Johnson v State of Western Australia
[2004] WASCA 136
•14 JUNE 2004
JOHNSON -v- STATE OF WESTERN AUSTRALIA [2004] WASCA 136
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2004] WASCA 136 | |
| COURT OF CRIMINAL APPEAL | |||
| Case No: | CCA:21/2004 | 14 JUNE 2004 | |
| Coram: | MURRAY J LE MIERE J JENKINS J | 14/06/04 | |
| 5 | Judgment Part: | 1 of 1 | |
| Result: | Leave to appeal refused | ||
| B | |||
| PDF Version |
| Parties: | DAMIEN RICHARD JOHNSON STATE OF WESTERN AUSTRALIA |
Catchwords: | Criminal law and procedure Sentencing Turns on own facts |
Legislation: | Sentencing Act 1995 (WA), s 80(1)(a), s 80(3) |
Case References: | Nil Herbert v The Queen (2003) 27 WAR 330 Hart v The Queen [2003] WASCA 265 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : COURT OF CRIMINAL APPEAL CITATION : JOHNSON -v- STATE OF WESTERN AUSTRALIA [2004] WASCA 136 CORAM : MURRAY J
- LE MIERE J
JENKINS J
- Appellant
AND
STATE OF WESTERN AUSTRALIA
Respondent
ON APPEAL FROM:
Jurisdiction : SUPREME COURT OF WESTERN AUSTRALIA
Coram : HASLUCK J
File Number : INS 40 of 2004
Catchwords:
Criminal law and procedure - Sentencing - Turns on own facts
(Page 2)
Legislation:
Sentencing Act 1995 (WA), s 80(1)(a), s 80(3)
Result:
Leave to appeal refused
Category: B
Representation:
Counsel:
Appellant : Mr P J M Sullivan
Respondent : Mr S E Stone & Mr D Lima
Solicitors:
Appellant : Paul Sullivan
Respondent : State Director of Public Prosecutions
Case(s) referred to in judgment(s):
Nil
Case(s) also cited:
Herbert v The Queen (2003) 27 WAR 330
Hart v The Queen [2003] WASCA 265
(Page 3)
1 MURRAY J: The applicant in this case was some 29 years of age when he came before this Court at first instance. He had a very bad record dating back to 1986 and a wide range of offences appear in the criminal history. There came a point on 21 June 2002 when he was before the Armadale Court of Petty Sessions and, for an offence of driving without an appropriate motor driver's licence (while under suspension) he was sentenced to a term of six months imprisonment, and for an offence of breach of bail, he was sentenced to a term of one month's imprisonment. The record says that those terms were imposed concurrently, as of course they were, because the service of those terms was suspended for a period of 18 months. So the term of suspension would expire, as I would calculate it, on 21 December 2003.
2 On 17 December 2003 he was involved in an incident which resulted in him being charged on indictment with making a threat with intent to prevent a person named Hume from doing an act he was lawfully entitled to do, which as it turns out was the recovery of his wallet which had been stolen from him. A plea of guilty was made to that offence on 3 February 2004 in circumstances which were accepted by all at sentencing to amount to the earliest opportunity to make that plea to that offence. I need not for present purposes discuss the process of indictment and the entry of a nolle prosequi in relation to an earlier indictment, which result in that being the proper view of the outcome in relation to the making of the plea of guilty to the offence currently before the Court.
3 On 27 February 2004 the applicant was sentenced to a term of two years imprisonment for the threat with intent, to a term of six months cumulative for the offence of driving without the appropriate motor driver's licence, and to one month cumulative for the offence of breach of bail. Parole eligibility was ordered.
4 The application for leave proceeds on grounds which firstly challenge the length of the term of two years imprisonment in relation to the threat offence. The first ground suggests that the sentencing Judge failed to take into account that the applicant was a close relative of the female who grabbed the complainant's wallet and that he acted instinctively to protect her when she was pursued by the complainant. This ground seems to me to be, with respect, entirely without merit.
5 The circumstances were, it would appear, that the applicant and another, originally a co-offender, with a woman passenger, in a car, followed the complainant to his home, or a private address where his vehicle stopped in the driveway, thinking, it would seem, that the vehicle
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- had been stolen from the applicant's male companion, a person named Cottee. When the vehicle stopped these two got out of their car and approached the complainant, making the allegation of theft of the motor vehicle and examining the motor vehicle to determine whether or not their allegation was soundly based.
6 While they were doing that their female companion got out of the car, went to the complainant's vehicle, reached into the front of the vehicle, stole the complainant's wallet from the vehicle and went back to the car in which she had come to the place. This was seen by the complainant, who shouted at her to return the wallet and followed her up.
7 The applicant, seeing that, threatened the complainant and used an axe to back up the threat. The axe was taken from beside the driver's seat of the vehicle in which he had been. So the nature of the threat was serious and the circumstances were serious and inexcusable, and to my mind the fact that the applicant was related to the woman concerned and acted on the spur of the moment provides no mitigation for the behaviour or for the proper view about the seriousness of the offence committed.
8 Then, in relation to the sentence of two years imprisonment, it is submitted that there was a failure to attach adequate significance to the fact that the applicant was 15 months into the period of 18 months during which the service of the earlier terms of imprisonment had been suspended. It is sufficient, in my opinion, to say that that fact provides no mitigation of punishment whatsoever. I am of the view that a term of two years imprisonment for the threat, made in the circumstances of its making as I have briefly outlined them, is a term very much in line with that which might ordinarily be expected in such a case in all the circumstances, both aggravating and mitigatory, in particular the plea of guilty.
9 The remainder of the application is concerned with what is put as a reference to the totality principle, by which it is submitted that the decision of the Court to impose the further terms of six months and one month's imprisonment upon the breach of the order of suspension, cumulative upon the two years for the threat, resulting in an aggregate term of two years and seven months, offends against the proper application of the totality principle in this case.
10 The terms of six months and one month respectively for the earlier offences were imposed, as the law generally requires, under the Sentencing Act 1995 (WA), s 80(1)(a) and it was for his Honour to
(Page 5)
determine whether it was proper, having ordered under s 80(3) that those terms be served, to determine whether they were to be served concurrently or cumulatively upon the sentence which his Honour was otherwise imposing.
11 They were entirely separate and distinct offences, not only from each other but from the sentence for the applicant's threatening behaviour. In my opinion, it was proper and highly appropriate, with respect to his Honour, that those terms should have been ordered to be served cumulatively and the resultant aggregate term to my mind can be described as being in no way excessive having regard to the total offending involved, and can be in no way regarded as being disproportionate to the seriousness of that offending in its totality.
12 There are no grounds, in my view, upon which this Court would be entitled to reduce the term upon the basis that his Honour the sentencing Judge failed properly to apply the totality principle in making the orders for accumulation of service which he did. I would refuse leave to appeal.
13 LE MIERE J: I too would refuse leave to appeal for the reasons given by his Honour the presiding Judge, and have nothing to add.
14 JENKINS J: I agree, and I have nothing further to add.
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