Criminal Law - Appeal against sentence - Steal motor vehicle - Relevance of damage caused to motor vehicle

Sentencing Act 1995 (WA), s 6(1), s 6(2)(c)

Dunks v The State of Western Australia [2009] WASCA 82

Howorth v The State of Western Australia [2007] WASCA 78

R v De Simoni [1981] HCA 31; (1981) 147 CLR 383

Veen v The Queen (No 2) [1988] HCA 14; (1988) 164 CLR 465

1 McLURE P: I agree with the orders proposed by Jenkins J. The facts are set out in her judgment and not repeated here.

2 In order to succeed, the appellant had to establish that he was sentenced for the offence the subject of charge 13845 of 2009 (offence 13845) on the basis that he was responsible for the damage to the stolen vehicle the subject of the charge. It appears to be accepted by the parties that the appellant would have been responsible for the damage if it was caused by the appellant, applying the common sense test of causation with which lawyers are familiar. That ordinarily requires satisfaction of the factual (but for) test and the legal test of causation. There was no finding, and no material before the sentencing judge to support a finding (beyond reasonable doubt because it would aggravate the offence), that the appellant caused the damage.

3 The sentencing judge did not expressly state he was sentencing the appellant on the basis that he was responsible for the damage. The appellant asked the court to draw an inference to that effect. An obstacle in the way of drawing such an inference is that the return of a stolen vehicle in a damaged condition is itself a relevant sentencing consideration. The damage to a stolen vehicle and the period during which the owner is deprived of its use are relevant to the impact of the offending on the victim. Both of those factors distinguish the circumstances of offence 13845 from the offence the subject of charge 13847 of 2009 (offence 13847).

4 In order to draw the inference for which the appellant contends, he would have to satisfy the court that, having regard to the differences in relevant sentencing factors, it was not open to impose a sentence of 18 months' imprisonment for offence 13845 when a sentence of 12 months was imposed for offence 13847. I am not persuaded that is so.

5 Moreover, even if the sentencing judge did sentence the appellant on the basis that he was responsible for the relevant damage and that the error justified what could only be a small reduction in the sentence for offence 13845, that would not cause me to interfere with the total effective sentence imposed by the sentencing judge.

6 Section 41(2) of the Criminal Appeals Act 2004 (WA) gives the court a discretion to vary the total effective sentence where an individual sentence on which the total is based has been varied. Section 41(2) provides:

If under this Act an appeal court varies or sets aside a sentence (sentence A), it may vary any other sentence -

(a) that was imposed at or after the time when sentence A was imposed; and

(b) that took into account sentence A.

7 In a sentencing exercise of the nature undertaken in this case, the identification of the sentences to be served concurrently or cumulatively is usually driven by what is required to achieve the figure determined to be the appropriate total sentence. The fact that the sentence for offence 13845 was ordered to be served cumulatively is of no particular significance. Having regard to all relevant sentencing factors including the appellant's dreadful antecedents, a total effective sentence of 4 years 6 months' imprisonment is appropriate and ought not be reduced.

8 BUSS JA: I agree with the orders proposed by Jenkins J.

9 I agree with Jenkins J, for the reasons given by her, that the sentencing judge did not conclude that the appellant was personally responsible for the damage caused to the motor vehicle the subject of charge 13845 and that his Honour did not sentence the appellant for the offence on that basis. Otherwise, I agree with the reasons of McLure P.

10 Although it was not open, on the material before the sentencing judge, to conclude that the appellant was personally responsible for the damage in question, the fact that the vehicle had suffered substantial damage after it was stolen by the appellant and before it was recovered by police, and the fact that the appellant had been deprived of its use for about one month plus whatever period was necessary to carry out repairs, were relevant sentencing considerations.

11 The appellant, in committing the offences for which he was sentenced, has manifested a continuing attitude of disobedience to the law. See Veen v The Queen (No 2) [1988] HCA 14; (1988) 164 CLR 465, 477 - 478 (Mason CJ, Brennan, Dawson & Toohey JJ). Although the appellant could not be (and was not being) punished again for past criminal conduct, his prior record reflects on his moral culpability for the offences for which he was being sentenced by his Honour. It also demonstrates that these offences were not an uncharacteristic aberration. The total effective sentence of 4 years and 6 months' imprisonment was appropriate in all the circumstances. It was not disproportionate to his offending. Further, it cannot reasonably be said that he has been left without any reasonable prospect of useful life after release.

12 JENKINS J: On 27 August 2009 the appellant pleaded guilty to an indictment containing two counts of stealing a motor vehicle and driving it recklessly, one count of stealing a motor vehicle and one count of stealing. In addition, the appellant requested that the court deal with 18 pending charges against him. One of the pending charges was a count of stealing a motor vehicle, contained in prosecution notice 13845 of 2009 (charge 13845). The appellant was sentenced to a total term of 4 years 6 months' imprisonment which included a cumulative term of 18 months' imprisonment for charge 13845. The appellant appeals against the sentence.

13 On 23 November 2009 Wheeler JA referred the application for leave to appeal to the hearing of the appeal. The one ground of appeal reads:

The learned sentencing Judge erred in concluding that the motor vehicle the subject of charge 13845 of 2009 had been damaged by the appellant and in taking such a conclusion into account as a aggravating factor for the purposes of s 6(2)(c) of the Sentencing Act 1995.

1. The motor vehicle was alleged to have been stolen by the appellant on 21 December 2008.
2. The prosecution alleged that the motor vehicle was recovered approximately one month later on 21 January 2009, in a damaged condition.

1. The prosecution did not specifically allege that the appellant was responsible for any of the damage.

1. There was no direct evidence before the learned sentencing Judge that was capable of establishing that the appellant was responsible for any of the damage.
2. It was not open to the learned sentencing Judge to infer from the available evidence that the appellant was responsible for any of the damage sustained by the motor vehicle.

Thus, the issue is whether the sentencing judge erred in concluding that the appellant was personally responsible for the damage caused to the vehicle the subject of charge 13845 and taking that into account as an aggravating factor when imposing the sentence for charge 13845.

14 The appellant concedes that even if the sentencing judge made the error as alleged, this court will only allow the appeal if, in its opinion, a different sentence should have been imposed. For the reasons which I will give, the sentencing judge did not make the error as alleged. Even if he did, I am not satisfied that a different sentence should have been imposed.

15 The first count on the indictment was a charge of stealing a motor vehicle and driving it recklessly. The appellant admitted that on 10 February 2009 he stole a Honda CRV from the car park of a block of units. The appellant used stolen car keys to start the vehicle. Eleven days later the police observed the vehicle being driven at an excessive speed along Broun Avenue, Morley. Police later located it crashed into a brick wall.

16 The second count on the indictment was an offence of stealing a motor vehicle. The facts were that on 20 February 2009 the appellant drove to a service station in Victoria Park in a dark coloured Honda CRV. There was a female occupant of his motor vehicle. The owner of a 2009 Holden SSV Commodore had left his motor vehicle on the apron of the service station whilst he went to pay for fuel. The appellant and/or his accomplice then stole the Holden Commodore, using keys which had been left in the ignition.

17 The third count on the indictment was a count of stealing. On 21 February 2009 the police attended at a residence in Embleton where they located the stolen Holden Commodore. The appellant and an accomplice had removed its tyres and rims and placed them in the back of a black Honda CRV. Police attended at the appellant's partner's address and located the stolen items.

18 The fourth count on the indictment was a charge of stealing a motor vehicle and driving it recklessly. Between 22 and 25 February 2009 the appellant went to a street in Wembley. There he stole a HSV Commodore which was parked on the street. On 25 February 2009 police observed the stolen car being driven by the appellant. The police attempted to stop it but the appellant rammed the police vehicle and then drove away at speed. Police activated emergency lights and sirens and followed the vehicle. The appellant reached speeds estimated to be in excess of 130 km per hour before police lost sight of the stolen vehicle.

19 It is unnecessary for me to detail the facts of all the pending charges. Eight of them were charges of stealing where the appellant had broken into parked vehicles and stolen items from them. There were also single charges of criminal damage, possession of amphetamine, breach of bail, possession of an unlicensed firearm, failing to stop when called upon, possession of stolen or unlawfully obtained property, receiving and carrying an article with intent to cause fear, namely a hammer. In addition to charge 13845, there was another pending charge of stealing a motor vehicle contained in prosecution notice number 13847 of 2009 (charge 13847).

20 The facts of charge 13845 were presented to the sentencing judge as follows:

Between 11 am and 1 pm on Sunday, 21 December 2008 the offender entered the Royal Freshwater Bay Yacht Club located at Hobbs Place in Peppermint Grove. He entered the complainant's vehicle which was parked in the car park. After gaining entry to the car he found the keys still inside and then stole the car. On 21 January 2009 the car was recovered in North Perth with damage to a value of $20,000.

[B]etween 8.30 am and 8 pm on 22 January 2009 the offender attended Perry Lakes stadium on Meagher Drive Floreat. The offender gained entry to the complaints Toyota Kluger station sedan by smashing a window.

He then located a spare key in the glove box and used the key to steal the motor vehicle. On 27 January 2009 the stolen vehicle was recovered in Perth.

21 After the facts were presented by the prosecutor, defence counsel made a plea in mitigation. The plea in mitigation focused on the appellant's personal circumstances. The facts were not put in issue during the plea.

22 On the same date the sentencing judge delivered ex tempore sentencing remarks. In respect to charge 13845 his Honour said:

Perth charge 13845 of 2009 involves the stealing from the car park of Royal Freshwater Bay Yacht Club in Peppermint Grove of a BMW sedan, a vehicle which was later recovered but was found to have something in the vicinity of $20,000 damage done to it. That particular offence is a some what more substantial offence, quite obviously, than many of the others which, as I say, involved merely breaking into cars in order to steal property from them in the way of valuables and chattels.

After those remarks his Honour immediately dealt with charge 13847. His Honour said:

The only other one that stands out from the group of s 32 matters as being more serious is Perth charge 13847 of 2009 which involves the theft of a Toyota Kluger station sedan from Perry Lakes stadium on 22 January 2009. That was later recovered in Wellington Street, Perth.

23 His Honour then considered the personal circumstances of the appellant. He mentioned that the appellant was 27 years old and that he therefore did not have youth on his side; that the driving force behind the appellant's offending was his drug use which commenced when he was 13 years of age; and that he had been a user of amphetamine since about the age of 17 and of heroin from the age of 21.

24 His Honour noted that the appellant made his first appearance in the Perth Court of Petty Sessions at the age of 18 and that at the same age he was sentenced to his first term of imprisonment for two offences of driving whilst under suspension, one of stealing a motor vehicle and one of burglary. The appellant was again sentenced to imprisonment in December 2003 for various driving offences. His first appearance in the District Court was at the age of 22 on a charge of burglary. He was again imprisoned. In 2007 the appellant was convicted of offences of stealing, receiving or fraud on 11 separate occasions. He was again sentenced to terms of imprisonment.

25 His Honour summarised the appellant's recent offending in the following terms:

So the pattern of the past three or four years, to summarise what I've just been putting to you, has been imprisonment followed by release on parole, followed by a hectic period of relentless offending, followed by further imprisonment, followed by further release on parole, followed by a further relentless period of offending. And the pattern that I have just described has been pretty much the status quo for your adult life.

His Honour noted that so far parole had manifestly failed to achieve its goal of rehabilitation. His Honour acknowledged that the appellant had personal problems but said that these could be overcome.

26 His Honour imposed the following sentences. On count 1 on the indictment he imposed a sentence of 18 months' imprisonment, on count 2 a sentence of 12 months' imprisonment, on count 3 a term of 3 months' imprisonment and on count 4 a term of 18 months' imprisonment. His Honour imposed fines for a number of the pending charges and terms of imprisonment for others. For the eight counts of stealing which involved breaking into motor vehicles, his Honour imposed sentences of 3 months' imprisonment on each count. He also imposed a sentence of 1 month imprisonment for the charge of criminal damage and 3 months' imprisonment for possession of the amphetamine. In respect of charge 13845, his Honour imposed a sentence of 18 months' imprisonment and for charge 13847 he imposed a sentence of 12 months' imprisonment.

27 Having regard to the totality principle, his Honour ordered that the sentence for count 4 on the indictment be served cumulatively on the sentence on count 1. He further ordered that the sentence for charge 13845 be served cumulatively on those two sentences making a total sentence of 4 years 6 months' imprisonment. He ordered that all other terms of imprisonment be served concurrently with that term. The appellant was made eligible for release on parole.

28 The appellant submits that the respondent did not allege that the appellant was directly responsible for all or any of the damage which had been done to the motor vehicle the subject of charge 13845 between the date the car was stolen and the date it was recovered. Further, the appellant says that there is no evidence in the sentencing material which was capable of establishing that he was responsible for the damage and thus, on the evidence that was before the court, it was not open for the sentencing judge to infer that the appellant was responsible for the damage.

29 The appellant says that the fact that the sentencing judge imposed a sentence of imprisonment on charge 13845 that was six months' longer than the sentence on charge 13847 could only have been on the basis that the offence was aggravated 'by the fact that the car had been damaged by the appellant'. He says that the sentencing judge erred in taking that inferred error of fact into account as an aggravating factor for the purpose of the Sentencing Act 1995 (WA) s 6(2)(c).

30 The first issue is whether the sentencing judge concluded that the appellant had damaged the motor vehicle and took this into account as an aggravating factor.

31 In my opinion, it would be wrong to infer that his Honour sentenced the appellant on this incorrect factual premise. Firstly, the prosecutor did not allege that the appellant was directly responsible for the damage to the motor vehicle. Secondly, the sentencing judge did not assert that the appellant did the damage. His Honour said that the offence was more serious than some of the other pending charges because the other charges involved 'merely' breaking into vehicles and stealing property. That assertion did not imply that the charge was more serious because the appellant had damaged the motor vehicle. Thirdly, his Honour said that the vehicle 'was found' to have $20,000 worth of damage done to it. This passive phrase did not assert that the appellant did the damage.

32 By noting that charges 13845 and 13847 stood out in seriousness from the other pending charges, his Honour simply pointed out the obvious which was that they were both allegations of stealing a motor vehicle as opposed to breaking into a motor vehicle and stealing from it.

33 The remaining argument on behalf of the appellant to support his assertion that the sentencing judge concluded that the appellant had damaged the motor vehicle was that a sentence of 18 months was imposed for charge 13845 as opposed to 12 months' imprisonment for charge 13847. The longer sentence does not mean that his Honour must have inferred that the appellant damaged the vehicle. The longer sentence was justified by two other factors. The first was that the vehicle the subject of charge 13845 was not recovered for a period of approximately one month; whereas the vehicle the subject of charge 13847 was located only five days after it was stolen. The second factor was the allegation, which was not disputed by the appellant, that when the vehicle was located $20,000 damage had been done to it. The only reference to damage to the vehicle the subject of charge 13847 was that the appellant had smashed a window in order to steal it.

34 The sentencing judge was entitled to take into account that when the vehicle was recovered $20,000 worth of damage had been done to it. This did not involve a finding that the appellant had damaged the vehicle. I agree with the respondent's submissions that the sentencing judge was entitled to infer that the damage to the vehicle would not have been incurred had it not been stolen by the appellant and, thus, the damage done to the car made the offence more serious.

35 The Sentencing Act s 6(1) states that a sentence imposed on an offender must be commensurate with the seriousness of the offence. Section 6(2) provides that the seriousness of an offence must be determined by taking into account, amongst other things, any aggravating factors. Section 7 provides that 'aggravating factors are factors which, in the court's opinion, increase the culpability of the offender'. Aggravating factors for the purpose of these provisions of the Sentencing Act are not confined to statutory circumstances of aggravation. Different principles apply where the State alleges statutory circumstances of aggravation. This was not such a case. It was relevant for the purposes of sentencing for the sentencing judge to know and to take into account that damage had been done to the vehicle as this was part of the effect of the appellant's offence on the victim. The damage increased the seriousness of the offence for the purposes of sentencing.

36 It is also relevant for general and specific deterrence for sentencing judges make it clear to offenders that if they take property, even if they do not intend to permanently deprive the owner of it, and fail to ensure that it is returned to the owner in the condition in which it was taken, then on sentencing for an offence of stealing that factor will be taken into account as aggravating the offence. To do so, does not infringe the principle that an offender should not be punished for an offence of which he has not been convicted: R v De Simoni [1981] HCA 31; (1981) 147 CLR 383. The sentencing judge took into account 'all the circumstances of the offence' but did not breach 'the more fundamental and important principle, that no-one should be punished for an offence of which he has not been convicted'.

37 Since the hearing of the appeal I have seen the prosecution notices containing charge 13845 and charge 13847. Another factor which distinguished the two charges was that the value of the vehicle the subject of charge 13845 was alleged to be $75,000 whereas the vehicle the subject of charge 13847 was alleged to be valued at $40,000 I will not rely on this difference as it was not a matter mentioned in the District Court or on appeal. However, generally speaking, the greater the value of the stolen property, the more serious the offence.

38 Even if his Honour had made the error as alleged by the appellant, I do not believe that a different sentence should have been imposed for charge 13845.

39 The maximum penalty for the offence of stealing a motor vehicle is 7 years' imprisonment. A sentence of 18 months' imprisonment was not only well within the range of appropriate penalties for an offence of this type, it was appropriate for the appellant. There were the aggravating factors I have already mentioned. The only major mitigating factor was the appellant's plea of guilty. Further, as the appellant had a significant adult prior criminal record for dishonesty and property offences, including six convictions for stealing and six convictions for stealing a motor vehicle, the offence was not 'an uncharacteristic aberration' and by the commission of the offence he had 'manifested ... a continuing attitude of disobedience of the law'. Specific deterrence was an important sentencing consideration: Veen v The Queen (No 2) [1988] HCA 14; (1988) 164 CLR 465, 477.

40 Neither do I accept that a different total sentence should have been imposed. The appellant's offences were discrete offences committed on discrete occasions. Cumulative sentences would ordinarily be appropriate, but for the totality principle. His criminality was plainly greater than the criminality of an offender who had offended only once. The impact on the community of his commission of this number of distinct offences was greater than the impact of one similar offence.

41 Not surprisingly, neither party referred the court to a case or cases which have established a range of sentences customarily imposed for a group of offences of this type. I have been somewhat assisted by cases which have considered the customary range of penalties for groups offences which include more serious offences, such as robbery and burglary, as well as offences of stealing motor vehicles and stealing motor vehicles and driving them recklessly: Dunks v The State of Western Australia [2009] WASCA 82; Howorth v The State of Western Australia [2007] WASCA 78 and the cases referred to therein. Appropriately, the total sentence imposed on the appellant was well below the total sentences discussed in those cases. Having regard to all relevant sentencing considerations I am not persuaded that a sentence other than one of an aggregate of 4 years 6 months' imprisonment should have been imposed on the appellant. The total sentence was well within the range appropriate for the appellant's level of criminality and neither is it a 'crushing' sentence. The aggregate sentence does not infringe either limb of the totality principle.

42 For these reasons, I would refuse leave to appeal on the proposed ground of appeal and dismiss the appeal.