Court of Appeal (WA)|2008-07-10|Before: McLure JA, Steytler P, Lure JA, Miller JA, Simmonds J

THE STATE OF WESTERN AUSTRALIA -v- VISKARI [2008] WASCA 143 (10 July 2008)

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

CITATION : THE STATE OF WESTERN AUSTRALIA -v- VISKARI [2008] WASCA 143

Jurisdiction : SUPREME COURT OF WESTERN AUSTRALIA

Criminal law - State appeal against sentence - Aggregate sentence breached totality principle - Turns on own facts

Orders for cumulation and concurrency set aside and total sentence increased from 7 years 1 month to 9 years 1 month

2 McLURE JA: This is a State appeal against sentence. On 22 October 2007 the respondent was convicted on his own plea of guilty of four counts of stealing a motor vehicle contrary to s 371A and s 378 of the Criminal Code (WA), four counts of armed robbery contrary to s 392 of the Criminal Code and four counts of criminal damage by fire (arson) contrary to s 444(a) of the Criminal Code. The offences were committed on four separate occasions in which the respondent first stole a motor vehicle, used the vehicle in the commission of an armed robbery and then set the vehicle alight in an effort to destroy evidence which might have led law enforcement authorities to him.

3 The offences and the penalty imposed are as follows:

4 The learned sentencing judge ordered that counts (1) and (3) - (12) be served concurrently with each other and partially concurrently with count 2. The effect of the orders was that the respondent was sentenced to

a total effective sentence of 7 years and 1 month's imprisonment (10 years and 8 months under the former sentencing regime).

5 The respondent was on parole at the time these offences were committed. In 2002 he was sentenced to a total effective sentence of 8 years and 6 months' imprisonment for one count of armed robbery, one count of attempted armed robbery and two counts of stealing a motor vehicle. He was made eligible for parole. That sentence was ordered to be served cumulatively on an existing sentence. At the time of sentencing for the current offences, the respondent, having breached his parole, was in custody for the 2002 offences.

6 The sentencing judge ordered that the total sentence of 7 years and 1 month be served concurrently with the sentences for the 2002 offences. The sentence of 8 1/2 years for the 2002 offences expires on 25 November 2011 although the respondent is entitled to be released on remission on 30 October 2008. However, the entitlement to remission is irrelevant when considering totality.

7 The State has been given leave to appeal on the ground that the sentencing judge gave undue weight to the totality principle resulting in a total term that was manifestly inadequate.

8 The facts of the offences are as follows. Counts 1 - 3 were committed on 7 December 2006. The respondent stole a motor vehicle and drove it to McKenzies Chemist in Mount Lawley. The respondent was dressed in a pair of paper cloth overalls that covered his entire body. Only part of the respondent's eyes and face could be seen. He entered the chemist shop armed with a screwdriver or knife and demanded and was given money and drugs. He drove off in the stolen motor vehicle which he later abandoned after having set fire to it. The vehicle was completely destroyed.

9 Counts 4 - 6 were committed between 15 and 17 December 2006. On 15 or 16 December the respondent stole a motor vehicle. On the morning of 17 December he drove the stolen vehicle to the Perth City Motel in Osborne Park. The respondent was again dressed in a pair of paper cloth overalls. He entered the motel armed with a knife and demanded and was given money. The respondent drove off in the stolen vehicle which apparently became bogged. He then set fire to the vehicle.

10 Counts 7 - 9 were committed on 19 December 2006. The respondent stole a motor vehicle and drove it to the Thornlie Centre Pharmacy. The respondent was dressed in a way that only part of his eyes were visible. He entered the pharmacy armed with a knife and demanded and was given money and drugs. He drove off in the stolen vehicle and was later seen setting it on fire.

11 Counts 10 - 12 were committed on 21 December 2006. The respondent stole a motor vehicle and drove it to the Subway Restaurant in Canning Vale. The respondent was again dressed in paper cloth overalls. He entered the store armed with a knife and demanded and was given money. The respondent again set fire to the stolen vehicle.

12 The respondent was initially released on parole in respect of the 2002 offences on 13 March 2006. He breached his parole by committing a number of stealing offences and was returned to custody in August 2006. He was again released on parole on 30 November 2006. The offences in the first of the current series were committed some seven days later.

13 The respondent pleaded guilty at the commencement of the trial. He was aged 31 at the time he committed the offences and 32 at the time of sentencing. The respondent has an entrenched pattern of offending that commenced when he was 20 and has spent the majority of his adult life in custody.

14 The respondent has a long standing pattern of drug abuse and a history of depression. These matters are detailed in the pre-sentence and psychological reports. The author of the psychological report considers the respondent to be at a high risk of re-offending if he does not make systemic changes to his life. The likelihood of rehabilitation is faint but not extinguished.

15 The legal principles relevant to the disposition of this appeal are not in dispute. An appellate court is not entitled to intervene merely because it would have exercised the sentencing discretion in a manner different than the sentencing judge. It can only intervene if the sentencing judge has made an express or implied material error of fact or law: Lowndes v The Queen [1999] HCA 29; (1999) 195 CLR 665.

16 As this appeal was instituted prior to the commencement of s 41(1)(b) of the Criminal Appeals Act 2004 (WA), the principles relating to State appeals against sentence apply: The State of Western Australia v Richards [2008] WASCA 134. Those principles are detailed in the State of Western Australia v Houston [2005] WASCA 167 [52] - [54].

17 The State contends the sentencing judge erred in his application of the totality principle. The principles relating to totality are detailed in Roffey v The State of Western Australia [2007] WASCA 246 [23] - [26]. In summary, there are two limbs to the totality principle. The first requires the court to review the aggregate sentence to ensure that it is a just and appropriate measure of the total criminality involved in the criminal conduct as a whole. The second is that the court should not impose a crushing sentence, being a sentence that connotes the destruction of any reasonable expectation of a useful life after release. The totality principle applies where an offender is serving an existing sentence for other offences.

18 The offending comprised four separate series of three offences. On no view can it be suggested that the four separate series of offences are part of the one transaction as that rule has been explained: R v Faithfull [2004] WASCA 39; (2004) 142 A Crim R 554 [25] - [28]. I will assume without deciding that the three offences comprising each series of offending fall within the one transaction rule.

19 When considering totality in this case it is necessary to have regard to the total sentence for the current offences (7 years and 1 month) and the order for concurrency in relation to the balance of the sentences to be served for the 2002 offences. I have also had regard to the range of total sentences imposed for multiple offences of armed robbery. These are conveniently collected in Readhead v The State of Western Australia [2005] WASCA 191 [39] and Roffey [28] - [33]. Setting fire to the stolen vehicles magnifies the seriousness of the already serious offences of armed robbery. This course of offending involved a significant escalation of criminal conduct. I am satisfied that a total sentence of 7 years 1 month to be served concurrently with the sentences for the 2002 offences infringes the first limb of the totality principle. It is not a just and appropriate measure of the total criminality of the respondent's conduct. I would give effect to the totality principle and the principles relating to a State appeal against sentence by imposing a total sentence of 9 years and 1 month to be served concurrently with the sentences for the 2002 offences. The respondent would be in his early 40s upon release. Such a sentence cannot be described as crushing.

20 Accordingly, I would allow the appeal, set aside the orders for concurrency and cumulation and in lieu thereof order that the sentences for counts 3, 6 and 11 be served cumulatively and those sentences be served concurrently with the other sentences, including the sentences for the 2002 offences, resulting in a total effective sentence of 9 years and 1 month.

21 MILLER JA: I have had the opportunity of reading in draft the reasons for judgment of McLure JA.

22 I agree with McLure JA that the appeal should be allowed and the orders for concurrency and cumulation imposed by sentencing judge should be set aside.

23 I would however order that the sentences for counts 2 and 11 should be served cumulatively. The sentences on counts 1, 3, 4, 5, 6, 7, 8, 9 and 10 should in my view be ordered to be concurrently with the sentence imposed on count 11. The total sentence of 9 years 10 months should in my view be ordered to be served concurrently with the sentences imposed for the 2002 offences in relation to which the appellant was sentenced to 8 years 6 months.

THE STATE OF WESTERN AUSTRALIA -v- VISKARI [2008] WASCA 143 (10 July 2008)

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THE STATE OF WESTERN AUSTRALIA -v- VISKARI [2008] WASCA 143 (10 July 2008)

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