Lesay v The State of Western Australia
[2011] WASCA 154
•15 JULY 2011
LESAY -v- THE STATE OF WESTERN AUSTRALIA [2011] WASCA 154
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2011] WASCA 154 | |
| THE COURT OF APPEAL (WA) | |||
| Case No: | CACR:48/2011 | 9 JUNE 2011 | |
| Coram: | McLURE P MAZZA J | 15/07/11 | |
| 8 | Judgment Part: | 1 of 1 | |
| Result: | Leave to appeal refused Appeal dismissed | ||
| B | |||
| PDF Version |
| Parties: | JOHN ANTONY LESAY THE STATE OF WESTERN AUSTRALIA |
Catchwords: | Criminal law Leave to appeal against sentence Criminal damage Criminal damage by fire Fraud Whether first limb of totality principle infringed Whether one transaction rule breached |
Legislation: | Criminal Appeals Act 2004 (WA), s 27(2) |
Case References: | Pearce v The Queen [1998] HCA 57; (1998) 194 CLR 610 R v Faithfull [2004] WASCA 39; (2004) 142 A Crim R 554 Roffey v The State of Western Australia [2007] WASCA 246 Walgar v The State of Western Australia [2007] WASCA 241 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : LESAY -v- THE STATE OF WESTERN AUSTRALIA [2011] WASCA 154 CORAM : McLURE P
- MAZZA J
- Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram : KEEN DCJ
File No : IND 925 of 2010
Catchwords:
Criminal law - Leave to appeal against sentence - Criminal damage - Criminal damage by fire - Fraud - Whether first limb of totality principle infringed - Whether one transaction rule breached
(Page 2)
Legislation:
Criminal Appeals Act 2004 (WA), s 27(2)
Result:
Leave to appeal refused
Appeal dismissed
Category: B
Representation:
Counsel:
Appellant : Ms F R Veltman
Respondent : No appearance
Solicitors:
Appellant : Thames Legal
Respondent : Director of Public Prosecutions (WA)
Case(s) referred to in judgment(s):
Pearce v The Queen [1998] HCA 57; (1998) 194 CLR 610
R v Faithfull [2004] WASCA 39; (2004) 142 A Crim R 554
Roffey v The State of Western Australia [2007] WASCA 246
Walgar v The State of Western Australia [2007] WASCA 241
(Page 3)
1 McLURE P: I agree with Mazza J.
MAZZA J:
Introduction
2 This is an application for leave to appeal against sentence. The appellant must satisfy the court that his proposed ground of appeal has a reasonable prospect of succeeding: s 27(2) of the Criminal Appeals Act2004 (WA).
3 On 6 December 2010, the appellant pleaded guilty on the first morning of a scheduled 8-day trial to four offences, being:
(1) On 25 August 2009 at Baldivis [the appellant] wilfully and unlawfully damaged or destroyed an automatic teller machine.
(2) On 25 August 2009 at Port Kennedy [the appellant] wilfully and unlawfully damaged or destroyed an automatic teller machine.
(3) On 25 August 2009 at Port Kennedy [the appellant] wilfully and unlawfully destroyed a motor vehicle, namely a Silver Toyota Avalon sedan, registration number 1CYZ 851.
And that the motor vehicle was destroyed or damaged by fire.
(4) Between 1 October 2009 and 10 November 2009 at Subiaco and elsewhere [the appellant], with intent to defraud, by deceit or fraudulent means gained a benefit, namely cash in the sum of $24,250, for [the appellant].
4 On 4 March 2011, the appellant was sentenced to 2 years and 6 months' immediate imprisonment on each of counts 1 and 2, and 12 months' immediate imprisonment on each of counts 3 and 4. His Honour ordered that the sentences on counts 1, 3 and 4 be served cumulatively. The total effective sentence imposed upon the appellant was 4 1/2 years' imprisonment. The appellant was made eligible for parole.
Ground of appeal
5 There is no challenge to the individual sentences. The appellant's ground of appeal, when read with the appellant's case, alleges a breach of the one transaction rule and the first limb of the totality principle.
The facts
6 There is no dispute as to the facts of the appellant's offending.
(Page 4)
7 In relation to counts 1, 2 and 3, the facts are as follows. In about mid-2009, the appellant evolved a plan to blow up ATMs in order to steal the money contained in them. Between 10 pm on 23 August 2009 and 6.30 am on 24 August 2009, a Toyota Avalon vehicle was stolen.
8 At about 1.23 am on 25 August 2009, the appellant and his 15-year-old son drove the stolen vehicle to an ATM at a shopping centre in Baldivis. The appellant was dressed in a white hooded coverall, a balaclava, and was wearing latex gloves. His son attempted, without success, to use a crowbar to gain access to the internal workings of the ATM. The appellant then placed half a stick of explosive with a detonator in the cash dispenser of the machine. He attempted to detonate the explosive, but it failed to properly activate, resulting in it exploding and causing the explosive material to disperse through the entire mechanism of the ATM. No money was taken from the machine, but it was damaged. The value of the damage was about $5,000 (count 1).
9 About an hour later, at approximately 2.40 am, the appellant drove to another ATM, this time at a shopping centre in Port Kennedy. He was dressed as before. Once again an attempt was made to gain access to the ATM with a crowbar. When that proved unsuccessful, an attempt was made using explosives and a detonator to blow the ATM open. As before, this attempt failed. The explosive material dispersed throughout the mechanism of the ATM, this time causing extensive damage, to the value of approximately $65,000 (count 2).
10 The appellant and his son then drove the stolen vehicle to a bushland reserve near the Port Kennedy Golf Club, where it was parked. The appellant poured petrol into the vehicle and set it on fire. The vehicle, which was worth about $10,000 and uninsured, was totally destroyed by the fire (count 3).
11 As to count 4, on 9 October 2009, the appellant applied for a loan from a company called Que Capital. In support of the application, the appellant produced a letter which purported to be from a company for whom the appellant had previously worked, which stated that he was entitled to a bonus of $28,750. The appellant later produced a second letter which purported to be from the appellant's former employer, stating that the bonus would be paid on 11 December 2009. On the strength of these letters, Que Capital lent the appellant $24,250. Neither letter was genuine. Both letters had been forged by the appellant.
(Page 5)
The appellant's antecedents
12 At the time he was sentenced, the appellant was 45 years old. He is the father of two children. Apart from minor traffic and drug convictions which were recorded in 2008 and 2009, he had no convictions as an adult. After leaving school he had a good work record, including 10 years of service in the Navy.
13 The appellant and his wife separated in 2008. Prior to and after that separation, he encountered significant emotional and financial difficulty. He began using amphetamines and abusing alcohol. After their separation, the appellant's lifestyle further deteriorated.
14 Ms Claire Lynn, a forensic psychologist, carried out a psychological assessment of the appellant which was provided to the learned sentencing judge. Psychometric tests conducted on the appellant revealed that he had been experiencing significant psychological distress over a long period, which manifested itself in symptoms of anxiety and depression. In her opinion, the appellant's primary crimogenic factor was a severe mood disorder in addition to substance abuse.
The sentencing remarks
15 The learned sentencing judge provided comprehensive sentencing remarks. His Honour regarded all of the offences committed by the appellant as serious, requiring immediate imprisonment. With respect to counts 1 and 2, his Honour noted that the offences involved considerable planning and endangered the safety of persons and property. Further, he involved his teenage son in his offending. His Honour observed that count 3 involved a deliberate act to destroy the stolen motor vehicle in order to avoid detection for the offences relating to the ATMs. His Honour said that count 4 involved a high level of deception and the forgery of two documents, and occurred over a period of time.
16 His Honour acknowledged the appellant's psychological state at the time of the offending, but considered that the appellant knew exactly what he was doing and appreciated the wrongfulness of his offending. Accordingly, his Honour rejected the submission that the appellant's psychological state reduced his culpability.
17 His Honour had regard to the appellant's pleas of guilty, his antecedents and his expressions of remorse, coupled with his professed desire to lead a productive life in the future. His Honour considered that deterrence, both general and specific, was required. He expressly
(Page 6)
- considered the one transaction rule with respect to counts 1, 2 and 3, and the totality principle with respect to all offences. He rejected the submission that the sentences with respect to counts 1, 2 and 3 should all be concurrent. He regarded each of the acts constituted by those offences as being distinct acts of wilful damage warranting some accumulation.
18 In respect of totality, he made the sentences that he imposed on counts 1 and 2 concurrent, and he reduced the sentences that he would have otherwise imposed on counts 3 and 4 by 1 year and by 6 months respectively.
The appellant's submissions
19 The appellant made two main submissions in support of the ground of appeal. First, his Honour should have applied the one transaction rule by ordering that the sentences on counts 1, 2 and 3 be served concurrently with each other. It was said that this approach was justified because the three offences were committed as part of one ongoing enterprise. Second, having regard to the appellant's personal circumstances and the asserted 'almost amateurish' nature of his offending, the total overall sentence infringed the totality principle because it did not bear a proper relationship to his overall criminality.
Discussion and disposition of the ground of appeal
20 Both the one transaction rule and the totality principle have been comprehensively examined in previous decisions of this court. It is sufficient for the purposes of this appeal to refer to R v Faithfull[2004] WASCA 39; (2004) 142 A Crim R 554 in relation to the one transaction rule, and to Roffey v The State of Western Australia [2007] WASCA 246 in relation to the totality principle.
21 As has been said many times, the one transaction rule is not a rule at all. It will not always be the case that individual offences, when committed as part of one episode, will attract concurrent sentences. This is because the ultimate requirement, when sentencing a person who has committed multiple offences, is to impose punishment which is a just and proper reflection of the offender's total criminality: Pearce v The Queen [1998] HCA 57; (1998) 194 CLR 610, 623; and Walgar v The State of Western Australia [2007] WASCA 241 [9]. This may mean that some accumulation is required, even when offences are committed as part of one episode of criminal conduct.
(Page 7)
22 His Honour considered the one transaction rule in relation to the sentences he imposed on counts 1, 2 and 3. He was justified in his decision not to apply the rule and order some accumulation of those sentences in order to properly reflect the criminality involved.
23 His Honour correctly characterised all of the appellant's offending as serious. Counts 1 and 2 were well planned. While the appellant did not successfully obtain cash from the ATMs, it was not for want of trying. The appellant and his son came well equipped for the task. The use of explosives in order to gain access to the cash in the machines was a seriously aggravating factor and requires deterrence. The appellant's conduct cannot reasonably be characterised as exhibiting 'almost amateurish criminality'. To the contrary, it showed a high level of criminality.
24 The deliberate destruction by fire of the stolen vehicle in count 3 was done for the purpose of destroying evidence and concealing the appellant's involvement in the offences related to the ATMs. It was separate to those offences, albeit that it was committed shortly after them, and warranted a deterrent sentence, to be served cumulatively.
25 Count 4 was committed approximately six weeks after counts 1, 2 and 3, and is an offence of a different kind to the others. It was serious, having regard to its deliberate nature, the use of forged documents and the not insignificant amount of money that was defrauded. It too warranted a cumulative sentence.
26 His Honour took into account all of the relevant mitigating factors and had regard to matters personal to the appellant. He reduced the terms of imprisonment that he would otherwise have imposed on counts 3 and 4, to reflect the totality principle. The total effective sentence was a just and proper reflection of the appellant's overall criminality.
Conclusion
27 This court cannot intervene unless the appellant demonstrates that the learned sentencing judge made an express or implied error. No such error has been demonstrated. The ground of appeal has no reasonable prospect of success. I would not give leave to appeal. The appeal must be dismissed.
28 The orders are:
29 1. Leave to appeal is refused.
(Page 8)
30 2. The appeal is dismissed.
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