Koryiom v The State of Western Australia
[2011] WASCA 226
•20 OCTOBER 2011
KORYIOM -v- THE STATE OF WESTERN AUSTRALIA [2011] WASCA 226
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2011] WASCA 226 | |
| THE COURT OF APPEAL (WA) | |||
| Case No: | CACR:76/2011 | 20 SEPTEMBER 2011 | |
| Coram: | McLURE P MAZZA J | 20/10/11 | |
| 6 | Judgment Part: | 1 of 1 | |
| Result: | Leave to appeal refused Appeal dismissed | ||
| B | |||
| PDF Version |
| Parties: | PETER JONGLIEI KORYIOM THE STATE OF WESTERN AUSTRALIA |
Catchwords: | Criminal law Appeal against sentence Manifest excess Totality Turns on own facts |
Legislation: | Criminal Code (WA), s 445 Sentencing Act 1995 (WA), s 32, s 84F Weapons Act 1999 (WA), s 8(1), s 8(1)(a), s 8(1)(b) |
Case References: | Nil |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : KORYIOM -v- THE STATE OF WESTERN AUSTRALIA [2011] WASCA 226 CORAM : McLURE P
- MAZZA J
- Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram : O'NEAL DCJ
File No : IND 123A of 2010
Catchwords:
Criminal law - Appeal against sentence - Manifest excess - Totality - Turns on own facts
(Page 2)
Legislation:
Criminal Code (WA), s 445
Sentencing Act 1995 (WA), s 32, s 84F
Weapons Act 1999 (WA), s 8(1), s 8(1)(a), s 8(1)(b)
Result:
Leave to appeal refused
Appeal dismissed
Category: B
Representation:
Counsel:
Appellant : Mr S Watters
Respondent : No appearance
Solicitors:
Appellant : Holgate Legal
Respondent : Director of Public Prosecutions (WA)
Case(s) referred to in judgment(s):
Nil
(Page 3)
1 McLURE P: This is an application for leave to appeal against sentence.
2 The appellant was convicted on 5 April 2011 on his plea of guilty of breaching a conditionally suspended imprisonment order imposed by Groves DCJ on 5 August 2010. Groves DCJ sentenced the appellant to imprisonment for 6 months, suspended for 12 months, for two counts of riotous assembly and damage to property and two counts of riotous assembly and damage to property by fire.
3 The four counts were committed in the early hours of Monday 30 March 2009. The appellant and others went to a house in Balga. Members of the group smashed the windows of the house and a motor vehicle. The appellant did so using a stone or brick. Members of the group also set fire to a further motor vehicle. Shortly afterwards the appellant and others went to a house in Alexander Heights. Members of the group smashed windows of the house and three motor vehicles. One of the vehicles was set alight.
4 On 15 April 2011, the appellant appeared in the District Court to be dealt with for the breach. O'Neal DCJ made an order under s 84F of the Sentencing Act 1995 (WA) requiring that the appellant serve the term of imprisonment of 6 months that had been suspended. This sentence was ordered to be served cumulatively with the sentences referred to below.
5 On 5 April 2011, the appellant was also convicted on his plea of guilty of 12 charges the subject of a notice under s 32 of the Sentencing Act. The convictions were for two charges of obstructing public officers, one charge of carrying an article with intent to cause fear, one charge of disorderly behaviour in public, seven charges of breach of an intensive supervision order and one charge of breach of bail. The sentences imposed for the offences the subject of the s 32 notice are as follows:
(1) Obstructing public officers - 6 months' imprisonment, cumulative.
(2) Carrying an article with intent to cause fear - 6 months' imprisonment, cumulative.
(3) Disorderly behaviour in public - $500 fine.
(4) Obstructing public officers - 2 months' imprisonment, concurrent.
(5) Breach of intensive supervision order - 3 months' imprisonment, concurrent.
(Page 4)
- (6) Breach of intensive supervision order - 3 months' imprisonment, concurrent.
(7) Breach of intensive supervision order - 3 months' imprisonment, concurrent.
(8) Breach of intensive supervision order - 3 months' imprisonment, concurrent.
(9) Breach of intensive supervision order - 3 months' imprisonment, concurrent.
(10) Breach of intensive supervision order - 3 months' imprisonment, concurrent.
(11) Breach of intensive supervision order - 3 months' imprisonment, cumulative.
(12) Breach of bail - 1 month's imprisonment, cumulative.
6 The sentencing judge imposed a total effective term of 22 months' imprisonment.
7 The appellant was aged 23 at the time of sentencing. He was born in Sudan and moved to Kenya with his family when he was 10. The pre-sentence report notes that the appellant experienced traumatic events during his childhood. The appellant came to Western Australian in 2006. He completed part of year 11 before leaving to obtain employment. However, he had been unemployed since 2008.
8 The appellant relies on two grounds of appeal. He contends first, that the sentence of 6 months' imprisonment imposed in respect of offence 2 on the section 32 notice is manifestly excessive and secondly, that the total effective sentence infringes the first limb of the totality principle.
Manifest excess
9 Offence 2 on the s 32 notice was for a breach of s 8(1)(b) of the Weapons Act 1999 (WA). The facts of that offending are as follows. At about 7.00 pm on Saturday 28 August 2010, the appellant was at the Midland Railway Station. He was spoken to by Public Transport Authority officers about a disturbance at the train station. The appellant was searched. The search uncovered a kitchen knife tucked into the front of the appellant's pants. The knife, including handle, was approximately
(Page 5)
- 27 cm long. When questioned by police, the appellant said he carried the knife for self-protection after being 'mobbed' a week before. This offence was committed just over three weeks after the appellant had been sentenced by Groves DCJ to the conditionally suspended term of imprisonment.
10 The appellant had three prior convictions for breaching s 8(1) of the Weapons Act. Those offences had been the subject of a 12-month intensive supervision order imposed on the appellant on 29 July 2009 (the ISO) which had been breached and for which the appellant was resentenced by O'Neal DCJ. The first offence the subject of the ISO (numbered 5 in the s 32 notice) was that of carrying an article with intent to injure contrary to s 8(1)(a) of the Weapons Act. The facts of that offence are as follows. At about 3.00 am on Sunday 9 March 2008, the appellant was in the company of five other people at the Burswood Entertainment Complex. The group was walking through a tunnel when they encountered the victim and two of his friends. There was a short conversation and a fight ensued. The victim was punched and kicked in the head by members of the group, including the appellant. The victim's injuries included bruising to his vocal cords, soft tissue damage to his throat and bruising to his face. The fight ended when an imitation firearm was produced by one of the victim's friends. The victim was left on the ground whilst the appellant and others chased one of the victim's friends. The appellant was carrying an 80 cm by 3 cm metal bar wrapped in black PVC tape which he was waving in an aggressive manner. The victim's friend was able to escape in a motor vehicle. The appellant threw the metal bar at the car but missed.
11 The third offence the subject of the ISO (numbered 7 in the s 32 notice) was for possession of an article with intent to injure, contrary to s 8(1)(a) of the Weapons Act. The facts are as follows. At about 10.00 am on 10 May 2009, the appellant attended at a house in Balga. He opened a sliding lock to the closed front driveway gate. The appellant entered the driveway, relocked the gate and fell asleep on the porch. The appellant did not know the occupant and the police were called. The police arrived to find the appellant still asleep on the porch. He stood up and walked towards police. When asked what was in his pockets, the appellant produced a 4 inch kitchen knife and raised it in the air. The appellant immediately threw the knife down and was handcuffed by police. A personal search uncovered three more kitchen knives in the appellant's jean pockets. The appellant admitted that he carried the knives for protection.
(Page 6)
12 The seventh offence the subject of the ISO (numbered 11 in the s 32 notice) was for possession of an article with intent to injure contrary to s 8(1)(a) of the Weapons Act. It appears this arose out of the facts giving rise to the sixth offence the subject of the ISO (unlawful damage contrary to s 445 of the Criminal Code (WA)). As part of a broader course of conduct on Sunday 24 August 2008, the appellant went into the kitchen of his home and retrieved a knife. He then ran towards the complainant, who defended himself with a dining room chair and managed to wrestle the knife away from the appellant.
13 Having regard to the appellant's prior convictions for weapons offences and the fact that he committed offence 2 shortly after being sentenced to the conditionally suspended imprisonment order, personal deterrence was a weighty sentencing consideration. There is no arguable basis for the claim that the sentence of 6 months is manifestly excessive.
Totality
14 The first limb of the totality principle requires that the total effective sentence bear a proper relationship to the overall criminality involved in all the offences, viewed in their entirety and having regard to the circumstances of the case, including those referable to the offender personally.
15 The sentencing judge expressly addressed matters of totality and concluded that a total sentence of 22 months' imprisonment properly represented the overall criminality of the appellant's offending. He ordered that the sentence commence from 7 December 2010, when the appellant was taken into custody.
16 It is not suggested that a term of immediate imprisonment was not the appropriate disposition. Clearly it was. Further, partial cumulation was inevitable. The total sentence is not disproportionate in all the circumstances. There is no arguable basis that the total sentence infringes the first limb of the totality principle. I would refuse leave to appeal and dismiss the appeal.
17 MAZZA J: I agree with McLure P.
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