Houlahan v The State of Western Australia

[2022] WASCA 85

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT  :   THE COURT OF APPEAL (WA)

CITATION:   HOULAHAN -v- THE STATE OF WESTERN AUSTRALIA [2022] WASCA 85

CORAM:   BUSS P

MAZZA JA

HEARD:   10 MARCH 2022

DELIVERED          :   19 JULY 2022

FILE NO/S:   CACR 163 of 2021

BETWEEN:   AARON HOULAHAN

Appellant

AND

THE STATE OF WESTERN AUSTRALIA

Respondent

ON APPEAL FROM:

Jurisdiction              :   DISTRICT COURT OF WESTERN AUSTRALIA

Coram:   BARBAGALLO DCJ

File Number            :   IND 756 of 2020

Catchwords:

Criminal law - Application for leave to appeal against sentence - Appellant convicted on his pleas of guilty of stealing a motor vehicle and fraud - Appellant convicted after trial of aggravated home burglary, stealing a motor vehicle and recklessly driving a motor vehicle to escape police pursuit - Whether individual sentences on counts 1, 2 and 9 were manifestly excessive - Whether total effective sentence of 5 years' imprisonment infringed both limbs of the totality principle

Legislation:

Criminal Code (WA), s 371A, s 378, s 401(2)(a), s 409(1)(c)
Road Traffic Act 1974 (WA), s 49AB(1)(c), s 60(1A)(b)
Sentencing Act 1995 (WA), s 9AA

Result:

Leave to appeal refused on grounds 1 and 2
Appeal dismissed

Representation:

Counsel:

Appellant	:	P W Catalano
Respondent	:	No appearance

Solicitors:

Appellant	:	Paul Catalano Legal
Respondent	:	Director of Public Prosecutions (WA)

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

Abraham v The State of Western Australia [2020] WASCA 192

Bedford v Binnekamp [2021] WASC 299

Burrows v The State of Western Australia [2014] WASCA 147

Eldridge v The State of Western Australia [2020] WASCA 66

Garlett v The State of Western Australia [2016] WASCA 80

Jackson v Mitchell [2019] WASC 372

Kabambi v The State of Western Australia [2019] WASCA 44

O'Reilly v Harris [2016] WASC 328; (2016) 78 MVR 273

The State of Western Australia v Popal [2020] WASCA 200

The State of Western Australia v Quartermaine [2021] WASCA 145

Winmar v The State of Western Australia [2016] WASCA 184

Worthington v The State of Western Australia [2016] WASCA 57

JUDGMENT OF THE COURT:

1. This is an application for leave to appeal against sentences imposed by Barbagallo DCJ on 17 August 2021 for five offences. 

2. On 10 August 2021, the first day of his scheduled trial, the appellant was convicted on his pleas of guilty of one count of stealing a motor vehicle and one count of fraud (counts 1 and 2).  On 14 August 2021, the appellant was convicted after trial of aggravated home burglary, a further count of stealing a motor vehicle and of recklessly driving a motor vehicle to escape a police pursuit (counts 7, 8 and 9). 

3. On 17 August 2021, the appellant was sentenced to the following terms of immediate imprisonment:

Count 1	Stealing a motor vehicle, contrary to s 371A and s 378 of the Criminal Code (WA) (the Code)	12 months
Count 2	Fraud, contrary to s 409(1)(c) of the Code	6 months
Count 7	Aggravated home burglary, contrary to s 401(2)(a) of the Code	2 years 6 months
Count 8	Stealing a motor vehicle, contrary to s371A and s 378 of the Code	15 months
Count 9	Reckless driving to escape police pursuit, contrary to s 60(1A)(b) and s 49AB(1)(c) of the Road Traffic Act1974 (WA)	18 months

1. Her Honour ordered that the terms of imprisonment on counts 1, 7 and 9 be served cumulatively and the sentences on counts 2 and 8 be served concurrently.  Thus, the total effective sentence was 5 years' imprisonment.[1]   The appellant was made eligible for parole and the total effective sentence was backdated to commence on 19 February 2019.  The appellant was also disqualified from holding a driver's licence for life.  No challenge is made to this order.

   [1] In her sentencing remarks, her Honour stated that the total effective sentence was 5 years 6 months' imprisonment.  This was erroneous.  The total effective sentence of 5 years' imprisonment is confirmed by the certificate of final outcome. 

2. The appellant seeks leave to appeal on two grounds.  Ground 1 alleges that the individual sentences on counts 1, 2 and 9 are manifestly excessive.  Ground 2 alleges, in substance, that the total effective sentence infringed both limbs of the totality principle.

3. For the reasons that follow, neither ground of appeal has a reasonable prospect of succeeding and the appeal should be dismissed.

The facts

1. Her Honour made the following findings of fact.[2] 

   [2] ts 445 - 449.

2. As to counts 1 and 2, between 1.00 am and 5.00 am on 4 February 2019, the victim's 2010 Mazda 3 sedan was stolen from his home in Kewdale during a burglary.  It was not alleged that the appellant had taken part in the burglary.  However, at 5.19 am, the appellant was driving the stolen vehicle.  He drove the vehicle to Midvale.  There, he filled up with fuel. He paid for the fuel, which cost $72.44, by fraudulently using the victim's debit card.  The police later located the Mazda 3, which had been damaged while in the appellant's custody.  The cost to repair the damage was $2,310.  A forensic examination of the vehicle located DNA matching the appellant's profile on the steering wheel. 

3. As to counts 7, 8 and 9, at about 2.00 am on 19 February 2019, the victim and his family were asleep in their home in Langford.  A motor vehicle, a Volkswagen Golf belonging to the victim, was parked at the front of the house.  The appellant broke into the house, most likely through a bedroom window, after removing a flyscreen using a pair of socks as gloves.  While in the house, he stole items of property including bank cards.  He removed the car keys to the Volkswagen Golf and then drove it from the house. 

4. At about 3.40 am, the appellant sped past an unmarked police car on South Street in Murdoch.  The police, having confirmed that the vehicle was stolen, activated their car's lights in order to pull the appellant over.  The appellant did not stop the vehicle.  The police then activated both lights and sirens, but the appellant accelerated away from the pursuing police car.  In order to evade the pursuing police car, the appellant accelerated and drove at speeds in excess of 45 km per hour over the speed limit.  At certain points along South Street he reached speeds of between 155 km per hour and 160 km per hour.  At one point, he stopped to allow a female passenger to get out of the vehicle, who ran off. 

5. The appellant turned right onto Stock Road, again driving at excessively high speed across a number of major intersections.  Eventually, he drove towards Fremantle along Preston Point Road and various other streets.  He then drove onto Canning Highway in the direction of Perth.  At times, he drove on the incorrect side of the road.  The appellant drove along Canning Highway at such a speed that the pursuing police car, which was travelling at 160 km per hour, could not keep up with the appellant. 

6. As the appellant drove towards Stock Road, police deployed a stinger device, which the appellant deliberately evaded.  He continued driving towards Perth, along Canning Highway, but then turned left.  Eventually the vehicle came to rest against a tree at the corner of Matheson and Collier Streets, Applecross. 

7. The appellant ran from the vehicle to avoid arrest.  After hiding in various locations, he was found by police in a skip bin, where he was arrested.

8. At his trial on counts 7, 8 and 9, the appellant claimed that he had not broken into the house.  He said that he did not know that the vehicle had been stolen and he did not drive the vehicle in the police pursuit.  Consistently with the jury's verdicts, her Honour rejected the appellant's version of events.

The appellant's personal circumstances

1. At the time of the offending, the appellant was 21 years old.  At the time of sentencing, he was 23 years old.

2. His parents separated when he was about 7 years old.  He was brought up by his mother and had a tumultuous relationship with his father.  As he grew older, the appellant developed antisocial behaviours and associations.  He was exposed to alcohol and illicit drugs at a young age.  At the age of 13 years he was introduced to methylamphetamine by an older male.  He was educated to year 9.[3]

   [3] ts 451 - 452.

3. Since the age of about 14, the appellant has frequently been in detention or imprisoned.  He has what her Honour described as 'a very lengthy and unenviable record of criminal offending'.[4]  On 25 January 2017, he was convicted as an adult in the Magistrates Court of 32 offences, including for offences of reckless driving to escape police pursuit, stealing a motor vehicle, fraud, aggravated home burglary, stealing, assault with intent to prevent arrest and aggravated assault occasioning bodily harm.  He was sentenced to a total effective term of immediate imprisonment of 2 years 9 months.

   [4] ts 453.

4. The appellant has support from his mother and older sister.  Her Honour was provided with a letter from a family friend offering him employment. 

The victim impact statements

1. Her Honour was provided with two victim impact statements which show that the victims of counts 1 and 2 and counts 7 and 8 suffered financially.  The victim of the aggravated home burglary stated that he and his family were frightened by what occurred. 

The sentencing remarks

1. Her Honour described the appellant's offending as 'very serious'.[5]  She emphasised the impact of the offending on the victims.  In respect of the pursuit by police, she noted that it lasted somewhere between six and 10 minutes and that he drove on suburban streets, often at extreme speeds.  Her Honour said that the appellant's driving posed a very real danger to others and showed a total disregard for other road users.[6]  Her Honour referred, in some detail, to the appellant's prior criminal history.  She found that the offending for which the appellant was to be sentenced showed 'a continuing and entrenched disobedience of the law in very serious ways'.[7]

   [5] ts 451.

   [6] ts 456.

   [7] ts 454.

2. Her Honour considered the contents of a letter written to her by the appellant.  She noted that the letter made no reference to the impact his offending had on his victims.[8] 

   [8] ts 454.

3. Her Honour noted that the appellant committed the offences, each of which was individually serious, over a period of 15 days in February 2019.  She described the aggravated home burglary as being particularly serious because the appellant had broken into the victim's home at night when people were actually in the house.  She also characterised the reckless driving offence as being particularly serious.[9]

   [9] ts 456.

4. Her Honour identified, as mitigating factors, the appellant's age and his pleas of guilty to counts 1 and 2. For these pleas, which were very late, her Honour gave a discount of 10%, pursuant to s 9AA of the Sentencing Act1995 (WA).[10]

   [10] ts 455.

5. Her Honour said there was nothing to indicate that the appellant was on the path to rehabilitation, although she accepted that he had been unable to participate in any rehabilitation program while awaiting trial.[11] 

   [11] ts 454.

Appellate sentencing principles

1. The relevant sentencing principles which apply to the grounds of appeal are well established and were recently stated by this court in Kabambi v The State of Western Australia.[12]  We adopt that statement of principles without repeating it.

   [12] Kabambi v The State of Western Australia [2019] WASCA 44 [21].

The appellant's submissions

1. Ground 1 alleges that the individual sentences for counts 1, 2 and 9 were manifestly excessive.  In respect of count 1, the appellant submitted that the sentence of 12 months' imprisonment for stealing a motor vehicle was excessive, having regard to the appellant's plea of guilty and the fact that the appellant's criminality was limited to driving the stolen vehicle to, and then from, the service station.  The sentence on count 2 was said to be manifestly excessive because it involved the one‑off use of a stolen debit card to purchase goods to the value of $72.44.  With respect to count 9, the appellant submitted that the sentence of 18 months' imprisonment was excessive having regard to the outcomes in cases said to be comparable.  It was said that the driving in the present case was not as bad as other cases.[13]  In support of this submission, the appellant referred to three decisions of single judges of the General Division, being O'Reilly v Harris;[14] Jackson v Mitchell;[15] and Bedford v Binnekamp,[16] and a decision of this court, The State of Western Australia v Popal.[17]

   [13] Appellant's case 8.

   [14] O'Reilly v Harris [2016] WASC 328; (2016) 78 MVR 273.

   [15] Jackson v Mitchell [2019] WASC 372.

   [16] Bedford v Binnekamp [2021] WASC 299.

   [17] The State of Western Australia v Popal [2020] WASCA 200.

2. In support of ground 2, it was submitted that a sentence of 5 years' immediate imprisonment or more for offending involving home burglary is usually reserved for cases where there are multiple burglary convictions or more serious related offending.[18]  In support of this proposition the appellant cited Burrows v The State of Western Australia;[19] Worthington v The State of Western Australia;[20] Garlett v The State of Western Australia;[21] Winmar v The State of Western Australia;[22] and The State of Western Australia v Quartermaine.[23]

   [18] Appellant's case 10.

   [19] Burrows v The State of Western Australia [2014] WASCA 147.

   [20] Worthington v The State of Western Australia [2016] WASCA 57.

   [21] Garlett v The State of Western Australia [2016] WASCA 80.

   [22] Winmar v The State of Western Australia [2016] WASCA 184.

   [23] The State of Western Australia v Quartermaine [2021] WASCA 145.

3. The appellant also submitted that the sentence was crushing, having regard to the fact that the appellant had already served 2 years 6 months in custody before trial and there was no opportunity for him, in that time, to undergo rehabilitation.  Further, having regard to the appellant's age, it was submitted that a sentence of 5 years' imprisonment was likely to engender a sense of hopelessness and inhibit the appellant's ability to rehabilitate himself.[24] 

   [24] Appellant's case 10 - 11.

Disposition

1. The maximum penalties for the offences are as follows. 

   (a)Aggravated home burglary: 20 years' imprisonment.

   (b)Stealing a motor vehicle: 7 years' imprisonment.[25]

   (c)Fraud: 7 years' imprisonment.

   (d)Reckless driving in a police pursuit: 5 years' imprisonment in circumstances where, because of the appellant's prior offending, he was subject to a mandatory minimum sentence of 6 months' imprisonment.

Ground 1

[25] Her Honour put to the prosecutor that s 378(2)(a) of the Criminal Code (WA) could operate to prescribe a maximum penalty of 8 years' imprisonment for count 8. The prosecutor acknowledged this, but said that, since it was not pleaded on the indictment, a maximum penalty of 7 years' imprisonment would apply (see ts 421). The appellant was sentenced on this basis.

1. As to count 1, the sentencing judge did not make a finding that the appellant's driving of the stolen vehicle was limited only to the period of time between when it was stolen (by someone else) and when it was filled with petrol.  On the facts as found by the sentencing judge, the appellant did not actually steal the vehicle, but shortly after it was stolen he took possession of it, drove it to the petrol station and remained in possession of it for some unspecified period.  He was found to be responsible for its damage.  The damage was considerable and caused financial loss and great inconvenience to the uninsured victim. 

2. While the appellant was entitled to some mitigation for his youth and dysfunctional upbringing, these mitigating factors had to be weighed with other sentencing factors arising from his criminal history.  The significant mitigating factor was the plea of guilty.

3. General and personal deterrence were important sentencing considerations.  So too was public protection, given the appellant's criminal history. Unfortunately, the appellant's prospects of rehabilitation appear, at the moment, to be limited.

4. No comparable cases were cited by the appellant, but the outcome in Abraham v The State of Western Australia[26] and the cases cited therein at [42] do not support the claim of manifest excess.

   [26] Abraham v The State of Western Australia [2020] WASCA 192.

5. The sentence imposed by her Honour was, having regard to all of the circumstances, including the appellant's plea of guilty, his dysfunctional upbringing and his youth, within the range of an appropriate exercise of the sentencing discretion, and was not manifestly excessive. 

6. As to the sentence imposed on count 2, having regard to all of the relevant circumstances, including the appellant's plea of guilty, his dysfunctional upbringing and his youth and the modest amount the appellant defrauded, the sentence of 6 months' immediate imprisonment was not manifestly excessive, bearing in mind that the appellant used the petrol he obtained by fraud to enable him to continue driving the stolen vehicle. 

7. As to the sentence imposed on count 9, the submissions of the appellant substantially understate the seriousness of the offence.  While the offence lasted between six and 10 minutes, it involved a very determined and sustained attempt to evade arrest.  He was driving a stolen car and at one point had a passenger in the vehicle.   In doing so, the appellant drove with extreme speed on a major highway and suburban streets in a manner which put the lives and safety of other road users in jeopardy.  The driving involved a selfish disregard for the safety of others.  Given the appellant's criminal history, personal deterrence and the protection of the public were important sentencing considerations.

8. The mitigation that was available to the appellant in respect of count 9 was limited to his youth and deprived background.  Given that he was convicted after trial, the appellant did not have the mitigation of a plea of guilty.

9. The comparable decisions cited by the appellant do not assist him.  The customary sentencing standards for an offence are to be found from the decisions of this court rather than the decisions of single judges in the General Division.  The only decision of this court cited by the appellant in support of the claim of manifest excess on count 9 is The State of Western Australia v Popal.  One case does not establish a customary sentencing range.  In any event, in Popal, the offender was sentenced after his guilty pleas for 11 offences, one of which (count 11) was an offence of driving recklessly to escape a police pursuit.  This court allowed the State's appeal against sentence, which included a ground that the sentence on count 11 was manifestly inadequate.  The circumstances of count 11 were more serious than in the present case, but the mitigating factors available to the offender in Popal were more favourable.  At first instance, the offender in Popal was sentenced to 6 months' imprisonment.  This court found this sentence to be manifestly inadequate and increased the sentence to 12 months' imprisonment, reduced from 2 years' imprisonment for totality.  The outcome in Popal does not point to implied error in the present case.

10. The sentence of 18 months' immediate imprisonment on count 9 was well within the range of an appropriate exercise of the sentencing discretion. 

11. There is no merit in the allegation that the individual sentences imposed for counts 1, 2 and 9 were manifestly excessive.  Ground 1 has no reasonable prospect of succeeding.  Leave to appeal on ground 1 should be refused.

Ground 2

1. As to ground 2, we will not repeat the maters referred to between [7] and [24] above.  Her Honour was correct to characterise the appellant's overall offending as very serious. 

2. We have considered the cases cited by the appellant in support of ground 2 and referred to at [27] above. It is unnecessary to analyse them individually. Each case involves an offender who committed a combination of offences which included, at least, an offence of burglary or aggravated home burglary. In each case, the ground of appeal raised issues of totality. The total effective sentences imposed at first instance or on appeal ranged from 4 years 8 months' immediate imprisonment (in Garlett) to 6 years 6 months' imprisonment (in Burrows and Worthington).  

1. Comparisons between these cases and the present case are problematic having regard to their different facts and circumstances.  This is particularly because the appellant's offending includes an offence of home burglary.  As recently stated by this court in Eldridge v The State of Western Australia,[27] there is no tariff for home burglary, whether aggravated or non‑aggravated, having regard to the great variation of circumstances in which such offences are committed and the personal circumstances of offenders.  In the end, each case depends upon its own facts and circumstances.  The comparable cases cited by the appellant in support of ground 2 do not assist the appellant. 

   [27] Eldridge v The State of Western Australia [2020] WASCA 66 [63].

2. In the present case, her Honour was correct to accumulate some of the sentences to properly reflect the appellant's overall criminality which encompassed five distinct offences in two separate incidents committed over a 15‑day period.  In our opinion, the total effective sentence of 5 years' immediate imprisonment, in all of the circumstances of the case, does not infringe the first limb of the totality principle.  The total effective sentence was an appropriate reflection of the appellant's overall criminality, having regard to all relevant circumstances and sentencing factors.  It was not unreasonable or plainly unjust.

3. Nor does the total effective sentence infringe the second limb of the totality principle.  The learned sentencing judge backdated the total effective sentence to take into account the 2 years 6 months the appellant had served in custody on remand.  The total sentence does not destroy any reasonable expectation of a useful life after release.  At the completion of the sentence, the appellant will still be a young man.  If, as he states in his letter to the sentencing judge, he wishes to genuinely reform, he will have ample opportunity to do so.

4. Ground 2 has no reasonable prospect of succeeding.  Leave to appeal on ground 2 should be refused.

Conclusion and orders

1. Neither of the grounds of appeal have a reasonable prospect of succeeding.  The appeal should be dismissed.  The orders that we would make are as follows:

   1.Leave to appeal is refused on grounds 1 and 2.

   2.The appeal is dismissed.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.

TW

Associate to the Honourable Justice Mazza

19 JULY 2022