McAuley v The State of Western Australia
[2010] WASCA 98
•25 MAY 2010
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: MCAULEY -v- THE STATE OF WESTERN AUSTRALIA [2010] WASCA 98
CORAM: McLURE P
OWEN JA
HEARD: 28 APRIL 2010
DELIVERED : 25 MAY 2010
FILE NO/S: CACR 30 of 2010
BETWEEN: KEITH DAVID MCAULEY
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram :SWEENEY DCJ
File No :IND ALB 10 of 2010
Catchwords:
Criminal law - Appeal against sentence - Attempting to pervert the course of justice - Whether sentence manifestly excessive - Whether term of imprisonment should have been suspended - Turns on own facts
Legislation:
Nil
Result:
Leave to appeal refused
Appeal dismissed
Category: B
Representation:
Counsel:
Appellant: Mr S B Watters
Respondent: No appearance
Solicitors:
Appellant: Thames Legal
Respondent: No appearance
Case(s) referred to in judgment(s):
Gilmour v The State of Western Australia [2008] WASCA 42
Librizzi v The State of Western Australia [2006] WASCA 237
Ranford v The State of Western Australia [2006] WASCA 134
Rauhina v The Queen [2002] WASCA 91
McLURE P: This is an application for leave to appeal against sentence. On 15 February 2010 the appellant was convicted on his own plea of guilty of one count of attempting to pervert the course of justice. He was sentenced to a term of imprisonment of 12 months and was made eligible for parole.
The sole ground of appeal is that the sentence is manifestly excessive. The appellant claims the term of imprisonment should have been suspended.
The facts found by the sentencing judge are as follows. On the evening of Friday 27 February 2009 the appellant was in company with friends, including Phillip White and Will Neill. In the early hours of Saturday morning, after an evening of drinking, the group returned to Mr White's house. After a while the appellant, went outside to sleep in Mr Neill's Landcruiser.
Around 5.00 am, Mr White and Mr Neill agreed that they would go to a building site to steal fuel. They got into the Landcruiser which was driven by Mr Neill. The appellant woke for a short time but was not aware of the plans of Mr White and Mr Neill.
Mr Neill drove to a land development site. He and Mr White got out of the vehicle and, equipped with 25 litre fuel containers, began syphoning fuel from earthmoving vehicles. The area was under surveillance by police who approached the Landcruiser. The appellant had stayed in the vehicle. A police officer saw on the dashboard of the Landcruiser a wallet containing a driver's licence in the name of Joshua Dylan Shepherd. He then commenced a search of the area calling out the name Joshua. Mr White was apprehended at the scene. Mr White was shown the driver's licence in the name of Joshua Shepherd and Mr White agreed that Mr Shepherd was the other person who had been with him. The officer showed the appellant the driver's licence and said, 'Is this the other person who was with you? I believe he has red hair which doesn't show on the photograph'. The appellant looked at the licence and said, 'Yeah, it looks like him'. The appellant was asked, 'Was he the driver?' to which the appellant replied, 'Yes, he was the driver'. The appellant and Mr White were taken to the police station. Some hours after making the initial false statement, the appellant provided to police a witness statement implicating Mr White's mate Joshua as the driver of the vehicle and said he had never met Joshua before and provided a physical description of him.
Mr Shepherd was interviewed by police on 23 March 2009. He denied involvement in the matter but was arrested, charged and released to bail to appear in the Albany Magistrates Court.
On 31 March 2009 the police went to interview the appellant who then told them that he had been contacted by Mr Shepherd's father and now felt guilty about falsely implicating Mr Shepherd. On 1 April 2009 the appellant made a statement indicating that the driver of the vehicle was Mr Neill. Mr Shepherd had to appear in court on two further occasions before the charge against him was discontinued.
The appellant was aged 35 at the time of sentencing on 15 February 2010. The sentencing judge noted that his criminal record consisted largely of traffic matters and a couple of modest drug matters. She also noted that on 31 July 2008 the appellant wilfully misled police in relation to the offence of driving without a licence for which he was convicted and fined.
The appellant was single at the time he committed the offence. He was the father of three children who he had not seen since his marriage breakdown some five years earlier. In May 2008 the appellant was seriously injured in an accident which prevented him from continuing in his employment as a jockey. At the time of the offending he had lost his job and was drinking to excess.
In determining that a sentence of immediate imprisonment was the only appropriate disposition in the circumstances of the case the sentencing judge said:
There is a need to send a strong message to the community that lying to the police, tying up their valuable resources and implicating an innocent man strikes at the very heart of justice in this state and will not be tolerated. There is also a need to send that very clear message to you, particularly when you have previously deceived police.
In order to succeed in an appeal against sentence, an appellant has to demonstrate that the sentencing judge made an express or implied material error of law or fact. A claim of manifest excess is a claim of implied error based solely on the sentence imposed. In determining whether a sentence is manifestly excessive, regard is had to the maximum penalty for the offence, the standard of sentencing customarily imposed for offences of that type, the scale of seriousness of the circumstances of the offence and the offender's antecedents.
The maximum penalty for the offence of attempting to pervert the course of justice is 7 years' imprisonment. It was contended that the circumstances of the appellant's offending are towards the lower end of the scale of seriousness. I do not accept that characterisation. The appellant repeatedly made false statements to police resulting in an innocent 19‑year‑old person being charged with stealing. The victim had to attend court on three occasions before that charge was discontinued.
The fact that the appellant confessed to police around a month after falsely implicating the victim is to his credit and appropriately reflected in the length of the term of imprisonment. The cases relied on by the appellant as demonstrating the sentences customarily imposed for this type of offence are all cases in which a sentence of immediate imprisonment was imposed and not overturned on appeal (Gilmour v The State of Western Australia [2008] WASCA 42, Rauhina v The Queen [2002] WASCA 91, Librizzi v The State of Western Australia [2006] WASCA 237 and Ranford v The State of Western Australia [2006] WASCA 134). They do nothing to advance the appellant's case.
The sentencing judge's explanation for why she imposed a sentence of immediate imprisonment is cogent and compelling. In my view, the ground of appeal has no reasonable prospect of succeeding. Accordingly, leave to appeal must be refused and the appeal dismissed.
OWEN JA: I agree with McLure P.
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