Cummins v The State of Western Australia - [2017] WASCA 135

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT : THE COURT OF APPEAL (WA)

CITATION: CUMMINS -v- THE STATE OF WESTERN AUSTRALIA [2017] WASCA 135

CORAM: MAZZA JA
MITCHELL JA
HALL J

HEARD: 23 JUNE 2017

DELIVERED : 20 JULY 2017

FILE NO/S: CACR 134 of 2016

BETWEEN: ROBERT KEVIN CUMMINS
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent

ON APPEAL FROM:
Jurisdiction              :  DISTRICT COURT OF WESTERN AUSTRALIA
Coram  :DERRICK DCJ
File No  :IND 508 of 2016

Catchwords:

Criminal law - Appeal against sentence - Steal motor vehicle and drive recklessly - Threat - Burglary - Serious course of conduct - Totality principle - Whether aggregate sentence of 7 years 10 months infringed first limb of the totality principle

Legislation:

Nil

Result:

Leave to appeal refused
Appeal dismissed

Category: B

Representation:

Counsel:

Appellant: Mr S Vandongen SC
Respondent: Mr J A Scholz

Solicitors:

Appellant: Justine Fisher Barrister & Solicitor
Respondent: Director of Public Prosecutions (WA)

Case(s) referred to in judgment(s):

Forbes v The State of Western Australia [2006] WASCA 164
Fullgrabe v The State of Western Australia [2006] WASCA 138
Giglia v The State of Western Australia [2010] WASCA 9
GO v The State of Western Australia [2016] WASCA 132
Howorth v The State of Western Australia [2007] WASCA 78
Hume v The Queen [2000] WASCA 306; (2000) 33 MVR 203
Karolides v The State of Western Australia [2006] WASCA 240
Penny v The State of Western Australia [2006] WASCA 249
Thomas v The State of Western Australia [2012] WASCA 182

REASONS OF THE COURT: This is an appeal against sentence.
The appellant was sentenced to an aggregate sentence of 7 years and 10 months' imprisonment on an indictment containing six counts. He seeks leave to appeal on the ground that the total effective sentence infringed the first limb of the totality principle. The offences contained in the indictment, the individual sentences imposed and the maximum penalties for those offences are set out in the following table:

Count	Offence	Maximum penalty	Sentence
1	Steal motor vehicle Sections 371A and 378 of the Criminal Code (WA).	7 years' imprisonment	18 months' imprisonment concurrent
2	Steal motor vehicle and drive recklessly Sections 371A and 378(2)(a) of the Criminal Code	8 years' imprisonment	3 years 6 months' imprisonment
3	Threatening with intent to compel a person to do an act Section 338D of the Criminal Code	7 years' imprisonment	2 years 4 months' imprisonment concurrent
4	Attempt to steal a motor vehicle Sections 371A, 378 and 552 of the Criminal Code	3 years 6 months' imprisonment	8 months' imprisonment cumulative on count 2
5	Home burglary Section 401(2)(b) of the Criminal Code	18 years' imprisonment	2 years 6 months' imprisonment concurrent
6	Steal a motor vehicle and drive recklessly Sections 371A and 378(2)(a) of the Criminal Code	8 years' imprisonment	3 years 8 months' imprisonment cumulative on count 2

The facts

The appellant pleaded guilty and the facts were admitted. Those facts are as follows.

Count 1

At about 1.35 pm on Sunday 19 July 2016, the appellant attended an address in Balcatta. He had made an arrangement to meet there with the owner of a white 2008 Toyota Hilux that had been advertised for sale. He took the Hilux for a test drive in company with the owner and then returned to the original meeting point. As the owner got out of the passenger seat of the vehicle the appellant drove off at high speed towards Wanneroo Road.

Count 2

At 4.08 pm on Wednesday 22 July 2015, the appellant was driving the stolen white Hilux in a westerly direction on Wright Street in Belmont. He was seen by detectives from the Regional Investigations Unit, who activated their vehicle's emergency lights and sirens.
The appellant failed to stop and accelerated away at high speed before turning to travel north on Belgravia Street. He then turned west onto Blacklock Road and mounted the grass verge to avoiding colliding with stationary vehicles that were parked on the road. He then turned north onto Hubert Street and drove through the intersection of Belgravia Street, failing to observe a stop sign. The intersection was extremely busy and he showed no regard for the safety of other drivers.
The appellant continued driving north on Hubert Street, which is a no‑through road. He then drove through a carpark which was filled with other vehicles before re‑entering onto Belgravia Street and travelling in a northerly direction towards Great Eastern Highway. Whilst driving on Belgravia Street, he was weaving in and out of traffic at high speed and in a dangerous manner before approaching the intersection of Great Eastern Highway. The intersection is controlled by traffic lights which were red as he approached them. Many vehicles were travelling through the intersection in both directions on Great Eastern Highway. He crossed to the incorrect side of Belgravia Street, proceeded into the intersection and turned in front of oncoming traffic in order to evade police. Other cars were forced to brake heavily to avoid collision.
The appellant continued to travel west along Great Eastern Highway, weaving around traffic in the westbound lanes. Other vehicles were again forced to swerve to avoid a collision. Immediately prior to the intersection with Orrong Road, the appellant mounted the median strip to avoid traffic congestion and to evade the police. He then continued travelling on the incorrect side of Great Eastern Highway and into the path of oncoming traffic. He then turned north onto Graham Farmer Freeway. At this point pursuing police lost sight of the Hilux.
At the time of this pursuit traffic conditions were heavy. The appellant was not authorised to drive as his driver's licence had been suspended in the Perth Magistrates Court on 30 June 2014.

Count 3

In the hour following the events described in relation to count 2, the Hilux driven by the appellant was involved in a number of crashes in the Warwick area. At about 5.05 pm the complainant in relation to this count was standing outside a relative's house on Erindale Road, Hamersley, when he heard what sounded like a car crash. He then saw the Hilux come to a stop on Erindale Road near Farm Street.
The complainant saw the appellant get out of the Hilux holding what appeared to be a stick and start hitting cars travelling along Erindale Road. He was also attempting to open car doors. The drivers of the cars sped off, seemingly to prevent him from stealing their vehicles.
The appellant then ran towards the complainant. The complainant saw that he was in possession of a samurai sword in a sheath. He yelled at the complainant, 'Give me your fucking keys, give me your fucking keys'. The complainant was shocked and did not initially realise what was happening. The appellant then pulled the samurai sword out of the sheath and pointed it at the complainant, saying, 'Give me your fucking keys or I will chop your fucking head off'. The complainant, fearing for his safety, dropped his car keys on the ground for the appellant to take.

Count 4

The appellant picked up the keys that the complainant in respect of count 3 had dropped and attempted to start the complainant's vehicle, but was unable to do so. He then got out of the vehicle and chased the complainant to the front door of the house whilst brandishing the samurai sword. The complainant and his relatives managed to close the front door before the appellant could enter. He then struck the front door before running off.

Count 5

The appellant jumped a neighbouring property's brick wall and entered the rear yard. He entered the residence via an unlocked back door. He went to the kitchen and found the keys to a grey Mazda sedan that were on a bench.
The appellant ran out of the house by the front door, got into the Mazda that was parked in the driveway and drove off at speed.

Count 6

Shortly afterwards, the appellant was seen by police driving the stolen Mazda on Wanneroo Road. Detectives from the Regional Investigations Unit activated the emergency lights and sirens of their vehicle in an attempt to stop the appellant. He failed to stop and accelerated away at high speed towards Reid Highway.
The appellant continued to drive south along Wanneroo Road, crossing Reid Highway and weaving in and out of traffic. At the time the traffic was heavy and a number of vehicles had to brake heavily to avoid being hit by the appellant.
The appellant drove into the Northlands Plaza shopping centre carpark. At the time the carpark was busy with cars and pedestrians. He drove the stolen Mazda through the carpark at high speed. He exited the carpark onto Amelia Street and headed east, still driving at high speed.
The appellant then crossed to the incorrect side of the road to overtake vehicles, narrowly missing vehicles travelling in the opposite direction. He continued to travel at high speed through Westminster before returning to Wanneroo Road.
The appellant drove south along Wanneroo Road to Morley Drive where he crossed to the incorrect side of Wanneroo Road and turned west onto the incorrect side of Morley Drive. At this time the intersection had very heavy traffic. He drove towards the oncoming traffic before he crossed to the correct side of Morley Drive and turned south on Main Street.
The appellant drove south on Main Street at high speed, again weaving in and out of traffic. He turned east at Scarborough Beach Road and then travelled at high speed through the Mount Hawthorn shopping and entertainment precinct which was busy with members of the public.
The appellant continued to drive through Mount Hawthorn and then circled back to Scarborough Beach Road and Main Street. He drove through red traffic lights at the intersection, ramming numerous vehicles in order to escape the police. One of the vehicles rammed by him was driven by a woman who was 27 weeks pregnant.
The appellant then turned east onto Brady Street which became Anzac Road. The stolen Mazda had by this stage incurred significant damage. Police were able to block the vehicle at the intersection of Anzac Road and East Street. The appellant was then arrested. He refused to participate in a recorded interview.

Personal circumstances

The appellant was 31 years of age at the time of sentencing. His childhood was described as relatively average, free from abuse or illicit substance use in the household. He is the only member of his family to have engaged in criminal behaviour. His parents were supportive throughout his childhood. He is currently not close to his family, but he believes his parents would support him again if he asked them to do so. He has one brother who he rarely sees.
The appellant left school in year 8 at the age of 13 to commence work as a plasterer with an older cousin. He continued this work through his teenage years until he received his first custodial sentence at the age of 17. He has not undertaken any further employment or education since that time.
Use of illicit drugs has been a significant feature in the appellant's life. He began using methamphetamines at the age of 13 when employed with his cousin. He was soon using methamphetamine on a daily basis and has continued to be a regular user, though he claimed he had not used since December 2014, other than at the time of this series of offences.
The appellant is the father of three children, two to his previous partner and one to his current partner. The relationship with his previous partner lasted approximately six years. That relationship was characterised by regular illicit substance use and domestic violence. The appellant has described his current partner as a good influence and that she is employed and disapproving of his illicit substance use.
The appellant has a long criminal record and has spent much of his adult life in prison. The record includes previous offences of stealing motor vehicles and driving recklessly. He also has previously committed offences of making threats, reckless driving, unlawful assault, failure to stop, attempting to pervert the course of justice, aggravated armed robbery and many offences of driving without authority. As the pre‑sentence report notes, offence‑free periods in the appellant's life have usually coincided with periods of incarceration.
The appellant was released from a sentence of imprisonment in late December 2014. At that time he went to live with his parents, who have custody of his two older children. He made an effort to remain clean of drugs for four months until early April 2015. However, he had difficulties with reintegration. An argument with his current partner caused him to relapse into regular methamphetamine use. He attributed the offending to being heavily intoxicated by drugs on the day in question.

Sentencing remarks

Other than in one respect, it is not suggested that the sentencing judge made any error of fact. His Honour made a finding that the theft of the first car was aggravated by it being a premeditated and planned theft. The appellant submits that this was not part of the agreed facts and not an inference that was open to be made to the requisite standard. However, there is no ground of appeal in respect of this suggested error and the appellant did not seek to press the matter as this factor related to count 1, the sentence for which was made wholly concurrent.
His Honour described the driving in relation to count 2 as appalling and that the appellant had 'selfishly put the lives and safety of other road users at significant risk'. His Honour said that it was incredibly lucky that the appellant did not injure or kill someone.
In regard to count 3, his Honour said that this was a very serious offence because the fact that the appellant was armed with a samurai sword lent credence to the threat. It was also aggravating that after failing to start the car the appellant had chased the complainant inside the house before striking the door with the sword. His Honour noted that this must have been a terrifying and traumatic event for the complainant.
His Honour also described the driving in count 6 as appalling. He said that given the nature of that driving it was a miracle that the appellant did not cause serious injury or worse to other road users.
The sentencing judge noted that the offences all occurred over a three‑day period, with the majority occurring on one day. Whilst he recognised that the appellant's drug‑induced intoxication contributed to his behaviour, he said that that intoxication was entirely self‑induced. The appellant had made the decision to revert to methamphetamine use. The fact that the appellant committed his offences whilst heavily under the influence of drugs was not mitigatory.
His Honour noted the appellant's very bad criminal record, including four previous offences of stealing a motor vehicle and driving it recklessly and nine offences of reckless driving. He said that whilst the record was not an aggravating factor, it did increase the importance of personal deterrence and protection of the public. He said that he was satisfied beyond reasonable doubt that the appellant was at high risk of committing further serious offences. He based this conclusion on the appellant's unaddressed issues, in particular his entrenched substance abuse and his prior criminal record.
His Honour accepted that pleas of guilty had been entered at the first reasonable opportunity. Accordingly, he reduced the sentences that he would otherwise have imposed by 25% pursuant to s 9AA of the Sentencing Act 1995 (WA).He also accepted that the appellant had, somewhat belatedly, expressed remorse for, and insight into, the seriousness of his offending.
His Honour made reference to the totality principle. He took that principle into account by reducing the sentence he would otherwise have imposed on count 4 from 12 months to 8 months' imprisonment and by making the sentences on counts 1, 3 and 5 concurrent. He made an order that the appellant be eligible for release on parole and backdated the sentence to take into account the time spent in custody.

Ground of appeal

There is one ground of appeal. It is that:
The learned sentencing judge erred in imposing an aggregate sentence that did not bear a proper relationship to the overall criminality of the appellant's conduct, having regard to all relevant circumstances including those referable to the offender personally.
The application for leave to appeal on this ground of appeal was referred to the hearing.

Merits of this appeal

The first limb of the totality principle requires a judge who is sentencing an offender for multiple offences to ensure that the total effective sentence bears a proper relationship to the overall criminality involved in all of the offences, viewed in their entirety and having regard to the circumstances of the case, including those referable to the offender personally. A claim that a total effective sentence infringes the totality principle asserts an implied error. For such a claim to succeed, the appellant must establish that the aggregate sentence is plainly unreasonable or unjust.
The appellant did not seek to dispute the seriousness of the offences or the characterisation of them by the sentencing judge. Clearly this was an extremely serious course of criminal conduct. The driving‑related offences involved highly dangerous actions that put the lives of many members of the public at risk. In both instances, the driving persisted and was aggravated by the fact that the appellant was seeking to flee from police and that he had no authority to drive. The threat charge was also a very serious offence of its type. That offence was aggravated not only by the terms of the threat, but that it was accompanied by use of a highly dangerous weapon that was wielded in a menacing way and that the appellant pursued the complainant whilst brandishing the weapon.
As to the appellant's personal circumstances, he had a long record of offending in a similar manner. The conclusion of the sentencing judge that the appellant has an entrenched and continuing attitude of disobedience for the law is plainly correct. It is accepted by the appellant that there was little or no mitigation to be found in his personal circumstances and that personal deterrence and protection of the public were of particular relevance. It is also accepted that it was open to the sentencing judge to find, as he did, that the appellant was at high risk of committing further serious offences and was a danger to the public.
The essential point made by the appellant is that, even taking into account the absence of mitigating factors, the aggregate sentence was disproportionate to the seriousness of the total offending. The appellant submitted that the total sentence was unreasonable when compared to other cases involving similar criminal conduct.
Reference was made to a small number of comparable cases. It was also suggested that in the absence of any significant mitigating factors it was possible to determine what the starting point was before the discount for the pleas of guilty was applied. It was said that the starting point must have been in the order of 10 1/2 years' imprisonment. This was said to be supportive of the argument that the aggregate sentence was unreasonable.
There are two difficulties with the appellant's argument. Firstly, any discount allowed under s 9AA is deducted from each of the individual sentences before any adjustment is made for totality considerations. This effectively makes it impossible to determine what the aggregate sentence would have been but for the discount. Secondly, the appellant assumed that an aggregate sentence of 10 1/2 years after trial would have been disproportionate to this offending. We do not accept that assumption.

One of the considerations to be taken into account in assessing whether the totality principle has been infringed is the extent to which the aggregate sentence is consistent with sentences imposed in comparable cases. In conducting such comparisons it may be necessary to have regard to sentences for similar individual offences as well as aggregate sentences for similar groups of offences. However, some caution is required in considering individual sentences that form part of an aggregate sentence because the individual sentences may have been affected in those other cases by totality considerations.
In written submissions, the appellant stated that the claim that the first limb of the totality principle had been infringed should not be taken as a concession that any of the individual sentences was not manifestly excessive. However, there was no ground to that effect and no submissions were directed to this question by the appellant. The appellant sought to justify this by relying on what was said in this court in Giglia v The State of Western Australia [2010] WASCA 9 [39] ‑ [40] and in GO v The State of Western Australia [2016] WASCA 132 [247], namely that where terms of imprisonment are imposed for separate offences, the question of whether any individual sentence is manifestly excessive is usually subsumed to the larger question of whether the aggregate sentence infringed the totality principle. However, it does not follow from that that where there is a totality ground it is irrelevant to consider the individual sentences. Subject to the cautionary note referred to above, the individual sentences imposed may be factors that are relevant to the question of whether the aggregate sentence is unreasonable.
As to comparable cases, the appellant referred to Karolides v The State of Western Australia [2006] WASCA 240; Thomas v The State of Western Australia [2012] WASCA 182 and Howorth v The State of Western Australia [2007] WASCA 78.
In Karolides, the offender pleaded guilty to one count of stealing a motor vehicle and driving it recklessly and one count of aggravated robbery. He also pleaded guilty to 18 other offences that were contained on s 32 notices. These included six burglary offences, six offences of stealing or attempting to steal motor vehicle, three stealing offences, one reckless driving, one failure to stop and one driving under suspension. The offender had also breached an intensive supervision order and a suspended term of imprisonment. The offender was involved in a high speed car chase through Perth and Burswood before colliding with a police car. He continued to ram the police car, damaging other vehicles in the process. Other offending had occurred over a two‑month period some months earlier. The offender had a long criminal record and was at high risk of further offending. A total effective sentence of 7 years and 9 months was upheld on appeal, though it was said to be severe.
The reckless driving in Karolides occurred at around 1.30 am in the central city area and involved driving at high speed, disobedience of numerous traffic lights and signs and a collision with a police vehicle. The time at which that driving occurred meant that there was unlikely to have been heavy traffic. There was one such incident in Karolides. That is in contrast to the present case in which the appellant drove in a persistently dangerous manner through heavy traffic, putting the lives and safety of a significant number of road users at risk and did so on two distinct occasions. It should also be noted that sentences for offences of burglary and stealing cars have firmed up in recent years in order to reflect the prevalence of these offences and the importance of personal deterrence. Thus whilst the number of offences in Karolides was greater there are other factors at play that make it difficult to draw any conclusion that, in comparison, the aggregate sentence here was unreasonable.
In Howorth, the offender was convicted on his pleas of guilty of three counts of burglary, six counts of stealing a motor vehicle and three counts of stealing. The offences occurred over a four‑month period between November 2000 and April 2001. The offender was part of a 'highly organised racket' involving the theft of cars, fuel and tools. He was in the grip of a drug addiction and committed the offences to pay for drugs and to pay off debts. A total effective sentence of 7 years and 4 months' imprisonment was reduced on appeal to 5 years and 4 months.
The utility of Howorth as a comparable case is also limited. The offender in that case was not dealt with for recklessly driving any of the stolen vehicles. That was, of course, one of the most serious features of the appellant's conduct. It should also be noted that the court in Howorth said that sentences exceeding 10 years (6 years and 8 months post‑transitional) have been considered appropriate where the offences included one or more offences of a very serious nature such as armed robbery or stealing a motor vehicle and driving it recklessly or where there is a significant number of offences.
It was acknowledged that Thomas is not factually comparable, but the appellant sought to rely on a number of cases to which Mazza JA referred in that case. Of those, the most relevant are Penny v The State of Western Australia [2006] WASCA 249 and Forbes v The State of Western Australia [2006] WASCA 164.
In Penny, the offender was convicted after trial of one count of attempted aggravated burglary then pleaded guilty to a number of other offences, including two of stealing a motor vehicle and driving it recklessly. There were also four other offences of aggravated burglary and numerous offences on a s 32 notice. The offender drove a stolen car on the wrong side of Kwinana Freeway whilst being pursued by police. He drove at high speed, swerving round other cars, before crashing the vehicle. About four months later, whilst on bail, the offender drove another stolen car at high speed through residential suburbs whilst being pursued by police. He was apprehended after crashing into a police vehicle. The individual sentences for the two steal motor vehicle and drive recklessly offences were 3 years and 3 years 6 months respectively, which formed part of a total sentence of 10 years' imprisonment. The offender had 'demonstrated insight, a genuine determination to rehabilitate himself and lead a productive and non‑offending life' [53]. On appeal, a ground based on totality was allowed and the aggregate sentence was reduced to 8 years.
The differences in the number of offences in Penny makes comparison with that case difficult. The offender in that case had better prospects of rehabilitation. In any event it is noteworthy that the individual sentences imposed for the two offences of stealing a vehicle and driving it recklessly were comparable to those imposed on the appellant (though those individual sentences were not challenged in Penny).
In Forbes, the offender entered a late plea of guilty to two counts of aggravated armed robbery. He was also convicted on a separate indictment of two counts of stealing a motor vehicle and driving it recklessly and one of assaulting a public officer. The offender used a stolen vehicle to ram a police car that was being used to block his way. A two‑year‑old child was in the stolen vehicle at the time. The offender assaulted a police officer who tried to stop him. Later, the offender was spotted by police driving the stolen car which he drove directly at the police vehicle when an attempt was made to stop him. There was then a chase in which the offender drove at high speed on the wrong side of the road and was weaving in and out of traffic. The offender was sentenced to 3 years' imprisonment and 4 years' imprisonment respectively for the two reckless driving offences, which formed part of a total sentence of 8 years' imprisonment. An appeal on totality grounds was dismissed.
Again, the number and types of offences committed in Forbes makes comparison with the appellant's case difficult. However, the individual sentences imposed for the steal motor vehicle and drive recklessly offences are comparable to the sentences imposed on the appellant (though, again, those individual sentences were not challenged in Forbes).
As noted earlier, it is relevant to consider the sentences imposed on the individual counts. In this regard, other cases dealing with offences of aggravated stealing of a motor vehicle (counts 2 and 6) that are relevant are Hume v The Queen [2000] WASCA 306; (2000) 33 MVR 203 and Fullgrabe v The State of Western Australia [2006] WASCA 138. Those cases demonstrate that the sentences imposed on counts 2 and 6 were within the customary discretionary range for offences of this nature and this level of seriousness. There is nothing to suggest that the sentences imposed for the threat offence, count 3, or the burglary offence, count 5, were outside the customary range for those offences.
The comparable cases do not suggest that either the individual sentences or the aggregate sentence are inconsistent with sentences imposed in other cases. In any event, consideration of comparable cases is only one relevant factor. The circumstances of an individual case may justify the imposition of a sentence which is above or below that imposed in any other broadly similar case. The utility of referring to comparable cases is significantly limited here because there are so few cases that are truly comparable. Those other cases offer very limited guidance.
In the circumstances of this case the seriousness of the appellant's offending, the lack of mitigating factors, the need for general and personal deterrence and the importance of protecting the community required that a substantial total sentence be imposed. The aggregate sentence was not disproportionate to the total offending having regard to all relevant factors. It was not unreasonable or unjust and therefore the first limb of the totality principle was not infringed. The ground of appeal cannot succeed.

Orders

We would make the following orders:
1.Leave to appeal refused.
2.Appeal dismissed.