Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA

Criminal law - Leave to appeal against conviction - Burglary and arson - Whether trial judge erred in failing to give an accomplice warning

Criminal law - Leave to appeal against sentence - Whether total effective sentence infringed the first limb of the totality principle - Whether sentence for the arson offence was manifestly excessive

Evidence Act 1906 (WA), s 31A, s 50

Chan v The Queen (1989) 38 A Crim R 337

Moloney v The State of Western Australia [2006] WASCA 193

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

White v The Queen [2006] WASCA 62

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

Wright v The State of Western Australia [2010] WASCA 14

2 BUSS JA: Generally for the reasons given by Mazza JA, leave to appeal should be refused and the appeal dismissed.

3 MAZZA JA: The appellant seeks leave to appeal against conviction and sentence.

4 The appellant, Crystal Jane Davis and Rachel Jonelle Fenton were jointly charged with one count of burglary and one count of arson. On 8 February 2011, after a trial before Sweeney DCJ and a jury, the appellant and each of his co-accused were convicted of these offences. The appellant seeks leave to appeal against these convictions.

5 On 13 May 2011, her Honour sentenced the appellant to 4 years' imprisonment for the arson and 12 months' imprisonment for the burglary to be served concurrently: ts 1080.

6 The appellant was also sentenced in respect of a number of other offences to which he had earlier pleaded guilty. These offences comprised three counts of receiving, one count of stealing a motor vehicle and one count of possession of methylamphetamine with intent to sell or supply it to another. The appellant was sentenced to 12 months' imprisonment on each of the receiving charges to be served concurrently with each other, but cumulatively upon the sentence imposed for the arson offence. Her Honour imposed sentences of 12 months' imprisonment for the car stealing and 2 years' imprisonment for the drug offence. These sentences were ordered to be served concurrently with each other, but cumulatively upon the other sentences imposed by her Honour.

7 The total effective sentence imposed upon the appellant was 7 years' imprisonment. The appellant was made eligible for parole and the sentences were backdated to commence on 2 February 2010: ts 1081.

Application for leave to appeal against conviction

8 In 2009, the appellant and Ms Davis were in a relationship. Ms Fenton was a friend of the appellant, but not Ms Davis.

9 The State's case was as follows. On or about 28 September 2009, Ms Davis commenced work as a receptionist at First Light Productions Pty Ltd (First Light), who leased and occupied premises situated in Carr Place, Leederville.

10 As part of her duties, Ms Davis had access to, and the use of, the company's credit card and a cheque book in which there were pre-signed cheques. Ms Davis fraudulently used the credit card and cheque book to obtain tens of thousands of dollars. Three of the fraudulent cheques with a total value of $24,779.09 were paid to the appellant. These cheques were the subject of the receiving charges to which the appellant pleaded guilty.

11 Ms Davis learned that First Light's accountant, Ms Geraldine Harris, was due to attend the business for the purpose of conducting a reconciliation on 24 November 2009. As a result, Ms Davis counselled or procured the appellant to burn down First Light's premises for the purpose of destroying the documentation which she feared would have revealed her dishonesty. The appellant agreed to this course. Ms Davis gave him the key and alarm code for the premises.

12 The appellant obtained a sledgehammer, a balaclava and a jerry can of fuel. He enlisted, without Ms Davis' knowledge, the help of Ms Fenton. In the early hours of 24 November 2009, Ms Fenton drove the appellant to First Light's premises, knowing of his intentions.

13 The appellant entered the premises using the key provided to him by Ms Davis. He then disarmed the alarm, using the code. To make it look like the premises had been forcibly entered, he, at some point, smashed the glass panel to the front door. The appellant poured fuel on the area of Ms Davis' reception desk where most of First Light's financial records were kept. He lit the fire, set off the alarm and left the scene. Emergency services attended and extinguished the fire, but not before the building and its contents were extensively damaged. The cost of the damage to the building was estimated at $420,000.

14 After the fire, on 15 December 2009, the relationship between Ms Davis and the appellant broke down, and the appellant began a relationship with Ms Fenton. On 16 December 2009, Ms Davis went to the police. She gave an unsigned statement to a police officer, implicating Mr Evans and exculpating herself. I will say more about this statement shortly.

15 The State's case was essentially circumstantial, but it did call evidence from Robert Jaensch of an alleged admission made by the appellant to him.

16 In examination-in-chief, Mr Jaensch testified that, some time in late November 2009, he spoke with the appellant and Ms Fenton. He observed that the appellant had facial burns and asked him what had happened. According to Mr Jaensch, the appellant told him that 'he got burnt while doing ... a place in Leederville, a studio, where Crystal Dymock [Davis] used to work': ts 206.

17 In cross-examination, Mr Jaensch agreed that he was mixed up in criminal activity involving drugs. He said that the police approached him and that he provided a statement about his criminal activities and the people he had been associating with. He agreed that he had not been charged with any offence and that the police had assisted him to leave the State.

18 Ms Davis was the only one of the accused to testify in her defence. Consistently with her unsigned statement, her evidence implicated the appellant. The State relied on her evidence, insofar as it implicated the appellant.

19 The defence case was that the appellant did not commit the burglary, nor did he light the fire. Although the appellant did not give evidence, he participated in a video record of interview approximately 2 months after the commission of the offences. The interview was admitted into evidence as part of the State's case. In it, the appellant denied any involvement in the burglary and arson of First Light's premises. He told the police that he thought that he was at home on the night the offences were committed.

20 With respect to Mr Jaensch, the appellant's case was that he was a witness who stood to gain by cooperating with the police, and that he had made up the evidence implicating him (the appellant) to curry favour with the authorities. With respect to Ms Davis, the appellant alleged that her evidence was an attempt to get revenge for the fact that he had broken up with her and commenced a relationship with Ms Fenton. It was the appellant's case that, although he benefited from Ms Davis' fraud, she had more to lose than him and more of a motive than he had to commit the offences.

The statement of Ms Davis and her testimony at trial

21 The State led evidence from Senior Detective Johan Gardin, the principal investigating officer, that either Ms Davis or her mother telephoned him on 16 December 2009, indicating that they had information concerning the burglary and arson offences.

22 Senior Detective Gardin testified that he interviewed Ms Davis that day and later prepared a draft witness statement for her to sign. Ms Davis failed to sign the statement, but emails she sent to Senior Detective Gardin appeared to confirm its truth. The statement was read to the jury and was ultimately tendered in evidence: ts 582 - 589, 621.

23 In the statement, Ms Davis said that on the evening of 23 November 2009, she and the appellant had an argument at their home in Clarkson. She said that at about 9 pm the appellant left the house. She said that at about 4 am on 24 November 2009 she received a telephone call from the appellant, asking her to pick him up from a service station. Ms Davis said that she drove to the service station, but could not find him.

24 Later in the morning she found out about the fire and went to the premises of First Light. There she was able to recover some business files which she said she took home with her with a view to reconciling some of the business' accounts. When she got home, at about 2 pm, the appellant was asleep. She noticed that he had burns to the left side of his face, his ears and his left elbow. She said that the appellant told her that Ms Fenton had driven him to First Light's premises and that he entered those premises and poured petrol over her computer. However, the computer sparked and blew up in his face.

25 In her evidence at trial, Ms Davis was asked by her counsel to go through the unsigned statement. She largely adopted the statement as being correct: ts 699.

26 The State adduced evidence, pursuant to s 31A of the Evidence Act 1906 (WA), that in 2004 Ms Davis had been convicted of stealing from her then employer.

27 In cross-examination by the appellant's trial counsel, Ms Davis accepted that she had stolen money from her employer in 2004 and that she had acted dishonestly in her employment with First Light. She agreed that on 15 December 2009, she and the appellant broke up and that she was 'furious' with him: ts 708.

28 It was put to Ms Davis by the appellant's counsel that both the statement she gave Detective Gardin and her evidence at trial was designed to falsely implicate the appellant because she was angry with him. She denied this allegation: ts 714 - 715.

29 She accepted that just before she stepped into the witness box to give evidence she turned to the appellant and told him, 'You're fucked': ts 715.

30 The single ground of appeal relied upon by the appellant alleges that her Honour erred in law by failing to give an accomplice warning with respect to the evidence of Ms Davis which implicated the appellant in the offences.

31 The appellant asserted that such a warning should have been given for two reasons. First, because of 'the complex and mixed manner in which the evidence of Ms Davis was presented'. By this is meant the way in which her evidence comprised the statement and her oral testimony in which she adopted parts of her unsigned statement. It was said that the jury may not have been clear exactly what aspects of either of those forms of evidence they could and could not use against the appellant. It was asserted that this was a danger that was 'hidden' from the jury and thus required her Honour to give a specific warning: par 69 of the appellant's written submissions.

32 The second asserted reason for a warning was that there were certain 'attractive features' of Ms Davis' evidence which the jury might overlook. Counsel identified these 'attractive features' in his written submissions as being:

(c) Ms Davis misappropriated money to help fund the appellant's drug habit; and

(d) the appellant had committed the offence to 'pay her [Ms Davis] back'.

33 This last point (d) requires further explanation. As already mentioned, in Ms Davis' unsigned statement she said that on the evening of 23 November 2009 she argued with the appellant. During the argument she called the appellant, in front of his young nephew, 'a fucking junkie'. She alleged that the appellant then turned around and said, 'That's a nice thing to say in front of [the appellant's nephew]. You'll pay for this'. Later in the statement, Ms Davis said that she had assumed that the appellant had committed the offences because 'he had done it to get back at me'. At trial, she testified that what she had said in her statement about the appellant committing the offences to get back at her was untruthful: ts 712.

Her Honour's directions with respect to the evidence of Ms Davis

34 Her Honour's directions to the jury as to Ms Davis' unsigned statement and her testimony were very clear. Her Honour instructed the jury that the unsigned statement itself was not evidence against the appellant: ts 866. She also instructed the jury that any direct evidence given by Ms Davis in court about the appellant was evidence against him: ts 871.

35 With respect to Ms Davis' testimony in which she confirmed that parts of her unsigned statement were true, her Honour directed the jury as follows:

I told you earlier that anything Ms Davis said in her interview with Senior Detective Gardin is inadmissible against any other accused. ... That rule still holds good, but she gave evidence by going through that unsigned statement and she adopted the vast majority of its contents. She said it was accurate and it was the truth. Subject to certain corrections that she made, which she said were not accurate.

So to understand her evidence which she gave in this courtroom which is admissible against any other accused ... you will have to have regard to that statement, even if it impacts on [the appellant]. Because you'll need to make sense of what she said in her evidence that this statement is accurate: ts 871.

But where she said her statement is true, then her evidence in this courtroom is that what's in that statement is true and so in order to make sense of her evidence, you need to look at her statement to see just what is it she is saying is true.

For example, in the written statement she said that [the appellant] told her he wore a balaclava. That's in the written statement. Had Ms Davis not given evidence in this trial, that would just be part of her out of court written statement given to police and could not be used against [the appellant].

However, she then gave evidence in this trial and she said that aspect of her statement is true. It is accurate and that he did say that he wore a balaclava. So that is evidence against him, because it was evidence given during this trial. It's not just part of the written statement: ts 872.

37 Her Honour returned to Ms Davis' evidence in relation to the statement later in her summing up when she said:

The unsigned statement from Senior Detective Gardin, prepared for Ms Davis to sign, is also not admissible as part of the State's case against [the appellant]. And if she hadn't given any evidence I would have been able to say to you simply treat anything in that statement against [the appellant] as forming no part of the case against him, pretend it doesn't exist.

However, it's not entirely that simple any more because Ms Davis gave evidence and apart from some alterations that she made to the statement she said that statement is accurate, that what's in that statement is true. So she adopted the statement in evidence. The way in which her evidence was led from her was unusual, although no one objected to the way it was done. Rather than asking her what happened, she was asked to go through her statement and say if anything in it was inaccurate.

While anything that Ms Davis said to Senior Detective Gardin is not evidence against [the appellant], anything Ms Davis said in evidence during this trial against [the appellant] is admissible evidence against him and you are allowed to have regard to it. And you're not going to understand what some of that evidence was unless you read that draft statement that she was referring to when she gave the evidence.

And you must also have regard to the changes she made. She adopted that statement as accurate. So except for the bits that she said are not accurate, you can take that as her evidence and some of that evidence impacts upon [the appellant] and is admissible against him. Any part of that statement which she did not adopt in her evidence, any words that she said were not accurate is not her evidence at this trial: ts 945 - 946.

38 Her Honour took the jury to parts of the unsigned statement which were not adopted by Ms Davis in her evidence.

39 Her Honour instructed the jury that it could only use Ms Davis' evidence against the appellant if it was satisfied that it was true: ts 947. Her Honour told the jury that Ms Davis' evidence was 'very much in issue' and 'was significantly challenged in cross-examination': ts 876. In her summary of the appellant's case, her Honour dealt in some detail with submissions concerning Ms Davis. Her Honour said:

And [the appellant's] position is that Ms Davis' evidence against him is a transparent attempt to get revenge for the fact that he broke up with her and immediately took up with Ms Fenton. And that Ms Davis certainly believes that he was cheating on her.

[The appellant's] position is that it is patently obvious from the timing of when she went to Senior Detective Gardin that she was going there out of anger and malice and she was going to say anything she could to get both [the appellant] and Ms Fenton into trouble. And her evidence in this trial being broadly consistent with that statement, she is still doing it: ts 948 - 949.

40 Her Honour did not give an accomplice direction. Nor, for that matter, was one sought by defence counsel at trial.

41 Contrary to what is asserted by the appellant in this appeal, it was not necessary for her Honour to give an accomplice direction.

42 Section 50 of the Evidence Act provides:

Corroboration warnings not generally required

(1) In this section corroboration warning in relation to a trial means a warning to the effect that it is unsafe to convict the person who is being tried on the uncorroborated evidence of one witness.

(2) On the trial of a person on indictment for an offence -

(a) the judge is not required by any rule of law or practice to give a corroboration warning to the jury in relation to any offence of which the person is liable to be convicted on the indictment; and

(b) the judge shall not give a corroboration warning to the jury unless the judge is satisfied that such a warning is justified in the circumstances.

43 As Wheeler JA observed in White v The Queen [2006] WASCA 62 [66], the section positively prohibits a warning to the effect that the experience of the courts has shown it to be dangerous to convict on the evidence of any category of witness, where that witness falls into a category which previously has been the subject of a corroboration warning. A judge may comment on the evidence of such a witness, but comment only. Any requirement to warn rather than to comment arises not by reason of the category into which the witness falls, but by reason of the particular circumstances of the case. A particular circumstance which may, and perhaps will, require such a warning may be a 'hidden danger' which the jury would not appreciate without being assisted by a warning.

44 Wheeler JA left open the possibility that even where the danger is one which a jury is able to appreciate unassisted, there may nevertheless be, in a very small category of cases, a need to give a warning. An example of such a case may be where 'because of the attractive features of the particular witness, a jury may too readily overlook' an apparent danger [78].

45 In the present case, there were no 'hidden dangers' in Ms Davis' evidence. It would have been blindingly obvious to the jury that Ms Davis was a person with a propensity to dishonesty who had an axe to grind against the appellant. It is inconceivable that the jury would not have been aware of Ms Davis' interest in inculpating the appellant and exculpating herself. It was the whole basis of her defence.

46 The way in which Ms Davis' evidence was adduced was not a reason to give an accomplice warning. There is no logical connection between how evidence is adduced in court and the need for an accomplice warning. Her Honour's directions as to the admissibility of Ms Davis' evidence in the case against the appellant were correct, clear and unchallenged. The submissions on this point are without merit.

47 The submission that there were 'attractive features' of Ms Davis' evidence which required a warning must be rejected. Counsel did not explain why the features he identified were attractive and, if so, why they might be overlooked by the jury. If the argument is that the jury might have felt antipathy towards the appellant by reason of these features, that is unlikely in light of her Honour's very clear direction to decide the case dispassionately, regardless of any reactions or feelings they might have: ts 996. In any event, none of the matters raised by Mr Watters in support of this submission are of the type that would make Ms Davis' evidence to the jury so attractive as to require a warning.

48 This is sufficient to deal with the ground of appeal. However, even if the provisions of s 50 of the Evidence Act were put to one side, the direction sought by the appellant was still unnecessary.

49 Cases in which accomplice evidence is given by a co-accused fall into a very special category: Moloney v The State of Western Australia [2006] WASCA 193 [13]. In such cases there is no obligation on a trial judge to give an accomplice warning. Whether such a warning is required depends upon the individual circumstances of the case. Where such a warning is given, a trial judge has considerable latitude as to its terms, provided that it is made clear that the warning relates only to the use of the evidence as against the co-accused and maintains a balance between the interests of each accused.

50 This was not a case which, absent the provisions of s 50, necessitated the giving of an accomplice warning. Her Honour instructed the jury that they had to be satisfied that Ms Davis' evidence concerning the appellant's involvement in the offences was true. Her Honour drew to the jury's attention the appellant's arguments directed to the contention that Ms Davis was a liar. In the circumstances of the present case, given the obvious interest that Ms Davis had in implicating the appellant, there was nothing more that her Honour was required to do.

51 For these reasons, the appellant's ground of appeal has no reasonable prospect of success. Leave to appeal must be refused and the appeal against conviction must be dismissed.

Application for leave to appeal against sentence

52 The appellant seeks leave to appeal against sentence on two grounds. Ground 1 alleges that the total effective sentence of 7 years' imprisonment infringed the first limb of the totality principle. Ground 2 alleges that the sentence of 4 years' imprisonment for the offence of arson was manifestly excessive.

53 Both grounds allege implied error on the part of the sentencing judge. The relevant legal principles are well-known and are set out in Wilson v The State of Western Australia [2010] WASCA 82 [2]. It is unnecessary to repeat them here.

55 To determine whether a sentence is manifestly excessive it is necessary to view it from the perspective of the maximum sentence prescribed by law for the offence, the standards of sentencing customarily observed with respect to that offence, the place which the criminal conduct occupies in the scale of seriousness of offences of that type, and the personal circumstances of the offender: Chan v The Queen (1989) 38 A Crim R 337, 342.

56 The maximum sentence for arson, at the time the offence was committed, was 14 years' imprisonment.

57 There is no tariff for the offence of arson, but in 'post-transitional' terms, the offence commonly attracts sentences within a range of 2 years and 8 months, 4 years and 8 months in very serious cases, and 2 years to 3 years and 4 months in less serious cases: Wright v The State of Western Australia [2010] WASCA 14 [54].

58 Her Honour described the offence as 'a serious example of its kind': ts 1066. Her Honour arrived at this conclusion for a combination of reasons, including:

(b) It was motivated by a desire to cover up the offences of dishonesty committed by Ms Davis: ts 1067.

(c) The offence had a significant impact, both financial and non-financial, upon First Light and its proprietors: ts 1067.

(d) The building occupied by First Light suffered $420,000 damage: ts 1067.

(e) An adjoining business was damaged, which resulted in that business being shut down for a substantial time and causing it $30,000 in repair and relocation costs: ts 1067.

(f) The premises were in a busy commercial area of Leederville, with residences nearby. The fire required the attendance of emergency services and was 'an inherently dangerous situation': ts 1068.

59 Mr Watters, on behalf of the appellant, submitted that the circumstances of the offending were not so serious as to justify a sentence towards the upper end of the range identified in Wright v The State of Western Australia.

60 This submission cannot be accepted. For all the reasons given by her Honour, the offence was unquestionably a serious example of its type.

61 There is nothing in the appellant's antecedents which provided any mitigation. The appellant was, at the time of sentence, 32 years of age. He had a lengthy criminal history associated with his entrenched drug use, which featured multiple convictions for burglary, stealing, fraud, assaults and traffic offences of various kinds. It is clear from the court-ordered pre-sentence and psychological reports that he continued to deny committing the offence. There was no evidence of any remorse.

62 The dominant sentencing consideration with respect to arson is general deterrence. The sentence that was imposed reflected the serious circumstances of the appellant's offending. It reflected the exercise of a sound sentencing discretion. Implied error has not been established. Ground 2 has no reasonable prospect of success and must be dismissed.

63 With respect to ground 1, Mr Watters correctly conceded that he was on 'shaky ground': appeal ts 10.

64 I do not need to say anything more about the circumstances of the offending with respect to the burglary, the arson and three counts of receiving.

65 The facts of the car stealing charge and the possession of methylamphetamine with intent to sell or supply can be briefly described as follows.

66 On 23 January 2010, the appellant was stopped by police, driving a white Holden Commodore which had been taken without the owner's permission from premises in Quinns Rock. A search of the vehicle revealed a package located near the front passenger footwell. The package contained 21.2 g of methylamphetamine which was 56% pure.

67 Her Honour took into account, as a mitigating factor, the appellant's late pleas of guilty to these offences. She characterised the appellant as a person who dealt in drugs in order to fund a significant habit. She said that the offences were 'separate and distinct offences' which required her to impose a deterrent sentence. In order to accommodate the totality principle, her Honour ordered that the sentence in relation to the car stealing be served concurrently with the sentence for the drug offence.

68 There is no need in this case to examine in detail the nature of the totality principle. It 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; that is, a total sentence that destroys any reasonable expectation of a useful life after release: Roffey v The State of Western Australia [2007] WASCA 246 [24] - [25].

69 When looked at in its entirety, it is clear that the appellant's offending was multifaceted and serious. He received a significant sum of money which he knew had been derived by Ms Davis' fraudulent conduct. Then, in separate conduct, he committed the arson on First Light's premises. Subsequently, he committed the car stealing and drug offence. In light of his separate offending, some accumulation of the sentences was justified.

70 Apart from his pleas of guilty, there was no other significant mitigation. Certainly, the appellant's personal circumstances did not provide any basis for lenience. Her Honour did not totally accumulate the sentences which she imposed upon the appellant. She made express reference to the totality principle, which formed the basis of her orders for concurrency.

71 In my opinion, the total overall sentence of 7 years, having regard to all of the circumstances of the case, bore a proper relationship to the appellant's overall criminality.

72 Ground 1 has no reasonable prospect of success and must be dismissed.

73 In respect of each appeal, as none of the proposed grounds of appeal have a reasonable prospect of success, leave to appeal is refused and the appeal is dismissed.