Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA

File No : IND 580 of 2004, IND 426 of 2006

Criminal law and procedure - Appeal - Application for leave to appeal sentence - Stealing a motor vehicle and reckless driving - Whether consideration given to suspended sentence - Severity of offences

Application for leave to appeal dismissed pursuant to r 43(2)(g)(i) Supreme Court (Court of Appeal) Rules 2005 (WA)

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

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

R v Liddington (1997) 18 WAR 394

Stjepic v Christian [2005] WASC 193

Wong v The Queen [2001] HCA 64; (2001) 207 CLR 584

1 ROBERTS-SMITH JA: This is an application for leave to appeal against sentence following the appellant's pleas of guilty and sentence for a number of offences. He was primarily charged with one count of stealing a motor vehicle and driving recklessly.

2 He came before her Honour the Chief Judge of the District Court on 10 February 2006 in respect of that and on that occasion pleaded guilty to that offence and to a number of others dealt with under a s 32 notice, that is to say a notice under s 32 of the Sentencing Act 1995 (WA). They were reckless driving, failing to stop when called upon and driving whilst disentitled to do so. On the same occasion he was re-sentenced by her Honour in respect of charges of aggravated burglary and burglary which had been the subject of a community based order which had been breached through non-compliance.

3 He was sentenced to 15 months' imprisonment in respect of the stealing a motor vehicle and driving recklessly offence, 3 months' imprisonment for reckless driving, 3 months' imprisonment for driving whilst disentitled, 6 months' imprisonment for the aggravated burglary and 6 months' imprisonment for the burglary. He was also fined $300 for failing to stop when called upon to do so. Her Honour ordered that all sentences be served concurrently backdated to 16 November 2005 and made an order that the appellant be eligible for parole.

4 There is a sole ground of appeal which was contained in the appellant's appeal notice filed 24 May 2006. That ground is:

"The learned Sentencing Judge erred in law by failing to consider whether suspension of the term of imprisonment to be imposed was appropriate in the circumstances, or to consider a suspended term of imprisonment at all as a disposition available in all the circumstances."

5 The appellant submits, and it must be accepted, that the applicable sentencing options by which her Honour was constrained are those set out in s 39 of the Sentencing Act. Section 39(2)(f) provides for the imposition of a suspended term of imprisonment for any given offence and the release of the offender. Section 39(3) provides that a court must not use any given sentencing option unless satisfied it is not appropriate to use any of the options listed before that particular option.

6 Mr Aulfrey, in his submissions in the Appellant's Case, refers to what was said by Gleeson CJ and Hayne J in Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321. At [16]:

"As we have said, the Act requires a court passing sentence to decide first whether a suspended sentence could properly be imposed, before deciding to impose a sentence of actual imprisonment."

7 I turn now to the circumstances of the appellant's offending. The facts in relation to the offence charged on the indictment were that between 10 pm on Sunday, 2 October 2005 and 6.25 am the following morning, unknown offenders stole the complainant's Ford Falcon sedan during a burglary offence in the suburb of St James. About 9 pm on 3 October the appellant was walking along Hardey Road, Cloverdale where he was approached by known acquaintances who were then in possession of that motor vehicle. He got into the car, knowing at the time that it was stolen, and shortly afterwards assumed control of it, driving it around the Belmont and Cloverdale areas.

8 At 10.49 am that day, police saw the vehicle driving in a westerly direction along Hardey Road and put on their emergency lights and sirens to stop it. The appellant immediately turned right into Firby Street and accelerated heavily to allude police. He drove along numerous suburban streets around the Cloverdale area, reaching speeds of between 80 to 110 kms per hour. The posted speed limit for that area was 50 kilometres an hour. During the pursuit, the appellant lost control of the vehicle on three occasions causing him to mount the curb before regaining control and continuing to drive. At the time there was medium traffic with numerous pedestrians on the side of the road.

9 At the intersection of Towie Street and Hardey Road, he tried to negotiate a speed calming device which separated the two streets. He drove over the calming device at 80 kilometres an hour, causing the stolen vehicle to become airborne for approximately 11 metres before hitting the ground. He continued through the back streets of Cloverdale, narrowly missing a teenage male who was standing on a median strip.

10 As he attempted to round the corner from Middleton Street into McGlinn Way, he lost control of the vehicle due to his excessive speed, causing it to slide and collide with a raised cement drain on the side of the road. The vehicle's front left tyre blew, forcing it to fishtail and collide with the pursuing police vehicle. The appellant stopped the vehicle and alighted along with three other passengers from inside the car and they all fled. The appellant was caught after a foot chase with the police and was taken back to Kensington detectives' office and made full admissions.

11 In relation to the s 32 notice, the offences on that notice arose from that incident, being the failure to stop and the reckless driving. In relation to driving with no motor driver's licence, the appellant's licence had been suspended by the Court on 23 April 2005 and had never been renewed.

12 In relation to the other offences, that is to say the ones the subject of the breach, the first offence was committed between midday and 2 pm on Australia Day 2004. The appellant was with another male driving around the Dianella area in order to commit burglaries. They parked their car on Wake Street and walked to the complainant's unit in Grand Promenade Road. They attempted to force open a couple of windows and cut a small hole in the rear fly-wire door and forced it open. Once in the house, they collected 24 compact disks and stacked them on the floor in the lounge room.

13 They went into the bedroom and found a large black bag and a cash box containing $195.20 and papers; they placed all these items in a bag, picked up a pair of gym cloths and a racing pit pass hanging on the door and went into the lounge room where they placed the compact disks, a Playstation game, a DVD player and a remote control in a bag. They then picked up a silver kitchen knife and a Nokia mobile phone and put those in a bag. They then left the house by way of a back door taking all of that property and walked to the vehicle nearby.

14 The second count also occurred on the same Australia Day between 2 pm and 3 pm. The appellant and others were in the Nedlands area. The appellant parked the vehicle around the corner from the complainant's house. He walked to the front door and forced the security wire door open. He then removed the beading from around the glass panel in the centre of the door with a screwdriver and broke the glass in the door before removing the bottom part of the glass in the door. He then crawled into the house.

15 As he was almost inside the house the top part of the glass panel fell onto his leg cutting it severely. He dropped the screwdriver near the door and found a blue beach towel on the complainant's front verandah. He then wrapped his leg in the towel and hopped back into the car. A co-offender entered the house, locked the complainant's dog in the master bedroom and then searched the house but failed to locate any valuables.

16 Another co-offender came to the assistance of the appellant and the other offender and drove to Royal Perth Hospital to get treatment for the appellant. Police who were at the hospital saw the vehicle and spoke to them whilst they were in the emergency department. When they searched the vehicle the police located the stolen property in it and all three were arrested.

17 Mr Aulfrey made an extensive plea in mitigation before her Honour the Chief Judge on 10 February 2006 and it is important I think in the context of the present ground of appeal to note that the submission that a suspended sentence should have been imposed was the central plank of what was put to her Honour on behalf of the appellant. Mr Aulfrey in fact commenced his submission in that way. At t/s 36 he said:

"Your Honour, the ultimate submission is that this man should be the subject of a suspended sentence and an intensive supervision order in due course."

18 He then made, as I have said, an extensive plea in mitigation giving considerable attention to matters favourable to the appellant in relation to his circumstances and antecedents and to the commission of the offences. He said no doubt all that could be said for the appellant in the circumstances. Towards the end of Mr Aulfrey's submission, there were the following exchanges:

"KENNEDY CJ: Mr Aulfrey, this man has to go to gaol. He could have killed himself, somebody in the car, somebody else. We have had so many deaths as a result of high speed chases and he did it while he was on an intensive supervision order.

AULFREY, MR: A community based order I think.

KENNEDY CJ: Community based order, whatever. His co-accused was sent to gaol. He didn't get a gaol sentence because at that stage they said the same thing as you're saying now.

AULFREY, MR: Your Honour, all I could suggest is that a term of imprisonment is the last resort. We haven't reached the last resort. That's demonstrable from the pre-sentence report and he's a man who does need to be out with his family. He spent three months in custody, parole clearly is not an issue I would have thought. He has given full cooperation, he has entered a plea of guilty and he does have plans in place for the future. If he is going to be given a term of imprisonment it shouldn't be for long."

19 Mr Hollingsworth, who appeared for the State on that occasion, commenced his submissions by saying:

"As your Honour has identified the state [sic] says it must be a custodial sentence."

20 He then elaborated on why that was the State's position.

21 It is true to say that in her sentencing remarks, the Chief Judge did not expressly advert to the possibility of a suspended sentence. However, having regard to what she said about the gravity of the offences, and most particularly that of the reckless driving and that the appellant was on a community-based order at the time, all being too serious for an alternative other than imprisonment (by which it is clear her Honour meant immediate imprisonment), and in the context of the whole thrust of the plea in mitigation advanced on behalf of the appellant, it is simply not realistic to argue that her Honour gave no specific consideration to the possibility of a suspended sentence. It is necessarily implicit in her Honour's remarks in the context of the submissions put to her that she did so and that she discarded it.

22 This ground has no reasonable prospect of success on appeal and leave to appeal will be refused. There being only one ground of appeal, and leave to appeal being refused in respect of it, the appeal will be dismissed pursuant to r 43(2)(g)(i) of the Supreme Court (Court of Appeal) Rules 2005 (WA).