Cleal v Grove
[2020] WASC 54
•26 FEBRUARY 2020
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL
CITATION: CLEAL -v- GROVE [2020] WASC 54
CORAM: SMITH J
HEARD: 20 FEBRUARY 2020
DELIVERED : 26 FEBRUARY 2020
FILE NO/S: SJA 1117 of 2019
BETWEEN: BROCK MELVILLE ATHOL CLEAL
Appellant
AND
EMILY GROVE
PAUL DAVEY
Respondents
ON APPEAL FROM:
Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram: MAGISTRATE S R MALLEY
File Number : AR 5777 of 2018, AR 2908 of 2019, AR 2909 of 2019, AR 2910 of 2019
Catchwords:
Criminal law - Appeal against sentence - Stealing a motor vehicle - Express error - Sentencing remarks traversed line between permissible consideration of circumstances of the offence and punishment for an offence not charged - Turns on own facts
Legislation:
Criminal Code (WA), s 371A, s 444(1)(a)
Result:
Leave to appeal on ground 4 granted
Appeal allowed
Sentence set aside
Charge remitted for re‑sentencing
Category: B
Representation:
Counsel:
| Appellant | : | Mr T J McCulloch |
| Respondents | : | Ms K C Cook |
Solicitors:
| Appellant | : | Legal Aid WA |
| Respondents | : | Director Of Public Prosecutions (WA) |
Case(s) referred to in decision(s):
Langdon v Kelemeti-Leoli-McLean [2011] WASCA 26
SMITH J:
The appeal and the result
This is an appeal against sentence.
At the hearing of this appeal, it was conceded on behalf of the respondents that leave to appeal on ground 4 should be granted, and the ground be allowed.
Ground 4 of the appeal relates to one charge of stealing a motor vehicle contrary to s 371A of the Criminal Code.[1]
[1] Prosecution notice AR 2910 of 2019.
Following a plea of guilty to the offence of stealing a motor vehicle on 7 June 2019, the appellant was sentenced to 12 months' imprisonment suspended for 18 months.
After hearing counsel for both parties on 20 February 2020, I agreed the concession made on behalf of the respondents was properly made and allowed the appeal on this ground. I also made an order that the sentence of 12 months' imprisonment suspended for 18 months, be set aside. I did not re‑sentence the appellant but instead remitted the charge to the Magistrates Court for re‑sentencing.
These are my reasons for granting leave to appeal on ground 4, allowing the appeal on this ground, and setting aside the sentence.
The facts stated by the prosecution in respect of the charge of stealing a motor vehicle and the sentencing remarks made by the magistrate
The appellant was charged that on or between 4 February 2019 and 5 February 2019 at Kelmscott, he stole a motor vehicle within the meaning of s 371A of the Criminal Code, namely a red Mack truck, to the value of $50,000, which had attached, a semi-trailer to the value of $60,000.
The facts read to the court at sentencing by the prosecutor were as follows:[2]
… between 11 pm on Monday, 4 February 2019, and 2 am, Tuesday, 5 February 2019, the accused drove co‑offender, Brenton, to Gillam Drive, Kelmscott. Dropped him outside the premises with the knowledge that the co‑accused was going to steal a truck
While at the address the accused watched from a distance as the co‑offender stole a red Mack truck, Y ‑ 7 ‑ 3 ‑ 3 ‑ 6, to the value of $50,000, the property of Scott Carrington. The red Mack truck, at the time, had a semitrailer attached, 1 ‑ T ‑ P ‑ D ‑ 9 ‑ 4 ‑ 7, to the value of $60,000. The accused observed Brenton drive the truck at speed through the electric steel gate that secured the business and out on to Gillam Drive: caused $10,000 damage to the gate. The accused followed the stolen truck for several kilometres before turning off, leaving the truck and attending a female friend's house for the night.
The following day the accused travelled to South Australia driving a truck as part of his employment at the time. He returned to Perth on 13 February 2019 and immediately met up with the co‑accused, Brenton. Took him to an address in Forestville where he had hidden the truck. Arrived at the Forestville property after dark. Arranged to travel in the stolen truck together to a bush location in the Mundaring Weir State Forest to collect unspecified property.
The accused was a passenger in the stolen truck at the time. While travelling along Yarra Road near Brookton Highway co‑offender, Brenton, fell asleep at the wheel (indistinct) ultimately involved in a collision with a tree causing injury to the accused and significant damage to the stolen truck. The accused had several photographs of the stolen crashed truck on his mobile phone. Later circulated them to his friends. Later picked up in High Wycombe. He was admitted to the hospital with a fractured neck and other complications.
They later went ‑ the co‑accused later went back to the crashed stolen truck and set fire to it. Sent a series of photographs of the burnt‑out truck.
[2] ts 20 August 2019 pages 3 - 4.
The prosecution did not allege that the appellant was present at the time the truck was set alight. Importantly, the appellant was not charged in relation to the subsequent criminal damage by fire offence.
At first instance, immediately prior to the sentencing of the appellant, his counsel made a submission that when the appellant (who by occupation is a long-distance truck driver) drove to the location a short distance from the address where the motor vehicle was stolen, the appellant knew that the co-offender was picking up a truck but did not know the co‑offender intended to steal a truck. Counsel at first instance also informed the sentencing magistrate that (other than this issue) the appellant accepted the remainder of the facts (as read by the prosecution). In this context, the sentencing magistrate remarked that the appellant could not be that naïve and said:[3]
[When] one looks at it you may say, well, I didn't chuck the match but at the end of the day in my view you're just as guilty. You were party to the entire proceedings. In my view there is no other disposition but a term of imprisonment for that offence. I consider it to be most serious. Certainly, not for fines and in my view even a community-based order doesn't reflect the events.
[3] ts 20 August 2019, page 7.
The respondents concede that these remarks traverse the line between a permissible consideration of the circumstances surrounding the commission of the offence and punishment for an offence which was not charged.
This concession is properly made. In Langdon v Kelemeti‑Leoli‑McLean, Buss JA pointed out:[4]
In R v De Simoni [1981] HCA 31; (1981) 147 CLR 383, Gibbs CJ (Mason J agreeing) stated several propositions in relation to the sentencing of offenders. First, it was 'fundamental and important' that 'no one should be punished for an offence of which he has not been convicted' (389). Secondly, a sentencing judge is entitled, in imposing a sentence, to consider all of the offender's conduct, including that which would aggravate the offence, but 'cannot take into account circumstances of aggravation which would have warranted a conviction for a more serious offence' (389). Thirdly, 'where the Crown has charged the offender with, or has accepted a plea of guilty to, an offence less serious than the facts warrant, it cannot rely, or ask the judge to rely, on the facts that would have rendered the offender liable to a more serious penalty' (392). See also R v Harrison (1909) 2 Cr App R 94, 95 ‑ 96 (Channell J); Lovegrove v The Queen [1961] Tas SR 106, 107 ‑ 108 (Burbury CJ, Crawford & Cox JJ agreeing); R v Boney [1986] 1 Qd R 190, 207 ‑ 210 (McPherson J); R v Olbrich [1999] HCA 54; (1999) 199 CLR 270 [18] (Gleeson CJ, Gaudron, Hayne & Callinan JJ).
… The applicable principle, expressed specifically in terms relevant to this appeal, is that where the State has charged an offender with, and the offender has been found guilty of, an offence less serious than the facts warrant, the offender cannot be sentenced on the basis of the facts that would have rendered him or her liable to be charged with, and found guilty of, the more serious offence.
[4] Langdon v Kelemeti-Leoli-McLean [2011] WASCA 26 [9] - [10].
In forming a view that the appellant was 'just as guilty', and a 'party to the entire proceedings', the sentencing magistrate erred in law by ascribing a greater level of seriousness to the offence for which he was in fact sentencing the appellant for. In particular, his Honour appeared to sentence the appellant upon the basis that he was a party to the more serious offence of criminal damage by fire, contrary to s 444(1)(a) of the Criminal Code.
For these reasons, I was satisfied that an express error of law was made out.
I remitted the charge of stealing to the Magistrates Court for re‑sentencing because at the hearing at first instance it was not clear whether the prosecution disputed the contention made on behalf of the appellant that whilst he accepted he was guilty of the offence as charged (in that he accepted he unlawfully used the motor vehicle without the consent of the owner) he was unaware of the original intention of the co-accused to steal it. Counsel for the appellant informed this court that this issue should be the subject of further discussion between counsel for the appellant and the prosecution. Both counsel for the appellant and the respondents agree that following further discussion, if in the event a dispute about this issue remains, the issue should be resolved by the Magistrates Court, if necessary by a trial of the issues.
In these circumstances, I agreed that it would be more efficient and appropriate for the Magistrates Court to re‑sentence the appellant for this offence and accordingly remitted the charge to be dealt with according to law.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
VV
Associate to the Honourable Justice Smith26 FEBRUARY 2020
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