Dass v The State of Western Australia
[2011] WASCA 271
•23 DECEMBER 2011
DASS -v- THE STATE OF WESTERN AUSTRALIA [2011] WASCA 271
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2011] WASCA 271 | |
| THE COURT OF APPEAL (WA) | |||
| Case No: | CACR:122/2011 | 15 NOVEMBER 2011 | |
| Coram: | McLURE P MAZZA JA | 23/12/11 | |
| 4 | Judgment Part: | 1 of 1 | |
| Result: | Application for extension of time refused Leave to appeal refused Appeal dismissed | ||
| B | |||
| PDF Version |
| Parties: | CHARLES RUBEN DASS THE STATE OF WESTERN AUSTRALIA |
Catchwords: | Criminal law Appeal against sentence Whether failure to consider contents of psychiatric report Turns on own facts |
Legislation: | Criminal Code (WA), s 414 Misuse of Drugs Act 1981 (WA), s 6 |
Case References: | Wheeler v The Queen [No 2] [2010] WASCA 105 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : DASS -v- THE STATE OF WESTERN AUSTRALIA [2011] WASCA 271 CORAM : McLURE P
- MAZZA JA
- Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram : WISBEY DCJ
File No : IND 53 of 2011
Catchwords:
Criminal law - Appeal against sentence - Whether failure to consider contents of psychiatric report - Turns on own facts
(Page 2)
Legislation:
Criminal Code (WA), s 414
Misuse of Drugs Act 1981 (WA), s 6
Result:
Application for extension of time refused
Leave to appeal refused
Appeal dismissed
Category: B
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):
Wheeler v The Queen [No 2] [2010] WASCA 105
(Page 3)
1 McLURE P: This is an application for an extension of time to appeal and for leave to appeal against sentence. An extension of time will not be granted unless the appeal has sufficient merit to justify a grant of leave.
2 The appellant was convicted on his plea of guilty of two counts of receiving property which had been obtained by means of an act constituting an indictable offence (a burglary) knowing the same to have been so obtained, contrary to s 414 of the Criminal Code (WA).
3 The receiving offences were committed whilst the appellant was on parole in connection with a total sentence of 4 years' imprisonment for four offences against s 6(1) and one offence against s 6(2) of the Misuse of Drugs Act 1981 (WA). The appellant's parole was cancelled as a result of his convictions for the receiving offences.
4 On 8 March 2011, the appellant was sentenced by Wisbey DCJ to a term of imprisonment of 9 months on each count of receiving. The sentencing judge ordered the sentences on those counts to be served concurrently with each other but cumulatively on the term of imprisonment then being served. The appellant was ordered to be eligible for parole.
5 The facts of the offences are as follows. On 28 April 2010, approximately six Apple iPods and 61 designer watches were stolen from the Myer department store in Karrinyup. On 30 April 2010, police searched the appellant's residence and located six Apple iPods, three designer watches and a digital camera. The iPods and watches matched the items stolen from Myer Karrinyup. The storage device on the digital camera was found to contain images of 60 watches which were identified as the same as the ones stolen from Myer Karrinyup. The total value of the watches and iPods was approximately $13,300.
6 In relation to count 2, on 1 and 19 April 2010, Mo's Mobiles at Warwick was broken into and on each occasion in excess of $10,000 worth of property was stolen. On the first occasion, 40 mobile phones and cash were stolen. On the second occasion, 20 mobile phones and cash were stolen. On 30 April 2010, police recovered from the appellant's residence a Nokia mobile phone valued at $384 which had been stolen from Mo's Mobiles at Warwick.
7 There was material before the sentencing judge from a former prisoner who had served time in custody with the appellant. He said he was responsible for stealing the articles and had asked the appellant to hold them until he could dispose of them (ts 13).
(Page 4)
8 The appellant was aged 28 at the time of sentencing. He had a lengthy prior record, including a significant number of convictions for drug-related offences. He also had a prior conviction for receiving illegally gained property for which he was sentenced in June 2008 to 12 months' imprisonment.
9 The sole ground of appeal is that the sentencing judge erred 'by failing to consider the full contents of the psychiatric report with regard to the [appellant's] disposition at the time the offence was committed'.
10 There is no arguable basis for the claim that the sentencing judge failed to consider the contents of the psychiatric report which was obtained on the appellant's behalf from Dr SD Febbo. The appellant's counsel made extended reference to the contents of that report in his plea in mitigation. Almost immediately thereafter, the sentencing judge proceeded to sentence the appellant. It is also apparent from his reasons that he had read the contents of the report.
11 The implication in the appellant's submissions is that consideration of Dr Febbo's report must necessarily result in a reduction (in type or length) of the otherwise appropriate sentence. That reflects a misunderstanding of the complex interplay of relevant sentencing considerations. The existence of a mental disorder may (not must) reduce the importance of general deterrence but increase the importance of particular deterrence or the need to protect the public. See Wheeler v The Queen [No 2] [2010] WASCA 105 [5] - [10]. Having regard to the appellant's relatively lengthy record of prior convictions and his commission of the receiving offences whilst on parole, it is clear that significant weight had to be accorded to the need for personal deterrence. Dr Febbo's assessment, based on the history provided by the appellant, serves to explain why he is at risk of offending in the future but does not require or justify a different type (the appellant suggested a fine) or length of sentence.
12 The ground of appeal has no reasonable prospect of success. Accordingly, the appellant's application for an extension of time and leave to appeal should be refused and the appeal dismissed.
13 MAZZA JA: I agree with McLure P.
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