Mex v The State of Western Australia
[2012] WASCA 161
•22 AUGUST 2012
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: MEX -v- THE STATE OF WESTERN AUSTRALIA [2012] WASCA 161
CORAM: BUSS JA
MAZZA JA
HEARD: 18 MAY 2012
DELIVERED : 22 AUGUST 2012
FILE NO/S: CACR 48 of 2012
BETWEEN: MEX
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram :EATON DCJ
File No :IND 969 of 2011
Catchwords:
Criminal law - Appeal against sentence - Appellant convicted on his pleas of guilty - Five offences committed contemporaneously - Stealing motor vehicle number plates, burglary, making a threat unlawfully to injure, wilfully and unlawfully damaging a motor vehicle and, with intent to steal a motor vehicle, using violence in order to obtain the vehicle while armed with an offensive instrument - Total effective sentence of 3 years' imprisonment - Discount for the appellant's provision of assistance to the police - Whether the total effective sentence infringed the first limb of the totality principle
Legislation:
Criminal Code (WA), s 338B, s 378, s 393, s 401(2), s 444
Road Traffic Act 1974 (WA), s 97(2)(f)(iii)
Result:
Leave to appeal refused
Appeal dismissed
Category: B
Representation:
Counsel:
Appellant: Ms A S Rogers
Respondent: Mr L M Fox
Solicitors:
Appellant: Andrew Maughan & Associates
Respondent: Director of Public Prosecutions (WA)
Case(s) referred to in judgment(s):
MXP v The State of Western Australia [2010] WASCA 215; (2010) 41 WAR 149
TXT v The State of Western Australia [2012] WASCA 28
BUSS JA: The appellant was convicted in the District Court, on his pleas of guilty, on five counts in an indictment.
Count 1 alleged that in 2010, at a Perth suburb, the appellant stole motor vehicle number plates, contrary to s 378 of the Criminal Code (WA) (the Code).
Count 2 alleged that on the same date and at the same place, the appellant, while in the home of Mr S without his consent, committed the offence of stealing, contrary to s 401(2) of the Code.
Count 3 alleged that on the same date and at the same place, the appellant made a threat unlawfully to injure Mr S, Ms S and Mr B, contrary to s 338B of the Code.
Count 4 alleged that on the same date and at the same place, the appellant wilfully and unlawfully damaged a motor vehicle, contrary to s 444 of the Code.
Count 5 alleged that on the same date and at the same place, the appellant, with intent to steal a motor vehicle, used violence to Mrs M in order to obtain the vehicle which he intended to steal and, at the time, the appellant was armed with an offensive instrument, namely a length of timber, contrary to s 393 of the Code.
The sentencing judge, Eaton DCJ, imposed individual sentences of immediate imprisonment, as follows:
Count 1:6 months;
Count 2:16 months;
Count 3:9 months;
Count 4:9 months;
Count 5:20 months.
His Honour ordered that the sentences for counts 1, 3 and 4 be served concurrently with the sentence for count 5 and that the sentence for count 2 be served cumulatively upon the sentence for count 5. The total effective sentence was therefore 3 years' imprisonment. A parole eligibility order was made.
The sentencing judge also sentenced the appellant for another offence pursuant to a notice under s 32 of the Sentencing Act 1995 (WA). This offence was driving a motor vehicle with false number plates, contrary to s 97(2)(f)(iii) of the Road Traffic Act1974 (WA). His Honour imposed a fine of $500.
The appellant has applied to this court for leave to appeal against the sentencing decision relating to the counts in the indictment.
The facts and circumstances of the offending, extracts from his Honour's sentencing remarks, the appellant's personal antecedents and details of three expert reports before his Honour are set out in the schedule to these reasons. The schedule will be the subject of a confidentiality order. It will not be published except to the appellant and the State and their respective legal representatives.
The ground of appeal
The sole ground of appeal alleges that the sentencing judge erred in the exercise of his discretion, and a miscarriage of justice occurred, 'by failing to give sufficient discount [for] the Appellant's assistance to [the] Police in the course of sentencing'.
The ground of appeal does not refer to manifest excess or the totality principle. However, counsel for the appellant clarified, in her brief oral submissions, that it was asserted that the total effective sentence of 3 years' imprisonment contravened the first limb of the totality principle. None of the individual sentences was challenged.
The merits of the ground of appeal
A complaint that a sentencing judge has infringed the totality principle involves an allegation of inferred error. The first limb of the totality principle requires that the total effective sentence imposed on an offender who has committed multiple offences must bear a proper relationship to the overall criminality involved in all of the offences (including those, if any, in respect of which the offender is still serving a term of imprisonment), viewed in their entirety, having regard to all relevant circumstances including those referable to the offender personally (and including, for example, the desirability of accommodating any wish to rehabilitate).
The principles to be applied in determining the nature, extent and value of an offender's past and promised future cooperation with law enforcement agencies, and the appropriate level of any discount on his or her sentence, were examined by this court in MXP v The State of Western Australia [2010] WASCA 215; (2010) 41 WAR 149.
The rationale for allowing a sentencing discount for cooperation with law enforcement agencies is the demonstration of genuine remorse and apparent rehabilitation and, also, the public interest in the detection and successful prosecution of crime. See TXT v The State of Western Australia [2012] WASCA 28 [28] (Buss JA, Mazza JA agreeing).
In the present case, the sentencing judge acknowledged the appellant's cooperation with and assistance to the police. His Honour did not, however, accept the suggestion by counsel for the appellant that the motive for his cooperation was a sense of community spirit. His Honour said that the motive for the cooperation was the appellant's desire to reduce the severity of the sentences to be imposed on him.
The sentencing judge recognised that the provision of useful information and assistance to law enforcement agencies will entitle an offender to a substantial discount on his or her sentence, regardless of whether it demonstrates remorse or contrition.
His Honour noted the appellant's early pleas of guilty (which were not, however, entered at his first appearance in the Magistrates Court) and that the appellant was remorseful for his offending.
The sentencing judge said that he would allow a significant discount on the sentences he would otherwise have imposed to reflect the appellant's cooperation with and assistance to the police, his early pleas of guilty and his remorse.
The appellant's offending was serious. He committed multiple offences on the afternoon in question. There was a short interval between the commission of some of the offences. This gave the appellant an opportunity for reflection on the criminal conduct he had already committed and was proposing to commit. Count 5 was the most serious of the offences. Some accumulation of the individual sentences for counts 1, 2, 3 and 4 upon the individual sentence for count 5 was necessary in order properly to mark the seriousness of the appellant's overall criminal conduct, after taking into account mitigating factors.
I am satisfied that, upon all the relevant facts and circumstances and all the relevant sentencing considerations being evaluated and weighed, the total effective sentence of 3 years' immediate imprisonment was commensurate with the seriousness of the offences. It is not reasonably arguable that the total effective sentence was disproportionate to the overall criminality of the appellant's offending, viewed in its entirety, and after having regard to the appellant's personal circumstances, including his cooperation with and assistance to the police and the other mitigating factors (notably, his early pleas of guilty and his remorse). No reasonable basis exists for inferring error from the sentencing outcome.
The ground of appeal does not have a reasonable prospect of success. Leave to appeal should be refused and the appeal dismissed.
MAZZA JA: I agree with Buss JA.
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