Nannup v The Queen
[2001] WASCA 39
•22 FEBRUARY 2001
NANNUP -v- THE QUEEN [2001] WASCA 39
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2001] WASCA 39 | |
| COURT OF CRIMINAL APPEAL | |||
| Case No: | CCA:164/2000 | 14 DECEMBER 2000 | |
| Coram: | KENNEDY J PIDGEON J WALLWORK J | 22/02/01 | |
| 7 | Judgment Part: | 1 of 1 | |
| Result: | Leave refused | ||
| PDF Version |
| Parties: | RONALD JAMES NANNUP THE QUEEN |
Catchwords: | Criminal law and procedure Sentencing Totality principle Sentence of 2 years' imprisonment for house breaking made cumulative on sentence of 4 years' imprisonment for armed robbery House breaking offence not detected until after sentence for robbery offence Whether totality principle breached Sentence confirmed Turns on own facts |
Legislation: | Nil |
Case References: | Jarvis v The Queen (1993) 20 WAR 201 Mill v The Queen (1988) 166 CLR 59 Brown v The Queen, unreported; CCA SCt of WA; Library No 970140; 4 February 1997 Cheshire v The Queen, unreported; CCA SCt of WA; Library No 7924; 7 November 1989 Councillor v The Queen, unreported; CCA SCt of WA; Library No 940509; 14 September 1994 Fisher v The Queen [1999] WASCA 122 R v Heferen (1999) 106 A Crim R 89 R v Todd [1982] 2 NSWLR 517 Robertson v The Queen, unreported; CCA SCt of WA; Library No 990145; 23 March 1999 Smith v The Queen (1996) 16 WAR 205 Taylor v The Queen, unreported; CCA SCt of WA; Library No 980152; 6 April 1998 Vlek v The Queen, unreported; CCA SCt of WA; Library No 990153; 29 March 1999 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : COURT OF CRIMINAL APPEAL CITATION : NANNUP -v- THE QUEEN [2001] WASCA 39 CORAM : KENNEDY J
- PIDGEON J
WALLWORK J
- Applicant
AND
THE QUEEN
Respondent
Catchwords:
Criminal law and procedure - Sentencing - Totality principle - Sentence of 2 years' imprisonment for house breaking made cumulative on sentence of 4 years' imprisonment for armed robbery - House breaking offence not detected until after sentence for robbery offence - Whether totality principle breached - Sentence confirmed - Turns on own facts
Legislation:
Nil
(Page 2)
Result:
Leave refused
Representation:
Counsel:
Applicant : Mr M J Aulfrey
Respondent : Mr A S Derrick
Solicitors:
Applicant : Ian Hope
Respondent : State Director of Public Prosecutions
Case(s) referred to in judgment(s):
Jarvis v The Queen (1993) 20 WAR 201
Mill v The Queen (1988) 166 CLR 59
Case(s) also cited:
Brown v The Queen, unreported; CCA SCt of WA; Library No 970140; 4 February 1997
Cheshire v The Queen, unreported; CCA SCt of WA; Library No 7924; 7 November 1989
Councillor v The Queen, unreported; CCA SCt of WA; Library No 940509; 14 September 1994
Fisher v The Queen [1999] WASCA 122
R v Heferen (1999) 106 A Crim R 89
R v Todd [1982] 2 NSWLR 517
Robertson v The Queen, unreported; CCA SCt of WA; Library No 990145; 23 March 1999
Smith v The Queen (1996) 16 WAR 205
Taylor v The Queen, unreported; CCA SCt of WA; Library No 980152; 6 April 1998
Vlek v The Queen, unreported; CCA SCt of WA; Library No 990153; 29 March 1999
(Page 3)
1 KENNEDY J: I have had the advantage of reading in draft the reasons to be published by Pidgeon J. I am in agreement with those reasons and would accordingly refuse leave to appeal against the sentence.
2 PIDGEON J: These are the reasons for this Court on 14 December last, refusing the applicant leave to appeal.
3 The applicant pleaded guilty on the fast-track to an indictment alleging that on 5 April 1998 at Queens Park, he committed the offence of stealing in a dwelling house. He also pleaded guilty to stealing the motor car garaged at that dwelling. His Honour Judge Wisbey sentenced him to a term of 2 years imprisonment on the first count, but made this term cumulative on a term of 4 years imprisonment which the applicant was then serving. In respect of the offence of stealing a motor vehicle, he imposed a term of one year's imprisonment to be served concurrently. The applicant is seeking leave to appeal on the following grounds:
"1. The learned Sentencing Judge erred in law in that he imposed a sentence that was excessive in all the circumstances.
Particulars
- (a) The learned Sentencing Judge failed to take into account the totality principle as it applied to the applicant.
(b) The learned Sentencing Judge failed to take into account the fact of the charge being brought at very late stage and the excessive effect that occurrence had on the sentence.
(c) The learned Sentencing Judge failed to impose a sentence commensurate with the offence given the age and personal antecedents of the applicant."
(Page 4)
- 6 February 1998 and committed the offences the subject of the appeal whilst on parole and within two months of being released on parole. He was not spoken to about these offences until the following year. In the meantime, on 3 August 1999 he was sentenced by Wallwork J to a term of four years imprisonment in respect of an offence of armed robbery and some motor vehicle offences which he had committed on 31 January 1999.
5 The offences the subject of this appeal occurred on 4 April 1998. Between the hours of 4.15 am and 5.00 am on 4 April, he entered a home unit in Queens Park in company with an unknown person. (It is to be noted that the indictment alleged 5 April). The applicant entered by removing flyscreens and smashing a glass window. He had earlier attempted to open two other windows. The two entered the premises. They opened cupboards and drawers and scattered clothes on the floor. They stole a lap top computer, a printer, a television set and a gold chain. The property has not been recovered and was valued at $4100. The applicant, in addition, picked up a set of keys to the Datsun motor car which was outside. The two left the premises through a side sliding door. They started the vehicle and drove it away. It was recovered later in the day in Cannington undamaged. The applicant's finger prints were located on the frame of a window of the home unit entered. Although the authorities must have had a record of the applicant's finger prints by reason of his extensive record, he was not interviewed until 29 October 1999 after he had commenced the four year sentence sentence for armed robbery.
6 Judge Wisbey considered that having regard to the fact that the applicant was only 19 years of age at the time of the offence, the appropriate starting point for the house breaking offence was a term of 3 years imprisonment. His Honour reduced that to a term of 2 years imprisonment by reason of the plea of guilty on the fast track. His Honour considered that the appropriate sentence for stealing the motor vehicle was one of 12 months imprisonment, but he said that having regard to the fact that both offences arose essentially out of the one cause of criminal conduct, he directed that term be served concurrently with the term he imposed. However, he ordered that the term of 2 years imprisonment be served cumulatively on the terms the applicant was then serving. He made an order for eligibility for parole.
7 The substance of the appeal as formulated in the grounds and as argued is limited to whether his Honour failed to give effect to the totality principle. It is necessary to make reference to the applicant's conduct
(Page 5)
- subsequent to 5 April 1998, the day the applicant committed the offences the subject of this appeal. On 20 July 1998 he was convicted in the Court of Petty Sessions in respect of offensive behaviour on a train and possessing an offensive weapon, and giving a false name. He was fined a total of $150. However, on 28 July 1998 he was sentenced to a term of 12 months imprisonment in the Court of Petty Sessions in respect of a house breaking offence and on 29 September received a three month concurrent sentence for another house breaking offence. It is not known when these offences were committed. He was released on parole in respect of these offences on 28 November 1998 and the parole was due to expire on 26 March 1999. However, on 31 January 1999 he committed the armed robbery offence and the motor vehicle offences for which he appeared before Wallwork J. The facts relating to the armed robbery offence were that at 7.30 am he and a juvenile entered a store armed with bricks. Another juvenile waited outside. The applicant threatened a male and a female in the store with bricks, then threw bricks and grocery items at them and threw a brick at a monitor. An amount of $300 was stolen of which $150 was recovered, but there was damage to the extent of $4,355. The applicant asked Wallwork J to take into account three charges of stealing motor vehicles which had occurred on the same day and three further charges of driving whilst unlicensed. The vehicles were recovered, but one of the vehicles had its windows smashed. The term imposed in respect of each of these offences was, as I mentioned, a total effective term of 4 years imprisonment. The effect of the cumulative sentence imposed by Judge Wisbey was that the total sentence the applicant is now required to serve is one of six years.
8 One of the particulars of the grounds of appeal claim that Judge Wisbey failed to take into account the fact that the house breaking offence he was considering was brought at a very late stage "and the excessive effect that occurrence had on the sentence". As I mentioned, the applicant's fingerprint was found in April 1998 at the time the house breaking offence was investigated. The applicant's fingerprint was recorded with the police authorities, but he was not spoken to until September 1999 when he admitted the offence. Although the victims of the offence might have a cause of complaint that the authorities did not identify an offender when they had sufficient information to do so, I do not consider that it is open to the applicant to complain in respect of this. It would have been open to him, when he appeared before Wallwork J, to have asked for this offence to be taken into account and had he done so, that would have been a further factor of mitigation. He did not do so and waited for it to be found out. He cannot in these circumstances expect any
(Page 6)
- reduction on this account. He gave no assistance as to what happened to valuable stolen property but, in mitigation, he admitted the offence itself and pleaded guilty. These factors were taken into account.
9 The other particular claims that his Honour failed to impose a sentence commensurate with the offence, given the age and personal antecedents of the applicant. Such a ground standing alone would have no merit as it could not be said that a sentence of 2 years imprisonment for a serious house breaking for a 19 year old offender with a bad record is in any way excessive. However, the ground as argued and, as I understand it as drafted, is that this is one of the factors to be taken into account when weighing the totality principle and this is the prime question to consider.
10 The High Court in Mill v The Queen (1988) 166 CLR 59 when explaining the totality principle, quoted from Thomas Principles of Sentencing, 2nd ed 1979, p 56 - p57, which said that the effect of the totality principle is to require a sentencer who has passed a series of sentences, each properly calculated in relation to the offence for which it was imposed and each properly made consecutive in accordance with the principles governing consecutive sentences, to review the aggregate sentence and consider whether the aggregate is 'just and appropriate'. The author concluded by saying that the court must look at the totality of the criminal behaviour and ask itself what is the appropriate sentence for all the offences. This was referred by Ipp J in Jarvis v The Queen (1993) 20 WAR 201. Ipp J referred to the requirement that the aggregate sentence must be proportionate to the totality of criminal behaviour involved.
11 The house breaking offence was a serious one. It occurred in the early hours of the morning, but the occupants were not present. Valuable property of a personal nature was taken and lost. The affront to home owners to have their houses entered and find property of this type missing is very grave. In addition, the home owner on arriving home found the car missing. To make the sentence concurrent or even partially concurrent would, I consider, result in a sentence that would not be proportionate to the totality of the criminal behaviour involved. This overall criminal behaviour involved an armed robbery with actual violence in the sense that missiles were thrown at the store staff together with a house breaking as serious as I have earlier outlined.
12 One of the matters to consider when reviewing the final sentence is whether it is a "crushing" one. This too was analysed by Ipp J in Jarvis. In sentences of this type, one factor that may be considered to see if the sentence is crushing is the factor the offender will become eligible for
(Page 7)
- parole and if successful, has the prospect of portion of the sentence being remitted. I do not consider that it can be said that a sentence of 6 years imprisonment with an order for eligibility for parole on a 19 year old offender who has offended to the extent the applicant has, can be said to be crushing.
13 It is for these reasons that the application was refused.
14 WALLWORK J: I agree with the reasons for judgment of Pidgeon J. There is nothing I wish to add.
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