Hume v The Queen
[2000] WASCA 306
•25 OCTOBER 2000
HUME -v- THE QUEEN [2000] WASCA 306
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2000] WASCA 306 | |
| COURT OF CRIMINAL APPEAL | |||
| Case No: | CCA:148/2000 | 7 SEPTEMBER 2000 | |
| Coram: | PIDGEON J IPP J WHEELER J | 25/10/00 | |
| 8 | Judgment Part: | 1 of 1 | |
| Result: | Leave to appeal against sentence refused | ||
| PDF Version |
| Parties: | GUBBY DOUGLAS HUME THE QUEEN |
Catchwords: | Criminal law and procedure Appeal against sentence Stealing motor vehicle aggravated by reckless driving Wilful damage to property Stealing fuel Reckless driving Driving under suspension Failure to stop Unlawfully on premises Range of sentences commonly imposed Seriousness of offending Higher end of the scale Proportionality Turns on own facts |
Legislation: | Criminal Code 1913 (WA), s 371A, s 378, s 378(2)(a), s 426(2), s 444, s 465(2) Police Act 1892 (WA), s 66(13) Road Traffic Act 1974 (WA), s 49, s 53, s 61 Sentencing Act 1995, s 32 |
Case References: | Bropho v The Queen, unreported; CCA SCt of WA; Library No 940197; 14 April 1994 Colbung v The Queen [1999] WASCA 138 Dewar v The Queen, unreported; CCA SCt of WA; Library No 970662; 2 December 1997 Howard v The Queen, unreported; CCA SCt of WA; Library No 960638; 7 November 1996 McColgan v The Queen, unreported; CCA SCt of WA; Library No 970035; 6 February 1997 Pearce v The Queen (1998) 194 CLR 610 McKenna v The Queen (1992) 7 WAR 455 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : COURT OF CRIMINAL APPEAL CITATION : HUME -v- THE QUEEN [2000] WASCA 306 CORAM : PIDGEON J
- IPP J
WHEELER J
- Applicant
AND
THE QUEEN
Respondent
Catchwords:
Criminal law and procedure - Appeal against sentence - Stealing motor vehicle aggravated by reckless driving - Wilful damage to property - Stealing fuel - Reckless driving - Driving under suspension - Failure to stop - Unlawfully on premises - Range of sentences commonly imposed - Seriousness of offending - Higher end of the scale - Proportionality - Turns on own facts
Legislation:
Criminal Code 1913 (WA), s 371A, s 378, s 378(2)(a), s 426(2), s 444, s 465(2)
Police Act 1892 (WA), s 66(13)
Road Traffic Act 1974 (WA), s 49, s 53, s 61
Sentencing Act 1995, s 32
(Page 2)
Result:
Leave to appeal against sentence refused
Representation:
Counsel:
Applicant : Mr E J Myers
Respondent : Mr R E Cock QC
Solicitors:
Applicant : Legal Aid Commission
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
Colbung v The Queen [1999] WASCA 138
Dewar v The Queen, unreported; CCA SCt of WA; Library No 970662; 2 December 1997
Howard v The Queen, unreported; CCA SCt of WA; Library No 960638; 7 November 1996
McColgan v The Queen, unreported; CCA SCt of WA; Library No 970035; 6 February 1997
Pearce v The Queen (1998) 194 CLR 610
Case(s) also cited:
McKenna v The Queen (1992) 7 WAR 455
(Page 3)
1 PIDGEON J: I agree with the reasons of Wheeler J and the orders proposed.
2 IPP J: I have read the reasons to be published by Wheeler J. I am in agreement with those reasons and have nothing further to add.
3 WHEELER J: This is an application to extend time within which to appeal against sentence, heard together with the application for leave to appeal against sentence. The application to extend time was granted by the court at the hearing of this matter on 7 September 2000. The notice seeking leave to appeal was filed only 14 days out of time, and the applicant's solicitor has deposed that he wished to consider the transcript of the learned sentencing Judge's remarks prior to lodging an appeal. That transcript was requested on the day following the applicant's sentencing but did not become available until some seven days after the time for appeal had expired. In those circumstances, and in the absence of any opposition from the respondent, the court considered it was appropriate to grant leave to extend time within which to appeal against sentence.
4 The appellant came to be sentenced on one count on indictment of stealing a motor vehicle aggravated by reckless driving, and eleven other charges which were before the court pursuant to a notice under s 32 of the Sentencing Act. I set out below in a table, the charges faced by the appellant, the maximum penalty available in respect of each, and the sentence imposed by the learned sentencing Judge.
Offence | Maximum Penalty | Sentence Imposed |
| Stealing motor vehicle aggravated by reckless driving Criminal Code, s 371A, s 378(2)(a) | 8 years' imp | 6 years' imp + 5 year disqualification |
| 3 x wilful damage to property Criminal Code, s 444, s 465(2) Damage value - $3,000, $800 and $600 | $12,000 or 3 years' imp each | 3 months' imp concurrent |
| 1 x stealing fuel Criminal Code, s 378, s 426(2) Value - $40.38 | 2 years' imp or $8000 | 1 month imp concurrent |
(Page 4)
| 2 x reckless driving Road Traffic Act, s 61 | $1,200 or 6 months' imp each (second offences) | 2 x 6 months cum, concurrent with 6 years + 12 months' disqualification |
| 2 x driving under suspension Road Traffic Act, s 49 | $1,000 to $2,000 and/or 18 months' imp + suspension 9 months - 3 years | 2 x 6 months cum, concurrent with 6 years + 12 months' disqualification |
| 2 x failing to stop when called upon Road Traffic Act, s 53 | $600 x 2 | $300 x 2 |
| Unlawfully on premises Police Act, s 66(13) | $1,000 or 12 months imp | 3 months' imp concurrent |
5 The total effective sentence imposed was 6 years' imprisonment with eligibility for parole together with motor driver's licence disqualifications amounting to 7 years.
6 The submissions made on behalf of the appellant begin with the proposition that what his counsel called "the offence", being the offence charged in the indictment, is one of the more serious cases of its kind but not near the worst case, so that his Honour's starting point should not have been the maximum sentence, or a sentence close to it. It is then said that the fast-track plea of guilty and other mitigatory factors such as youth and remorse should have led the learned sentencing Judge to a discount of the order of 35 per cent. It is inherent in that submission that it is appropriate to regard the whole of the conduct with which the appellant was charged as an "almost continuous course of conduct" as the appellant puts it, so as to call for concurrent sentences in any event. Although the applicant cannot point to a particular error made by the sentencing Judge in his remarks, it is submitted in the circumstances the length of the sentence necessarily implies error.
7 The facts of the matter, so far as they can be gleaned from the transcript of the applicant's sentencing, which unfortunately contains a number of indistinct passages, are as follows.
(Page 5)
8 At about 3.00 pm on Sunday, 9 January, the applicant and another went to a Holden Statesman vehicle parked in a driveway in Perth. Finding the keys in the ignition, the applicant stole the vehicle and drove it to Bunbury, where he and his co-offender refuelled it at a service station, failing to pay for the fuel. He drove the vehicle to Collie where it was involved in a high-speed pursuit with police. During this pursuit, the vehicle reached speeds of up to 180 kph and travelled through a red traffic light at about 80 kph. The appellant overtook several vehicles and due to the number of onlookers and vehicles, police aborted the pursuit because of concerns for public safety.
9 At about 7.45 pm (it is not clear how long this was after the Collie pursuit) he became involved in a second high-speed pursuit, having been sighted on Coalfields Highway in Worsley. The police activated emergency flashing lights and siren and the applicant accelerated to approximately 200 kph onto Southwest Highway. He was pursued by two marked pursuit vehicles through Brunswick town site and on to a number of other roads, including Southwest Highway. The vehicle reached speeds of up to 220 kph and at one point the applicant disobeyed a stop sign at speed. The applicant drove for a time on the incorrect side of the road into the path of on-coming vehicles at about 150 kph in an attempt to evade police.
10 Some part of the course of the pursuit was through Bunbury town site and it was at this time that the passenger threw objects at the pursing police vehicles, although the applicant said that due to his concentration on his driving, he was not aware of this at the time. The applicant was followed to Bussell Highway, where he drove again at speed, then driving off the highway and on to a number of what might be called suburban streets, driving through the carpark of a shopping centre and through a pedestrian walkway. Losing control of the vehicle in the vicinity of a primary school, he collided with the front of a police vehicle. The pursuit then continued through a number of other streets until the applicant failed to negotiate a right turn and went into the driveway of a home, through a small side fence. He then accelerated through two asbestos property dividing fences in an attempt to get away from police, but came to a halt when he collided with a trailer and motor car parked in the rear yard of a house. He and his passenger got out of the car and ran from police but he was apprehended not far away hiding in a dog kennel in the rear yard of a house.
11 In mitigation, the court was told that he had consumed some amphetamines on the day, and had an argument with his de facto wife.
(Page 6)
- He decided to steal the car to go to Bunbury because his father was in Bunbury and he was concerned that his father was in danger from some other people. It was said that he was remorseful and it was noted that he had admitted his guilt, participated in a videotaped record of interview and pleaded guilty at the first opportunity. He was at the time of sentencing, 21 years of age.
12 His father had been an alcoholic for most of the applicant's youth and the entire family had suffered from that. Other relatives also had problems with alcohol and he had observed and suffered from drink related violence. As a result of his disturbed family circumstances, he had had poor school attendance and was effectively illiterate. Although his family history had caused him to stay away from alcohol, he had unfortunately turned to other drugs such as amphetamines, marijuana and heroin. While in prison awaiting sentence, having not sought bail because he thought that he would be unable to cope with remaining offence free at that time, he had engaged in full time education in mathematics, English and painting. He had family support, having support from his mother and from his father who apparently having given up alcohol.
13 However, it should also be noted that he had a very significant criminal record, particularly in relation to driving whilst legally disentitled, reckless driving, and other breaches of road traffic laws. The record demonstrated that his most recent offences were far from an uncharacteristic aberration, but were, rather, manifestations of what had been a continuing attitude of disobedience for the law and disregard for the safety of others. Additionally, while credit must necessarily be given for the plea of guilty, this was a case in which, the applicant having been apprehended almost immediately following the driving, a conviction may well have been inevitable in any event and in such cases the discount may be less substantial.
14 In relation to the offence of stealing a motor vehicle aggravated by reckless driving, the court has observed that this 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": Franklyn J, Bropho v The Queen, unreported; CCA SCt of WA; Library No 940197; 14 April 1994.
15 Sentences in the range of four to six years have been imposed in respect of offences of this kind, where the court considers the driving to be a serious example of reckless driving towards the upper range of such conduct, even where a plea of guilty has been entered at the earliest
(Page 7)
- opportunity; see Howard v The Queen, unreported; CCA SCt of WA; Library No 960638; 7 November 1996, McColgan v The Queen, unreported; CCA SCt of WA; Library No 970035; 6 February 1997, Dewar v The Queen, unreported; CCA SCt of WA; Library No 970662; 2 December 1997and Colbung v The Queen [1999] WASCA 138. However, it appears to be more common for a starting point of the order of 6 years to be adopted, and for the ultimate sentence imposed to be of 4 to 5 years, depending upon the discount which is thought appropriate in the circumstances.
16 There are two reasons why I would not reach that view in this case that his Honour's starting point - or the effective sentence - was outside a range of sound discretionary judgment.
17 First, I would make the general observation that it is very difficult to compare offences of reckless driving. In particular, however bad the driving may be, it is always possible to imagine a worse case - higher speeds, or a longer pursuit, or contravention of a greater number of road traffic signs or traffic control lights or the like. The particular circumstances of each offence will be of considerable importance, and an examination of the cases to which I have referred reveals that, even between serious offences characterised as being at the higher end of the scale, there is significant variation.
18 In this case, the circumstances justified his Honour's characterisation of the offence as "extraordinarily dangerous and ridiculously reckless driving at the higher end of the scale". The speeds involved, the fact that the pursuit was prolonged, the driving on the wrong side of the road for a period, the fact that the driving took place through suburban streets, the fact that the pursuit apparently extended over a considerable distance, and the circumstance that the applicant lost control of the vehicle on two occasions so as to collide with a police car and later so as to drive through a fence, together with the conclusion of the chase which resulted in his driving through more than one suburban backyard, suggests that even a starting point of 7 years would not have been unreasonable.
19 Next, it should be noted that there was not merely one offence for which the appellant came to be sentenced. His Honour rightly recognised in his sentencing remarks that it would have been open to him to structure an appropriate sentence either by making some of the sentences cumulative upon each other, or by imposing one sentence in respect of the stealing aggravated by reckless driving which was proportionate to the
(Page 8)
entirety of the criminality and imposing concurrent sentences in respect of the rest.
20 His Honour might have taken a starting point of 6 years' imprisonment for the offence set out in the indictment, and discounted it to 5 years by way of credit for the fast-track plea, and imposed the sentences in respect of the driving under suspension on what appear to have been two separate occasions, albeit on the same evening, cumulatively. That would have avoided any argument as to whether the starting point for a serious "offence" of stealing aggravated by reckless driving was too high.
21 Even in relation to some of the other offences, although they all formed part of one transaction in a sense, they nevertheless reflected deliberate decisions taken at different stages during the day and evening by the appellant and the totality of that offending required reflection in the sentence which was imposed. I would add that, having regard to the overlap in time between the offences, and the overlapping acts and omissions, this was not a case in which his Honour erred in the way indicated in Pearce v The Queen (1998) 194 CLR 610.
22 In my view, whether the sentence be structured by the imposition of a shorter sentence in respect of the offence charged in the indictment and the imposition of cumulative sentences in respect of some other offences, or by the imposition of the sentence which his Honour actually imposed, an effective sentence of 6 years' imprisonment is not to be considered as excessive or as out of proportion to the totality of the offending, even after allowance is made for the applicant's fast-track plea and for the other mitigating circumstances to which I have referred and which his Honour took into account. I would refuse leave to appeal against sentence.
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