Colbung v The Queen
[1999] WASCA 138
•20 AUGUST 1999
COLBUNG -v- THE QUEEN [1999] WASCA 138
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [1999] WASCA 138 | |
| COURT OF CRIMINAL APPEAL | |||
| Case No: | CCA:101/1999 | 4 AUGUST 1999 | |
| Coram: | ANDERSON J WHITE J HEENAN J | 20/08/99 | |
| 9 | Judgment Part: | 1 of 1 | |
| Result: | Leave to appeal granted. Appeal dismissed. | ||
| PDF Version |
| Parties: | BRIAN NATHAN COLBUNG THE QUEEN |
Catchwords: | Criminal law and procedure Sentencing Series of offences Aggravated stealing of motor vehicle one of offences Appropriate tariff Overall sentence of six years imprisonment not excessive |
Legislation: | The Criminal Code s 378(2)(a) |
Case References: | Bropho v The Queen, unreported; CCA SCt of WA; Library No 940197; 14 April 1994 R v Mills [1998] 4 VR 235 R v Smith [1964] Crim LR 70 Rogers & Murray v The Queen (1989) 44 A Crim R 301 Australian Coal and Shale Employees' Federation v Commonwealth (1953) 94 CLR 621 Evagora v The Queen, unreported; CCA SCt of WA; Library No 960417; 5 August 1996 House v The King (1936) 55 CLR 499 Howard v The Queen, unreported; CCA SCt of WA; Library No 960638; 7 November 1996 Jarvis v The Queen, unreported; CCA SCt of WA; Library No 930341; 14 June 1993 Miles v The Queen (1997) 17 WAR 518 Mill v The Queen (1988) 166 CLR 59 Pezzino v The Queen (1997) 92 A Crim R 135 Rankins v The Queen, unreported; CCA SCt of WA; Library No 940669; 1 December 1994 Shaw v The Queen (1989) 39 A Crim R 343 Veen v The Queen (No 2) (1988) 77 ALR 385 Weng Keong Chan v The Queen (1989) 38 A Crim R 337 Yarran v The Queen, unreported; CCA SCt of WA; Library No 960556; 4 April 1996 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : COURT OF CRIMINAL APPEAL CITATION : COLBUNG -v- THE QUEEN [1999] WASCA 138 CORAM : ANDERSON J
- WHITE J
HEENAN J
- Applicant
AND
THE QUEEN
Respondent
Catchwords:
Criminal law and procedure - Sentencing - Series of offences - Aggravated stealing of motor vehicle one of offences - Appropriate tariff - Overall sentence of six years imprisonment not excessive
Legislation:
The Criminal Code s 378(2)(a)
Result:
Leave to appeal granted.
- Appeal dismissed.
(Page 2)
Representation:
Counsel:
Applicant : Mr D Hore-Lacy QC
Respondent : Mr R E Cock QC & Ms E A Benwell
Solicitors:
Applicant : Aboriginal Legal Service of WA (Inc)
Respondent : State Director of Public Prosecutions
Case(s) referred to in judgment(s):
Bropho v The Queen, unreported; CCA SCt of WA; Library No 940197; 14 April 1994
R v Mills [1998] 4 VR 235
R v Smith [1964] Crim LR 70
Rogers & Murray v The Queen (1989) 44 A Crim R 301
Case(s) also cited:
Australian Coal and Shale Employees' Federation v Commonwealth (1953) 94 CLR 621
Evagora v The Queen, unreported; CCA SCt of WA; Library No 960417; 5 August 1996
House v The King (1936) 55 CLR 499
Howard v The Queen, unreported; CCA SCt of WA; Library No 960638; 7 November 1996
Jarvis v The Queen, unreported; CCA SCt of WA; Library No 930341; 14 June 1993
Miles v The Queen (1997) 17 WAR 518
Mill v The Queen (1988) 166 CLR 59
Pezzino v The Queen (1997) 92 A Crim R 135
Rankins v The Queen, unreported; CCA SCt of WA; Library No 940669; 1 December 1994
Shaw v The Queen (1989) 39 A Crim R 343
Veen v The Queen (No 2) (1988) 77 ALR 385
Weng Keong Chan v The Queen (1989) 38 A Crim R 337
(Page 3)
Yarran v The Queen, unreported; CCA SCt of WA; Library No 960556; 4 April 1996
(Page 4)
1 ANDERSON J: I have had the advantage of reading in draft the judgment of Justice Heenan. I agree with it. The sentences imposed by the learned District Court Judge were individually and, in the aggregate, within the limits of a proper sentencing discretion. The offences of stealing the motor vehicle and driving it recklessly, and the further offence of reckless driving, were each very serious offences of their kind. The great danger to the life of innocent road users by the particular kind of conduct engaged in by the applicant is, sadly, all too frequently exemplified. In this case, the applicant drove a stolen motor vehicle through a city intersection against a traffic light at speed in the early hours of the morning, and when a police officer on foot tried to wave him down, the applicant accelerated the vehicle at the police officer and only just missed him. The applicant is very fortunate not to have been charged with a far more serious offence. He then went through the next intersection against a red light at high speed. The potential for tragedy in that conduct is all too obvious. In light of the other offences committed by the applicant, and his bad antecedents, it was necessary to arrive at a sentence which would operate as a deterrent so that he might be stopped from continuing to behave in this way and to give the public some protection from him. In my opinion, the sentence which her Honour imposed was entirely appropriate.
2 WHITE J: I have had the advantage of reading in draft the reasons to be published by Heenan J. I agree with those reasons and have nothing further to add.
3 HEENAN J: The applicant seeks leave to appeal against a sentence of six years imprisonment with parole eligibility which her Honour Judge Yeats imposed on him in the District Court at Perth.
4 The applicant, who now is 21 years old, appeared in the Children's Court at Narrogin when he was nine. Since then he has been convicted of 40 offences in the Children's Court and 12 in the Court of Petty Sessions, in addition to those which are the subject of this appeal. The offences of which he has been convicted include burglary, stealing and other offences of dishonesty. On 1 December 1998 in the District Court at Albany her Honour had released him under an intensive supervision order in respect of two counts of assaulting a public officer. Those offences were committed on the evening of Saturday 24 January 1998 at Narrogin when the applicant threw paving bricks at two police officers who had been called to deal with a disturbance. The first brick missed one officer by about a foot and the second landed in front of the other.
(Page 5)
5 On the evening of Monday 15 February 1999 the applicant, in company with other offenders, broke into the general store at Cookernup (the location also of a few houses situated between Harvey and Yarloop) and stole alcohol, cigarettes and two electric pumps worth a total of $1100. He was questioned by the police shortly afterwards, charged with the offence commonly described as aggravated burglary and was released on bail.
6 Between 1 am and 2 am on Wednesday 24 February the applicant and two other persons broke into a station wagon in the carpark of the Perth Entertainment Centre and drove off in it. At that stage the applicant was a passenger. Although he had never obtained a licence he took over the driving shortly afterwards. At about 3.16 am he drove the vehicle along Wellington Street through the William Street intersection and against a traffic light at about 70 km per hour. A police officer stepped on to the roadway and signalled to him to stop. Thereupon he accelerated the vehicle and drove at the police officer. The latter ran from the road to protect himself and the vehicle passed by, about a metre from him, at a speed of about 85 km per hour. The applicant then passed through the Barrack Street intersection, once more against a red light, at a speed of about 100 to 110 km per hour. Police officers gave chase and arrested him shortly afterwards, after he had driven across the Wellington Square reserve. His blood alcohol level then was .102 per cent.
7 Four charges were brought against the applicant in respect of what happened that morning: the first, stealing a motor vehicle and driving it recklessly; the second, driving the vehicle without being the holder of a driver's licence; the third, driving the vehicle while having a blood alcohol level in excess of .08 per cent; and the fourth, reckless driving. The first incident of reckless driving relied upon was the driving of the vehicle at the police officer. The second was the driving of the vehicle through the intersections against the red lights and at an excessive speed.
8 On 7 May 1999, in the course of her remarks when sentencing the applicant, her Honour said:
"Now, you come before the court as a 21-year-old whom I had many concerns about in Albany. The concerns I had were related to the very dysfunctional family that has been your family and is your family - you can't do anything about that - and the alcohol abuse and the violence that you have had to
(Page 6)
- cope with as you grew up are serious problems for you and the offences I was dealing with seemed related to that. You are a person who appears to be intelligent. You're literate, I'm told, you have done some work, you can play football, you're an athlete but you seem to be unable to abide by the law."
- Having referred to the circumstances of the offences committed on 15 and 24 February and having told the applicant that she would deal with him also for the assaults the subject of the intensive supervision order, her Honour went on to say:
"Now, in thinking about sentence, I have considered a number of matters. You are remorseful. You have come before the court on the fast-track, you have pleaded guilty at the earliest opportunity. For driving recklessly and swerving toward a police officer as you did, I would normally imprison a person for 5 to 6 years. In your case, because you have pleaded guilty, because I accept you are remorseful, I am prepared to sentence you to 4 years for stealing a motor vehicle and driving recklessly.
In relation to the aggravated burglary offence, normally offences of that nature require about 18 months' imprisonment but again you have pleaded guilty at the earliest opportunity and I am prepared to reduce that to 1 year's imprisonment.
In relation to the two assaults on police officers in throwing the bricks at the constables, again you had at the time pleaded guilty at the earliest opportunity and if I were sending you to prison, I would have reduced your sentences for that. I would have normally sentenced you to 1 year in relation to each charge and made them cumulative, but taking account of everything that I have learned I will make it just 1 year in relation to both. Those will be concurrent."
Her Honour directed that the four year term for stealing the motor vehicle and driving recklessly and the one year term for aggravated burglary should each take effect cumulatively upon each other and upon the concurrent terms of one year which she had imposed for the assaults, making an effective total of six years imprisonment. In addition her Honour imposed fines and disqualifications for the three remaining offences: there is no appeal in relation to them.
(Page 7)
9 At the hearing before this Court on behalf of the applicant Mr Hore-Lacy acknowledged that the driving was "very, very bad". He submitted however that, as the maximum period of imprisonment for reckless driving, if a vehicle is not stolen, is six months (see the Road Traffic Act 1974 s 60), the term of four years is disproportionate. In considering that submission it is necessary to keep in mind that Parliament has provided a special penalty for such cases. When the stealing of a motor vehicle is accompanied by reckless driving the maximum penalty of seven years for stealing (see The Criminal Code s 378) is increased to eight years by reason of the circumstance of aggravation (see The Code s 378(2)(a)). Thus Parliament has recognised that the offence of stealing is made more serious by reason of the manner in which the vehicle is driven in the course of the theft. When aggravated in that way the offence involves "a calculated disregard for the lives, safety and property of others, the authority of the police and the public concern as to the prevalence and demonstrated dangers of so driving" (the words used by Franklyn J in Bropho v The Queen, unreported; CCA SCt of WA; Library No 940197; 14 April 1994). Viewed against that background a term of imprisonment for five or six years is well within the appropriate range for such an offence committed in the circumstances of this case.
10 The aggravated burglary, carried out as it was by the applicant and others on a general store serving a very small community, was of a particularly serious nature. Imprisonment for two years, in my opinion, normally would be an appropriate penalty for such an offence. It follows that the one year term which her Honour imposed was at the lower end, if not below, the appropriate range. The assaults on the police officers in January 1998 were far from the worst of their kind but, bearing in mind that in November 1997 the applicant had received a suspended sentence of nine months imprisonment for two offences of assaulting a public officer, concurrent terms of one year are not excessive.
11 With those considerations in mind, in my opinion an overall sentence for the offending conduct of the applicant should fall within the range of seven to nine years, before taking into account mitigatory factors personal to him.
12 The applicant is an Aborigine. Race itself is not a permissible ground for discrimination in the sentencing process, but it is appropriate to take into account by way of mitigation that a particular offender has been subject to social, economic and other disadvantages which are experienced by Aboriginal people. Such disadvantages commonly lead to problems associated with the consumption of alcohol and other drugs (see
(Page 8)
- the discussion of this topic by Malcolm CJ in Rogers & Murray v The Queen (1989) 44 A Crim R 301 at 305 - 307). The papers in this case do not show that the applicant is an alcoholic, but they do show that he is a "binge" drinker. As is so often the case with Aboriginal offenders, almost certainly his drinking had a good deal to do with his offending. On the other hand, he has a long history of appearances before the courts and, as her Honour's own experience of him showed, he had displayed a continuing attitude of disobedience of the law. In those circumstances his Aboriginal background is of less weight than otherwise it might have been.
13 Mr Hore-Lacy submitted that when sentencing the applicant her Honour did not take into account the very dysfunctional family background which had given her concern when she released him under supervision only a little more than five months before. Consideration of her Honour's remarks does not support that submission. In referring to the proceedings at Albany, to the aggravated burglary at Cookernup and finally to the series of offences in Perth, her Honour was adverting to the fact that the applicant had been given the opportunity to mend his ways but that he had failed to do so. It does seem that the dysfunctional family background, the alcohol abuse and the violence which the applicant had to cope with as he grew up carried more weight with her Honour when dealing with him at Albany than when she came to sentence him in Perth. But that does not mean that on the latter occasion her Honour failed to take those factors into account or to give them the weight which they deserved.
14 The applicant is a young man. As was said in R v Smith [1964] Crim LR 70, "[In] the case of a young offender there can rarely be any conflict between his interest and the public's. The public have no greater interest than that he should become a good citizen." Because punishment might lead to further offending, rehabilitation usually is far more important than general deterrence in the case of a youthful offender (see R v Mills [1998] 4 VR 235 at 241 per Batt JA). Although in August 1995 the applicant was sentenced to detention for one month and, as mentioned already, he received a suspended sentence for other assaults of a public officer, this was his first sentence of immediate imprisonment. That being so, it was necessary for her Honour to pay particular attention to the length of the imprisonment, to ensure that the sentence not only had within it the element of punishment but also provided the best chance for rehabilitation of the applicant.
(Page 9)
15 It is apparent from her remarks when sentencing the applicant that her Honour gave him credit for pleading guilty at the earliest opportunity and for his remorse. As I have mentioned earlier, her Honour also gave weight to the factors arising from his appalling family background. Nevertheless, it is said on behalf of the applicant that in all the circumstances the sentence of six years imprisonment is excessive. In my opinion, that submission must fail. The assaults on the police officers at Narrogin in January 1998 were part of the one incident but that incident was not connected with either the aggravated burglary or the series of offences which took place in Perth on the morning of 24 February last. One would have expected, therefore, that the penalties imposed in respect of those three separate transactions would take effect cumulatively upon each other. After looking at the totality of the criminal behaviour of the applicant I am far from satisfied that the sentence of six years imprisonment is more than appropriate in the circumstances.
16 I would allow the application for leave to appeal but would refuse the appeal against sentence.
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