Cleminson v The State of Western Australia
[2017] WASCA 58
•24 MARCH 2017
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: CLEMINSON -v- THE STATE OF WESTERN AUSTRALIA [2017] WASCA 58
CORAM: NEWNES JA
MAZZA JA
HEARD: 15 MARCH 2017
DELIVERED : 15 MARCH 2017
PUBLISHED : 24 MARCH 2017
FILE NO/S: CACR 31 of 2017
BETWEEN: ZAK RODNEY CLEMINSON
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram :O'NEAL DCJ
File No :IND GER 101 of 2016
Catchwords:
Criminal law - Appeal against sentence - Whether sentence manifestly excessive - Whether breach of first limb of totality principle - Leave refused
Legislation:
Criminal Appeals Act 2004 (WA), s 27(3)
Result:
Leave to appeal refused
Appeal dismissed
Category: D
Representation:
Counsel:
Appellant: In person
Respondent: No appearance
Solicitors:
Appellant: In person
Respondent: Director of Public Prosecutions (WA)
Case(s) referred to in judgment(s):
Chikonga v The State of Western Australia [2017] WASCA 34
Giglia v The State of Western Australia [2010] WASCA 9
Hayward v Martin [2014] WASC 309
King v The State of Western Australia [2013] WASCA 131
KIP v The State of Western Australia [2013] WASCA 71
Nguyen v The State of Western Australia [2017] WASCA 35
Roffey v The State of Western Australia [2007] WASCA 246
Wayman v The Queen [2001] WASCA 326; (2001) A Crim R 203
REASONS OF THE COURT:
(These reasons were delivered extemporaneously and have been edited from the transcript.)
This is an application for leave to appeal against sentence. On 12 December 2016, the appellant pleaded guilty in the District Court to six offences contained in an indictment and two offences contained in a notice pursuant to s 32 of the Sentencing Act 1995 (WA). He was sentenced to a total effective sentence of 4 years and 2 months' immediate imprisonment with eligibility for parole, backdated to commence on 19 August 2016.[1]
[1] ts 22.
The details of the offences and the sentences that were imposed are set out below:
| Count | Offence | Section | Maximum penalty | Sentence imposed | Concurrency |
| 1 | Criminal damage | s 444(1)(b) Criminal Code (WA) (CC) | 10 years' imprisonment | 6 months' imprisonment | Concurrent |
| 2 | Threat to kill | s 338B(a) CC | 7 years' imprisonment | 2 years' imprisonment | Cumulative |
| 3 | Criminal damage | s 444(1)(b) CC | 10 years' imprisonment | 12 months' imprisonment | Concurrent |
| 4 | Being armed in a way that may cause fear | s 68 CC | 7 years' imprisonment | 2 years' imprisonment | Cumulative |
| 5 | Possession of firearms | s 19(1)(c) Firearms Act 1973 (WA) (FA) | 5 years' imprisonment | 2 years' imprisonment | Concurrent |
| 6 | Assault public officer | s 318(1)(d) CC | 7 years' imprisonment | 12 months' imprisonment | Concurrent |
| S 32 | Discharging a firearm | s 23(9a) FA | 3 years' imprisonment or $12,000 fine or both | 6 months' imprisonment | Concurrent |
| S 32 | Refusing a disease test | s 13 Mandatory Testing (Infectious Diseases) Act 2014 (WA) | 12 months' imprisonment or $12,000 fine or both | 2 months' imprisonment | Cumulative |
Total: | 4 years 2 months' imprisonment | ||||
There are two grounds of appeal. Ground 1 alleges that the sentence on count 4 was manifestly excessive. Ground 2 alleges that the total effective sentence infringed the first limb of the totality principle.
In our opinion, neither proposed ground has a reasonable prospect of succeeding. Consequently, pursuant to s 27(3) of the Criminal Appeals Act 2004 (WA), the appeal must be taken to have been dismissed.
The facts
The facts of the appellant's offending were not challenged. They were contained in an amended statement of material facts dated 7 December 2016, which was read by the prosecutor and adopted by the sentencing judge, as follows:
The [appellant] and victims in this matter are in a family and domestic relationship; the [appellant] is the son of Kylie CLEMINSON and the step‑son of Geoffrey JUPP.
The [appellant] is 175 cm tall of slim build. Kylie CLEMINSON is 168 cm tall of slim build and Geoffrey JUPP is 180 cm tall of medium build.
On Thursday, 18 August 2016, between 3.30 pm and 4.30 pm, the [appellant] was at his home address [deleted] along with both victims.
The [appellant] was in an agitated mood and had taken some of his personal belongings out of his room and set fire to them. The fire was extinguished by Kylie CLEMINSON with buckets of water.
The [appellant] then began walking back and forth from a nearby shed to the farm house several times and was heard saying 'I'm going to kill everyone'. He entered the house and stayed inside. At this point Kylie CLEMINSON left the property and JUPP remained but was too frightened to go into the house where the [appellant] was and instead hid down the side of the shearing shed to wait for police to arrive.
During this time JUPP could hear the [appellant] inside the house continually smashing items, including tipping over the washing machine, and several windows.
The [appellant] also smashed the power box to the house cutting off the main power supply as well as damaging two tractor batteries and the power board to the shed.
The [appellant] then walked out of the house and up to the shed. JUPP was hiding about 40 metres away and heard the offender say on several occasions whilst in the shed 'You fucking cunts, I'm going to kill yous'.
JUPP believed the threat was real because he knew the [appellant] was unpredictable and the farm house is isolated and there were no other persons in the near vicinity.
A short time later the [appellant] walked back to the house and JUPP stayed hiding at the back of the shed.
The [appellant] then located the gun safe keys hidden in a small cupboard in JUPP's bedroom. He unlocked the safe and removed two firearms, namely a .303 calibre rifle and a .22 calibre bolt action rifle. The [appellant] couldn't locate the ammunition safe key so he used bolt cutters to cut the lock from the ammunition box causing damage to the lock and box.
The [appellant] then loaded the rifle with .303 ammunition and exited the house with the loaded firearm. From just outside the house, the [appellant] fired a round into a tin target (drum) approximately 130 metres away. JUPP was about 200 metres south of the drum where he believed the firearm was shot.
The [appellant] returned to the house and JUPP stayed hidden near the shearing shed. The [appellant] left the loaded firearm unsecured leaning against the bedroom wall and the second firearm, unsecured on the bedroom floor.
The [appellant] does not hold a firearms licence or permit and is not exempt by Section 8 or 19(1ae) of the Firearms Act 1973.
The [appellant] walked out, unarmed and presented himself to police on their arrival. He was subsequently handcuffed and assisted into the rear of the secure Police vehicle by First Class Constable FLATT.
As the [appellant] adjusted his position in the van, he suddenly turned towards First Class Constable FLATT and spat in his face. The saliva struck First Class Constable FLATT in both eyes and blood was observed mixed with the saliva by Constable MOOR who witnessed the assault. First Class Constable FLATT immediately cleaned his face and was also subjected to a blood test.
The [appellant] was conveyed to Geraldton Police Station where he was later ordered to undergo a mandatory blood test to which he refused.
The appellant's antecedents
The sentencing judge was provided with a pre‑sentence report dated 24 November 2016 and a report prepared by Naomi Oliver, a clinical psychologist, dated 24 November 2016. At the time of the offending, the appellant was 25 years of age. He grew up in circumstances which the sentencing judge described as 'fairly dysfunctional'.[2] He completed year 12. Since leaving school he has not been in regular employment. He has a history of alcohol and illicit drug abuse.
[2] ts 17.
The psychological report noted that the appellant has self‑identity problems and limited cognitive capacity. It was observed that he has unaddressed and deep‑rooted psychological issues relating to his childhood and that these issues have shaped his personality, which exhibits antisocial and borderline personality traits. These are arguably the major driver for his offending behaviour. He has difficulty managing his emotions and uses avoidance and substances such as alcohol and illicit drugs to cope with his problems. He lacks insight into the causes of his offending behaviour which, according to Ms Oliver, are entrenched. He demonstrates little motivation for future interventions. Ms Oliver describes the appellant as having an elevated risk of future like behaviour without long‑term psychological intervention.
The appellant has a lengthy criminal history of mostly antisocial and traffic offences, including two convictions for aggravated assault occasioning bodily harm and two convictions for common assault.
The appellant is the father of a six‑year‑old child, but he has no contact with his ex‑partner and child.
The sentencing remarks
As neither ground of appeal alleges any express error on the part of the sentencing judge, it is unnecessary to summarise in detail the sentencing remarks.
The principal mitigating factor was the appellant's pleas of guilty. For the pleas, his Honour gave a discount of 25% pursuant to s 9AA of the Sentencing Act. His Honour referred to the appellant's relative youth, but the mitigation he gave for that was minimal, if any.
His Honour described the appellant's overall offending as 'very serious'.[3] He noted that the appellant's actions terrorised his mother and her partner. He also noted the assault on the police officer. He found that the offending was not uncharacteristic of the appellant, having regard to his prior criminal history. In acknowledging the aims of sentencing relevant to the appellant, he said that retribution, deterrence and the protection of society warranted 'greater prominence'.[4]
[3] ts 19.
[4] ts 19.
Relevant legal principles
The general legal principles applicable to this case are uncontroversial and well established.
Sentencing is a discretionary exercise. An appellate court can intervene only if the appellant demonstrates either an express or implied material error. Express error usually involves 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.[5]
[5] Chikonga v The State of Western Australia [2017] WASCA 34 [21].
A ground of appeal alleging that a sentence is manifestly excessive or, in the case of where there is more than one sentence, an infringement of the totality principle, asserts an implied error.
In determining whether a sentence is manifestly excessive, it is necessary to have regard to the maximum sentence prescribed by law for the relevant offence, the standards of sentencing customarily observed with respect to that offence, the place which the criminal conduct occupies on the scale of seriousness of offences of the kind and the personal circumstances.[6]
[6] Chikonga v The State of Western Australia [21].
The totality principle comprises two limbs. The first limb, which is relied upon by the appellant in this case, is that the total effective sentence must bear a proper relationship to the overall criminality involved in all the offences, viewed in their entirety and having regard to the circumstances of the case, including those referable to the offender personally.[7]
[7] Roffey v The State of Western Australia [2007] WASCA 246 24].
In assessing whether an individual sentence is manifestly excessive or an aggregate sentence infringes the first limb of the totality principle, it is necessary to have regard to sentences imposed in comparable cases. This is so that a judgment can be made as to whether the sentence in question is broadly in line with sentences customarily imposed. However, in making such comparisons, the significant variations in relevant sentencing factors must always be borne in mind. Ultimately, each case must depend on its own facts and circumstances.
The purpose of referring to current sentencing practices is to attempt to achieve consistency in sentencing and in the application of relevant sentencing principles. The requirement to have regard to the sentences imposed in those cases does not mean that the range of sentences imposed in the past fixes the boundaries within which future sentences must be passed. Rather, the range of sentences imposed may inform a broad understanding of the range of sentences that would ensure consistency in sentencing and a uniform application of principles. The consistency which is sought is the application of relevant legal principles rather than numerical equivalence.[8]
[8] Nguyen v The State of Western Australia [2017] WASCA 35 [25] ‑ [26].
Disposition of the proposed grounds of appeal
Where there is a challenge on totality grounds, the severity of the sentence on an individual count falls to be assessed in light of the sentences imposed on other counts. The real question in this appeal is whether the total effective sentence infringed the first limb of the totality principle.[9] The appellant's submissions with respect to proposed ground 2 rely largely on a comparison of the present case and the outcomes in Wayman v The Queen[10] and KIP v The State of Western Australia.[11]
[9] Giglia v The State of Western Australia [2010] WASCA 9 [40].
[10] Wayman v The Queen [2001] WASCA 326; (2001) A Crim R 203.
[11] KIP v The State of Western Australia [2013] WASCA 71.
It is unnecessary to repeat the facts and circumstances of Wayman and KIP. While there are some common features between these cases and the present case, there are also significant variations. We acknowledge that the overall circumstances in Wayman were more serious than the present case and that the total effective sentence that was imposed in Wayman was less (in post‑transitional terms) than the total effective sentence imposed upon the appellant. However, the outcome in two cases is insufficient to establish any identifiable sentencing pattern and does not fix the boundaries of the exercise of the sentencing discretion.
So far as the overall seriousness of the appellant's offending is concerned, the facts speak for themselves. The appellant's angry and agitated mood put him in an irrational and dangerous emotional state. He terrorised Ms Cleminson and Mr Jupp by threatening to kill them. He then damaged items of property inside and outside the house. Finally, while Mr Jupp was on the property, the appellant unlocked a gun safe, removed two firearms, one of which (the .303 rifle) he loaded and then discharged. Although he was not armed when the police arrived and he submitted himself to arrest, the appellant, without warning, spat blood and saliva into the eyes of one of the officers. Later, he refused to comply with an order to undergo a mandatory blood test.
The appellant's offending behaviour was largely a consequence of his antisocial and borderline personality traits. He is prone to anger, aggression and violence and has difficulties regulating his emotions. These behaviours appear entrenched, and engaging him in rehabilitation may prove difficult. As a result, he poses an elevated risk of reoffending.
The appellant has a significant and relevant criminal history. While the appellant is not to be sentenced again for his past offending, his criminal history underscores the need for personal deterrence.
The only real matter of mitigation was the appellant's pleas of guilty, for which his Honour gave a 25% discount pursuant to s 9AA of the Sentencing Act.
The major sentencing considerations in this case were personal and general deterrence and the protection of the public. Although the offences were committed on the same day in one (extended) incident, some accumulation of the sentences was appropriate in order to properly reflect the appellant's overall criminality.
In his oral submissions, the appellant submitted that the sentence imposed upon him was harsh, by which we understand him to mean it was plainly unjust or unreasonable. That proposition has not been made out.
In our opinion, it has not been established that the total effective sentence imposed upon the appellant in this case of 4 years and 2 months' immediate imprisonment failed to bear a proper relationship to the overall criminality involved in all the offences, having regard to all relevant sentencing factors. Leave to appeal on ground 2 should be refused.
Insofar as it is necessary to determine ground 1, we have not been persuaded that the sentence of 2 years' imprisonment imposed for the offence of being armed in a way that may cause fear was manifestly excessive. In support of this ground, the appellant referred to King v The State of Western Australia[12] and to the single judge decision of Jenkins J in Hayward v Martin.[13] In Hayward, Jenkins J referred to King v The State of Western Australia, and noted that, in the cases cited therein, the sentencing outcomes ranged between 8 and 16 months' immediate imprisonment. The appellant submitted that, as the sentence imposed on count 4 fell outside that range, it was manifestly excessive.
[12] King v The State of Western Australia [2013] WASCA 131 [13] ‑ [21].
[13] Hayward v Martin [2014] WASC 309.
This argument cannot be accepted. It is wrong in principle. We refer, without repetition, to what we have already said about the range of sentences imposed in the past. In any event, the number of cases referred to in King v The State of Western Australia was small (five in total, including one single judge appeal) and does not establish an identifiable sentencing pattern.
The individual sentence on count 4 was within the range of a sound sentencing discretion having regard to all of the relevant sentencing factors.
Ground 1 has no reasonable prospect of succeeding.
Conclusion
We would make the following orders:
1.Leave to appeal on grounds 1 and 2 is refused.
2.The appeal is dismissed.
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