Morris v The State of Western Australia

[2011] WASCA 47

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT :   THE COURT OF APPEAL (WA)

CITATION:   MORRIS -v- THE STATE OF WESTERN AUSTRALIA [2011] WASCA 47

CORAM:   McLURE P

BUSS JA

HEARD:   28 JANUARY 2011

DELIVERED          :   22 FEBRUARY 2011

FILE NO/S:   CACR 132 of 2010

BETWEEN:   AARON JOHN MORRIS

Appellant

AND

THE STATE OF WESTERN AUSTRALIA
Respondent

ON APPEAL FROM:

Jurisdiction              :  SUPREME COURT OF WESTERN AUSTRALIA

Coram  :McKECHNIE J

File No  :INS 68 of 2010

Catchwords:

Criminal law - Appeal against sentence - Totality principle - One-transaction rule - Turns on own facts

Legislation:

Criminal Code (WA), s 371A, s 378, s 392, s 401(1), s 401(2)

Result:

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 judgment(s):

R v Faithfull [2004] WASCA 39

1. McLURE P:  The appellant seeks leave to appeal against sentence.  On 5 August 2010 he was convicted on his fast‑track plea of guilty on seven counts for which he was sentenced as follows:

Count	Offence	Criminal Code (WA)	Sentence of imprisonment
1	Stealing	s 378	3 months' imprisonment
2	Attempt to steal a motor vehicle	s 371A, s 378	6 months' imprisonment
3	Burglary and commit offence in place	s 401(2)	18 months' imprisonment
4	Aggravated burglary with intent to commit offence in place	s 401(1)	18 months' imprisonment
5	Aggravated armed robbery	s 392	4 years' imprisonment
6	Burglary with intent to commit offence in place	s 401(1)	18 months' imprisonment
7	Burglary and commit offence in place	s 401(2)	18 months' imprisonment

1. The sentencing judge (McKechnie J) ordered that the sentences on counts 1, 2, 4 and 5 be served concurrently.  He also ordered that the sentences on counts 3, 6 and 7 be served concurrently but cumulatively with the total sentence (4 years) for counts 1, 2, 4 and 5.  That resulted in a total effective sentence of 5 years and 6 months.  The appellant was made eligible for parole.

2. The appellant contends the trial judge erred in failing to order that all sentences be served concurrently which resulted in a total effective sentence that infringed the totality principle.

3. The facts of the appellant's offending are as follows.  On 20 November 2009, the appellant stole a concrete saw valued at $3,000 (count 1).  The saw was recovered.  On 13 December 2009, the appellant used a tool to gain entry to a motor vehicle belonging to Nigel Gilbert.  The appellant attempted to start the motor vehicle by forcing the ignition, damaging it in the process.  He did not succeed and fled the scene (count 2).

4. On 13 December 2009, the appellant gained entry to the Waroona District High School.  He stole a Braille computer used by a blind student valued at $6,363.  The computer was not recovered (count 3).

5. At about 3.00 am on 13 December 2009, the appellant knocked on the door of Nigel Gilbert's residence.  When the appellant was refused entry, he brandished a butcher's knife and forced his way into Mr Gilbert's home without his consent (count 4).  The appellant demanded prescription medication.  Fearing for his safety, Mr Gilbert gave his prescription medication (methadone, oxynorm and antenex) to the appellant (count 5).  Mr Gilbert was aged 72 at the time of the offences.

6. On 14 December 2009, the appellant returned to the Waroona District High School.  He forced open the door to and entered the music room.  The appellant searched the room with the intention of stealing goods.  However, this triggered an alarm and the appellant fled without stealing anything (count 6).  Later on 14 December 2009, the appellant returned to the music room at the Waroona District High School.  He stole an electric guitar and a bass amplifier both of which were recovered (count 7).

7. The appellant was aged 29 at the time of the offences.  He commenced using illicit drugs (cannabis, amphetamines and heroin) at around 13 or 14 and had a number of naltrexone implants.  At the time of the offences he was under the influence of morphine and prescription medication (Xanex for anxiety).  The pre‑sentence report notes that the appellant tended to minimise his offending (by relying on lack of memory, his drug use and placing the blame on others) and displayed limited victim empathy. 

8. The appellant had a significant history of prior offending, including four convictions for burglary, four convictions for stealing and multiple convictions for drug‑related offences.  Some of the offences for which the appellant was sentenced by McKechnie J involved a significant escalation in seriousness.

9. The appellant contended that the offending the subject of counts 2 to 7 formed part of a single transaction for which total concurrency was

appropriate.  The one‑transaction rule is said to apply when a number of offences arise out of substantially the same act, circumstances or series of occurrences; or when there is one multifaceted course of criminal conduct; or if they are considered to be manifestations of one criminal enterprise, transaction or episode:  see R v Faithfull [2004] WASCA 39 [26]. However, it is not the case that concurrent terms must be imposed for multiple offences constituting one transaction. It is a general rule that can be displaced by considerations of totality.

1. There is no reasonable basis to contend that all the offences the subject of counts 2 ‑ 7 were part of one transaction.  On any view, the very serious offences the subject of counts 4 and 5 are separate and distinct from the other counts.  The fact that the offending occurred in the course of a continuous drug‑fuelled episode does not justify or require a different conclusion.  Moreover, even if the offences did fall within the one‑transaction rule, it was appropriate having regard to totality considerations, including the appellant's antecedents and lack of insight and empathy, to order partial cumulation of the sentences.

2. As the grounds of appeal have no reasonable prospect of succeeding, leave to appeal should be refused and the appeal dismissed.

3. BUSS JA:  I agree with McLure P.