Momand v The State of Western Australia - [2024] WASCA 14

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT :   THE COURT OF APPEAL (WA)
CITATION:   MOMAND -v- THE STATE OF WESTERN AUSTRALIA [2024] WASCA 14
CORAM:   BUSS P
HALL JA

HEARD:   29 JANUARY 2024
DELIVERED          :   7 FEBRUARY 2024
FILE NO/S:   CACR 107 of 2023
BETWEEN:   MOHAMMAD MASOOD MOMAND
Appellant

AND

THE STATE OF WESTERN AUSTRALIA
Respondent

ON APPEAL FROM:
Jurisdiction              :   DISTRICT COURT OF WESTERN AUSTRALIA
Coram:   SWEENEY DCJ
File Number            :   IND 1330 of 2020

Catchwords:

Criminal law - Appeal against sentence - Wilful and unlawful damage - Whether sentence manifestly excessive - Whether offence indictable - Whether sentencing judge viewed CCTV footage - Whether discount for pleading guilty was inadequate

Legislation:

Criminal Code (WA), s 338B, s 393, s 444

Result:

Extension of time to appeal refused
Leave to appeal refused

Appeal dismissed

Category: B

Representation:

Counsel:

Appellant	:	In Person
Respondent	:	No Appearance

Solicitors:

Appellant	:	In Person
Respondent	:	Director of Public Prosecutions (WA)

Case(s) referred to in decision(s):

Kabambi v The State of Western Australia [2019] WASCA 44
Lawson v The State of Western Australia [No 3] [2018] WASCA 129
Lesay v The State of Western Australia [2011] WASCA 154
NEDI v The State of Western Australia [2018] WASCA 193

JUDGMENT OF THE COURT:

This is an application for leave to appeal against sentence.
The appellant was convicted on his pleas of guilty of one count of wilfully and unlawfully damaging property contrary to s 444 of the Criminal Code (WA) (Code), one count of assault with intent to rob contrary to s 393 of the Code and one count of making a threat to unlawfully harm another contrary to s 338B of the Code. He was sentenced to 6 months' imprisonment on count 1, 18 months' imprisonment on count 2 and 12 months' imprisonment on count 3. The sentences on counts 1 and 2 were ordered to be served cumulatively and the sentence on count 3 was ordered to be served concurrently. The total effective sentence was 2 years' immediate imprisonment. An order was made that the appellant be eligible for parole.
The appellant seeks leave to appeal against his sentence. The appeal notice was filed approximately two months after the time allowed for bringing an appeal. An extension of time is required. In an affidavit the appellant has stated that the delay was due to him seeking advice from several lawyers, a process which he said had been very difficult. The delay is insufficiently explained, but an extension may be granted where to deny it would result in a miscarriage of justice. This requires consideration of the merits of the grounds of appeal.
The appellant is self‑represented. His appellant's case refers to two grounds of appeal. First, that the sentence on count 1 was manifestly excessive. Second, that the District Court did not have jurisdiction to deal with count 1 as it was a 'non‑indictable offence'. In written submissions, the appellant raises two other issues, that the learned sentencing judge referred to having watched CCTV footage when such footage was not played in court and that the discount allowed for pleading guilty to counts 2 and 3, being 10%, was too low.
For the reasons that follow, neither of the grounds of appeal has any reasonable prospect of succeeding. Further, there is no merit in the other matters raised by the appellant in his written submissions. Leave to appeal should be refused and the appeal dismissed.

The facts

At 4.43 am on Saturday 9 November 2019, the appellant drove his vehicle, a white Mercedes‑Benz, into the car park of a shopping centre in Mount Lawley. The appellant drove past another parked vehicle and stopped in a parking bay, where he remained for a few minutes. He then drove out of the car park.[1]
[1] ts 1002.
About two minutes later, the appellant returned in his vehicle and drove in a straight line directly into a parked vehicle, a silver Kia Rondo. The Kia was shunted across its parking bay and sustained damage. The appellant then parked his car, got out and walked into the shopping centre.[2]
[2] ts 989 - 990, 1002.
Once inside, the appellant walked around the store collecting several items. He took these items to the checkout and placed them on the counter, where a male shop assistant processed the items for payment and placed them in a plastic bag. When asked for payment, the appellant stated that the Kensington Police would pay and attempted to walk away with the items without paying. The shop assistant tried to retrieve the items from the appellant by reaching for the plastic bag over the counter. When the appellant moved away, the shop assistant came to the front of the counter and again tried to retrieve the items. There was a scuffle in which both the appellant and the shop assistant were both holding the plastic bag containing the items.[3]
[3] ts 1002.
At this point, the appellant punched the shop assistant to the face with his right fist. There was a further scuffle, and both men fell to the floor, where they wrestled. Another staff member approached and called police on a nearby telephone. The appellant threatened to stab the shop assistant with whom he was wrestling and tried to pull a red handled retractable knife from his trouser pocket. On seeing the knife, the shop assistant moved quickly away. The knife was not pointed at the shop assistant and the blade was not extended.[4]
[4] ts 990, 1002.
The appellant stood up and placed the knife into his pocket, collected his car keys from the floor and left the store. The incident was captured on CCTV footage. The appellant was identified on the CCTV images by police. The shop assistant participated in a digital photo board identification process on 28 November 2019 and identified the appellant as the man who assaulted him.[5]
[5] ts 991, 1002.
On 5 December 2019, the appellant was arrested. He informed police of the location of his Mercedes vehicle and consented to a search of that vehicle. When police conducted a search, they located a red handled retractable knife matching the description of that used by the appellant during the incident and a pair of men's brown shoes matching the shoes that the appellant can be seen wearing in the CCTV footage. The appellant was conveyed to a police station but declined to participate in a recorded interview.[6]
[6] ts 991.
The damage offence relates to the car that was hit in the car park. That car happened to belong to the same shop assistant whom the appellant assaulted. This was a coincidence and there was no suggestion that the appellant and the shop assistant were previously known to each other. The State advised the sentencing judge that the car had been written off due to the damage caused, and the value of the car was estimated to be $8,500. The sentencing judge declined to make a compensation order as there was insufficient supporting material before the court.[7]
[7] ts 997 - 998.

Personal circumstances

The appellant was aged 42 at the time of the offences and 46 when he came to be sentenced. He was living with his mother at the time and has several siblings.[8]
[8] ts 992.
In sentencing submissions, it was said that the appellant was suffering from undiagnosed depression at the time of the offences as a reaction to a relationship breakdown. It was said that he acknowledged that he was 'more or less out of control' and did not understand the consequences of what he was doing. He had since had time to reflect on his behaviour and was said to be 'extremely sorry for the suffering' he has caused, in addition to the suffering caused to his mother and siblings.[9]
[9] ts 993 - 994.
The appellant has previously had issues with illicit drugs, but it was not suggested that drugs were a causative factor in this offending. It was submitted on the appellant's behalf that he had not used drugs 'for some time' because he had come to appreciate the adverse effects that drugs have had on him.[10]
[10] ts 994.
The appellant has a significant criminal record. It includes assault, breach of restraining orders, possession of an unlicensed firearm, stealing a motor vehicle, attempted fraud, aggravated stalking, assault occasioning bodily harm, possessing a controlled weapon, possession of drugs, being armed in a way that may cause fear, and criminal damage. Defence counsel told the sentencing judge that on one prior occasion the appellant had armed himself with an axe and done damage to a car. On another occasion, he had frightened a woman after he broke into her house whilst in possession of a hammer. That incident resulted in the appellant being made the subject of a 12-month intensive supervision order from 26 March 2019. The present offences breached that intensive supervision order, though the sentencing judge noted that the appellant had previously been dealt with for breaching that order by other offending.[11]
[11] ts 995, 1002 - 1003.
The appellant had been remanded in custody for a significant period prior to his sentencing. On his behalf, it was submitted that he had used that time constructively to reflect on his conduct and that he was determined not to break the law again.[12]
[12] ts 996.

Sentencing remarks

The sentencing judge noted that the appellant had originally been charged with attempted armed robbery and that, following negotiations, that charge had been replaced by counts 2 and 3 on the indictment. The criminal damage charge remained unchanged.[13]
[13] ts 1004 - 1005.
As regards the criminal damage offence, the sentencing judge said the manoeuvre with the vehicle was captured on CCTV footage and that it was plainly deliberate.[14]
[14] ts 1003 - 1004.
As regards the assault with intent to rob, the sentencing judge noted that the value of the items was very modest, being $23.72. She also noted that the appellant approached the cashier and put the items on the counter and that this was not a typical stealing offence. However, the appellant had then used violence, both by punching the attendant and wrestling with him on the ground, when an attempt was made to stop the appellant from stealing the items.[15]
[15] ts 1002.
As regards the threat offence, the sentencing judge said that the appellant threatened to stab the attendant and then made a show of trying to pull a retractable knife from his pocket. The attendant backed away quickly at this point. The appellant did not expose the blade and did not point it at the attendant when he backed away. He got up and pushed the knife back into his pocket. Her Honour said that 'you can see that on the CCTV'.[16]
[16] ts 1002.
As to the seriousness of the offending, the sentencing judge said that the offences were committed in the early hours of the morning at a shop that provides a valuable service to the community by being open 24 hours a day, seven days a week. Her Honour said that people who work in businesses of this type are vulnerable, particularly to violent offending, and need the protection of the law. She said that courts must do what they can to send a message to the community generally that offences of this sort will be met with serious punishment.[17]
[17] ts 1003.
In addition, the sentencing judge said that there was a need for personal deterrence given the appellant's history and general lawlessness. Her Honour described the appellant's driving of his car into another car in the car park as 'bizarre behaviour'. She said that it was 'plainly a deliberate collision for who knows what reason. You seem to have been very angry, from what I see of you on the footage'. She said that the appellant was plainly angry and aggressive and that he had a sense of entitlement that led him to believe that he could walk out of the store with goods without paying for them. Her Honour noted that the appellant clearly had some sort of grudge against the Kensington Police, who he had decided were responsible for things that had occurred in his life.[18]
[18] ts 1003 - 1004.
The sentencing judge noted that the appellant had taken the view that the offending was not serious and could have been dealt with in the Magistrates Court. She said in that regard, 'Any idea that you might have had that this wasn't very serious and should have been dealt with in the Magistrates Court is equally wrong, and I know you have that idea because you have told me enough times'. Her Honour then said that this was serious offending of a violent, dangerous and intimidating nature and likely to have been distressing to the shop assistant and have affected him for at least some time afterwards.[19]
[19] ts 1004 - 1005.
As regards the appellant's pleas of guilty, the sentencing judge said that these had 'been a long time coming'. She said that there were negotiations in the preceding months where the State had written to the appellant suggesting that if he was to make an offer in particular terms they would look favourably on it. That came after the matter had been listed for trial multiple times and after a trial had commenced on 22 March 2023. That trial lasted a single day before being aborted. Her Honour noted that for much of that day, the appellant was absent from the courtroom on account of his behaviour and that he was then remanded in custody as a result.[20]
[20] ts 1005.
Whilst the negotiations produced a change to the indictment in that the charge for attempted robbery was replaced with counts 2 and 3, the sentencing judge noted that the facts barely changed, other than to highlight that the knife wasn't pointed at the victim and that the blade had not been exposed. The criminal damage charge was unaffected. Her Honour noted that the evidence against the appellant was overwhelming, including very good quality CCTV footage.[21]
[21] ts 1005.
The sentencing judge said that whilst a plea of guilty is to be encouraged and amounts to an acceptance of responsibility and a willingness to allow the law to take its course, the pleas in this case had an element of pragmatism in that the appellant had been in custody for more than a year. Her Honour said that the appellant could have pleaded guilty to the criminal damage charge at an earlier time and that it had always been open for him to make an approach in relation to the other charges. Her Honour said that, in contrast, the appellant had, until shortly before his pleas, made it plain that he was planning to defend the charges.[22]
[22] ts 1005.
The sentencing judge allowed a discount of 5% for the plea of guilty to the criminal damage charge and 'given the negotiations' a discount of 10% for the other two charges. She said, 'It would be entirely unrealistic to suggest they are pleas at the first reasonable opportunity, notwithstanding the negotiations, and your counsel hasn't suggested they are'.[23]
[23] ts 1005.
The sentencing judge said that she took into account the modest value of the property involved, that the appellant did not actually extend the blade of the knife or point it directly at the victim, that it was not the appellant's intention to actually stab the man, that the appellant was emotional at the time due to a relationship breakdown and that past drug use had taken its toll on the appellant mentally. However, she concluded that the only appropriate sentences were terms of imprisonment and that nothing less could possibly have a deterrent effect on the appellant or send the appropriate message to the community.[24]
[24] ts 1005 - 1006.
The sentencing judge said that she considered that the total effective sentence should be 2 years' immediate imprisonment. She achieved that by imposing terms of 6 months' imprisonment on count 1, 18 months' imprisonment on count 2, 12 months' imprisonment on count 3 and ordering that the sentences on counts 1 and 2 be served cumulatively and the sentence on count 3 be served concurrently. An order was made that the appellant be eligible for parole and the sentence was backdated to 5 June 2022 to take into account time spent in custody.[25]
[25] ts 1006 - 1007.

Grounds of appeal

The notice of appeal and amended notice of appeal do not contain any draft grounds. The appellant's case refers to two grounds:[26]
1.The sentence imposed on count 1 was manifestly excessive; and
2.That count 1 should not have been dealt with in the District Court as it was a 'non‑indictable' offence.
[26] Appellant's case, 3.
In written submissions, the appellant also suggested that the sentencing judge made an error in referring to having watched CCTV footage when that footage was not played in court. The appellant also submitted that her Honour erred by only allowing a 10% discount for the pleas of guilty on counts 2 and 3. He asserted that the discount should have been higher as he pleaded guilty to those charges at the earliest reasonable opportunity.[27]
[27] Appellant's case, 3 - 4.

Merits of the appeal

The relevant principles relating to appeals against sentence where there is claim that a sentence is manifestly excessive are well established. Those principles have been stated many times and have been conveniently summarised in Kabambi v The State of Western Australia.[28] It is unnecessary to repeat them.
[28] Kabambi v The State of Western Australia [2019] WASCA 44 [21].
The grounds relate only to the criminal damage charge, count 1 on the indictment.
The maximum penalty for criminal damage is 10 years' imprisonment (other than where the damage is by fire or where the offence is committed in circumstances of aggravation or circumstances of racial aggravation, to which a higher maximum penalty applies).[29]
[29] Criminal Code, s 444.
Offences of criminal damage can occur in a wide variety of circumstances. The nature of the act that caused the damage and the value of the damage caused are relevant considerations. In this case, the appellant drove his car deliberately into another car in a car park. The damage was clearly significant as the car was written off. The act occurred in an area to which the public have access. Fortunately, there were no other people in the vicinity. There was no obvious motive for the offence. It was simply a random act of destruction carried out without any apparent concern for the consequences.
On the appeal hearing, the appellant claimed that he was suffering from diabetes, that he had a momentary loss of consciousness, and that the incident was an accident.[30] These claims were not made in the sentencing proceedings and are inconsistent with the appellant's plea of guilty to wilful and unlawful damage. The appellant also claimed that he went into the supermarket to admit the accident and that this was the cause of the altercation with the shop assistant.[31] Again, this was not raised in the sentencing proceedings and is inconsistent with the appellant's plea of guilty to count 2 and the admitted facts.
[30] Appeal ts 7.
[31] Appeal ts 9.
There was nothing in the appellant's personal history that mitigated the offending. Whilst the appellant's prior criminal history is not an aggravating factor, he could not claim to be a person of previous good character. His prior record includes two previous offences of causing criminal damage (committed on 18 September 2018 and 6 February 2019). Those offences and others involving the use of violence and weapons show that the appellant has been a persistent offender who has not been deterred by previous court orders and terms of imprisonment. He was not entitled to expect any leniency and the need for personal deterrence was evident.
The appellant did not refer to any comparable cases. Most of the cases which have considered sentences under s 444 of the Code have been where the damage was caused by fire (arson), to which a higher maximum penalty applies. For that reason, those cases provide no assistance here.

One of the few cases where criminal damage offences (other than arson) were committed is Lesay v The State of Western Australia.[32] In that case the offender pleaded guilty to four offences, including two of wilful damage and one of arson. The two wilful damage offences involved failed attempts to gain access to ATM machines (including with use of a crowbar and explosives). The offender was sentenced to 2 years and 6 months' immediate imprisonment for each of those offences. There was no challenge to the individual sentences. An appeal against the total effective sentence of 4 years and 6 months' immediate imprisonment was dismissed.
[32] Lesay v The State of Western Australia [2011] WASCA 154. See also NEDI v The State of Western Australia [2018] WASCA 193; Lawson v The State of Western Australia[No 3] [2018] WASCA 129.
Having regard to the maximum penalty, the circumstances of the offence, the personal circumstances of the appellant and the limited assistance afforded by other cases, the sentence of 6 months' immediate imprisonment on count 1 was plainly open to the sentencing judge. It is not reasonably arguable that that sentence was plainly unreasonable or unjust. There is no merit in ground 1 and leave in respect of it should be refused.
As to ground 2, the appellant is simply wrong. Criminal damage is an indictable offence. Section 444 of the Code provides for a summary conviction penalty for offences (other than arson) where the amount of the injury done does not exceed $50,000. The effect of this is that a charge of criminal damage can be dealt with summarily in the Magistrates Court. However, that does not change the character of the offence as being an indictable offence. Nor does it mean that such a charge cannot be dealt with on indictment in an appropriate case.
An offence of wilful and unlawful damage can be dealt with on indictment where an application is made under s 5 of the Code. Such an application can be made where an offence forms part of a course of conduct which includes other exclusively indictable offences. An application can also be made if the seriousness of the offence is such that the summary penalty would not enable an adequate punishment to be imposed or where the interests of justice require that the charge be dealt with on indictment.[33]
[33] Criminal Code, s 5(3)(a), s 5(3)(b).
In this case, an application was made in the Magistrates Court by the prosecution for the criminal damage charge to be dealt with on indictment. That application is recorded on the committal report as having been made on 25 June 2020 and as being granted by the magistrate. Accordingly, that charge was properly dealt with on indictment. There is no merit in ground 2 and leave in respect of it should be refused.
As to the appellant's claim that the sentencing judge did not watch the CCTV footage, the appellant's argument is that because the footage was not played in court her Honour could not be correct in saying that she watched it. The obvious flaw in this argument is that the CCTV footage formed part of the prosecution brief and her Honour had been involved with the matter for some time, including as the trial judge at a previously aborted trial. The CCTV footage also formed part of the materials that were tendered to the court and incorporated into the statement of facts. The sentencing judge thus had ample opportunity to watch the CCTV footage in chambers and it is clear from her references to it that she had done so. Both the prosecutor and defence counsel referred to the CCTV footage in their submissions and it was plainly assumed the sentencing judge would have watched it. Clearly, there was nothing wrong in the sentencing judge watching the CCTV footage in her chambers in circumstances where that footage was available to the appellant and his lawyers and formed part of the facts of the offending. There is no merit in this allegation.
As to the claim that the discount on counts 2 and 3 was too low, the discount to be afforded for pleading guilty under s 9AA of the Sentencing Act 1995 (WA) is a discretionary decision that requires the weighing of relevant factors, including the strength of the prosecution case. The discount is allowed to reflect the benefits to the State, any victims and the witnesses resulting from the plea. The earlier in the proceedings the plea is made the greater the reduction in the sentence may be. The maximum discount that can be allowed is 25% and that is only available where the offender pleads guilty (or indicates such a plea) at the first reasonable opportunity. In the present case, the appellant asserts that his pleas to counts 2 and 3 were entered at the first reasonable opportunity because those charges had replaced the previously existing charge shortly before the pleas were entered.
The appellant's claim fails to engage with the findings made by the sentencing judge. Her Honour found that it was always open to the appellant to enter into negotiations regarding counts 2 and 3, that those negotiations had only occurred at a very late stage, that prior to those negotiations the appellant had maintained a stance of complete denial, that the replacement charges essentially related to the same conduct as the previous charge, and that the evidence against the appellant was at all times overwhelming. In these circumstances, it was well open to the sentencing judge to conclude that it would be artificial to view the pleas to counts 2 and 3 as having been entered at the first reasonable opportunity. Further, it was open to the sentencing judge to conclude that the appropriate discount on those counts was one of 10%. There is no merit in this allegation.

Conclusion

None of the grounds of appeal, or other allegations contained in the appellant's case, has a reasonable prospect of succeeding. In those circumstances the application for an extension of time should be refused, leave in respect of the grounds of appeal should be refused and the appeal should be dismissed.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
ID
Research Associate to the Hon Justice Hall
7 FEBRUARY 2024