are both there and you both say, I was not involved and you were both. Well Cassidy's already said that he was there unloading the truck.

HALLIDAY Yeah.

BRUCE Right? He said he was there the whole time....

HALLIDAY Yeah, he said, that I was there for four to six hours unloading, Right?

BRUCE Yeah right. So if your both there, you're both the ones that are fucken the drivers right. He can fucken straight out say, yeah. See he's already pleaded guilty right? He's pleaded guilty to fucken unloading the truck.

HALLIDAY Yeah.

BRUCE Right? He can say, that yes, you were there, but you never unloaded it and you left.....

HALLIDAY Yeah.

BRUCE .....Right? That has nothing to do with you by the fire.

HALLIDAY Yep.

BRUCE Right? And he can also say that I was not there at all. Right?

HALLIDAY Yeah, yeah.

BRUCE And you can say, I was not there at all. And he. And you can both say that you left fucken both together and somebody else took the trailer.

HALLIDAY Yep.

BRUCE And you both get out of the fire.

HALLIDAY Yeah we both got in that, oh right, someone else, yeah right.

BRUCE The only way we'll get out of this is if we all stick together. Right. If you and Casserley say, yes you both unloaded the truck or whatever, but you both left at the same time. Right? You left together....

HALLIDAY Yep.

BRUCE ...you can't be done for the fire.

HALLIDAY Right.

BRUCE .... And if you both say that I wasn't there, I can't be done for it either.

HALLIDAY Alright.

BRUCE And all three of us will walk and it will come back on the Duffy cunt."

50 This last interchange is particularly important. The appellant is there explaining to Halliday (who appears to struggle to understand the significance of the lies he is being asked to tell) that if Halliday follows the course that the appellant recommends, then Halliday could not be "done" for the fire and that, if Halliday and Casserley give the evidence that Bruce says they should give, then "I [the appellant] can't be done for it either", and all three of them, Halliday, Casserley and the appellant will "walk", which in my view can only be interpreted as meaning "walking" away from responsibility in relation to the arson charge.

51 It was for the jury to make what they would of all of this material, but none of the conversation could have left the jury with the impression that the appellant was an innocent man trying to persuade Halliday and others to speak the truth and give truthful evidence reflecting his lack of involvement. It reveals the appellant's efforts to persuade Halliday to say that he (the appellant) was not involved in any of the five offences. It is now known that the appellant was involved in and guilty of the first four counts and which convictions are not challenged. To ask or instruct Halliday to make false statements so that he (the appellant) could not be "done" for the fire, gives rise to the strong inference that he was, by this statement, admitting his involvement in the intentional burning of the International prime mover and the Cope trailer which he would be "done" for if Halliday told the truth. In my opinion, the recording contains implied admissions that the appellant was directly involved in the deliberate burning of the International prime mover and the Cope trailer.

52 I have referred to the fact that the appellant gave evidence at his trial. He denied any involvement in any of the offences charged. He admitted he was the lessee of the Brant Road, Kelmscott industrial unit. He denied involvement in the thefts or the arson. He testified that he was taken to 113 Clayton Street, Bellevue by Halliday and shown some of the items stolen from the Cope trailer. He said he may have touched some items and that he possibly had a coke while there and that he was told to wear gloves while he was handling the items which explained why his DNA and fingerprints were found at the premises. He said he stayed there for 10 to 15 minutes and went through some of the items but that something was "going on", because there had been radio news broadcasts he had heard about the stolen property. He gave evidence he was not interested in anything and said it was "too hot". He denied using the gloves to unload the truck and store the property the subject of count 4 in the warehouse. This account about how his fingerprints and DNA were found at 113 Clayton Street was contrary to what he said to Halliday that he would offer as an explanation. He said to Halliday that he would explain away his fingerprints because he had been there "before".

53 He denied that he was out at 3.48 am on 10 October 2003 (the morning when the International prime mover and Cope trailer were stolen), which is when one of his telephone calls was logged. He denied the phone was his. He gave evidence that it was registered in the name of a Stephen Taylor, a friend he made through the transport industry. On this appeal, counsel for the appellant conceded that this Court should accept that the mobile phone was the appellant's phone.

54 In relation to the recorded conversations with Halliday, the appellant testified that he was trying "the whole time throughout ... to suggest to him to do the right thing" and set the record straight so that the appellant could be released from custody. In relation to count 5, the appellant denied having anything to do with the fire or the plan to set the truck and trailer alight. Halliday was called as a State witness but the declined to answer questions and was later dealt with for contempt of court.

55 The authorities which I have referred to above make it plain that on a ground of appeal alleging that the verdict is unreasonable or is incapable of being supported having regard to the evidence, that one of the natural limitations is that the jury has had the benefit of having seen and heard the witnesses, and that the jury is the body entrusted with the primary responsibility of determining guilt or innocence. Those natural limitations are particularly important here. It is plain that the jury for very good reason did not believe the evidence given by the appellant. It is now beyond question that the appellant was not speaking the truth about his involvement, at least in relation to the first four counts, because he has been convicted of those offences and he does not appeal against those convictions. Counsel for the appellant accepted that the appeal had to be considered by reference to the evidence excluding the evidence given by the appellant.

56 Bearing in mind the limitation referred to, having reviewed the evidence myself, having listened to the recording of the conversation at Hakea prison and taking into account the implied admissions made by the appellant, having viewed the video of the burning truck and trailer, having noted the fact that the appellant was guilty of stealing the International prime mover and the Cope trailer and therefore had the motive to commit the offence and having observed that the appellant had the opportunity to commit the arson, I experience no reasonable doubt about the guilt of the appellant in relation to count 5. In my opinion the verdict of the jury was not unreasonable, and it was a verdict which is supported having regard to the evidence.

57 I would therefore dismiss the conviction appeal.

58 The appellant also appeals against his sentence.

59 The appellant was convicted by a jury of the five charges outlined above. He was sentenced by O'Sullivan DCJ on 25 November 2005 to 4 years on each of the stealing motor vehicle offences (counts 1 and 3), 2 years on each of the stealing offences (counts 2 and 4) and 5 years on the arson offence (count 5). The learned sentencing Judge made counts 1 and 2 concurrent, and counts 3, 4 and 5 concurrent, but counts 1 and 2 were made cumulative on counts 3, 4 and 5. The result was that the appellant was sentenced to 9 years imprisonment with parole eligibility.

60 The sentence was also made cumulative on an existing term of imprisonment the appellant was serving of 3 years and 3 months imposed on 23 July 2004 for three drug offences and a firearm offence. The sentencing Judge also purported to backdate the sentence on the convictions under review to start from 3 April 2005.

"GROUND 1 - The Learned Sentencing Judge erred in law in the approach taken to the imposition of sentence upon counts 1 and 3, by contravening the principle enunciated in Markarian v R [2005] HCA 25; (2005) 215 ALR 213.

GROUND 2 - The Learned Sentencing Judge erred by finding that "any claim of remorse would sound somewhat hollow" in the facts of this case, when in fact the Appellant did admit to receiving stolen property in respect of counts 1 and 2 on the indictment.

GROUND 3 - Each of the sentences imposed by the Learned Sentencing Judge was outside the range properly available to the Learned Sentencing Judge in the exercise of his sentencing discretion given all the circumstances of the offending and of the offender.

GROUND 4 - The total effective sentence imposed infringed the totality principle of sentencing.

Particulars

1. There was no mandate for ordering that the sentences imposed in respect of counts 3, 4 and 5 be served cumulatively upon the sentences imposed on counts 1 and 2; and further

2. That the Learned Sentencing Judge failed to give sufficient weight to the fact that the sentences imposed by him did not commence until the conclusion of the sentence previously imposed upon the Appellant in relation to drug offences."

62 The appellant was also given leave to add a further ground of appeal in the following terms:

"The learned sentencing Judge erred in backdating the sentence of 9 years imprisonment to 3 April 2005 in circumstances where it was legally impossible to order that the sentence commence from that date.

PARTICULARS

(a) The appellant was arrested for the offences the subject of this appeal on 1 December 2003 and was remanded in custody;

(b) On 23 July 2004 the appellant was sentenced to 3 years and 3 months imprisonment with parole eligibility for unrelated offences;

(c) Between 1 December 2003 - 23 July 2004, the appellant spent 236 days in custody for the offences the subject of this appeal and was entitled to credit when sentenced for the offences;

(d) The appellant's earliest release date on parole in relation to the sentence imposed on 23 July 2004 was 21 May 2006. Given that the learned sentencing Judge ordered that the 9 year sentence for the offences the subject of this appeal be served cumulatively on that earlier sentence, the total aggregate sentence becomes on of 12 years and 3 months, pursuant to s 94 of the Sentencing Act 1995. It is therefore impossible to order that the cumulative sentence commence on a date during which the appellant is still serving the non-parole period of a sentence."

63 To understand this ground, it is necessary to bear in mind that the appellant was sentenced to 3 years 3 months' imprisonment on 23 July 2004 for drug and firearm offences which had been committed in 2002. He was then sentenced by Judge O'Sullivan for the offences the subject of this appeal to an aggregate term of 9 years, which sentence was imposed on 25 November 2005. His Honour ordered that the aggregate sentence of 9 years be served cumulatively on the sentence for the drug and firearm convictions. However, his Honour then purported to backdate the 9 year sentence to 3 April 2005 to take account of the 236 days (approximately 8 months) the appellant spent in custody awaiting trial for these charges before he was sentenced on the drug and firearm offences. Making an order backdating the 9 year sentence was inconsistent with his Honour's order that the 9 year sentence be cumulative on the 3 years 3 month sentence. The two orders cannot both remain because they are contradictory. His Honour therefore erred in law.

64 The respondent agreed that this is an error which must be corrected. It is clear that his Honour rightly wanted to give credit to the appellant for the 8 months he had already spent in custody after his arrest on these charges before he was sentenced to imprisonment on the drug and firearm offences.

65 In my opinion, this can be best achieved by adjusting the 5 year term for arson and reducing it by 236 days (rounded to 8 months), and that is what I would do. I would therefore set aside the sentence on the arson charge and set aside the order backdating the aggregate sentence. In lieu, but for a problem which emerges later, I would make an order that, in relation to the arson charge, the appellant should serve a sentence of 4 years 4 months, making an aggregate term of 8 years 4 months in lieu of the aggregate term of 9 years.

67 Ground 1 claims that the learned sentencing Judge erred in law by taking as his starting point for fixing sentences in relation to counts 1 and 3 the maximum penalty of 7 years' imprisonment. The appellant claims that this is contrary to the principle set out in the High Court decision of Markarian v The Queen [2005] HCA 25; (2005) 79 ALJR 1048.

68 The appellant points to what was said in Markarian at [31] by Gleeson CJ, Gummow, Hayne and Callinan JJ, namely:

"... it will rarely be ... appropriate ... to look first to a maximum penalty, and to proceed by making a proportional deduction from it."

69 In his sentencing comments, the learned sentencing Judge stated that:

"In my view, the starting point in relation to the offences the subject of counts 1 and 3 on the indictment should be the maximum provided for of seven years. Having regard to factors which go in your favour, Rodney Bruce, I reduce the terms to ones of six years and those terms should be reduced to four years in each case by reason of the transitional provisions amending the Sentencing Act."

70 Immediately prior to the comments quoted above, he did state that

"Offending of this kind must, I think, attract significant penalties. The transport of goods by road is a vital aspect of commercial life in Australia and any threat to it must be dealt with by the courts firmly and in a way which sends a deterrent message to other would-be offenders."

71 The appellant contends that his Honour erred in proceeding to sentence in this way. The submission was that to do so was to err in law by proceeding in, what the passage from Markarian says, is an "inappropriate" way.

72 Markarian has to be understood in the context of its facts and the grounds which were being argued. In that case the appellant was convicted of drug offences including supplying 415 grams of heroin which was a prohibited drug. He was sentenced to 2 years 6 months by the sentencing Judge. The Crown appealed and the Court of Criminal Appeal allowed the appeal and substituted an 8 year term of imprisonment. In the New South Wales Court of Criminal Appeal, Hulme JA (Heydon and Carruthers JJA agreeing) referred to a section of the Misuse of Drugs Act which set maximum penalties relating to the weight of the drug. Thus, inter alia, it provided for a maximum of 2 years' imprisonment for 1 gram, 2 years for up to 5 grams, 15 years for up to 250 grams and between 250 and 1,000 grams, 20 years. Hulme JA said:

"Had the [appellant's] offence and circumstances fallen within the category of a worst case falling within the statutory provisions, the sentence should have been not less than the 15 years maximum for the offence of supplying an indictable quantity. I appreciate that the charge specified a commercial quantity, that the maximum period of imprisonment prescribed for that offence is 20 years and that the quantity involved in this offence was only a little more than 40 per cent of the maximum commercial quantity. However, Parliament cannot have intended that, other things being equal, the penalty for supplying more than 250 grams should be less than for supplying that quantity."

73 In relation to the first ground of appeal which complained about this reasoning, the Judges in the joint judgment in Markarian at [33] noted that the serious fallacy in Hulme JA's reasoning was that it assumed that any case involving more than 250 grams of heroin was likely to be a worse case than any case involving only 250 grams or less. Their Honours pointed out that this could not be so in the virtually absolute terms in which Hulme JA put it. They pointed out that little imagination was required to envisage a case involving a relatively small quantity of heroin as being of very great seriousness, for example, supplying to create an addiction in an infant. Their Honours also pointed out the further defect in the reasoning, which was that having started with a penalty which would have been appropriate for the worst possible kind of offence of supplying 250 grams of heroin, no attempt was made to identify the nature of such a case and to make a comparison of the facts of the principal offence with it. As a result, the Judges in the joint judgment said that the Court of Criminal Appeal erred. On this ground McHugh and Kirby JJ agreed. Thus the decision on the first ground turned on the particular facts of the case. Ground 2 dealt with the issue about staged reasoning as opposed to instinctive synthesis. I need not refer to that.

74 When the court said that it would be "rarely appropriate" to look first to a maximum penalty, it was conceding that sometimes it would be appropriate to look first to the maximum penalty. Their Honours, in the joint judgment, expressly said so at [30] and [31] where they said:

"[30] Legislatures do not enact maximum available sentences as mere formality. Judges need sentencing yardsticks. It is well accepted that the maximum sentence available may in some cases be a matter of great relevance. ...

[31] It follows that careful attention to maximum penalties will almost always be required, first because the legislature has legislated for them; secondly, because they invite comparison between the worst possible case and the case before the court at the time; and thirdly, because in that regard they do provide, taken and balanced with all the other relevant factors, a yardstick."

75 It is important to bear in mind that in Western Australia this passage cannot be directly applied because of local legislation. In Western Australia, attention must always be paid to the maximum penalty (not "almost always") because s 6(1) of the Sentencing Act 1995 states that a sentence imposed on an offender must be commensurate with the seriousness of the offence, and s 6(2) states that the seriousness of an offence "must" be determined by taking into account the statutory penalty for the offence, along with the circumstances of the commission of the offence, aggravating factors and mitigating factors.

76 Having made that point, however, there can be no doubt that it will "rarely be appropriate", as their Honours said, to begin with the maximum penalty and then to make deductions from it. It will be inappropriate in all cases where the case is not the most serious of its kind. If the case is not in the category of the most serious of its kind, then it is clearly an error for a sentencing Judge to start at the maximum penalty as though that would be the penalty to be imposed were it not for mitigating factors. However, if a Judge does properly consider that the case is in the category of the worst of its kind, then there could be no objection to the sentencing Judge starting at the maximum and making appropriate deductions from it if the mitigating factors are not complex and are few in number. In those circumstances, their Honours said, in the joint judgment in Markarian when dealing with the second ground, that "some indulgence in an arithmetical process will better serve" transparency of process. See [39]. Their Honours in the joint judgment, however, said that if the mitigating and aggravating factors are numerous and complex [at 39], then the instinctive synthesis method is the appropriate method of sentencing.

77 I now return to the circumstances of this case. When the sentencing Judge said that the offending in relation to the stealing charges must attract significant penalties, that the transport of goods by road is a vital aspect of commercial life in Australia, and that any threat to it must be dealt with by the courts firmly and in a way which sends a deterrent message to other would-be offenders, he was, in my opinion, indicating that he thought that this was an offence in the category of the worst of its kind. If that is so, and because the mitigating factors were simple and not complex, his Honour did not err in using the maximum penalty as a starting point for sentencing and then making an adjustment to it.

78 However, in case there are different views on this, I will proceed by assuming that his Honour erred by starting with the maximum. That being so, it will become necessary to decide what sentence this Court should impose. In my opinion, counts 1 and 3 are in the category of the most serious stealing charges. This is a case involving what is popularly called organised crime, meaning crime which is not petty and opportunistic, but which is deliberately organised by people who act collectively and on a large scale. There was a gang, consisting of at least five members. It had a command structure and an infrastructure dedicated to criminal activity. It is evident, from the recorded conversation, that the appellant was in some position of command. Even while he was in prison he felt that he had the authority to issue instructions to Halliday about what evidence he should give, and indeed to order Halliday that he should plead guilty in order to protect the appellant. By way of an implied threat, he advised Halliday of what would happen to a "dog" - a person who said something against the appellant's interests - if he came into the prison system. Later, Halliday refused to testify against the appellant. The gang had an infrastructure. It had premises from which their criminal activity could be conducted. The Brant Street industrial unit and Duff's shed at Clayton Street were used for these purposes. The appellant had taken the trouble to purchase a mobile telephone, registering it under a false name, presumably in the hope that he could communicate concerning his illegal activities without detection. The stealing was carefully planned to the point where gang members were available to unload the trucks once they had been stolen. The amount involved in these thefts was considerable. The victim impact statements show that the thefts affected many people and caused disruption to commerce. The offences were committed by the appellant when he was on bail for other offences of a serious kind.

79 The first principle of sentencing listed in s 6 of the Sentencing Act 1995 is that a sentence must be imposed on an offender commensurate with the seriousness of the offence ameliorated by any mitigating factors. The mitigating factors are that the appellant was 24 at the time of the offences and that he had not been to prison before. He had a criminal record peppered with driving offences but it included some offences of a more serious kind and indicating a growing interest in a life of crime (wilfully misleading police, possession of explosive substance and firearms offences).

80 It was said in mitigation that he was from a "good family". A person from a good family does not gain special treatment, but the fact that the person is from a good family often leads a court to hold out hope that the offence under consideration was behaviour out of character, and that such behaviour is not likely to be repeated. Unfortunately, the appellant has turned his back on his good family background and embraced crime as a way of prospering. Nevertheless, I would take into account as mitigating factors that he was only 24 and that he had not been in prison before the sentence for the drugs offences.

81 Taking into account all relevant factors, I would have arrived at a sentence, under the pre-transitional provisions, of 6 years' imprisonment which would then be reduced to 4 years' imprisonment after applying the transitional provisions. Of particular importance in a case like this is the need for general deterrence so that people involved in organised crime know that their involvement in it will result in heavy penalties.

82 The result is that even if the sentencing Judge erred by beginning with the maximum term and then making adjustment to it, the appeal would not succeed on this ground because there should be no reduction in penalty. See s 31(4) of the Criminal Appeals Act.

83 The second ground complains that the appellant's admissions during evidence that he received stolen goods should have been taken into account by the learned sentencing Judge, and that his Honour was in error to state that "any claim to remorse would sound somewhat hollow".

84 The learned sentencing Judge made the above comment in the following context. He said:

"... you did not plead guilty to any of these offences and thus any claim of remorse would sound somewhat hollow, particularly in the light of the fact that at trial you conducted a defence which sought to blame others, but I do note the expressions which have been made on your behalf by your counsel as to your late realisation of the damage that you have caused to others."

85 In my opinion it is irrelevant that the appellant admitted that he was guilty of receiving. This was not an expression of remorse but an attempt to escape conviction on the more serious charges. His subsequent conviction on the more serious charges, which are not now the subject of appeal, reveals this to be so. Furthermore, the transcript of the conversation at Hakea Prison reveals a complete lack of remorse. The transcript reveals that he was dedicated to escaping conviction on the offences that he had committed. In those circumstances a statement through counsel during sentencing remarks without any other manifestation of remorse does sound hollow.

87 Ground 3 claims that each of the sentences imposed by the learned sentencing Judge was outside the range of sentences open to his Honour. The appellant's written submissions, however, do not provide any examples of what the appellant submits are the usual range of sentences for similar offences. In the absence of any such submissions there is no ground for considering the sentences to be excessive.

88 The appellant also complains in his written submissions, but not in the ground of appeal, that the learned sentencing Judge's failure to state that he had taken into account "factors in [the appellant's] favour" before pronouncing the sentences on counts 2, 4 and 5 (as he had stated before counts 1 and 3) leaves a doubt as to whether he made any reduction in those sentences for matters personal to the appellant.

89 In my opinion the learned sentencing Judge's remarks have to be read as a whole. He clearly took personal circumstances into account. I do not accept that the learned sentencing Judge ignored those circumstances when sentencing on counts 2, 4 and 5.

91 Ground 4 argues that the final sentence imposed on the appellant offends the totality principle.

92 The appellant does face a very long term of imprisonment when the drug and firearm sentences are added to the aggregate sentence imposed by Judge O'Sullivan. The total of 3 years 3 months on the drug and firearms offences, 8 years 4 months on the present matters and the 8 months he spent in custody awaiting trial is 12 years 3 months (as a result of the adjustment following the order I propose as a result of the appellant succeeding on the additional ground - see [65]), which in pre-transitional terms is a sentence of over 18 years. That is a very substantial term of imprisonment for a man of 24, even bearing in mind the seriousness of these offences and the fact that he had dedicated himself to gangland crime. The totality principle requires a court, when sentencing an offender for a number of offences, to ensure that the aggregation of the sentences appropriate for each offence is a just and appropriate measure of the total criminality involved. It should not be one which would not hold out a proper measure of hope for, and encouragement to, rehabilitation and reform of the offender: Postiglione v The Queen [1997] HCA 26; (1997) 189 CLR 295. In my opinion the aggregate sentence imposed exceeds what is a just and appropriate measure of the total criminality and it does not allow a proper measure of hope for rehabilitation and reform. As a result, the overall length of the sentences must be reduced. In my opinion an appropriate aggregate sentence would be 9 years 4 months for all the offences for which the appellant was sentenced on 23 July 2004 and 25 November 2005.

93 Were it not for s 87 of the Sentencing Act 1995, I would achieve this by ordering that the aggregate sentence of 8 years 4 months on the present charges commence on 23 November 2004. That would have meant that the sentences on the drug and firearm charges and the sentences for these matters would be partly concurrent and partly cumulative rather than completely cumulative. The aggregate sentence on the drug and firearm charges commenced running on 23 July 2004 and then the sentences for these charges would have commenced to run 4 months later on 23 November 2004. The balance of the drug and firearms offences would then have run concurrently with part of the sentences on the present convictions. The aggregate sentence of 8 years 4 months on the present matters would therefore expire on 25 March 2013.

94 However, a sentence cannot be backdated unless the time in custody before sentence was "in respect of that offence and for no other reason" (see s 87(a)). In the period between 23 July 2004 and 25 November 2005 the appellant was in custody for two reasons, first on remand in relation to the present offences, and secondly as a result of the sentences imposed on 23 July 2004. Thus, as I cannot backdate commencement to 23 November 2004 to achieve the outcome I intend, I am obliged to reduce some of the individual sentences rather than make the present sentences partly concurrent to the extent suggested above. I would therefore reduce the sentence for arson by a further one year and the sentence for stealing on count 3 by 8 months to allow for the sentences to expire on 25 March 2013. The appellant should be made eligible for parole, and so will become eligible for release on parole on 25 March 2011 (by reason of s 7(2) of the Sentence Administration Act 2003 (WA) and see GHS v The State of Western Australia [2006] WASCA 42 at [102] to [105]), subject to adjustment of those dates due to a number of fine default warrants referred to in a letter dated 25 July 2006 from the Sentence Information Unit to Gunning Young the solicitors for the appellant.

96 In relation to the sentence appeal, I would uphold the additional ground of appeal and ground 4 and make the following orders:

(a) The appeal against sentence be allowed in part.

(b) The sentence in relation to count 5 be set aside and in lieu thereof, the appellant should serve a term of imprisonment of 3 years 4 months.

(c) The sentence in relation to count 3 be set aside and in lieu thereof, the appellant should serve a term of imprisonment of 3 years 4 months.

(d) The order made by the sentencing Judge backdating the sentences on all five counts to 3 April 2005 be set aside.

(e) The sentences on all five counts should commence on 25 November 2005 and be served partly concurrently with any existing sentences.

(e) The appeal against sentence is otherwise dismissed.

97 I repeat that the appellant will become eligible for parole on 23 March 2011 subject to any adjustment of that date by reason of matters referred to in the letter dated 25 July 2006 from the Sentence Information Unit of the Department of Corrective Services to Gunning Young. As a result the minimum time he will spend in custody will expire on 25 March 2011.

• Appeal against conviction
• Appeal against sentence
• Conclusion
• The appeal against conviction on count 5 - the arson conviction
• The evidence in relation to count 5
• The sentence appeal
• Additional ground of appeal
• Ground 1
• Ground 2
• Ground 3
• Ground 4
• Summary