Moro v The Queen
[2001] WASCA 44
•7 FEBRUARY 2001
MORO -v- THE QUEEN [2001] WASCA 44
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2001] WASCA 44 | |
| COURT OF CRIMINAL APPEAL | |||
| Case No: | CCA:100/2000 | 7 FEBRUARY 2001 | |
| Coram: | MALCOLM CJ ANDERSON J MILLER J | 7/02/01 | |
| 7 | Judgment Part: | 1 of 1 | |
| Result: | Application dismissed | ||
| PDF Version |
| Parties: | CARLOS JOSE MORO THE QUEEN |
Catchwords: | Criminal law Sentence 7 years' imprisonment for combination of offences Dangerous driving causing death and other driving offences Two counts of aggravated burglary Whether excessive Totality principle Turns on own facts |
Legislation: | Criminal Code, s 401 |
Case References: | Jarvis v The Queen (1993) 20 WAR 201 Pearce v R [1998] HCA 57; (1998) 72 ALJR 1416 Punch v The Queen (1993) 9 WAR 486 R v Ward (1999) 109 A Crim R 159 Dao v R, unreported; CCA SCt of WA; Library No 990015; 22 January 1999 Lowndes v R (1999) 195 CLR 665 Meikle v R [2000] WASCA 324 Miles v R (1997) 17 WAR 518 R v S (A Child) (No 2) (1992) 7 WAR 434 R v Stebbings (1990) 4 WAR 538 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : COURT OF CRIMINAL APPEAL CITATION : MORO -v- THE QUEEN [2001] WASCA 44 CORAM : MALCOLM CJ
- ANDERSON J
MILLER J
- Applicant
AND
THE QUEEN
Respondent
Catchwords:
Criminal law - Sentence - 7 years' imprisonment for combination of offences - Dangerous driving causing death and other driving offences - Two counts of aggravated burglary - Whether excessive - Totality principle - Turns on own facts
Legislation:
Criminal Code, s 401
Result:
Application dismissed
(Page 2)
Representation:
Counsel:
Applicant : Mr J A Sutherland
Respondent : Mr R E Cock QC
Solicitors:
Applicant : McDonald & Sutherland
Respondent : State Director of Public Prosecutions
Case(s) referred to in judgment(s):
Jarvis v The Queen (1993) 20 WAR 201
Pearce v R [1998] HCA 57; (1998) 72 ALJR 1416
Punch v The Queen (1993) 9 WAR 486
R v Ward (1999) 109 A Crim R 159
Case(s) also cited:
Dao v R, unreported; CCA SCt of WA; Library No 990015; 22 January 1999
Lowndes v R (1999) 195 CLR 665
Meikle v R [2000] WASCA 324
Miles v R (1997) 17 WAR 518
R v S (A Child) (No 2) (1992) 7 WAR 434
R v Stebbings (1990) 4 WAR 538
(Page 3)
1 MALCOLM CJ: I invite Miller J to deliver his judgment.
2 MILLER J: This is an application for leave to appeal against a sentence of 7 years' imprisonment imposed in the District Court at Perth on 18 April 2000. The grounds of appeal as amended at the hearing contend in essence that the sentence of 7 years' imprisonment was excessive in that insufficient consideration was given by the learned trial Judge to the principle of totality in sentencing. It is also contended that the sentence was manifestly excessive having regard to a number of other factors, including the maximum sentence for the offence of aggravated burglary; standards of sentencing customarily observed for the offences in question; the place which the criminal conduct in question occupied in the seriousness of the offences; the age and personal circumstances of the applicant and his plea of guilty.
3 The applicant pleaded guilty in the District Court to three indictments. The first alleged one count of aggravated burglary. The second alleged one count of stealing a motor vehicle and reckless driving; one count of dangerous driving causing grievous bodily harm; and one count of dangerous driving causing death. The third alleged a further count of aggravated burglary. The third indictment was presented and dealt with on the day upon which the learned Judge sentenced the applicant in relation to pleas of guilty which had previously been entered on the first two indictments.
4 When the learned trial Judge came to sentence the applicant he dealt first with the offences contained within the second indictment. His Honour recounted the facts, which revealed that on 11 August 1999 the applicant stole a motor vehicle which was owned by his girlfriend. He drove it at a time when he held no motor driver's licence. He travelled along Hutton Street in Osborne Park at a speed of 90 kmh in a 60 kmh zone. He attempted to roll a cigarette and took his eyes off the road. In so doing he failed to negotiate a bend in the road and drove straight into a public park where a lady and her 3-year-old child were walking. The mother of the child was thrown into the air and the child pushed into a parked vehicle where he received serious head injuries from which he died four days later. The mother of the child received injuries which amounted to grievous bodily harm. The applicant fled the scene.
5 The learned trial Judge properly pointed out that the offence of dangerous driving causing death was in the middle range of seriousness for such an offence. He appears to have reached this conclusion because neither alcohol nor drugs were involved in the driving. For the offence of
(Page 4)
- stealing the motor vehicle and reckless driving the applicant was sentenced to 3 years. For the offence of dangerous driving causing grievous bodily harm he was sentenced to a further 3 years. For the offence of dangerous driving causing death he was sentenced to another 3 years. Each of the sentences was ordered to be served concurrently.
6 In my view those sentences were entirely within the range of sentences that could have been imposed. The maximum sentences for the three counts on the first indictment were 20 years, 20 years and 14 years imprisonment respectively. In Punch v The Queen (1993) 9 WAR 486, Murray J (at 497) pointed out that manslaughter caused by the use of a motor vehicle was becoming distressingly and increasingly common. For the purposes of this case there is no distinction between the crime of manslaughter arising out of the use of a motor vehicle and that of dangerous driving causing death or grievous bodily harm. What Murray J there said was:
"For deterrent purposes, and generally for the purpose of the protection of the community, the court is obliged to have regard to the prevalence of the offence in arriving at an appropriately proportionate sentence. The process is one which requires the court to sentence for an offence, the gravity of which is to be measured in part by having regard to the prevalence of the offence and the need for deterrent sentences, and by giving less weight to mitigating factors: see R v Peterson [1984] WAR 329; R v Morley [1985] WAR 65."
- I therefore consider that the sentences imposed in relation to the first indictment were entirely appropriate.
7 The learned trial Judge then dealt with the aggravated burglary alleged in the first indictment. This was an offence which had been committed on 31 December 1999 at East Fremantle, when the applicant had jemmied open the side window of a house, gone through the house and taken cash and a handbag. The house was occupied by two adults and three children who were asleep. The applicant was apprehended shortly afterwards and found to be carrying a knife with a 10cm blade and a screwdriver. He had $429 in cash upon him. This came from the house in question. For this offence the applicant was sentenced to 2 years' imprisonment to be served cumulatively upon the sentences imposed in respect of the second indictment. Having regard to the statutory maximum of 20 years' imprisonment for the offence, that sentence was well within the range of sentences that could have been imposed. If anything it was low.
(Page 5)
8 The learned trial Judge then turned to the third indictment. The facts in relation to the count of aggravated burglary contained within that indictment had been read to his Honour on the morning of 18 April. They revealed that on 12 February the applicant had gone to a house in Palmyra where he had jemmied open a window with a screwdriver and placed his hand inside through a flyscreen in order to remove it. He was disturbed by the occupant of the house and ran off. He was shortly afterwards located by police and found to be in possess of four screwdrivers and other housebreaking implements. For this offence a further 2 years was imposed which was also to be served cumulatively - ie cumulatively upon the sentences imposed on the first and on the second indictment. The result was the 7 years' imprisonment in relation to which this application for leave to appeal has been brought.
9 In imposing sentence the learned trial Judge stressed the following factors:
(1) The applicant was 30 years of age and was on parole at the time all offences were committed.
(2) Although the applicant had a heroin problem which had been at the root of his general criminality in the past, it had nothing to do with the offences which were the subject matter of the second indictment.
(3) The applicant had previously been convicted of the offence of burglary in the Court of Petty Sessions Perth in February 1998 and given a suspended sentence. There were other convictions for loitering, possession of housebreaking implements and offensive weapons.
(4) In considering the sentence to be imposed consideration had to be given to the issue of totality and to the pleas of guilty which had been entered in relation to each indictment.
10 In my view the sentences imposed by the learned trial Judge and the overall head sentence of 7 years' imprisonment were entirely within the range of sentences that could have been imposed. I consider that the learned trial Judge took into account all relevant factors and gave careful consideration to the totality issue. In Jarvis v The Queen (1993) 20 WAR 201 Ipp J (at 207) pointed out that the overriding principle in relation to totality is that the aggregate sentence (even when punishment is being imposed for multiple offences) should fairly and justly reflect the total criminality of the offender's conduct. That in my view was the case in
(Page 6)
- relation to the sentences imposed by the learned trial Judge in this case. In my view the learned sentencing Judge properly considered that the two aggravated burglaries should be served cumulatively and cumulatively upon the driving offences. They had occurred on separate occasions some 42 days apart and they were of a totally different character from the driving offences. In R v Ward (1999) 109 A Crim R 159 (at [9]) Malcolm CJ said in relation to sentences for aggravated burglary which were separated in time:
"The respondent is extremely fortunate to have been given such light sentences for these offences. Both of them were of an aggravated kind. They were, however, committed almost a year apart. While it is appropriate to order that a number of offences arise out of the same transaction may justify concurrent sentences, where the offences occur on quite separate occasions and involve quite separate transactions, then unless the totality principle would require some other approach the sentences should be imposed cumulatively: Ruane (1979) 1 A Crim R 284 per Wallace J at 286; Shaw (1989) 39 A Crim R 343 at 347 per Brinsden J; and Van Thong Dao (unreported, Court of Criminal Appeal, WA, No 106 of 1998, 22 January 1999) per Murray J at pp 15-16."
12 MALCOLM CJ: I am also of the opinion that this application for leave to appeal should be dismissed. As Miller J has pointed out, the maximum sentence for aggravated burglary under s 401 of the Criminal Code is 20 years.
13 Seen in the context of the other serious offences of which the applicant was convicted and sentenced and in the light of the seriousness of the offence of aggravated burglary with which we are now concerned, I agree that the sentence which was imposed in the circumstances was one which could be described as moderate and by no means was it manifestly excessive.
(Page 7)
14 In the recent past this Court has made it clear that the offence of aggravated burglary is regarded as a very serious offence, the prevalence of which has been the subject of considerable concern to the community. The Court has also made it clear that the range of sentences to be imposed for burglary offences when they are committed on domestic premises which are occupied at the time when the offences are committed should be firmed up: R v Ward (supra) at [5] to [6] in my own judgment.
15 In the present case, the learned Chief Judge proceeded to sentence for the offence of aggravated burglary in question in conformity with the approach that is required where the totality principle is relevant in the judgment of the High Court in Pearce v R [1998] HCA 57; (1998) 72 ALJR 1416, 156 ALR 684, at [45] in the judgment of McHugh, Hayne and Callinan JJ. In my view his Honour fixed an appropriate sentence for each of the sentences and then considered questions of cumulation or concurrence in the context of the totality principle. The end result was a fair, if not moderate, sentence in total for the three distinct chapters of criminality which were involved.
16 ANDERSON J: I agree with the Chief Justice and Miller J that the application for leave to appeal should be dismissed for the reasons given by them, to which I do not wish to add anything.
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