Brooks v The State of Western Australia
[2021] WASCA 156
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: BROOKS -v- THE STATE OF WESTERN AUSTRALIA [2021] WASCA 156
CORAM: BUSS P
BEECH JA
HEARD: 10 AUGUST 2021
DELIVERED : 3 SEPTEMBER 2021
FILE NO/S: CACR 114 of 2020
BETWEEN: DANNY BROOKS
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
FILE NO/S: CACR 116 of 2020
BETWEEN: DANNY BROOKS
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
FILE NO/S: CACR 27 of 2021
BETWEEN: DANNY JAY BROOKS
Appellant
AND
STEVEN COLIN SCOTT
First Respondent
TROY WILLIAM DUNCAN
Second Respondent
CARL DEACON
Third Respondent
SHAUN LEO
Fourth Respondent
MATTHEW THOMPSON
Fifth Respondent
JASON CAMP
Sixth Respondent
SAMUEL APPELBEE
Seventh Respondent
SIMONE TAPLIN
Eighth Respondent
NICHOLAS ARMOUR
Ninth Respondent
FELICITY COLLINS
Tenth Respondent
ON APPEAL FROM:
Jurisdiction : SUPREME COURT OF WESTERN AUSTRALIA
Coram: ARCHER J
Citation: THE STATE OF WESTERN AUSTRALIA -v- BROOKS [2018] WASCSR 129
File Number : INS 203 of 2017
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram: TROY DCJ
File Number : IND 1378 of 2018
Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram: HEATH CM
File Number : RO 8030 of 2015, MI 8933 of 2015, MI 8934 of 2015, AR 12117 of 2015, AR 12118 of 2015, PE 57355 of 2015, FR 9826 of 2016, FR 9827 of 2016, AR 11677 of 2016, AR 11793 of 2016, AR 12050 of 2016, PE 22727 of 2016, PE 52186 of 2016, PE 52224 of 2016, PE 52225 of 2016, PE 52229 of 2016, MI 2953 of 2017, MI 2954 of 2017, MI 2957 of 2017
Catchwords:
Criminal law and sentencing - Offender found guilty of aggravated burglary and going armed so as to cause terror - Total effective sentence of 5 years 1 month's imprisonment - Whether total sentence infringed both limbs of the totality principle - Whether sentencing judge erred in reasoning that imprisonment in protective custody was not materially harsher than being in the general prison population
Criminal law and sentencing - Offender pleaded guilty to various summary offences including breaches of bail, unlicensed possession of a firearm, no authority to drive, trespass, burglary and stealing - Total effective sentence of 1 year 3 months' imprisonment cumulative on sentence previously imposed - Whether magistrate erred in not referring summary charges to a superior court - Whether total sentence infringed both limbs of the totality principle
Criminal law and sentencing - Offender pleaded guilty to various indictable offences including unlawful damage to property, stealing, escape from lawful custody, assault of a public officer and burglary - Total effective sentence of 3 years 2 months' imprisonment cumulative upon sentences previously imposed giving a total effective sentence of 9 years 6 months' imprisonment - Whether total sentence infringed both limbs of the totality principle - Whether sentencing judge erred in not granting the appellant a 25% discount under s 9AA of the Sentencing Act 1995 (WA)
Legislation:
Nil
Result:
Application to adduce additional evidence dismissed
Leave to appeal refused
Appeals dismissed
Category: D
Representation:
CACR 114 of 2020
Counsel:
| Appellant | : | In person |
| Respondent | : | No appearance |
Solicitors:
| Appellant | : | In person |
| Respondent | : | Director of Public Prosecutions (WA) |
CACR 116 of 2020
Counsel:
| Appellant | : | In person |
| Respondent | : | No appearance |
Solicitors:
| Appellant | : | In person |
| Respondent | : | Director of Public Prosecutions (WA) |
CACR 27 of 2021
Counsel:
| Appellant | : | In person |
| First Respondent | : | No appearance |
| Second Respondent | : | No appearance |
| Third Respondent | : | No appearance |
| Fourth Respondent | : | No appearance |
| Fifth Respondent | : | No appearance |
| Sixth Respondent | : | No appearance |
| Seventh Respondent | : | No appearance |
| Eighth Respondent | : | No appearance |
| Ninth Respondent | : | No appearance |
| Tenth Respondent | : | No appearance |
Solicitors:
| Appellant | : | In person |
| First Respondent | : | Director of Public Prosecutions (WA) |
| Second Respondent | : | Director of Public Prosecutions (WA) |
| Third Respondent | : | Director of Public Prosecutions (WA) |
| Fourth Respondent | : | Director of Public Prosecutions (WA) |
| Fifth Respondent | : | Director of Public Prosecutions (WA) |
| Sixth Respondent | : | Director of Public Prosecutions (WA) |
| Seventh Respondent | : | Director of Public Prosecutions (WA) |
| Eighth Respondent | : | Director of Public Prosecutions (WA) |
| Ninth Respondent | : | Director of Public Prosecutions (WA) |
| Tenth Respondent | : | Director of Public Prosecutions (WA) |
Case(s) referred to in decision(s):
The State of Western Australia v Brooks [2018] WASCSR 129
Wellstead v The State of Western Australia [2019] WASCA 130
JUDGMENT OF THE COURT:
Introduction
On different occasions in 2018, the appellant was sentenced in the Supreme Court, the District Court and the Magistrates Court for a total of 36 offences. His offences included one count of aggravated armed robbery, two counts of robbery, one count of intentionally using violence in order to steal a motor vehicle, two counts of home burglary, one count of aggravated burglary, one count of assaulting a public officer, four stealing offences and a number of driving offences, firearms offences and breaches of bail. Most of those offences, and all of the most serious offences, were committed in a period of about three weeks from late August 2016 to mid‑September 2016. The end result of the three sentencing exercises was a total effective sentence of 9 years 6 months' imprisonment.
The appellant seeks leave to appeal against each of the three sentencing decisions.
For the reasons that follow, in each appeal none of the grounds of appeal have a reasonable prospect of succeeding. Consequently, we would order in each appeal that leave to appeal on all grounds is refused and the appeal is dismissed.
It is convenient to deal with the appeals in the order in which the sentencing proceedings occurred, namely in the Supreme Court, then the Magistrates Court and, finally, in the District Court.
CACR 114 of 2020 - appeal against Supreme Court sentence
On 19 February 2018, the appellant was convicted, after a six‑day trial before a Supreme Court judge and jury, of one count of aggravated armed robbery (count 1) and one count of going armed so as to cause terror (count 2). The appellant was sentenced by the trial judge to 4 years 4 months' imprisonment for count 1 and 9 months' imprisonment for count 2, the two sentences to be served cumulatively, producing a total effective sentence of 5 years 1 month.
The facts of the offending
The Supreme Court trial judge made the following findings of fact, none of which are challenged on appeal.[1]
[1] The State of Western Australia v Brooks [2018] WASCSR 129 (Supreme Court Sentencing remarks) [4] ‑ [10].
The appellant and a co‑offender decided to rob a newsagency. On 27 August 2016, the appellant and his co‑offender rushed into the newsagency, with their faces covered by some sort of mesh and each carrying a knife.
The co‑offender shouted at the woman working behind the counter of the newsagency to give him money. He went behind the counter, where she was. She picked up a cricket bat. The co‑offender pushed the woman with force, causing her to fall on the floor. He put the knife quite near the woman's neck and repeated his demand for money.
The daughter of the woman working in the newsagency heard her mother's screams and began to telephone the police. The appellant screamed at her to put the phone away, pointing his knife at her and telling her that he would stab her. He was about five or six steps away when he did that.
The co‑offender grabbed the till drawer, taking its contents of about $450 and running. The appellant pushed the daughter off balance and followed.
The appellant was pursued by two people. While outside, he stopped and threatened one of those men with his knife in an attempt to stop him from chasing the appellant, thereby committing count 2.
The appellant hid some items of clothing in an attempt to avoid being caught.
After being arrested some weeks later, the appellant denied any involvement in the offence.
The appellant's personal circumstances
The appellant's personal circumstances were comprehensively detailed by the judge.[2]
[2] Supreme Court Sentencing remarks [21] ‑ [40].
The appellant was 39 years old when he was sentenced in the Supreme Court in June 2018.
The judge described the appellant as having had a traumatic childhood, his older sister having died when he was 6 years of age, and then his mother dying a year later.
The appellant lived with his grandmother, who was physically violent towards him. He subsequently lived with his father, by whom he was physically and emotionally abused.
After leaving school when he was 13 years of age, the appellant began using drugs as a means of distancing himself from his emotional difficulties.
He permanently left the family home when he was 15 years of age and did not reconcile with his family until he was 28.
The appellant's early employment was inconsistent. He began working as a plasterer and plumber in his mid to late twenties and became a self‑employed roof plumber in his early thirties.
The Supreme Court trial judge referred to a work reference describing very positively the appellant's work as a roof plumber from 2009 to 2013.
The appellant met his current partner when he was 37 years of age. The appellant and his partner have a son, born in late 2016, who was then in care. The appellant's partner has a history of substance abuse and offending behaviour, but was reported to have made significant positive changes in her lifestyle subsequent to her most recent release from custody.
The judge noted that the appellant was taking steps to become a better father, having completed a two‑day course during his time on remand. The appellant has severe symptoms of anxiety, depression and stress, and had been assessed as having post‑traumatic stress disorder.
The judge described the appellant's drug use as being entrenched. Her Honour observed that this may have contributed to his offending, but was not mitigating. The judge noted the appellant's expressed willingness to attend programs to deal with his drug use. The judge also referred to several positive references from the appellant's partner and her parents.
The judge referred to the appellant's lengthy criminal record in many States. Most of the appellant's offending in Western Australia has been relatively minor.
The appellant had been remanded in custody for about 19 months on a murder charge. The appellant was found not guilty. After release from custody, the judge noted that the appellant said he had been pursued by the murder victim's family and that he did not feel protected by police, leading to a relapse into heavy drug use.
The judge observed that the offences for which the appellant was to be sentenced had been committed after his release from custody on the murder charge. The judge did not consider that the appellant's time in custody on the murder charge was causally related to his subsequent offending and, consequently, did not reduce the appellant's sentence directly on that account. Nevertheless, her Honour considered it to be a relevant part of the appellant's background to be taken into account in that more general way.
The Supreme Court judge's sentencing remarks
The judge referred to the vulnerability of both the victims of the appellant's offending, the mother working in the newsagency and her daughter. Her Honour also referred to the victim of the offence of going armed in public who rightly had believed that the appellant was running away from having committed a crime.
The judge referred to the maximum penalties for each offence, namely life imprisonment for armed robbery and 7 years' imprisonment for the offence of going armed in public.
The judge observed that the appellant was in protective custody to accommodate the risk that some of the other inmates did not accept the appellant's innocence on the murder charge. The judge observed that it was not the appellant's fault that he was in protective custody where he was likely to stay throughout his term. The judge found that conditions of being in protective custody were more arduous than being in the general prison population, but were not substantially more arduous or materially harsher. By ground 3 of his appeal to this court, the appellant challenges this conclusion.
The judge noted the appellant's letter to the court apologising to the victims and his co‑offender. The judge did not accept that the appellant was genuinely remorseful, noting his plea of not guilty and his giving of what the judge found to be false evidence at trial, and his continuing denial of having threatened one of the victims with a knife.
The judge did not consider the appellant to be at a low risk of reoffending. The judge was unable to find that the appellant had high or moderate prospects of rehabilitation, but found that it was reasonably possible that he would do so.
The judge referred to the need to protect the community as an aspect of the sentencing exercise.
Her Honour said that she took into account that the appellant's time had been, and would continue to be, served in protective custody. Her Honour also took into account the time in custody spent by the appellant on remand for the murder charge.
The judge described the armed robbery as objectively very serious. It was planned, and both offenders were armed and disguised. They chose a vulnerable target in the form of a newsagency. The two offenders threatened two women, both shouting and screaming.
The judge considered that the appropriate individual sentences for the two offences were 4 years 4 months for the armed robbery and 12 months for the offence of going armed in public. In application of the totality principle, the judge noted that the offences occurred close together, although they did not amount to one transaction or have common elements. Consequently, the judge considered it appropriate to make the sentences cumulative, but reduced the sentence on the offence of going armed in public to 9 months instead of 12 months, ordering that it be cumulative on the armed robbery sentence.
The judge ordered that the term be taken to commence on 19 September 2016 and that the appellant be eligible for parole.
Grounds of appeal
The appellant's three grounds of appeal are as follows:
1.The learned sentencing judge imposed a sentence that was manifestly excessive having regard to the principles of totality. This has engendered a miscarriage of justice.
2.The learned sentencing judge did not take into account that, on the whole, the cumulative nature of the sentence was crushing. The sentence was manifestly excessive and therefore a miscarriage of justice.
3.The learned judge erred in her reasoning that imprisonment in protective custody was not materially harsher than being in the general prison population. This reason constitutes a miscarriage of justice.
Appellant's submissions
In support of grounds 1 and 2, the appellant submits that:
(1)his offences involved a crime spree over a three‑week period which, although disparate, had the common goal of being committed to get money in order to obtain drugs;
(2)the offences were heard in three different levels of court;
(3)the judge could, and should, have imposed concurrent sentences rather than cumulative;
(4)her Honour failed to view the appellant's offending as a whole and did not see the consequences of the cumulative nature of the later District Court sentencing and its crushing effect on the appellant and his family.
In support of ground 3, the appellant submits that the judge erred in concluding that conditions in protective custody are not materially harsher than those in the general prison population.
Disposition
Sentencing is a discretionary exercise. An appellate court can intervene only if the appellant demonstrates either an express or implied material error. Express error involves acting on a wrong principle, for example by mistaking the law or facts or taking into account an irrelevant matter. Implied error arises where the end result is so unreasonable or unjust that the court must conclude that a substantial wrong has occurred. Thus, an appellate court cannot substitute its own opinion for that of the sentencing court merely because the appellate court would have exercised a sentencing discretion differently.
It is convenient to begin with ground 3, which alleges an express error. The ground alleges error in the judge's finding that conditions in being in protective custody were more arduous than being in the general prison population, but not substantially more arduous. Prior to his sentencing, the appellant's legal representatives filed an affidavit dated 1 June 2018, sworn by the appellant, concerning protective custody and its conditions. The judge evidently considered the contents of that affidavit. In addressing the judge on the fact that the appellant was in protective custody, his counsel acknowledged that the conditions were less arduous than those in the special handling unit.[3] Counsel acknowledged that the conditions under which the appellant would serve his term of imprisonment were more restrictive than ordinary conditions, but not substantially so.[4]
[3] ts 508.
[4] ts 508.
In acting on counsel's concession in relation to this evaluative question of degree, the judge did not err and no miscarriage of justice arose. Moreover, the judge took into account, in the appellant's favour, that the time that he had already spent, and would in the future serve, would be in protective custody.
For these reasons, there is no merit in ground 3.
Grounds 1 and 2 can conveniently be dealt with together, as they both assert breaches of the totality principle.
The legal principles concerning the totality principle are well established. They include the following.
The first limb of the totality principle requires that the total effective sentence imposed on an offender who has committed multiple offences must bear a proper relationship to the overall criminality involved in all of the offences (including those, if any, in respect of which the offender is still serving a term of imprisonment), viewed in their entirety, and after having regard to all relevant circumstances, including those referable to the offender personally (and including, for example, the desirability of accommodating any wish to rehabilitate), and the total effective sentences imposed in comparable cases.
The practical effect of the totality principle is ordinarily to arrive at a total effective sentence which is less than that which would have been arrived at merely by adding up all of the individual sentences imposed for each offence. The severity or leniency of an individual sentence (which is not manifestly excessive or manifestly inadequate) is relevant in evaluating whether the total effective sentence infringes the first limb of the totality principle.
The guidance afforded by comparable cases is flexible rather than rigid. The mere fact that a sentence is within the range of sentences imposed for similar offending does not necessarily establish that there was an appropriate exercise of the sentencing discretion in the particular case. Similarly, the mere fact that a sentence is outside the range does not necessarily establish that the exercise of the sentencing discretion in the particular case miscarried.
A sentencing range for comparable offences is merely one of the factors to be taken into account in deciding whether an individual sentence is manifestly excessive or a total effective sentence infringes the first limb of the totality principle. A range of sentences customarily imposed is of significance for the purpose of ensuring broad consistency in the sentencing of offenders in broadly comparable cases. However, a sentencing range for comparable cases does not fix the range of a sound exercise of the sentencing discretion in a particular case.
When this court dismisses an appeal against sentence, and when it allows an appeal against sentence and resentences the offender, this court's decision on the sentencing outcome does not, of itself, fix the upper or lower limit of the range.
If, in a particular case where an infringement of the first limb of the totality principle is alleged, there are no directly comparable cases, this court is not precluded from deciding that a total effective sentence does or does not infringe the first limb of the totality principle. It merely has the consequence that this court has no directly comparable cases to provide a yardstick against which to judge the adequacy of the total effective sentence imposed at first instance.
The second limb of the totality principle is that the court should not impose a 'crushing' sentence. The word 'crushing' in this context connotes the destruction of any reasonable expectation of a useful life after release. Advanced age is a relevant consideration in determining whether an aggregate sentence is 'crushing'. However, whether and, if so, to what extent, leniency should be given to an offender by reason of his or her advanced age depends on all the facts and circumstances of the particular case. An aggregate sentence may be inappropriately long under the first limb even if it cannot be described as crushing.
The Supreme Court judge was called upon to sentence the appellant only for two offences: aggravated armed robbery and going armed in public. It was well open to her Honour to order a degree of accumulation between those two offences, bearing in mind that they involved distinct criminality and had different victims.
It cannot reasonably be argued that the total effective sentence of 5 years 1 month's imprisonment imposed by the Supreme Court sentencing judge breached either limb of the totality principle. The sentence imposed was well within the range of sentences available on a sound exercise of the sentencing discretion in the circumstances of the case.
What occurred in the District Court, months after the Supreme Court judge imposed sentence, does not (and cannot) provide any basis to allege an infringement of either limb of the totality principle by the Supreme Court judge's sentence. Rather, any question of the breach of the totality principle falls to be determined in the context of the sentence imposed in the District Court. We will deal with it in that context.
Conclusions on appeal against Supreme Court sentences
For these reasons, leave to appeal on all three grounds of appeal should be refused and the appeal dismissed.
CACR 27 of 2021 - appeal against the Magistrates Court sentencing
The charges and the sentences imposed
On 26 July 2018, the Chief Magistrate sentenced the appellant in relation to 19 offences. The offences, and the sentences imposed for them, are set out in the following table:
| No | Charge Number | Charge Description | Details of offences | Act/Regulation breached | Offence Dates | Outcome Dates | Outcomes |
| 1 | RO 8030/2015 | No authority to drive – never held an Australian licence and disqualified from holding or obtaining | Drove a motor vehicle, bearing registered number 1BDP462, on a road, namely, Patterson Road, whilst not being a person authorised by Part 2 of the Road Traffic (Authorisation to Drive) Act 1974 (WA) | Section 49(1)(a) and (3)(b) of the Road Traffic Act 1974 (WA) | 24/11/2015 | 26/07/2018 | Disqualified from holding or obtaining a Driver's Licence · 9 months Cumulative and Imprisonment · 3 months Concurrent (eligible for parole) |
| 2 | MI 8933/2015 | Unlicensed Person Possess Firearm/Ammunition | Not being a person exempted by s 8 or 19(1ae) of the Firearms Act 1973 (WA) possessed ammunition, whilst not being the holder of a firearms licence or permit entitling him to do so | Section 19(1)(c)of the Firearms Act 1973 (WA) | 21/08/2015 | 26/07/2018 | Imprisonment · 3 months Concurrent (eligible for parole) and Order for Destruction |
| 3 | MI 8934/2015 | Any person in possession of any firearm/ammunition and is not the holder of a licence/permit commits a crime | Was in possession of a firearm, namely, a revolver whilst not being the holder of a license or permit under the Firearms Act 1973 (WA), entitling him to do so and not being exempted by s 8 or 19(1aa) of the Firearms Act 1973 (WA), such offence being aggravated in that the firearm was a handgun. | Section 19(1)(c) of the Firearms Act 1973 (WA) | 21/08/2015 | 26/07/2018 | Imprisonment · 3 months Cumulative (eligible for parole) and Order for Destruction |
| 4 | AR 12117/2015 | Any person in possession of any firearm/ammunition and is not the holder of a licence/permit commits a crime | Was in possession of a firearm, namely, a sawn off shot gun, whilst not being the holder of a license or permit under the Firearms Act 1973 (WA), entitling him to do so and not being exempted by s 8 or 19(1aa) of the Firearms Act 1973 (WA), such offence being aggravated in that the firearm had been altered from the design or characteristics of its original manufacture. | Section 19(1)(c) of the Firearms Act 1973 (WA) | 01/12/2015 | 26/07/2018 | Imprisonment · 6 months Concurrent (eligible for parole) and Order for Destruction |
| 5 | AR 12118/2015 | Unlicensed person Possess Firearm/Ammunition | Not being a person exempted by s 8 or 19(1ae) of the Firearms Act 1973 (WA) possessed ammunition, whilst not being the holder of a firearms licence or permit entitling him to do so | Section 19(1)(c) of the Firearms Act 1973 (WA) | 01/12/2015 | 26/07/2018 | Imprisonment · 3 months Concurrent (eligible for parole) and Order for Destruction |
| 6 | PE 57355/2015 | Breach of Bail Undertaking | Without reasonable cause, failed to appear in Midland Magistrates Court, such appearance being a requirement of a bail undertaking entered into by him on 25th of September 2015 | Section 51(1) of the Bail Act 1982 (WA) | 06/11/2015 | 26/07/2018 | Imprisonment · 3 months Concurrent (eligible for parole) |
| 7 | FR 9826/2016 | Steal motor vehicle | Stole a motor vehicle within the meaning of s 371A of the Criminal Code (WA), namely E60 BMW Sedan, registered number 1EKJ451 the property of Andrew Milton Stewart | Section 371A of the Criminal Code (WA) | 14/09/2016 | 26/07/2018 | Imprisonment · 2 months Cumulative (eligible for parole) |
| 8 | FR 9827/2016 | Breach of Bail Undertaking | Without reasonable cause, failed to appear in Armadale Magistrate's Court, such appearance being a requirement of a bail undertaking entered into by him on the 8th of April 2016 | Section 51(1) of the Bail Act 1982 (WA) | 14/09/2016 | 26/07/2018 | Imprisonment · 1 month Cumulative (eligible for parole) |
| 9 | AR 11677/2016 | No authority to drive – never held an Australian Licence and disqualified from holding or obtaining | Drove a motor vehicle, namely a Mitsubishi ASX, registered number EWV711, on a road, namely Stalker Road, Gosnells, whilst not being a person authorised by Part 2 of the Road Traffic (Authorisation to Drive) Act 1974 (WA) and had never held an Australian driver's licence of a kind required and whilst being disqualified from holding or obtaining an Australian driver's licence of a kind required. | Section 49(1)(a) and (3)(b) of the Road Traffic Act 1974 (WA) | 26/08/2016 | 26/07/2018 | Disqualified from holding or obtaining a Driver's Licence · 9 months Cumulative and Imprisonment · 3 months Cumulative (eligible for parole) |
| 10 | AR 11793/2016 | Aggravated Burglary and Commit Offence in Place | Without consent, was in the place of Connolly Dental Trading As Connolly Dental and committed an offence, namely stealing valued at $500 in circumstances of aggravation, namely that he was in company. | Section 401(2)(a) of the Criminal Code (WA) | 13/09/2016 | 26/07/2018 | Imprisonment · 6 months Concurrent (eligible for parole) |
| 11 | AR 12050/2016 | No authority to drive – suspended (other than fines suspension) | Drove a motor vehicle namely a Hyundai Accent, registered number 1GAL357 on a road, namely Corfield Street, whilst not being a person authorised by Part 2 of the Road Traffic (Authorisation to Drive) Act 2008 (WA) and whose authority to drive was at the time suspended. | Section 49(1)(a) and (3)(c) of the Road Traffic Act 1974 (WA) | 29/07/2016 | 26/07/2018 | Disqualified from holding or obtaining a Driver's Licence · 9 months Cumulative and Imprisonment · 3 months Concurrent (eligible for parole) |
| 12 | PE 22727/2016 | Breach of Bail (Failure to appear soon after) | Without reasonable cause, failed to appear at the Midland Magistrate's Court and failed to appear, as soon as practicable thereafter, such appearance being a requirement of a bail undertaking entered into by him on the 15th of April 2016 | Section 51(2) of the Bail Act 1982 (WA) | 15/04/2016 | 26/07/2018 | Imprisonment · 3 months Concurrent (eligible for parole) |
| 13 | PE 52186/2016 | Breach of Bail Undertaking | Without reasonable cause, failed to appear at the Armadale Magistrate's Court, such appearance being a requirement of a bail undertaking entered into by him on the 8th of April 2016 | Section 51(2) of the Bail Act 1982 (WA) | 26/08/2016 | 26/07/2018 | Imprisonment · 3 months Concurrent (eligible for parole) |
| 14 | PE 52224/2016 | Drove a motor vehicle in a manner that was inherently dangerous to escape pursuit | Wilfully drove a motor vehicle, namely a Toyota Camry, bearing registration plates 1DAO747, on a road, namely Wellard Road, in a manner that was inherently dangerous and in a circumstance of aggravation, namely he was driving the vehicle to escape pursuit by a member of the police force. | Section 60(1) of the Road Traffic Act 1974 (WA) | 15/09/2016 | 26/07/2018 | Disqualified from holding or obtaining a Driver's Licence · 2 Years Concurrent and Imprisonment · 6 months Cumulative Head Sentence (eligible for parole) |
| 15 | PE 52225/2016 | Driver of a vehicle failed to comply with a direction to stop (circumstance of aggravation) | Drove a vehicle, namely a Toyota Camry, registered number 1DAO747, on a road, and when given a direction by a police officer in accordance with s 39 of the Road Traffic (Administration) Act 2008 (WA) to stop the vehicle failed to comply with the direction in a circumstance of aggravation, namely he was at the time the direction was given, driving the vehicle so as to escape pursuit by a member of the police force. | Section 44 of the Road Traffic (Administration) Act2008 (WA) | 15/09/2016 | 26/07/2018 | Disqualified from holding or obtaining a Driver's Licence · 2 Years Concurrent and Imprisonment · 3 months concurrent (eligible for parole) |
| 16 | PE 52229/2016 | No authority to drive – suspended (other than fines suspension) | Drove a motor vehicle namely a Toyota Camry, registered number 1DAO747, on a road, namely Wellard Road, whilst not being a person authorised by Part 2 of the Road Traffic (Authorisation to Drive) Act 2008 (WA) and whose authority to drive was at the time suspended. | Section 49(1)(a) and (3)(c) of the Road Traffic Act 1974 (WA) | 15/09/2016 | 26/07/2018 | Disqualified from holding or obtaining a Driver's Licence · 9 months cumulative and Imprisonment · 3 months concurrent (eligible for parole) |
| 17 | MI 2953/2017 | Steal motor vehicle | Stole a motor vehicle within the meaning of section 371A of the Criminal Code (WA), namely a Hino Truck, registered number 1CXY423 the property of VDM Construction Pty Ltd | Section 378A of the Criminal Code (WA) | 28/08/2016-30/08/2016 | 26/07/2018 | Order the Return of Property and Imprisonment · 6 months concurrent (eligible for parole) |
| 18 | MI 2954/2017 | Possession of stolen or unlawfully obtained property | Was in possession of a thing capable of being stolen, namely a car carrying trailer, valued at $6,500.00 that was reasonably suspected to be stolen | Section 417(1) of the Criminal Code (WA) | 01/09/2016 | 26/07/2018 | Order the Return of Property and Imprisonment · 6 months concurrent (eligible for parole) |
| 19 | MI 2957/2017 | Without lawful excuse trespassed on a place | Without a lawful excuse, trespassed on the premises of PMX Pty Ltd located at Unit 1, 196 Bannister Road, Canning Vale | Section 70A(2) of the Criminal Code (WA) | 03/09/2016 | 26/07/2018 | Imprisonment · 6 months concurrent (eligible for parole) |
| Total Sentence | 1 year 3 months. Sentence Start Date 26 July 2018. | ||||||
The facts of the offending
The offending comprised several discrete offences on various dates in 2015 and 2016, including breaches of bail, unlicensed possession of a firearm, no authority to drive, trespass, burglary and stealing. The appellant was also sentenced for other offences for which fines were imposed, about which nothing more need be said for present purposes.
On 21 August 2015, the appellant was a passenger in the front of a car being driven in Ballajura. The vehicle was stopped and subsequently searched. A revolver was located under the front passenger seat and found to be loaded with five .22 calibre rounds. The appellant admitted that he knew the firearm was under the seat and that he had touched it but said he did not put it there. The appellant said the revolver worked.[5] At the relevant time, the appellant did not hold a firearm licence or permit (charges 2 and 3).[6]
[5] ts 9.
[6] Adopting the numbering in the table in [58] above.
On 6 November 2015, the appellant breached a bail undertaking by failing to appear at Midland Magistrates Court (charge 6).[7]
[7] ts 10.
On 24 November 2015, the car being driven by the appellant was stopped by police because a passenger was not wearing a seatbelt. When questioned as to the validity of his driver's licence, the appellant falsely stated that he was the holder of a Victorian driver's licence. The appellant was not authorised to drive that class of motor vehicle (charge 1).[8]
[8] ts 9 - 10.
On 1 December 2015, police were called to attend an address. Police approached the appellant, who was sitting with his feet near the front passenger side wheel of a parked vehicle in front of the house. While approaching the appellant, one of the officers heard a metal object strike the ground underneath the vehicle. One of the officers looked under the car and saw a firearm on the ground near the appellant. The firearm was a double-barrelled shotgun loaded with cartridges in both barrels, one with a rock salt round and the other with a lead bullet. The design of the shotgun had been altered (charges 4 and 5).[9]
[9] ts 13.
On 15 April 2016, the appellant breached a bail undertaking by failing to appear at Midland Magistrates Court (charge 12).[10]
[10] ts 14.
On 29 July 2016, the appellant was stopped by police when driving. At the time, he was not authorised to drive that class of vehicle, the appellant's driver's licence having been suspended (charge 11).[11]
[11] ts 14.
On 26 August 2016, the appellant breached his bail undertaking by failing to appear at Armadale Magistrates Court (charge 13).[12]
[12] ts 12.
Also on 26 August 2016, police activated emergency lights in the vicinity of the appellant, who was driving a vehicle. He failed to stop immediately, continuing to drive to his residence, where he stopped. He was not authorised to drive the class of vehicle he was driving (charge 9).[13]
[13] ts 14.
Sometime between 28 August 2016 and 30 August 2016 (inclusive), the appellant stole a white Hino flatbed truck from commercial premises in Midland. The appellant used the stolen vehicle, including in relation to some of the offences detailed below, until it was recovered on 7 September 2016 (charge 17).
On 1 September 2016, the police located a stolen trailer at the appellant's residence (charge 18).[14]
[14] ts 15.
On 3 September 2016, the appellant went to a business in Canning Vale in the stolen truck, which also bore stolen registration plates. The business was closed at the time. The appellant drove to the entry gate of the business, which was padlocked shut. He got out of the vehicle, cut the lock from the gate and drove to a parked caravan valued at $45,000. The appellant then hitched the caravan to the back of the car using a chain. The appellant got back in the vehicle and began driving away, but the chain snapped. The appellant drove away, leaving the caravan behind (charge 19).[15] As will be seen, these facts also gave rise to count 2 of the offences for which the appellant was sentenced in the District Court.
[15] ts 12.
On 13 September 2016, the appellant and a co-offender gained access to a dental clinic by removing a mental security grille and glass window. The appellant took a laptop belonging to the business (charge 10).[16]
[16] ts 15.
On 12 September 2016 or 13 September 2016, the appellant stole a BMW motor vehicle. The appellant was seen by police at a caravan park on 14 September 2016 attempting to start the vehicle (charge 7).
On 14 September 2016, the appellant breached a bail undertaking by failing to appear at Armadale Magistrates Court (charge 8).[17]
[17] ts 23.
On 15 September 2016, police saw the appellant driving a stolen Toyota Camry and called upon him to stop. The appellant engaged in a police pursuit, during which he drove the stolen vehicle as fast as it and the road conditions would allow, contravening red traffic control signals, mounting median strips and crossing to the incorrect side of the road. At some stage while travelling on Rockingham Road the front left tyre of the stolen vehicle deflated. The appellant continued driving, which caused the tyre to shred and fall off the rim. The appellant crossed to the incorrect side of the road, at which point police pulled alongside the stolen vehicle. The appellant drove to the left-hand side of the road to cross the median strip. The police managed to manoeuvre behind the stolen vehicle to avoid colliding with a truck, rendering the police vehicle undriveable and moderately damaged. The appellant continued to drive in a reckless and dangerous manner for a further 10 minutes, endangering members of the public, before police were able to stop the stolen vehicle. The police's pursuit of the appellant resulted in minor damage to four police vehicles.[18] Inquiries revealed that the appellant had no authority to drive at the time, his licence having been suspended (charges 14, 15 and 16).
Proceedings in the Magistrates Court
[18] ts 10 - 12.
In the proceedings before the Chief Magistrate, the appellant was represented by counsel. Counsel informed the Chief Magistrate that the appellant had been sentenced in the Supreme Court a month or so earlier[19] and that the appellant was then serving a 5 year 1 month term, backdated to 19 September 2016.
[19] ts 6 - 7, 17.
Counsel's ultimate submission was expressed as a request to make the terms to be imposed concurrent, to the extent that his Honour could, with the sentence that the appellant was currently serving.[20]
[20] ts 19.
The Chief Magistrate determined that it was appropriate to discount the individual sentences by 20% on account of the appellant's pleas of guilty, pursuant to s 9AA of the Sentencing Act 1995 (WA).[21]
[21] ts 22.
Having taken into account the sentences already being served, his Honour determined that it was appropriate to impose an effectively additional term of 15 months' imprisonment cumulative on the existing sentence.[22] His Honour imposed the sentences set out in the table at [58] above.
Grounds of appeal
[22] ts 22.
The appellant advances three grounds of appeal:
(1)the magistrate erred in not allowing, despite requests, the summary charges to be dealt with in a superior court, thereby occasioning a miscarriage of justice;
(2)the magistrate erred by infringing the first limb of the totality principle; and
(3)the magistrate erred in infringing the second limb of the totality principle.
On 2 March 2021, Strk PR (as her Honour then was) referred the appeal, which was commenced in the General Division of the Supreme Court, to this court.
Disposition
There is no substance in ground 1, which asserts that the magistrate erred in not allowing the summary charges to be dealt with by the District Court, thereby causing a miscarriage of justice. When the matter came before the Chief Magistrate, in outlining the position, counsel for the appellant put the following submissions to the court:[23]
[APPELLANT'S COUNSEL]: There's some matters that are going up to the District Court today that pleas of guilty haven't been entered. I can take you to those. [The appellant] will be pleading guilty to those, and then the matters can go to the District Court. There's some matters in the system that have had section 5 applications made. They were made by mistake. Your Honour has previously indicated that you would be prepared just to deal with the matters in this court today, and that's really what we're hoping to do,
HIS HONOUR: All right. Do you want to proceed to sentence in this court prior to the District Court?
[APPELLANT'S COUNSEL]: Yes.
[23] ts 2.
Thus, the appellant's counsel specifically requested the Chief Magistrate to deal with the summary offences by imposing sentence, while the indictable matters were to be referred to the District Court. In those circumstances, there was no error and no miscarriage of justice in the summary charges being dealt with in the Magistrates Court, rather than in the District Court.
Moreover, and in any event, we are satisfied that there is no reason to suppose that, had the summary offences and the indictable offences all been dealt with together, the overall disposition would have been any more favourable from the appellant's perspective. In that regard, as will be seen, the sentencing judge in the District Court was acutely aware of, and carefully weighed, the sentences that had already been imposed on the appellant in determining what sentences should be imposed for the offences dealt with in the District Court.
For these reasons, there is no substance in ground 1.
We turn to grounds 2 and 3. We apply the principles concerning totality set out above.
In sentencing the appellant, the Chief Magistrate took into account the sentences already imposed on the appellant by the Supreme Court. His Honour had regard to the totality principle, and to the need to structure the sentences so as to arrive at a total effective sentence that properly reflected the overall criminality of the appellant's offending, in all of its circumstances and taking into account his personal circumstances. In our view, it cannot reasonably be argued that the conclusion reached by the judge, in substance, to impose a further 15 months' imprisonment, thereby giving rise to a total effective sentence of 6 years 4 months, was outside the boundaries of an appropriate exercise of the sentencing discretion.
In our view, the appellant's offending conduct that was the subject of his sentence in the Magistrates Court was of a nature and extent that demanded a sentence that was cumulative on the sentence in the Supreme Court to a not insubstantial extent. The appellant's reckless driving to escape pursuit by a member of the police force, the subject of count 14, was by no means fleeting. He persisted in driving for 10 minutes when his front tyre was flat, creating serious danger for members of the public. He committed a burglary of a business, stole a car and a truck each of substantial value, committed a number of other driving and firearms offences and breached his bail on several occasions.
Nor is it reasonably arguable that the sentences imposed by the Chief Magistrate produced a result that was, in the relevant sense, crushing, so as to infringe the second limb of the totality principle. In order to engage the second limb of the totality principle, it is not enough that, from the appellant's subjective perspective, a sentence feels crushing. As already noted, whether a sentence is crushing for this purpose is to be determined objectively, by reference to whether the sentence destroys any reasonable expectation of a useful life after release. Bearing in mind that the appellant was 39 years old when sentenced in July 2018, there is no room for the operation of the second limb of the totality principle in the appellant's case.
For these reasons, grounds 2 and 3 fail.
Conclusion on appeal against Magistrates Court sentences
For the above reasons, leave to appeal on each ground of appeal should be refused and the appeal must be dismissed.
CACR 116 of 2020 - appeal against District Court sentencing
In the District Court, the appellant was sentenced for the following offences, for which the following sentences were imposed:
(1)On 3 September 2016 at Canning Vale the appellant wilfully and unlawfully damaged property, namely a gate (6 months' imprisonment concurrent with the term imposed by Archer J).
(2)On the same date and at the same place as in count 1, the appellant stole a caravan (12 months' imprisonment concurrent).
(3)On 6 September 2016 at Forrestdale, the appellant wilfully and unlawfully damaged property, namely an industrial vacuum (15 months' imprisonment concurrent).
(4)On the same date and at the same place as in count 3, the appellant stole an industrial vacuum (15 months' imprisonment concurrent).
(5)On 9 September 2016 at Wattleup, the appellant was in possession of an aluminium boat which was then reasonably suspected to have been stolen or unlawfully obtained (6 months' imprisonment concurrent).
(6)On the same date and at the same place as in count 5, the appellant was in possession of a bobcat, which was then reasonably suspected to have been stolen or unlawfully obtained (12 months' imprisonment concurrent).
(7)On 14 September 2016 at Fremantle, the appellant escaped from lawful custody (12 months' imprisonment concurrent; no parole eligibility on this count).
(8)On the same date and at the same place as in count 7, the appellant stole with threats of violence an access card, the property of West Australian Police (14 months' imprisonment; cumulative on the terms imposed in the Supreme Court and in the Magistrates Court).
(9)On the same date and at the same place as is count 7, the appellant aided a person in escaping from lawful custody (6 months' imprisonment concurrent).
(10)On the same date and at the same place as in count 7, the appellant assaulted Jake Steven Oxford, a public officer, who was then performing a function of his office of employment (3 months' imprisonment concurrent).
(11)On the same date and at the same place as in count 7, the appellant, with intent to steal a motor vehicle, used violence in order to obtain the motor vehicle, which the appellant so intended to steal (3 months' imprisonment cumulative).
(12)On the same date and at the same place as in count 7, the appellant stole with threats of violence a motor vehicle the property of another (21 months' imprisonment cumulative).
(13)On 15 September 2016 at Madora Bay, the appellant entered or was in the place of a person without his consent, with intent to commit an offence therein, and that place was ordinarily used for human habitation (15 months' imprisonment concurrent).
(14)On the same date and at the same place as in count 13, the appellant while in the place of a person without her consent, committed the offence of stealing, and that immediately before the commission of the offence the appellant knew or ought to have known that there was another person in the place, and that the place was ordinarily used for human habitation (2 years' imprisonment concurrent).
(15)On the same date and at the same place as in count 13, the appellant stole a motor vehicle the property of another, and the appellant wilfully drove that motor vehicle in a manner that constituted an offence under s 60 or s 60A of the Road Traffic Act 1974 (WA) (9 months' imprisonment concurrent).
The facts of the offending
Count 1 occurred as follows. The appellant drove the stolen truck he was using up to the double gates of a plant hire business in Canning Vale. The gates were closed and padlocked shut. Having attempted unsuccessfully to break the padlock with a pair of bolt cutters, the appellant drove the truck into the gates in an attempt to smash through them. This caused extensive damage to the gates and the linked chain fence to which the gates were attached.[24]
[24] ts 7.
The facts of count 2 are set out at [70] above. Count 2, a stealing offence, arises from the appellant moving the caravan after he hitched it to his vehicle, and before the chain snapped.
Counts 3 and 4 occurred as follows. On 6 September 2016, the appellant attended a car wash in Forrestdale, driving the same stolen truck. He reversed the truck at speed and crashed into two side-by-side coin operated industrial vacuum units which were cemented to the ground, snapping them from the base and causing $29,358.20 in damage. The appellant and a male passenger attempted unsuccessfully to take one of the units. They then got back into the truck and drove away. A short time later they returned, used a chisel and hammer to separate one of the units from its base, carried it back to the truck and left.[25]
[25] ts 8.
As to counts 5 and 6, in January 2016, a burglary offence occurred at Lot 5 Clarence Beach Road in Henderson. Items stolen during the burglary included an aluminium dingy, a boat trailer, a Yamaha boat engine and a red fuel jerry can.[26]
[26] ts 8.
At the beginning of August 2016, the appellant attended a rural property in Wattleup. The appellant spoke to the owner of the property, asking if he could store a boat that was in his possession at the property while he was moving house. The owner agreed to the request. A short time later the appellant attended the property with an aluminium boat, a Yamaha motor and a red fuel jerry can.[27]
[27] ts 8 - 9.
On 9 September 2016, a stealing offence occurred at 2 Wallsend Road in Woodbridge. Items stolen during the offence included a Terex 30 bobcat and a CoastMax trailer. At the time the bobcat was stolen it was fitted with a GPS tracking device. The same day, the appellant attended the same rural property in Wattleup as referred to at [96] above with the stolen bobcat. The appellant told the owner he was there to collect his boat and asked if he could store the bobcat at the property until later that day. The owner agreed. The owner of the bobcat tracked its location to the property and alerted police. Upon execution of a search warrant at the property, police located the stolen bobcat.
Counts 7 ‑ 10 occurred as follows. In the morning of 14 September 2016, police apprehended the appellant in connection with the armed robbery for which he was subsequently sentenced in the Supreme Court. He was taken to the Fremantle Police Station and placed in a cell. His partner was also detained in the same detention area. The two were shouting at each other and became increasingly agitated. The appellant requested a cup of water. A young auxiliary officer opened the cell door to give the appellant the cup of water. The appellant, the judge found, was waiting for such an opportunity, and grabbed the officer. After a struggle, the appellant, who was more powerfully built than the officer, was able to remove his swipe card and run away, after having freed his partner.
The appellant fled to Market Street where he ran in front of a black Mazda CX9. The appellant opened the driver's door, grabbed hold of the driver and attempted to forcibly remove her from the car. The driver, fearing for herself and her passenger, accelerated the vehicle and successfully fled from the appellant (count 11).[28]
[28] ts 10 - 11.
The appellant then got into the passenger seat of a car that had stopped in a drop-off bay at Fremantle train station. The appellant shouted in a forceful voice 'Go, go'. The driver, fearing for his safety, complied. The driver drove for a while before requesting that the appellant get out of the vehicle, which the appellant ignored. The appellant then became more agitated and grabbed the steering wheel to manoeuvre around a slower moving vehicle. While stopped at a red light, the appellant told the driver to get out of the vehicle, which he did, and the appellant threatened to torch the car if the driver called the police (count 12). The appellant drove away but later that night lost control of the vehicle and crashed into trees at the intersection of Madora Bay Road. This resulted in extensive damage to the car. When police attended the site of the crash, they were unable to locate the appellant.[29]
[29] ts 11.
On 15 September 2016, the appellant gained entry to a residential property in Madora Bay by smashing a glass sliding door. Once inside, the appellant cut the phone line before searching through the main bedroom. The appellant left the premises by forcing open the rear bedroom window. No items were stolen (count 13).[30]
[30] ts 11 - 12.
On the same day, the appellant broke into a different residential property in Madora Bay by manipulating a locked laundry door. There was no damage to the laundry door, but the appellant stole an iPhone, a laptop and the keys to a Toyota Camry. At the time of the offence, the victim was at home with her partner and child (count 14). The appellant used the car keys to steal a Toyota Camry that was parked in the carport of the property and was later observed by police driving it in Parmelia.[31] The police activated lights and sirens but the appellant failed to stop, leading to a police pursuit (count 15).
The District Court sentencing proceedings
[31] ts 12.
Again, in the District Court sentencing proceedings, the appellant was represented by experienced counsel. Counsel submitted that a substantial or 'wholesome' discount should be given on account of the appellant's pleas of guilty.[32]
[32] ts 16 - 17.
The thrust of counsel's submission was to emphasise the significance of totality, given that the appellant had been in custody since September 2016 and was facing a significant term of imprisonment already by reason of the sentences imposed in the Supreme Court and the Magistrates Court.[33]
The District Court judge's sentencing remarks
[33] ts 18 - 19.
The judge emphasised, at the outset, that the crux of his task was to ensure that the aggregation of all sentences gave rise to a just and appropriate reflection of his total criminality in all of its circumstances, including those referable to the appellant. Further, the judge observed that it was important to ensure that the overall sentence was not crushing in the sense that it would destroy any reasonable expectation of a useful life after release.[34]
[34] ts 22.
The judge identified five phases of the appellant's offending:
(1)The serious and premeditated acts of dishonesty in relation to high‑value items, giving rise to counts 1 ‑ 4.
(2)The unlawful possession of two distinct items the subject of counts 5 and 6.
(3)A violent escape from custody reflected in counts 7 - 10.
(4)A violent attempt to obtain, and then a violent successful obtaining of, a getaway car - counts 11 and 12.
(5)Two burglaries, one of which involved the theft of a car - counts 13, 14 and 15.
The judge observed that the pleas of guilty were plainly not entered at the first reasonable opportunity, so that it was not open to allow the maximum discount. Nevertheless, the judge found that the appellant had, by his pleas of guilty, saved a considerable amount of time. He discounted the sentences he otherwise would have imposed by 15% pursuant to s 9AA of the Sentencing Act.[35]
[35] ts 23.
The District Court sentencing judge adopted the Supreme Court judge's outline of the appellant's personal circumstances, background and other mitigating factors.[36]
[36] ts 23 - 24.
The judge observed that the driving offence that was an element of count 15 had already been dealt with in the Magistrates Court, so that the judge needed to ensure that there was no double punishment.[37] The judge further observed that, even allowing for the influence of the totality principle, the appellant was fortunate that that driving offence had attracted a sentence of only 6 months' imprisonment cumulative.
[37] ts 27.
The judge observed that the appellant's criminal record was consistent with an ongoing attitude of disobedience of the law. The judge accepted that the material before him demonstrated that the appellant had made some progress in custody, but, nevertheless, was satisfied that the appellant would pose a considerable risk to the community for the foreseeable future.
The judge observed that the appellant's offending necessitated a sentence that sufficiently denounced his conduct and provided appropriate personal and general deterrence.
Further, the judge observed that the appellant's actions on counts 11 and 12 must have been a terrifying experience for the victims, who were ordinary members of the community going about their daily business.[38]
[38] ts 27.
The judge imposed the sentences set out in [91] above, resulting in a total effective sentence of 9 years 6 months' imprisonment (in conjunction with the Magistrates Court and Supreme Court offences).
Grounds of appeal
The appellant advances three grounds of appeal:
(1)The learned sentencing judge had erred at sentencing with the provision of cumulative sentences for offences in his court. This has led to a miscarriage of justice.
(2)The learned sentencing judge did not take into account the crushing effect of the accumulated sentences from different jurisdictions. This belies the principle of totality which is a miscarriage of justice.
(3)The learned sentencing judge had erred in not granting the appellant a full discount and this allowed a miscarriage of justice.
Disposition
Grounds 1 and 2, and their supporting submissions, both complain of the extent of the accumulation of the District Court sentences with each other and upon the sentences the appellant was by then already serving. The appellant submits that all of his offending should fairly be seen as one continuous episode over a 12‑day period, all committed in a desperate, but ill‑planned, attempt to acquire illicit drugs for self‑medication. Further, the appellant contends that his overall sentence is crushing.
The judge was acutely aware of the need for the totality principle to inform the length and structuring of his sentences. In our view, there is no reasonable basis for any argument that the sentencing judge erred in any material respect.
The appellant was sentenced in the District Court for 15 offences. Several of them involved appalling offending that would have terrified or endangered members of the public. Further, the appellant used violence to escape from legal custody.
By way of example, the appellant's offending the subject of counts 7 ‑ 12 of itself would ordinarily have justified and required a total effective sentence substantially higher than the total effective sentence of 3 years 2 months which his Honour imposed for the 15 offences the subject of the sentencing in the District Court. As the judge observed, counts 11 and 12 were each very serious offences in which the appellant used violence towards entirely innocent members of the public in an attempt to steal their cars, the second attempt of which was successful.
Other elements of the appellant's offending were also serious. By way of example, the two home burglaries, although both made concurrent because of totality considerations, were both serious offences warranting substantial terms of imprisonment.
In our view, it is not reasonably arguable that the total effective sentence of 3 years 2 months for the District Court offences, giving rise to a total effective sentence of 9 years 6 months for the whole of the appellant's offending conduct, exceeded a sentence that was a proper reflection of the appellant's total criminality in all its circumstances, including those circumstances referable to him personally.
Further, there is no basis to argue that the result of the District Court sentencing - namely, a total effective sentence of 9 years 6 months for the whole of the appellant's offending, was crushing in the sense we have already explained.
For these reasons, there is no merit in grounds 1 and 2.
Ground 3 asserts that the judge erred in failing to give the appellant a discount of 25% under s 9AA of the Sentencing Act. By s 9AA(4)(b), the judge cannot give an offender a discount of 25% unless the offender pleaded guilty, or indicated that they would plead guilty, at the first reasonable opportunity.
It is for an offender who seeks a 25% discount to satisfy the court that the plea was entered at the first reasonable opportunity.
Before the sentencing judge, counsel for the appellant did not so prove. To the contrary, in substance, counsel accepted that, given that the appellant was first charged on 16 September 2016 and did not enter his pleas of guilty until 26 July 2018, the pleas of guilty were not entered or indicated at the first reasonable opportunity, and it was thus not open to award a discount of 25%.[39]
[39] ts 16 - 17.
In those circumstances, the judge did not err in failing to award a 25% discount for the appellant's pleas of guilty. Indeed, it was not open to the judge to have done so.
For these reasons, there is no substance in ground 3.
Application to adduce additional evidence
By application filed 10 August 2021, the appellant applies to adduce additional evidence in appeal CACR 116 of 2020 - the appeal against the District Court sentencing.
In broad summary, the additional evidence is:
(1)An internet news report concerning the stabbing of the appellant.
(2)A reference to medical records from Royal Perth Hospital which are not presently available.
(3)A psychological report dated 4 August 2017.
(4)Correspondence with departments regarding requests to enter rehabilitation programs.
(5)Visit logs from Hakea Prison showing visits at the prison by the appellant's partner's father.
(6)A character reference for the appellant from the appellant's partner's father.
The principles applicable to the admission of additional evidence in an appeal against sentence were outlined by this court in Wellstead v The State of Western Australia.[40] We adopt those principles without repeating them. Broadly summarised, the role of this court on an appeal against sentence is to discern whether there was error or a miscarriage of justice in the sentencing. Only if there was error or a miscarriage of justice does this court proceed to determine whether a different sentence should have been imposed. Whether leave to rely on additional evidence in an appeal against sentence should be granted requires attention to whether the evidence assists in determining whether there was a miscarriage of justice in the sentencing proceeding and whether a different sentence should have been imposed. Ordinarily, a sentencing judge cannot be said to have erred by proceeding in a manner contrary to, or without regard to, evidence which was not before the sentencing court. However, a miscarriage of justice may arise from the absence of material evidence before the primary court. Whether it does so will depend upon all of the circumstances. A miscarriage of justice will be difficult to establish where the relevant evidence was actually known to the appellant and not used in the sentencing hearing.
[40] Wellstead v The State of Western Australia [2019] WASCA 130 [78] ‑ [99].
None of the appellant's grounds of appeal in the present case contend that the absence of the proposed additional evidence gave rise to a miscarriage of justice. In any event, even if such a contention were advanced, for the reasons that follow, it could not be made out. Nor, for the following reasons, does any of the proposed additional evidence support a conclusion that a different sentence should have been imposed.
First, some of the proposed additional evidence was before the Supreme Court sentencing judge, the District Court sentencing judge, or both. Both judges referred to the psychological report dated 4 August 2017.[41] The character reference for the appellant from his partner's father was referred to in the Supreme Court sentencing remarks.[42] The District Court judge clearly paid careful attention to the sentencing remarks made by the Supreme Court judge.
[41] See Supreme Court ts 506 - 507 and District Court ts 23 - 24.
[42] Supreme Court Sentencing remarks [34].
Secondly, much of the proposed additional evidence concerns matters that were accepted or not in issue in the sentencing proceedings below. For example, the online news article about the appellant being the victim of a stabbing is presumably advanced to lend support to his contention that he was pursued by the murder victim's family after he was released from custody following his acquittal. The Supreme Court sentencing judge took into account the appellant's statement that he had been pursued by the murder victim's family and had been victimised by acts of violence.[43]
[43] Supreme Court Sentencing remarks [25].
Also, the medical records dated 12 October 2017 for the appellant's partner's father detail his stroke. The Supreme Court sentencing judge referred to the stroke suffered by the appellant's partner's father in observing that he said in his reference that the appellant supported him when he was rehabilitating after a stroke.[44]
[44] Supreme Court Sentencing remarks [34].
Thirdly, none of the other proposed additional evidence bears, in any significant way, upon the appropriate sentence for the appellant.
The appellant seeks to rely on letters written by government departments in response to the appellant's various requests to attend rehabilitation programs. The sentencing judge was aware of the appellant's letters making requests to attend rehabilitation programs.[45] Her Honour specifically referred, in the context of evaluating the appellant's prospects of rehabilitation, to the fact that he had been moved to write letters inquiring about courses that he wanted to be able to do while in prison.[46] Receipt of the responses would not materially alter the basis upon which the appellant would be sentenced. The absence of this evidence does not, even arguably, give rise to a miscarriage of justice or support a conclusion that a different sentence should have been imposed.
[45] ts 508.
[46] Supreme Court Sentencing remarks [41].
The appellant also relies on visit logs from Hakea Prison showing visits from the appellant's partner's father on various dated from April 2018 to January 2019. While not explained in the appellant's submissions, it may be inferred that this evidence is sought to be adduced in support of the appellant's contention that he maintains a strong relationship with his partner's father and perhaps, by extension, also with his partner. It is not reasonably arguable that this evidence demonstrates any miscarriage of justice in the appellant's sentencing. The Supreme Court sentencing judge referred to the positive reference from the appellant's partner's father, and to the reference from his partner, in terms that make clear that the judge considered that both were supportive of the appellant. In this context, the visit logs do not materially add anything.
For these reasons, we would refuse to grant leave to adduce additional evidence.
Conclusion on appeal against District Court sentence
For the above reasons, leave to appeal on each ground of appeal should be refused and the appeal must be dismissed. There should also be an order dismissing the application to adduce additional evidence.
Conclusion
For the above reasons, the following orders should be made in each appeal:
CACR 114 of 2020
(1) Leave to appeal on each of grounds 1 - 3 is refused.
(2) The appeal is dismissed.
CACR 116 of 2020
(1) Leave to appeal on each of grounds 1 - 3 is refused.
(2) The application to adduce additional evidence is dismissed.
(3) The appeal is dismissed.
CACR 27 of 2021
(1) Leave to appeal on each of grounds 1 - 3 is refused.
(2) The appeal is dismissed.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
RC
Associate to the Honourable Justice Beech
3 SEPTEMBER 2021
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