Downey v The Queen
[2002] WASCA 59
•21 MARCH 2002
DOWNEY -v- THE QUEEN [2002] WASCA 59
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2002] WASCA 59 | |
| COURT OF CRIMINAL APPEAL | |||
| Case No: | CCA:91/2001 | 5 FEBRUARY 2002 | |
| Coram: | MALCOLM CJ ANDERSON J STEYTLER J | 21/03/02 | |
| 12 | Judgment Part: | 1 of 1 | |
| Result: | Appeal dismissed | ||
| B | |||
| PDF Version |
| Parties: | MICHAEL PHILIP DOWNEY THE QUEEN |
Catchwords: | Criminal law Sentencing Totality principle Whether sentence manifestly excessive 20yearold male with 58 previous convictions 4 years for 14 offences cumulative on sentence of 6 years already being served for armed robbery not set aside as excessive |
Legislation: | Government Railways Act 1904 |
Case References: | Carreras v R (1992) 60 A Crim R 402 Cabassi v The Queen [2000] WASCA 305 Jarvis v The Queen (1993) 20 WAR 201 Lowndes v The Queen (1999) 195 CLR 665 Mill v The Queen (1988) 166 CLR 59 Pearce v The Queen (1998) 194 CLR 610 R v Ward [1999] WASCA 157 Wade v The Queen [2001] WASCA 252 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : COURT OF CRIMINAL APPEAL CITATION : DOWNEY -v- THE QUEEN [2002] WASCA 59 CORAM : MALCOLM CJ
- ANDERSON J
STEYTLER J
- Applicant
AND
THE QUEEN
Respondent
Catchwords:
Criminal law - Sentencing - Totality principle - Whether sentence manifestly excessive - 20yearold male with 58 previous convictions - 4 years for 14 offences cumulative on sentence of 6 years already being served for armed robbery not set aside as excessive
Legislation:
Government Railways Act 1904
Result:
Appeal dismissed
(Page 2)
Category: B
Representation:
Counsel:
Applicant : Mr B S Hanbury
Respondent : Mr R E Cock QC
Solicitors:
Applicant : Beau Hanbury
Respondent : State Director of Public Prosecutions
Case(s) referred to in judgment(s):
Carreras v R (1992) 60 A Crim R 402
Case(s) also cited:
Cabassi v The Queen [2000] WASCA 305
Jarvis v The Queen (1993) 20 WAR 201
Lowndes v The Queen (1999) 195 CLR 665
Mill v The Queen (1988) 166 CLR 59
Pearce v The Queen (1998) 194 CLR 610
R v Ward [1999] WASCA 157
Wade v The Queen [2001] WASCA 252
(Page 3)
1 MALCOLM CJ: In my opinion this application for leave to appeal should be granted but the appeal dismissed. I have reached this conclusion for the reasons to be published by Anderson J with which I am in entire agreement.
2 I would only wish to add that it was extremely unfortunate that the papers were organised in the form of an appeal book and two supplementary appeal books without detailed references to facilitate the task of tracking down the proceedings in which the various sentences were imposed and the documents which were relevant to them. I am most grateful for Anderson J preparing a detailed chronology of the various offences with which the applicant was convicted and the sentences imposed in respect of them.
3 ANDERSON J: This is an application for leave to appeal against sentences passed in the District Court on 5 June 2000.
4 The papers are in a confusing state. There is an appeal book, a supplementary appeal book and a further supplementary appeal book, and the applicant's immediate court history and necessary background information has been difficult to assemble from these documents. It had to be done because the applicant complains that the sentences which he received on 5 June 2000 which aggregated 4 years' imprisonment ordered to be served cumulatively on a sentence then being served, offended the totality principle. In order to see whether this is so, the Court must have an appreciation of the whole of the applicant's relevant criminal conduct and the details of the sentences that he received in respect to the various offences.
5 The relevant part of the history begins with the applicant's appearance in the District Court on 10 December 1999. On that date, he was presented before Groves DCJ on an indictment, number 2032 of 1999, charging him with seven offences as follows:
"(1) On 22 June 1999 at Subiaco [he] stole a motor vehicle the property of PAUL ANTHONY RUSSELL
AND THEN wilfully drove the motor vehicle in a manner that constituted an offence under s 60 of the Road Traffic Act1974, namely, reckless driving.
(2) On 15 July 1999 at Perth [he] stole a motor vehicle the property of DAVID KEITH HUTCHINSON.
(Page 4)
- (3) On 5 August 1999 at Yokine [he] stole a motor vehicle the property of LOIS WYNETTA SANDOW.
(4) On 6 August 1999 at Yokine [he] stole a motor vehicle the property of LUCIA JONES.
(5) On 6 August 1999 at Yokine [he] stole a motor vehicle the property of PAULA ANNE DIXON.
(6) On 6 August 1999 at Carine [he] stole a handbag, purse, money and reading glasses the property of DIANE GAYE EDWARDS from the person of DIANE GAYE EDWARDS.
(7) On 7 August 1999 at Yokine [he] stole a motor vehicle the property of JANE EVELYN KOEHLER."
6 The applicant pleaded guilty to each of these offences and requested that the Court also deal with three other charges then pending against him, they being a charge of reckless driving, a charge of driving without a driver's licence and a charge of failing to stop when called on. The statement of facts which was read to the Court can be summarised as follows.
7 As to count (1), some time between 6 pm and 11 pm on 22 June 1999, the applicant used a screwdriver to break into Mr Russell's car which was parked in the carpark of Coles Supermarket in Barker Road, Subiaco. He got the car started and drove it away. On 24 June, he was spotted by police driving the car in Hepburn Avenue, Greenwood, and they attempted to stop him by activating the emergency lights and sirens on the police car. The applicant sped away. The police gave chase, but the applicant drove the stolen car at high speed south on the Mitchell Freeway in the northbound lanes - that is, on the wrong side of the freeway - causing the police to terminate the pursuit. He was again observed driving the stolen car in Karrinyup Road, and again police attempted to stop him by use of emergency lights and sirens, but he again got onto the Mitchell Freeway, where he drove at speeds up to 190 kilometres an hour, weaving in and out of traffic with the police in pursuit. He then performed a U-turn and travelled north at high speed for approximately two kilometres. He contravened a red traffic light on the incorrect side of the road and turned right into Berrigan Drive. The police followed him for about 10 minutes, through numerous intersections which he entered at high speed on the incorrect side of the road, finally colliding
(Page 5)
- with the police vehicle and stopping. He was then apprehended after a foot chase, charged and released to bail.
8 As to count (2), some time between 7.30 am and 6.45 pm on 15 July 1999, an associate of the applicant stole a locked motor vehicle from a bus port carpark in the city and rendezvoused with the applicant who then drove the vehicle to an address in Balcatta, where he hid it for later use. It was located by police at that address on 18 July and recovered.
9 As to count (3), at about 6 pm on 5 August 1999, the applicant broke into a locked vehicle parked in the Flinders Square shopping centre carpark in Flinders Street, Yokine. He forced the door with a screwdriver, broke the plastic housing to the steering column, started the vehicle by applying the screwdriver to the ignition barrel and, together with an associate, drove the car away.
10 As to counts (4) and (5), during the afternoon of 6 August 1999, the applicant, in company with an associate, broke into another vehicle in the parking area of the Dog Swamp shopping centre in Flinders Street, Yokine, broke the plastic housing to the steering column, and started the vehicle using a screwdriver in the ignition barrel. He drove the vehicle to another part of the shopping centre carpark, abandoned it, and stole yet another vehicle by forcing open the driver's door with the screwdriver. Once again, he broke the plastic housing to the steering column, and started the car using the screwdriver in the ignition barrel, and drove it out of the carpark. This vehicle was driven to the Carine Glades shopping centre in Beach Road, Carine, with a view to committing a robbery at that place. As to count (6), the applicant and his associate watched a woman walk towards the entry door of the shopping centre, carrying a black handbag under her arm. The applicant's associate walked up behind the woman, grabbed the handbag, removed a purse from it and ran back to the stolen car. The applicant drove the car away. The vehicle was later abandoned in Koondoola and recovered by the police, but neither the purse nor its contents, valued at about $230, was recovered.
11 As to count (7), during the afternoon of Saturday, 7 August 1999, the applicant, in company with another associate, went to a home unit in Camden Way, Mindarie, and broke into a locked vehicle parked in the parking bay. A screwdriver was used to force open the driver's door, and again the plastic housing to the steering column was broken and the applicant started the car by applying the screwdriver to the ignition barrel. The car was driven away and later abandoned in Alexander Heights, from where it was recovered.
(Page 6)
12 The applicant was apprehended on 25 August 1999 and interviewed in relation to these offences which he admitted, and he was arrested and charged.
13 The offences set out in the s 32 notice all arose from the same facts which constituted count 1 on the indictment. The applicant has never held a motor driver's licence.
14 After receiving an oral pre-sentence report on 10 December 1999 which ascribed the applicant's offending to heroin addiction and the need to support that addiction at the rate of $100 to $150 per day, and which recommended that "it may be in the best interests of both himself and the wider community were he to be the subject of a community order and … intensive supervision order", Groves DCJ disposed of the matter in that way, with some encouragement from counsel for the prosecution. The applicant was placed on an intensive supervision order for 2 years, with a community service requirement of 100 hours. In his concluding remarks, Groves DCJ said:
"What I must tell you is that if you commit any further offence in the next 2 years then you will be brought back before this court and you will be resentenced for each one of these charges, and you had better understand that next time you won't get the benefit of your youth, the benefit of the doubt or any other benefit, it will be straight inside. So it's up to you. You have this opportunity; take it with both hands."
15 It would appear that one of the matters about which the applicant was interviewed when apprehended on 25 August 1999 was an offence which had been committed on 14 July 1999, the day before the events the subject of count 2 on indictment 2032 of 1999. The applicant made no admissions in respect to that offence, but was charged with it on Supreme Court indictment 96 of 2000 and pleaded not guilty. The indictment charged the offence of armed robbery in company in the following terms:
"On 14 July 1999 at Tuart Hill [the applicant] stole from PETER PAULL with actual violence, a cash register and $250 in cash the property of PETER PAULL trading as PETER PAULL STYLIST.
AND THAT at the time [he] was armed with a dangerous weapon, namely a knife.
AND THAT at the time [he] was in company with another.
(Page 7)
- AND THAT at the time [he] used personal violence to GEOFFREY HOWARD NOYE."
16 He was convicted after trial on 20 October 2000 of the principal offence and each circumstance of aggravation. As appears from the sentencing reasons of Hasluck J, the facts were that the applicant and two other men watched the activities at the complainant's hairdressing shop in North Beach Road, Tuart Hill, for a while. One of the other men then entered the shop and grabbed a cash register containing $250 in cash. The applicant assisted by opening the door of the shop, and when the shop owner and one of his customers gave chase, the applicant engaged them with his fists. His co-offender then produced a knife and, by brandishing it, the two were able to escape to a waiting car driven by a third man. The cash register and money were not recovered.
17 As Hasluck J said:
"It is clear from these circumstances that you were a willing participant in a premeditated plan to steal the cash register. You were prepared to use violence or threats of violence in order to overcome resistance to the stealing."
18 For this offence, the applicant was sentenced to 6 years' imprisonment backdated to 8 March 2000, with eligibility for parole.
19 As at 19 December 1999, the position was that the applicant was nine days into the intensive supervision ordered by Groves DCJ on 10 December 1999 and he was awaiting trial on the aggravated armed robbery offence referred to above. Notwithstanding this, between 19 December 1999 and 22 December 1999, the applicant was involved in criminal activities which became the subject of District Court indictment 709 of 2000, on which there were the following charges:
"(1) On a date unknown between 19 December 1999 and 22 December 1999 at Hillarys [he] stole a motor vehicle registration number TJZ 718 the property of BERRY ANTON POLOVIC.
…
(5) AND FURTHER that on 22 December 1999 at Churchlands [he] and KAINE PHILLIP MCNAMARA, being in the place of KRYSTYNA OGONOWSKA and others, without their consent, being a place ordinarily
(Page 8)
- used for human habitation, committed the offence of stealing.
- AND THAT [they] were in company with one another.
(6) AND FURTHER that on the same date as in count 5 at Floreat [they] being in the place of VERNA MARY BEVILACQUA and others, without their consent, being a place ordinarily used for human habitation, committed the offence of stealing.
AND THAT [they] were in company with one another."
20 The indictment charged other offences, but, after trial, the applicant was convicted only of those offences set out above. It is not clear from the papers when the trial took place, but it took place before Charters DCJ who remanded the applicant and his co-offender, McNamara, for sentence. Meanwhile, the applicant had also appeared before Hammond CJDC on District Court indictment 396 of 2000, when he pleaded guilty to a charge that:
"On 5 August 1999 at Westminster [he] stole from Carolyn Merle Mutzig, with actual violence, a bag containing money, the property of Carolyn Merle Mutzig."
21 It is apparent from the indictment that this offence had been committed during the course of the crime spree which had brought the applicant before Groves DCJ in December 1999.
22 At the risk of some repetition, it might be a fair summary of the applicant's criminal activities to say that between 22 June 1999 and 7 August 1999 he committed nine offences, seven of which he admitted and in respect to which he pleaded guilty before Groves DCJ and two of which he did not admit, one being the armed robbery (14 July 1999), tried before Hasluck J in October 2000, and the other the robbery of Ms Mutzig (5 August 1999), to which he ultimately pleaded guilty before Hammond CJDC in, I think, May 2001. Then, in December 1999, while under the intensive supervision order made by Groves DCJ, he committed the three offences of which he was convicted on indictment 709 of 2000, after trial before Charters DCJ. That is a total of 12 offences over about six months.
23 The three offences tried before Charters DCJ constituted a breach of the intensive supervision order made by Groves DCJ, so that the applicant
(Page 9)
- came to be resentenced in respect to those offences and for the offences of which he was convicted after trial before Charters DCJ, and for the armed robbery offence to which he had pleaded guilty before Hammond CJDC. All these matters were referred to Charters DCJ for sentence and the sentences were passed on 5 June 2001. At that time, of course, the applicant was serving the 6-year sentence imposed by Hasluck J, which commenced on 8 March 2000.
24 As to the facts of the offences the subject of the indictment tried before Charters DCJ, the applicant and McNamara, his accomplice, drove a stolen vehicle to two houses which they burgled, they being the premises of Ms Ogonowska and Mrs Bevilacqua. There is no information in the papers as to the value of property taken, but in his sentencing remarks, Charters DCJ noted that the property was recovered when the car in which it was being carried crashed in a pursuit and the applicant and his co-offender ran off. As to the offence committed against Ms Mutzig on 5 August 1999, the applicant was in a parked stolen car with an associate with a view to committing a robbery. The applicant's associate got out of the car and went into premises where the applicant and the associate had observed a woman at a counter with cash in her hand and a bag over her shoulder. The applicant's associate forcibly removed the bag, ran to the car which the applicant then drove away. Property valued at $635 was taken and none of it was recovered. The stolen car was later found abandoned. A victim impact statement was noted by his Honour to reveal "quite graphically the trauma experienced by her".
25 The applicant was born on 6 October 1980, so that he was between the ages of 19 and 20 when he committed the offences with which this Court is concerned and is now aged 21. There is a history of serious offending going back to the age of 14. When the applicant came before Groves DCJ in December 1999 he already had 58 convictions, including 23 for burglary and unlawfully on premises, eight for stealing motor vehicles, three for reckless driving, five for offences of violence, including assault, assault to prevent arrest, resisting arrest, violent or offensive behaviour under the Government Railways Act, numerous driving without a licence offences, several offences for failing to stop, including failing to stop after an accident, three stealing offences, breach of bail and possession of prohibited drugs. Many of these offences were punished by community based orders of various kinds, but there are a total of 17 sentences of youth detention in 1996 and 1997 of up to 6 months each. A number of these sentences were ordered to be served cumulatively. It is hard to work out how much time the applicant had spent in detention before commencing the 6-year sentence imposed by
(Page 10)
- Hasluck J, but the applicant was obviously no stranger to the custodial regime.
26 Putting drug addiction to one side, there is nothing exceptional in the applicant's background to explain his criminal behaviour. By the time the applicant came to be tried before Charters DCJ on the two counts of aggravated burglary and one count of stealing the motor vehicle, the applicant was a persistent repeat offender who had not been deterred by his many appearances before the courts since the age of 14. He had not taken advantage of the many chances he had been given to mend his ways and had plainly taken little or no notice of the stern warning delivered by Groves DCJ when imposing the intensive supervision orders. As has been mentioned, it was only a matter of days after those orders were made that the applicant committed the two aggravated burglaries on the homes of Ms Ogonowska and Mrs Bevilacqua and stole Mr Polovic's motor vehicle.
27 Charters DCJ resentenced the applicant for the offences in respect to which he had been placed on intensive supervision by Groves DCJ by sentencing him to 1½ years' imprisonment in respect to count (1) on that indictment (2032 of 1999) and 1 year's imprisonment concurrent in respect to each of the other offences on that indictment. Lesser concurrent terms were imposed with respect to the offences the subject of the s 32 notice, so that in respect to all of the offences previously dealt with by Groves DCJ, his Honour imposed an aggregate term of 1½ years. In my opinion, each of the individual sentences and the aggregate term were clearly within the exercise of a sound sentencing discretion. In my opinion, they were lenient sentences.
28 In respect to the two counts of aggravated burglary and the one count of stealing a motor vehicle in respect to which the applicant had been tried before Charters DCJ, his Honour imposed an aggregate term of 2½ years made up of concurrent terms of 2½ years in respect of each of the two aggravated burglaries and 2 years concurrent in respect of the stealing of the motor vehicle. These concurrent terms were ordered to be served cumulatively upon the aggregate sentence of 1½ years referred to above. In respect to the remaining conviction entered by Hammond CJDC for stealing with violence, his Honour passed a sentence of 1 year's imprisonment concurrent with all other sentences. In respect of these 14 offences, therefore, the total aggregate term was 4 years' imprisonment. In my opinion, this was well within the exercise of a sound sentencing discretion. Indeed, I would regard a number of the individual sentences and the aggregate as lenient. However, this aggregate term was ordered to be served cumulatively upon the 6-year term imposed by Hasluck J.
(Page 11)
29 By his grounds of appeal, the applicant pleads that the total effective sentence of 4 years cumulative upon the 6 years was manifestly excessive, having regard to several matters, including "the applicant's lesser role in the commission of the offences" and "the fact that some items of property that were taken were recovered" and that "the applicant did not cause bodily injury to any complainant". Counsel for the applicant, Mr Hanbury, did not press these matters, and rightly so. The sentences received by the applicant's co-offender, McNamara, could not have given rise to any legitimate sense of grievance on the part of the applicant. In relation to the offences of stealing with violence, whereas the applicant was sentenced to 12 months' imprisonment to be served concurrently with the other sentences McNamara was sentenced to 18 months' imprisonment, to be served cumulatively with his other sentences. In respect to the two offences of aggravated burglary, the applicant and McNamara were both sentenced to 2½ years' imprisonment. I am not persuaded that the applicant's role in respect to these offences was substantially less culpable than that of McNamara. The applicant and McNamara were of similar ages and had similar background, and much the same history of drug abuse. There is little by way of mitigation in the fact that the property the subject of the burglaries on the homes of Mrs Ogonowska and Mrs Bevilacqua was recovered: Carreras v R (1992) 60 A Crim R 402 per Murray J at 411. It is not as if they gave the property back. Whilst the doing of bodily harm in the course of committing an offence may aggravate that offence, I am not persuaded that the mere fact that bodily harm was not done is a positive mitigating factor.
30 The applicant's main complaint, and the one which was pressed by Mr Hanbury, arises from the order that the aggregate sentence of 4 years is to be served cumulatively upon the 6-year sentence.
31 The question for this Court is whether a sentence of 10 years' imprisonment is manifestly excessive for the totality of the criminal conduct in respect to which the individual sentences were passed after paying full regard to matters personal to the applicant.
32 The only significant mitigating factor arising from the applicant's personal circumstances is his age. He is still a young man and the courts recognise that lengthy sentences are harder for young people to serve. But against the applicant's young age must be placed his years of persistent offending from which he had not been deterred by the criminal sanctions imposed on him in the past. There was no sign of any desire to turn over a new leaf or any remorse. Having regard to the applicant's long history
(Page 12)
- of offending and the nature of his past criminal conduct, it cannot be said that the offences in respect to which Charters DCJ had to sentence him were out of character, or that he is a young man who may have temporarily lost his way. It is to be observed that the applicant had committed 16 burglary offences before his 15th birthday.
33 The armed robbery offence for which the applicant was sentenced to 6 years' imprisonment by Hasluck J was serious, involving personal violence and the use of a knife, and that sentence was lenient. As I have already observed, the individual sentences and the aggregate making up the 4 years arrived at by Charters DCJ were also lenient. It was appropriate to order cumulation because the latter offences were quite separate from the armed robbery.
34 I think the stage had been reached with respect to this applicant where the dominant sentencing considerations were punishment, deterrence and the protection of the public. Whilst a cumulative term of 10 years is a heavy sentence for a young man of 20, I am not, by any means, persuaded that it is manifestly excessive in this case. A lesser sentence would not be adequate to reflect the gravity of the applicant's conduct viewed as a whole and the need for deterrence and protection of the community from the kind of criminal activity in which he persistently engages.
35 I would grant the application for leave to appeal, but dismiss the appeal.
36 STEYTLER J: I have read the reasons for decision of Anderson J. I am in entire agreement with them. I would, for those reasons, grant the application for leave to appeal but dismiss the appeal. There is nothing I wish to add.
8
1