Court of Appeal (WA)|2006-05-19|Before: Wheeler JA

Martino v The State of Western Australia [2006] WASCA 78 (19 May 2006)

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

CITATION : MARTINO -v- THE STATE OF WESTERN AUSTRALIA [2006] WASCA 78

Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA

Criminal law - Appeal against sentence - Whether sentence offends totality principle or is manifestly excessive - Turns on own facts

Jarvis v The Queen (1993) 20 WAR 201

Johnson v The Queen [2004] HCA 15; (2004) 78 ALJR 616

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

Vlek v The Queen, unreported; CCA SCt WA; Library No 990153C; 29 March 1999

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

Lowndes v The Queen [1999] HCA 29; (1999) 195 CLR 665

McLean v The Queen [1999] WASCA 209

Miles v The Queen (1997) 17 WAR 518

Mill v The Queen (1988) 166 CLR 59

R v Verschuren (1996) 17 WAR 467

Worthington v The State of Western Australia [2005] WASCA 72; (2005) 152 A Crim R 585

1 WHEELER JA: I have had the advantage of reading in draft the reasons for decision of McLure JA. I agree with those reasons and have nothing to add.

2 MCLURE JA: On 5 May 2005 the appellant was convicted on his own plea of guilty of one count of aggravated burglary and one count of attempting to steal a motor vehicle. The appellant pleaded guilty on the fast track system. He was sentenced by Wager DCJ to 12 months imprisonment on both counts which were ordered to be served concurrently with each other but cumulatively with sentences of imprisonment the appellant was serving at that time for other offences. He was made eligible for parole.

3 Wheeler J granted leave to appeal on the ground contained in the Appeal Notice dated 24 May 2005. That ground provides:

"The learned Sentencing Judge erred in law by imposing a sentence that was manifestly excessive taking into account the circumstances of the offence, the offender's plea of guilty, the offender's capacity for rehabilitation, the totality principle, and all other matters personal to the offender."

4 The appellant subsequently filed a document entitled "Appellant's Grounds of Appeal" which contains three grounds, all of which purport to identify express error in the sentencing Judge's reasons and all of which are unmeritorious and would not attract a grant of leave. I propose to deal with the appeal on the sole ground on which leave was granted.

5 The facts of the offences were not in dispute. They were committed at about 11.40 pm on 15 April 2003, just over two years before the appellant was sentenced. The appellant went into the backyard of the complainant's house and went to a rear sliding door. He unlatched the lock in order to gain entry to the house. The complainant and her husband were asleep inside the house. Once inside, the appellant walked through the house and located a set of car keys to the complainant's vehicle. The appellant took the keys and walked to the front door of the house where he unlocked it and let himself out. He then walked to the complainant's carport where her vehicle was parked and unlocked the driver's side door using the stolen keys. He attempted to start the car without success because of an immobiliser fitted to the vehicle. The noise of the appellant trying to the start the vehicle woke the complainant and her husband. The complainant walked to the front porch where she confronted the appellant who was standing in the carport. He turned to the complainant, walked

towards her offering the car keys to her, then pushed her back through the front door into the house. The appellant followed the complainant inside and told her that the police were after him and to be quiet. The appellant requested the complainant and her husband to call him a taxi, which they did. The taxi arrived at the same time as a police vehicle which followed the taxi into the driveway. The appellant ordered the complainant's husband to move the taxi before he eventually fled the premises. During the offence the appellant was bleeding from cuts on his hand and foot which left blood inside the house and on the complainant's vehicle. A subsequent DNA analysis of blood swabs identified the appellant as the offender.

6 At the time of sentencing the appellant was serving a total effective sentence of 7 years' imprisonment for a large number of other offences for which he was sentenced on three separate occasions by Hammond CJDC and Williams and O'Brien DCJs respectively. The details are as follows: