Manisco v The State of Western Australia [No 2]
[2013] WASCA 190
•20 AUGUST 2013
MANISCO -v- THE STATE OF WESTERN AUSTRALIA [No 2] [2013] WASCA 190
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2013] WASCA 190 | |
| THE COURT OF APPEAL (WA) | |||
| Case No: | CACR:70/2013 | 4 JULY 2013 | |
| Coram: | McLURE P BUSS JA HALL J | 20/08/13 | |
| 14 | Judgment Part: | 1 of 1 | |
| Result: | Leave to appeal on grounds 2 and 3 refused Appeal dismissed | ||
| D | |||
| PDF Version |
| Parties: | COSIMO ANTONIO MANISCO THE STATE OF WESTERN AUSTRALIA |
Catchwords: | Criminal law Appeal against sentence Demanding money with threats Criminal Code (WA), s 397(2) Appellant sentenced to 2 years' immediate imprisonment Whether sentencing judge erred in the factual basis on which he imposed sentence Whether the sentence was manifestly excessive Whether the sentence of imprisonment should have been suspended |
Legislation: | Criminal Code (WA), s 397(2) Sentencing Act 1995 (WA), s 6(4), s 39(2), s 39(3) |
Case References: | Barry v The State of Western Australia [2012] WASCA 175 Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321 Fogg v The State of Western Australia [2011] WASCA 11 R v Cifuentes [2006] QCA 566 R v Girdardo [2012] QCA 166 R v Taouk [2012] QCA 211 R v Wilhelm (1988) 39 A Crim R 469 Skipworth v The State of Western Australia [2008] WASCA 64 The State of Western Australia v Amoore [2008] WASCA 65; (2008) 182 A Crim R 165 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : MANISCO -v- THE STATE OF WESTERN AUSTRALIA [No 2] [2013] WASCA 190 CORAM : McLURE P
- BUSS JA
HALL J
- Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram : STONE DCJ
File No : IND 315 of 2012
Catchwords:
Criminal law - Appeal against sentence - Demanding money with threats - Criminal Code (WA), s 397(2) - Appellant sentenced to 2 years' immediate imprisonment - Whether sentencing judge erred in the factual basis on which he imposed sentence - Whether the sentence was manifestly excessive - Whether the sentence of imprisonment should have been suspended
Legislation:
Criminal Code (WA), s 397(2)
Sentencing Act 1995 (WA), s 6(4), s 39(2), s 39(3)
Result:
Leave to appeal on grounds 2 and 3 refused
Appeal dismissed
Category: D
Representation:
Counsel:
Appellant : Ms A S Rogers
Respondent : Ms S H Linton
Solicitors:
Appellant : Abigail Rogers, Barristers & Solicitors
Respondent : Director of Public Prosecutions (WA)
Case(s) referred to in judgment(s):
Barry v The State of Western Australia [2012] WASCA 175
Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321
Fogg v The State of Western Australia [2011] WASCA 11
R v Cifuentes [2006] QCA 566
R v Girdardo [2012] QCA 166
R v Taouk [2012] QCA 211
R v Wilhelm (1988) 39 A Crim R 469
Skipworth v The State of Western Australia [2008] WASCA 64
The State of Western Australia v Amoore [2008] WASCA 65; (2008) 182 A Crim R 165
1 McLURE P: I agree with Buss JA.
2 BUSS JA: This is an appeal against sentence.
3 The appellant and a co-accused, Shane Paul Stone, were charged on indictment with two counts.
4 Count 1 alleged that on 20 September 2011, at Malaga, the appellant and Mr Stone, with intent to extort or gain, orally demanded that the complainant, Milan Petkovic, give them money, without reasonable cause and with threat of injury or detriment if the demand was not complied with, contrary to s 397(2) of the Criminal Code (WA) (the Code).
5 Count 2 alleged that on 23 September 2011, at Malaga, the appellant and Mr Stone, with intent to extort or gain, orally demanded that the complainant give them money, without reasonable cause and with threat of injury or detriment if the demand was not complied with, contrary to s 397(2) of the Code.
6 The appellant and Mr Stone initially pleaded not guilty to both counts. The matter was listed for trial. However, one week before the due date for the commencement of the trial, the State accepted pleas of guilty from the appellant and Mr Stone to count 2 in full satisfaction of the indictment.
7 On 20 March 2013, Stone DCJ sentenced each of the appellant and Mr Stone to 2 years' immediate imprisonment. Parole eligibility orders were made.
8 The appellant's sentence was backdated to 19 March 2013, being the date on which he was taken into custody for the offence.
The facts and circumstances of the offending
9 At the sentencing hearing, the prosecutor read to the court an amended statement of material facts (ts 84 - 85). The relevant facts were these.
10 The complainant had been in a relationship with Vesna Cheknovic. The relationship ended in or about May 2011. The complainant had borrowed $12,000 from Ms Cheknovic. About $8,000 remained owing as at 15 September 2011.
11 On 14 and 15 September 2011, Ms Cheknovic came to the complainant's workshop in Malaga and demanded her money. The complainant informed Ms Cheknovic that he did not have the money, but he had a possible buyer for his business.
12 On 15 September 2011, the complainant asked Ms Cheknovic, who became quite heated in demanding her money, to leave. She did not. The complainant used reasonable force to remove her from his workshop.
13 In the days after 15 September 2011, Ms Cheknovic complained to a number of people in the Serbian community about the debt. The appellant and Mr Stone heard from another person that the complainant owed money to Ms Cheknovic.
14 On 20 September 2011, the appellant and Mr Stone went to the complainant's workshop and told him they were there to collect the debt he owed to Ms Cheknovic. The complainant said he did not have the money. The appellant told the complainant he needed to get the money by 23 September 2011, and they would return at midday on that day to collect it.
15 The appellant and Mr Stone were not armed with any weapons, and they did not raise their voices at the complainant. However, the complainant felt that his personal safety and his workshop were at risk.
16 The complainant contacted the police and requested their assistance. Police attended at the complainant's workshop and arranged for him to wear a camera that could video and audio record the anticipated return of the appellant and Mr Stone.
17 On 23 September 2011, at midday, the appellant and Mr Stone arrived at the complainant's workshop. The appellant told the complainant that if he did not come up with something, referring to part of the money he owed to Ms Cheknovic, by Tuesday of the following week, they would 'repossess cars and end up fucking shooting the place up', referring to his workshop.
18 This encounter was recorded on a video-audio cassette. The appellant and Mr Stone were arrested by police as they left the workshop. They declined to participate in a video record of interview.
19 The prosecutor conceded at the sentencing hearing that there was no evidence that either the appellant or Mr Stone would receive any financial or other gain from the offending.
The sentencing judge's sentencing remarks and the appellant's personal circumstances and antecedents
20 The sentencing judge noted that defence counsel accepted the facts as set out in the amended statement of material facts.
21 His Honour found:
(a) the appellant genuinely believed that Ms Cheknovic was distressed and that she was owed money by the complainant; and
(b) most of the talking, in the interaction with the complainant, was done by the appellant in Mr Stone's presence.
22 The sentencing judge said there were three aggravating features to the appellant's offending. First, the appellant was in company with Mr Stone. Secondly, the appellant threatened violence towards the complainant, namely 'shooting up' his business premises, and also threatened detriment, namely taking the complainant's motor vehicles, if the complainant did not pay the amount demanded. Thirdly, the complainant was vulnerable in that he was a small businessman at his workplace who did not know the identity of the appellant or Mr Stone or what they might actually do for the purpose of extracting payment.
23 The sentencing judge referred to the appellant's personal circumstances and antecedents.
24 The appellant was aged 45 at the time of the offending and was 46 when sentenced.
25 Since late October or early November 2012, about five months before sentencing, the appellant had been living in Melbourne with his fiancée and her parents. He was working as a painter and studying to complete a certificate in civil construction.
26 The appellant had a long history of illicit drug abuse, mainly steroids. He had a number of health issues including a degenerative back condition and problems arising from his illicit drug use. His health issues were being monitored and managed by medical practitioners. They appeared to be under control. His Honour found that the appellant's medical conditions could be 'well controlled in a custodial setting' (ts 142).
27 The appellant had an extensive prior criminal record. Apart from numerous traffic offences, his prior convictions included:
(a) in 1996, possession of amphetamine with intent to sell or supply;
(b) in 1999, possession of an unlicensed firearm and possession of an offensive weapon;
(c) in 2006, possession of a prohibited drug;
(d) in 2010, possession of a specified drug (two offences) and possession of unlicensed ammunition; and
(e) in 2012, possession of counterfeit money, possession of a prohibited weapon, possession of unlicensed ammunition and possession of a prohibited drug (two offences).
28 The appellant's only previous custodial sentence was a term of 2 years 10 months' immediate imprisonment for the offence of possession of amphetamine with intent to sell or supply.
The grounds of appeal
29 The appellant relies on three grounds of appeal.
30 Ground 1 alleges that the sentencing judge erred by imposing a sentence that was manifestly excessive.
31 Ground 2 alleges that his Honour erred in failing to suspend the appellant's term of imprisonment.
32 Ground 3 alleges that his Honour erred in sentencing the appellant on the basis that 'the offending was aggravated by having occurred on more than one occasion and that it was premeditated'.
33 On 6 May 2013, Mazza JA granted leave to appeal on ground 1. His Honour referred the application for leave to appeal on the other grounds to the hearing of the appeal.
34 It is convenient to consider the grounds of appeal in inverse order; that is, ground 3, then ground 2 and finally ground 1.
Ground 3
35 The sentencing judge said in the course of his sentencing remarks:
The demand for the money was persistent, in that it went on for two occasions, and you intended to return on a third occasion. It was premeditated. It was not something that occurred on the spur of the moment, so to speak. You went there on two occasions. There was a threat of immediate violence in the sense of going to shoot up his premises or the taking of his property (ts 144).
36 Counsel for the appellant submitted that his Honour erred in finding that the 'demand for money was persistent, in that it went on for two occasions' (ts 144). She also submitted that his Honour made an error in finding that the offending was 'premeditated' (ts 144). According to counsel, these alleged errors occasioned a miscarriage of justice in the sentencing process.
37 Counsel for the appellant argued:
(a) it was not open to his Honour to find that 'the demand went on for two occasions given that it was accepted by the State that a request was made and no oral threats issued on the first occasion and therefore any conduct previous to the count before the court should have been given no weight'; and
(b) the offending was not premeditated 'given that [the appellant and Mr Stone] attended on 23 September 2011 with the understanding that the money would be available for collection' and that 'the threats made were only said because the money was not ready and … the nature of the threats were off the cuff with no pre-planning involved'.
38 In my opinion, there is no merit in the appellant's complaints.
39 His Honour said the appellant and Mr Stone demanded money from the complainant on two occasions. It is plain that there were two demands, one on 20 September 2011 and the other on 23 September 2011. His Honour did not say the appellant and Mr Stone had threatened the complainant on two occasions. On 20 September 2011, there was a demand. Although the complainant felt intimidated by the conduct of the appellant and Mr Stone, no threat was made. On 23 September 2011, there was a demand and a threat. His Honour observed in the impugned passage that 'the demand for money was persistent'. That observation was correct in that a demand was made twice and the appellant and Mr Stone intended to return on a third occasion. They did not return on the third occasion because the police apprehended them on 23 September 2011 as they left the complainant's workshop.
40 His Honour found, correctly, that the offence was premeditated. There was not a complex plan, but the offending was not spontaneous. The appellant and Mr Stone drove to the complainant's workshop. They demanded money twice and, on the second occasion, indicated that they would return. This shows some degree of conscious and deliberate action.
41 In any event, his Honour's findings in relation to aggravating features were confined to the three factors I have summarised at [22] above; that is, the appellant and Mr Stone were in company, the appellant threatened the complainant with violence and detriment, and the complainant was vulnerable. His Honour did not find that persistence or premeditation was an aggravating feature of the offending.
42 Ground 3 is without merit.
Ground 2
43 Counsel for the appellant submitted that the sentencing judge erred in failing to suspend the appellant's term of imprisonment. She argued that the wrong type of sentence was imposed. Counsel relied on an allegation of implied error. It was not suggested that his Honour had made an express error in deciding not to suspend.
44 Section 397(2) of the Code provides, relevantly, that any person who, with intent to extort or gain anything from any person, orally demands anything from any person, without reasonable cause, with threats of any injury or detriment of any kind to be caused to any person, if the demand is not complied with, is guilty of a crime, and is liable to imprisonment for 14 years.
45 By s 6(4) of the Sentencing Act 1995 (WA):
A court must not impose a sentence of imprisonment on an offender unless it decides that -
(a) the seriousness of the offence is such that only imprisonment can be justified; or
(b) the protection of the community requires it.
46 A court must not impose a term of immediate imprisonment unless satisfied, having regard to the sentencing principles set out in div 1 of pt 2 of the Sentencing Act, that it is not appropriate to impose suspended imprisonment. See s 39(2) and s 39(3) of that Act. The sentencing judge must be positively satisfied that it is not appropriate to suspend a term of imprisonment before the term can be ordered to be served immediately. In a borderline case, it may be reasonably open to impose different types of sentences. See Skipworth v The State of Western Australia [2008] WASCA 64 [11], [13] - [14] (McLure JA), [58] (Buss JA); Fogg v The State of Western Australia [2011] WASCA 11 [9] (McLure P, Mazza J agreeing).
47 The discretion to suspend a term of imprisonment is not confined by considerations relating to rehabilitation and mercy. See Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321 [18] (Gleeson CJ & Hayne J), [26] (Gaudron & Gummow JJ), [84] (Kirby J). The objective features of an offence may, in a particular case, outweigh the personal considerations of rehabilitation and mercy. See Dinsdale [86] (Kirby J).
48 In the present case, counsel for the appellant referred to R v Wilhelm (1988) 39 A Crim R 469; R v Cifuentes [2006] QCA 566; The State of Western Australia v Amoore [2008] WASCA 65; (2008) 182 A Crim R 165; and Barry v The State of Western Australia [2012] WASCA 175.
49 In Wilhelm the Crown appealed against sentence. The respondent pleaded guilty to attempting to extort $12,000 from the complainant. The respondent threatened the complainant and members of his family with bodily injury if the money was not paid. The sentencing judge imposed a fine of $30,000. The respondent had no prior criminal record. The Court of Criminal Appeal of Western Australia allowed the Crown's appeal and substituted a sentence of 9 months' immediate imprisonment. Walsh J (Kennedy & Rowland JJ agreeing) said that most cases of extortion are almost invariably treated seriously and attract a sentence of imprisonment (473). In all the circumstances, the offence committed by the respondent was grave and required the imposition of a custodial sentence. The traditional common law principles governing Crown appeals against sentence (including the double jeopardy principle) applied in Wilhelm.
50 In Cifuentes the appellant pleaded guilty to two counts of demanding property with threats, contrary to s 415 of the Criminal Code 1899 (Qld). The maximum penalty for each offence was 14 years' imprisonment. The Court of Criminal Appeal of Queensland dismissed the appellant's application for leave to appeal against a sentence of 3 years 6 months' immediate imprisonment. The appellant was a police officer. He demanded that the complainant pay him $15,000. The appellant threatened the complainant that unless the money was paid he or his 'boss' would search the complainant's home, his parent's home, confiscate his assets and place his children in the custody of the State. The sentencing judge said that, without mitigating circumstances including the difficulties the appellant would face in prison as a result of his being a police officer, a sentence of 4 years 6 months' immediate imprisonment would have been appropriate [12]. In the Court of Criminal Appeal, Jerrard JA (Holmes JA & Helman J agreeing) said that the sentence imposed on the appellant was within the appropriate range [31].
51 In Amoore the State appealed against sentences imposed on the respondents for three counts of robbery in company and two counts of extortion. They were sentenced to 18 months' immediate imprisonment on each count and all sentences were ordered to be served concurrently.
52 As to the robbery in company counts, the respondents and another man believed, unjustifiably, that the complainant owed them $45,000. On 13 April 2007, they went to the complainant's business premises and demanded repayment of this amount. They threatened the complainant with violence if he did not repay the $45,000. As a result, the complainant gave them $5,000. On 17 April 2007, the respondents and the other man returned to the complainant's business premises and again threatened him with violence. The complainant gave them $3,000. On 20 April 2007, they returned to the complainant's business premises and again threatened him with violence. On this occasion, the three men were given $1,000.
53 As to the extortion counts, on 20 April 2007, during the third visit, the respondents and the other man told the complainant that they would return on the following Monday to obtain an additional $6,000. They also told him that he was to pay a further $10,000 on the following Friday. The complainant was threatened with violence if he did not comply with the demands. The respondents were arrested shortly after making these threats.
54 The majority of the Court of Appeal (Steytler P & EM Heenan AJA) dismissed the State's appeals. Steytler P said the sentences imposed were lenient [11]. This was so notwithstanding that the respondents pleaded guilty, they held a genuine (but unjustified) belief that the complainant owed them $45,000 and no actual violence was used [11]. His Honour was not persuaded, however, that the sentences were so lenient, even bearing in mind they were ordered to be served concurrently, as to justify the intervention of the court on a State appeal [11]. At the time, the traditional common law principles governing State appeals against sentence (including the double jeopardy principle) applied.
55 In Barry, the appellant and another man, Reker, were convicted after trial on one count of demanding money, without reasonable cause, and with threats of injury or detriment and with intent to extort or gain, contrary to s 397(2) of the Code. The appellant was sentenced to 2 years' immediate imprisonment and Reker to 3 years' immediate imprisonment on each count. The individual sentences were ordered to be served concurrently. A majority of this court (Mazza JA, Buss JA agreeing) allowed the appeal on the basis that the sentence imposed on the appellant infringed the parity principle. The majority held that it was unnecessary to consider another ground of appeal which alleged that each sentence of 2 years' immediate imprisonment was manifestly excessive [62]. The majority substituted a sentence of 14 months' immediate imprisonment on each count and ordered that the new individual sentences be served concurrently.
56 The majority decided that the appellant's culpability was 'very much less' than Reker's [60]. In particular, neither of the complainants expressed any degree of intimidation and fear as a result of the appellant's conduct; the appellant acted at the behest of Reker and did so partly because he was intimidated by Reker; the appellant did not himself make any demands or threaten the complainants, and attempted to reassure them that the matter could be resolved without either of them being harmed; the appellant was somewhat reluctant to perform the task Reker had given to him; and the appellant was indifferent about whether he would receive any reward for his actions [46], [48], [59].
57 Mazza JA observed in relation to offending against s 397(2) of the Code generally:
Offences of this type are difficult to detect, often because victims are too intimidated to come forward because of the threats that are made. It is an offence where deterrence (both personal and general) is an important sentencing consideration and will frequently result in the imposition of an immediate term of imprisonment [65].
58 In addition to the cases cited by counsel for the appellant, I have reviewed the decisions of the Court of Appeal of Queensland in R v Girdardo [2012] QCA 166 and R v Taouk [2012] QCA 211 and the cases referred to in those decisions.
59 Neither counsel for the appellant nor counsel for the State referred the court to any case in which a sentence of suspended imprisonment has been imposed for offending against s 397(2) of the Code.
60 In the present case, it is readily apparent, when all the facts and circumstances relating to the appellant and his offending are assessed in the context of the relevant sentencing factors, that it would not have been appropriate for the sentencing judge to suspend the term of imprisonment.
61 The offending was serious. The offence was committed in company. The appellant threatened violence ('shooting up' the complainant's business premises) and detriment (taking the complainant's motor vehicles). The complainant was a small businessman at his workplace. He was a vulnerable target and the amount demanded (about $8,000) was substantial for him. The complainant felt intimidated. The demand for money was persistent in that a demand was made twice and the appellant intended to return with Mr Stone on a third occasion. The offence was premeditated.
62 The main mitigating factor was the appellant's plea of guilty. The sentencing judge reduced the head sentence by 25% for the plea. Since committing the offence the appellant had ceased associating with a negative peer group and had taken some positive steps towards living a pro-social life in Victoria. The appellant had expressed remorse for his offending. He had a good employment history. Some people spoke well of him in written references. The appellant had a number of medical conditions but his Honour was satisfied that these could be managed adequately in a custodial setting.
63 The appellant's prior criminal record demonstrates that he was not entitled to any leniency on the basis that he was otherwise of good character. The prior convictions included a serious drug offence and weapons-related offences. The appellant was not youthful or inexperienced for sentencing purposes.
64 There is no mitigation to be found in the appellant having committed the offence for the financial benefit of a third party rather than his own financial benefit. The appellant and Mr Stone were acting as standover men.
65 In my opinion, the seriousness of the appellant's offending precluded the suspension of the term of imprisonment.
66 Ground 2 is without merit.
Ground 1
67 Counsel for the appellant submitted that the sentence of 2 years' immediate imprisonment was manifestly excessive in all the circumstances of the case. She maintained that a lesser term of immediate imprisonment should have been imposed.
68 A ground of appeal which asserts that a sentence is manifestly excessive asserts the existence of an implied error. It is necessary, in determining whether a sentence is manifestly excessive, to examine it from the perspective of the maximum sentence prescribed by law for the relevant offence, the standards of sentencing customarily observed with respect to that offence, the place which the criminal conduct occupies on the scale of seriousness of offences of the kind in question, and the personal circumstances of the offender.
69 When considering the sentencing standards that are usually observed in relation to offences of the kind committed by the appellant, it is necessary to have regard to a range of comparable cases. Nevertheless, each case turns on its own particular facts and circumstances. Sentencing ranges can provide only general guidance. The limits of the guidance afforded by comparable cases are flexible rather than rigid. A sentencing range is merely one of the factors to be taken into account in deciding whether a sentence is manifestly excessive.
70 As I have mentioned, the maximum penalty for the offence committed by the appellant is 14 years' imprisonment. I have examined, in the course of considering grounds 2 and 3, the facts and circumstances of the offending, the sentencing pattern revealed by previous cases, the seriousness of the appellant's criminal conduct, and his personal circumstances and antecedents.
71 The primary sentencing considerations for this offending were appropriate punishment and personal and general deterrence.
72 I am satisfied that the term of 2 years' immediate imprisonment was not unreasonable or plainly unjust. The sentence was commensurate with the seriousness of the offence after taking into account the maximum penalty, the facts and circumstances of the offence, the vulnerability of the complainant, the sentencing pattern apparent from previous cases, the appellant's personal circumstances and antecedents, the aggravating factors and the mitigating factors.
73 Ground 1 fails.
Conclusion
74 I would refuse leave to appeal on grounds 2 and 3. The appeal should be dismissed.
75 HALL J: I agree with Buss JA.
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