Boyd v The Queen
[2002] WASCA 239
•30 AUGUST 2002
BOYD -v- THE QUEEN [2002] WASCA 239
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2002] WASCA 239 | |
| COURT OF CRIMINAL APPEAL | |||
| Case No: | CCA:49/2002 | 19 AUGUST 2002 | |
| Coram: | WALLWORK J ANDERSON J FITZGERALD AJ | 30/08/02 | |
| 10 | Judgment Part: | 1 of 1 | |
| Result: | Application dismissed | ||
| B | |||
| PDF Version |
| Parties: | DION SHAUN BOYD THE QUEEN |
Catchwords: | Criminal law and procedure Sentence Stealing motor vehicle and driving recklessly Breach of intensive supervision order Whether aggregate sentence of 3 years' imprisonment manifestly excessive History of offending Need for punishment and deterrence |
Legislation: | Nil |
Case References: | Nil Nil |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : COURT OF CRIMINAL APPEAL CITATION : BOYD -v- THE QUEEN [2002] WASCA 239 CORAM : WALLWORK J
- ANDERSON J
FITZGERALD AJ
- Applicant
AND
THE QUEEN
Respondent
Catchwords:
Criminal law and procedure - Sentence - Stealing motor vehicle and driving recklessly - Breach of intensive supervision order - Whether aggregate sentence of 3 years' imprisonment manifestly excessive - History of offending - Need for punishment and deterrence
Legislation:
Nil
Result:
Application dismissed
(Page 2)
Category: B
Representation:
Counsel:
Applicant : In person
Respondent : Mr R E Cock QC
Solicitors:
Applicant : In person
Respondent : State Director of Public Prosecutions
Case(s) referred to in judgment(s):
Nil
Case(s) also cited:
Nil
(Page 3)
1 WALLWORK J: I agree with the reasons for judgment and the conclusions of Anderson J.
2 There is nothing I wish to add.
3 ANDERSON J: This is an application for leave to appeal against sentences handed down in the District Court by Hammond CJDC on 1 March last. The applicant was sentenced to 18 months' imprisonment on his plea of guilty to one count of stealing a motor vehicle with reckless driving. He was also sentenced to an aggregate of 18 months' imprisonment in respect of certain other offences and there was an order that this aggregate term be served cumulatively on the 18 months he received for the theft of the motor vehicle.
4 It is necessary to give some background in order to understand how these various matters came to be dealt with on the same sentencing day. The history begins on 1 May 1999. In the early hours of that morning the applicant, in company with others, all of whom were apparently under the influence of alcohol or drugs, went on foot from place to place in the northern suburbs of Quinns Rock, Mindarie and Merriwa setting fire to bushland and trees. We do not have details of the number of fires that were lit or the extent of the damage that was caused. The applicant and his co-offenders were apprehended and the applicant was charged with one count of damage (an offence under the Police Act 1892) and one count of setting fire to bush contrary to the Bushfires Act 1954. The applicant was presented in the Children's Court in September 1999 and placed on two conditional release orders, each of 6 months, with a $500 recognisance in each case. The applicant was born on 28 May 1981 and was therefore a few weeks short of his 18th birthday when he committed these offences.
5 On 19 October 1999 - five months later and during the currency of the conditional release orders - the applicant went with friends to his father's holiday shack at Guilderton, north of Perth, and whilst based at those premises over several days, they targeted vacant holiday homes, broke into them and stole electrical goods, fishing gear and alcohol said to be valued "in the thousands of dollars". The applicant was charged and given bail but breached his bail by fleeing to New South Wales. He was eventually brought back to Western Australia and came before the District Court in May 2000 under arrest on a bench warrant and pleaded guilty to all five charges.
(Page 4)
6 The sentencing Judge, O'Sullivan DCJ, undertook a thorough review of the circumstances and canvassed the various sentencing options and came to the conclusion that the applicant should be treated leniently in view of his young age, his antecedents and what he had been told about the applicant's aspirations, his prospects of rehabilitation, including his prospects of immediate employment. It is clear from the Judge's sentencing remarks that he was persuaded that the applicant had learned his lesson and was unlikely to reoffend and that if given another chance, would become a "useful, law-abiding and sensible member of the community", to use his Honour's words. The sentencing option which O'Sullivan DCJ chose was to place the applicant under an intensive supervision order for two years with 100 hours of community work and a programme requirement. These orders were, to use the Judge's words, "in respect of all the matters before this Court", by which he must be taken to have included the breach of the conditional release orders made in respect to the May 1999 offences of damage and setting fire to bush. The two recognisances of $500 were forfeited.
7 In the pre-sentence material obtained by Hammond CJDC before imposing the sentences now under appeal the following comment appears in respect to the applicant's performance under the intensive supervision order:
"On 31 May 2000 in the Perth District Court Mr Boyd was placed on a 2-year Intensive Supervision Order for five counts of aggravated burglary and breach of a Conditional Release Order. The [intensive supervision] order included the special conditions of 100 hours of community service and a program requirement. Initially Mr Boyd's response to this order was less than satisfactory as he failed to attend community work as directed and reported sporadically. However, in September 2000 Mr Boyd admitted to his supervising officer he had been using amphetamines intravenously and wanted to address his substance misuse. Mr Boyd was referred to substance abuse counselling and urinalysis and his response to his [intensive supervision] order improved dramatically, as he then completed the community work component of his order and began to report as directed. He also successfully completed the Skills Training in Aggression Control Program and engaged in psychological counselling. Since being released from custody Mr Boyd has requested further psychological counselling for which he is currently wait-listed.
(Page 5)
- However, in addition to his current offence and outstanding charges Mr Boyd has continued to reoffend during the course of his [intensive supervision] order having been convicted of no motor driver's licence, damage and on premises without lawful excuse."
8 The reference in this last paragraph to continued offending is a reference to a conviction recorded on 10 October 2000 of being on premises without lawful excuse for which he was fined $200, a conviction on 8 June 2001 of driving without a licence for which he was disqualified from obtaining a licence for three months and fined $300 and a conviction on 19 June 2001 of damage for which he was fined $150. In this part of his antecedent report there is also a conviction on 10 October 2000 for fraud for which he was fined $300. This offence apparently occurred prior to the imposition of the intensive supervision order.
9 The intensive supervision order was due to expire on 30 May 2002. It would appear from the pre-sentence material ordered by Hammond CJDC that the applicant left his father's house in mid-July 2001 and moved in with his brother and his brother's fiancée, a Ms Johnson. The applicant was then in a relationship with a girl or woman. This woman did not move into the applicant's brother's house with the applicant, but there is material before the Court indicating that she spent a great deal of her time in the applicant's company at that house. Trouble soon developed. According to Ms Johnson's victim impact statement, the cause of the trouble was threefold. Firstly, the applicant had left his employment, was using drugs and behaving badly. Secondly, the applicant was not contributing his share of the rent and housekeeping expenses. Thirdly, the applicant and his girlfriend were constantly fighting and their encounters were often loud, violent and disturbing to neighbours.
10 Matters came to a head on about 12 November 2001. According to the victim impact statements of Ms Johnson, she had been pressing the applicant for money for his share of the rent and housekeeping expenses, including the telephone account, and had left for work in her car on 12 November after delivering some kind of ultimatum to the applicant either the night before or on that morning. When she finished work, she found that her car was not where she had parked it at her place of work. According to her statement, it transpired that the spare keys to her car had been stolen from her room. She also found that personal belongings and clothing in her wardrobe had been interfered with and 12 small diamonds which she had collected over time and which she had hidden in a passport
(Page 6)
- holder inside a suitcase in her wardrobe were missing. The value of these diamonds was approximately $600.
11 In the proceedings before Hammond CJDC the statement of facts read out by the prosecutor was to the effect that when he was alone in the house on the morning of 12 November, the applicant went into Ms Johnson's bedroom, took the car keys and the diamonds and then caught a taxi to Ms Johnson's place of work where he found her car and gained entry to it using the spare keys. He then drove back to the house to collect some belongings and drove to the Whitfords shopping centre carpark where he attempted to steal both numberplates from a vehicle of similar description to Ms Johnson's vehicle but was interrupted while doing so, whereupon he drove off at speed, colliding with a pole and damaging the right-hand front of Ms Johnson's vehicle, causing some $800 worth of damage. He had managed to remove one of the licence plates from the other vehicle and he took this with him.
12 It was the applicant's intention to drive to New South Wales. He was noticed by police about 25 kilometres east of the Madura Roadhouse on the Eyre Highway near Eucla travelling at 167 kilometres an hour. The police commenced to follow the vehicle and by use of emergency lights called upon the applicant to stop. However, the applicant accelerated and a chase ensued, during which speeds of 180 kilometres per hour were reached. The prosecutor's description to Hammond CJDC of the chase included the following narrative:
"On numerous occasions police pulled up alongside the offender with the emergency lights and sirens activated and motioned to the offender to pull over. The offender continued to drive at excessive speed and at times moved onto the opposite side of the highway … Police pulled alongside the offender as he was driving towards the rear of a road train, also heading east. The offender braked heavily and swerved between the police and the road train. He then continued to accelerate away from the truck and police. During this time approximately eight vehicles passed the offender. The offender eventually had driven approximately 50 kilometres in this manner before pulling into a car bay … The offender stated to police he knew the police would eventually get him and that his car was almost out of fuel. He admitted having stolen the car from his brother's girlfriend as he hated her."
(Page 7)
13 The applicant's licence was then under cancellation. Ms Johnson's vehicle had by this time also been fitted with the stolen registration plate. Police located 11 of the 12 diamonds. The applicant admitted that he had attempted to sell these diamonds.
14 The indictment on which the applicant was presented before Hammond CJDC charged only the offence of stealing Ms Johnson's motor vehicle with a circumstance of aggravation, namely that he then drove the motor vehicle recklessly. The offence of aggravated motor vehicle theft is created by s 371A and s 378(2)(a) of the Code which in combination provide that a person who steals a motor vehicle and wilfully drives it in a reckless manner is guilty of a crime and liable to imprisonment for 8 years.
15 The first question which arises is whether a sentence of 18 months' imprisonment for this offence was within the range of a proper exercise of sentencing discretion in all the circumstances of the case.
16 In my opinion, this was a bad case of motor vehicle theft. It must be looked at in the context of the appellant's overall conduct. I do not accept the applicant's submission that the offence was committed impulsively on the spur of the moment. The applicant had to search for and find the spare keys and steal them. This involved going into Ms Johnson's bedroom and searching through her belongings. That search was not limited to the keys. The applicant had obviously made up his mind to steal whatever he could find of value. As has been recounted, he then took a taxi to Ms Johnson's place of work with the intention of stealing her car. He then drove back to the house to prepare for his trip and then to a shopping center carpark with the intention of stealing numberplates from a car of the same colour, make and model and using them as false numberplates. He then set off for New South Wales. All of this involved planning and persistence and the continuous pursuit over many hours of an unlawful course of conduct, culminating in a high-speed police chase not desisted in until the vehicle would go no further for want of fuel.
17 In my respectful opinion, it is quite impossible to say that a sentence of 18 months' imprisonment was manifestly excessive. The fact that Parliament has provided for a maximum sentence of 8 years' imprisonment cannot be ignored. In light of that, and accepting that this was a bad case of its kind, a sentence of 18 months' imprisonment was at the lower end of the scale.
(Page 8)
18 The other charges which arose out of this escapade were:
• One charge of stealing (the diamonds)
• One charge of stealing (the numberplate)
• One charge of reckless driving (Eyre Highway)
• One charge of driving without a motor driver's licence
19 The applicant elected to be dealt with for these offences. Hammond CJDC imposed sentences of 3 months' imprisonment in respect to each of these offences and ordered that they be served concurrently with each other and concurrently with the sentence of 18 months' imprisonment on the motor vehicle theft count. There could be no complaint about these sentences and I do not understand the applicant to make any complaint about them.
20 However, the five offences constituted breaches of the intensive supervision order made by O'Sullivan DCJ on 31 May 2000, which, as I have said, was due to expire on 30 May 2002. The applicant elected to be dealt with by Hammond CJDC with respect to the breaches. This involved resentencing the applicant for the two offences committed in May 1999, that is, damage and setting fire to bushland and resentencing the applicant for the five offences of aggravated burglary committed in October 1999. Hammond CJDC disposed of these matters by imposing a sentence of 18 months' imprisonment in respect to each of the burglary charges, 9 months' imprisonment with respect to the charge of damage and 3 months' imprisonment with respect to the charge of setting fire to bush and ordered that all of these sentences be allowed to run concurrently. However, as has been recounted, he ordered that the aggregate term of 18 months for these offences be served cumulatively upon the aggregate term of 18 months imposed with respect to the November 2001 offences.
21 In all, therefore, the applicant received a sentence of 3 years' imprisonment for the 13 offences.
22 In a detailed outline of submissions prepared on behalf of the applicant (who appeared in person) by the Unrepresented Criminal Appellants Scheme it is contended that the overall sentence was manifestly excessive in that insufficient weight was given to the following matters:
(Page 9)
- (a) The applicant had established himself in full-time employment which was likely to lead to further skills training;
(b) The applicant was in a long-term relationship at the time of the offences. The relationship was de facto in nature and the applicant and his de facto were expecting their first child;
(c) The fact that the applicant was under the influence of psychotropic drugs at the time of the offence;
(d) The fact that the applicant took positive steps towards his own rehabilitation in respect of his substance abuse prior to the sentence being handed down thereby highlighting his commitment to rehabilitation;
(e) That the applicant was depressed "at the time of the offences incident giving rise to the indictment".
23 No doubt all of these matters were deserving of consideration, but I am not persuaded that they were not given appropriate weight. The unfortunate fact is that the applicant has been given a number of chances to achieve rehabilitation in the past. At the time of the November 2001 offences he was the subject of an intensive supervision order, yet on his own admission he had relapsed into unemployment, drug abuse and criminal behaviour. There are episodes of full-time employment in the past which were not kept up. The quality of, and his commitment to, his relationship with his girlfriend is questionable. It seems to have been a troubled, if not at times a violent, relationship and it is to be observed that when in defiance of the intensive supervision order he decided to leave Western Australia and go to New South Wales in a stolen vehicle, he did not attempt to take his girlfriend with him. As to the contention that the applicant had taken "positive steps towards his own rehabilitation in respect of his substance abuse … thereby highlighting his commitment to rehabilitation", it is to be observed that the applicant, on his own admission, has a history of relapsing into unemployment and high-level substance abuse after appearing to have turned over a new leaf. The most that can be said for the applicant is that he has episodes of "commitment to rehabilitation" which in the past have not lasted for long.
24 In summary, the applicant's response to the chances that he has been given by the Courts and to the leniency that has been extended to him and to the resources that have been expended on him in an effort to straighten him out has been most unsatisfactory.
(Page 10)
25 I am not persuaded that there is any significant commitment to reform. In his submissions to the Court he tended to place blame for his most recent spate of offending on Ms Johnson. He told the Court at one stage that Ms Johnson had, in effect, put him up to the theft of her car so that she could make a false insurance claim. When pressed by members of the Court on that, he appeared to resile from it, although not completely.
26 The question in this case is whether an aggregate sentence of 3 years' imprisonment offended the totality principle. I do not think that it did. The Chief Judge was entitled to conclude that the time had come to pass a sentence in which emphasis should be placed upon punishment, deterrence and protection of the community.
27 I would refuse leave to appeal.
28 FITZGERALD AJ: I have had the advantage of reading the reasons for judgment of Anderson J. I agree with them and there is nothing I wish to add.
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