Narrier v The State of Western Australia

[2011] WASCA 193

NARRIER -v- THE STATE OF WESTERN AUSTRALIA [2011] WASCA 193

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2011] WASCA 193
Court:	THE COURT OF APPEAL (WA)
Case No:	CACR:60/2011	Heard:	28 JULY 2011
Coram:	McLURE P MAZZA J	Delivered:	16/09/11
No of pages:	9	Judgment Part:	1 of 1
Result:	Leave to appeal refused Appeal dismissed
Category:	B
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Parties:	JUSTIN TRENT NARRIER THE STATE OF WESTERN AUSTRALIA
Catchwords:	Criminal law Leave to appeal against sentence Stealing a motor vehicle and driving it recklessly Act endangering the life, health or safety of another Whether sentence imposed on counts of doing an act endangering another manifestly excessive Whether first limb of totality principle infringed
Legislation:	Criminal Appeals Act 2004 (WA), s 27(2) Criminal Code (WA), s 304(1), s 304(1)(b), s 304(2), s 371, s 378(2)(a) Criminal Code Amendment Act 2004 (WA)
Case References:	Chan v The Queen (1989) 38 A Crim R 337 Lesay v The State of Western Australia [2011] WASCA 154 R v Faithfull [2004] WASCA 39; (2004) 142 A Crim R 554 Roffey v The State of Western Australia [2007] WASCA 246 The State of Western Australia v Wallam [2008] WASCA 117; (2008) 185 A Crim R 116 Wilson v The State of Western Australia [2010] WASCA 82

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : NARRIER -v- THE STATE OF WESTERN AUSTRALIA [2011] WASCA 193 CORAM : McLURE P

MAZZA J

HEARD : 28 JULY 2011 DELIVERED : 16 SEPTEMBER 2011 FILE NO/S : CACR 60 of 2011 BETWEEN : JUSTIN TRENT NARRIER

Appellant

AND

THE STATE OF WESTERN AUSTRALIA
Respondent

ON APPEAL FROM:

Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA

Coram : O'NEAL DCJ

File No : IND 1427 of 2010

Catchwords:

Criminal law - Leave to appeal against sentence - Stealing a motor vehicle and driving it recklessly - Act endangering the life, health or safety of another - Whether sentence imposed on counts of doing an act endangering another manifestly excessive - Whether first limb of totality principle infringed

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Legislation:

Criminal Appeals Act 2004 (WA), s 27(2)

Criminal Code (WA), s 304(1), s 304(1)(b), s 304(2), s 371, s 378(2)(a)
Criminal Code Amendment Act 2004 (WA)

Result:

Leave to appeal refused

Appeal dismissed

Category: B

Representation:

Counsel:

Appellant : Mr S B Watters
Respondent : No appearance

Solicitors:

Appellant : Justine Fisher
Respondent : Director of Public Prosecutions (WA)

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

Chan v The Queen (1989) 38 A Crim R 337
Lesay v The State of Western Australia [2011] WASCA 154
R v Faithfull [2004] WASCA 39; (2004) 142 A Crim R 554
Roffey v The State of Western Australia [2007] WASCA 246
The State of Western Australia v Wallam [2008] WASCA 117; (2008) 185 A Crim R 116
Wilson v The State of Western Australia [2010] WASCA 82


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1 McLURE P: I agree with Mazza J.

2 MAZZA J: This is an application for leave to appeal against sentence. The appellant must satisfy the court that his proposed grounds of appeal have a reasonable prospect of succeeding: s 27(2) of the Criminal Appeals Act 2004 (WA).

Background

3 The appellant stood trial before O'Neal DCJ and a jury in the District Court on a seven-count indictment. He was convicted of three of those counts as follows:

(a) count 3 - stealing a motor vehicle and driving it recklessly, contrary to s 371 and s 378(2)(a) of the Criminal Code (WA). The maximum penalty for this offence is 8 years' imprisonment; and

(b) counts 5 and 7 - unlawfully doing an act that endangered or was likely to endanger the life, health or safety of another, contrary to s 304(1)(b) of the Criminal Code. The maximum penalty for this offence is 7 years' imprisonment.

4 On 25 March 2011, his Honour sentenced the appellant to 2 years' imprisonment on count 3, and 12 months' imprisonment on each of counts 5 and 7. He ordered that each term be served cumulatively upon the other so that the total effective sentence imposed upon the appellant was 4 years' imprisonment. The appellant was made eligible for parole.

5 The undisputed facts of the appellant's offending, as found by his Honour, are as follows. At just after 1 am on 31 March 2010, a burglary was committed by two men at a house in Rivervale. Amongst the items stolen by the men was a set of car keys to a blue Commodore sedan.

6 A short time later, at about 1.18 am, two police officers, Sergeant O'Rourke and Constable Shaw, were at the scene of a traffic accident. Just as they were preparing to leave the scene of the accident, their attention was drawn to the blue Commodore by the noise it was making and the manner in which it was being driven. The car was being driven by the appellant. The two officers got into an unmarked police vehicle and set off after the Commodore, with the intention of pulling it over.

7 The emergency lights and siren in the police vehicle were activated, but the Commodore failed to stop. Instead, the vehicle accelerated, with the obvious intention of avoiding apprehension. A pursuit ensued.

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8 The driver of the blue Commodore drove around a roundabout against the ordinary flow of traffic. A short time later, as it approached an intersection controlled by traffic lights, it moved to the incorrect side of the road and went through the intersection against a red light.

9 The Commodore was then observed to turn into Weddall Road, Lockridge, where it stopped. The police officers thought that the occupants of the vehicle were going to abandon it and run. The police car drove slowly towards the rear of the Commodore. As they did that, the Commodore reversed, accelerating heavily, towards the police car. Sergeant O'Rourke, seeing that a collision was about to occur, drove forward to avoid the collision. As he did so, the Commodore changed course so that it continued its acceleration towards the police vehicle. The Commodore struck the police vehicle at about the left-hand rear wheel arch with such force as to move the police vehicle sideways and cause considerable damage to it.

10 The police vehicle then drove to the left-hand side of the road. The Commodore again changed direction and accelerated forward, striking the driver's side door of the police vehicle a glancing blow before continuing off down Weddall Road. The police continued their pursuit. The blue Commodore turned into Diana Crescent, Lockridge. As it did so, it crossed in front of the police vehicle, striking it on the right-hand rear side.

11 Sergeant O'Rourke applied power to his vehicle and was able to force the blue Commodore off the road and into a tree. When the two police officers got out of their car, the appellant was seen trying to escape through the driver's window of the Commodore. He was then apprehended.

His Honour's sentencing remarks

12 His Honour had before him a written pre-sentence report dated 24 February 2009, which was updated by way of an oral pre-sentence report presented to his Honour in open court on the morning of 25 March 2011.

13 So far as the offending was concerned, his Honour found, beyond reasonable doubt, that a number of aggravating factors had been established. He found that the reckless driving associated with the theft of the Commodore was part of an effort to escape from the police. He also found, with respect to the offences of unlawfully doing an act that endangered a person's life, health or safety, that the persons whose life,

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health or safety was endangered were police officers in the execution of their duties: ts 375. No challenge has been made to these findings. So far as the appellant's antecedents are concerned, his Honour noted these matters:

(a) At the time of sentencing, the appellant was 22 years of age.

(b) He came from a good family, who remain supportive of him.

(c) The appellant was the father of two children, the youngest of which was only 9 weeks old.

(d) The appellant had a history of alcohol and amphetamine abuse.

(e) He had a long and relevant criminal history, including 11 prior convictions for stealing or attempting to steal a motor vehicle, and three prior convictions for stealing a motor vehicle and driving it recklessly or dangerously. The appellant had other convictions for driving recklessly or dangerously.

14 His Honour was not prepared to give much mitigatory weight to the appellant's professed desire to change his ways. His Honour noted that he had previously made similar statements, but had continued to offend.

15 His Honour said that there was very limited mitigation before him. He acknowledged the appellant's young age, but observed that the appellant had shown no inclination to reform. As a result, his Honour said that he did not give a great deal of mitigating weight to the appellant's youth.

16 His Honour found that the appellant's offending was entirely characteristic of him. He noted that on the occasion of the current offending, not only did he put the public at risk, but he endangered the safety of two police officers in the performance of their duty.

17 In imposing the sentences he did, his Honour expressly addressed questions of accumulation, concurrence and totality: ts 380.

18 He reduced the sentences that he would otherwise have imposed on counts 5 and 7 because of what he found was an overlap in the circumstances of those offences, and to take into account totality: ts 380 - 381.

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19 His Honour concluded, 'looking at these sentences one last time', that a total overall sentence of 4 years' imprisonment reflected the appellant's criminality as a whole: ts 381.

The proposed grounds of appeal and the appellant's submissions in relation to them

20 The appellant's proposed grounds of appeal are:

1. The sentences of twelve months imprisonment imposed for Counts 5 and 7 were, individually, manifestly excessive;

Particulars:

1.1 The Appellant's antecedents;

1.2 The criminality involved;

1.3 Sentences imposed in broadly comparative cases.

2. The learned Judge erred in imposing a total effective sentence which infringed the principle of totality, having regard to the overall criminality involved in the various offences viewed in their entirety and all the circumstances of the case including those referable to the Appellant personally.

21 Both grounds allege implied, rather than express, error on the part of the sentencing judge. The legal principles upon which such grounds must be assessed are well-known and were set out by this court in Wilson v The State of Western Australia [2010] WASCA 82 [2]. They do not require repetition here.

22 In support of ground 1, Mr Watters, counsel for the appellant, relied heavily upon the decision in The State of Western Australia v Wallam [2008] WASCA 117; (2008) 185 A Crim R 116. In support of ground 2, which Mr Watters described, perhaps optimistically, as the stronger of the two grounds of appeal, he gave particular emphasis to the short period in which the offences occurred. He submitted, in effect, that all of the sentences should have been made concurrent in order to reflect the one transaction rule.

Discussion and resolution of the grounds of appeal

Ground 1

23 The criteria upon which an allegation of manifest excess is to be judged are well-established. They are:

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(a) the maximum penalty for the particular offence;

(b) the standards of sentencing customarily observed with respect to that offence;

(c) the place which the criminal conduct occupies on the scale of seriousness of the offending of the type in question; and

(d) the personal circumstances of the offender: The State of Western Australia v Wallam [39]; and Chan v The Queen (1989) 38 A Crim R 337, 342.

24 As I have already observed, the maximum penalty for an offence contrary to s 304(1)(b) of the Criminal Code is 7 years' imprisonment.

25 Section 304(1) of the Criminal Code is a relatively new provision inserted into the Criminal Code by the Criminal Code Amendment Act 2004 (WA). There are no sentencing decisions of this court on the subsection.

26 The case relied upon by Mr Watters, The State of Western Australia v Wallam, concerned a respondent who pleaded guilty to armed robbery and an offence under s 304(2) of the Criminal Code, being doing an act which caused bodily injury with an intent to cause harm. The latter offence carries a maximum penalty of 20 years' imprisonment. In that case, the respondent deliberately drove his vehicle at the victim, striking him. The victim suffered a laceration, ligament damage to both knees, a tear to his Achilles tendon and other injuries. Although hospitalised, none of the injuries were permanent. At first instance, the respondent was sentenced to 12 months' imprisonment for the offence of causing bodily harm with intent. After a State appeal, a sentence of 3 years was imposed for the offence.

27 Previous sentencing decisions are relevant as a yardstick against which to measure the sentence in question, with a view to achieving broad consistency. That said, each case must be decided upon its own facts and circumstances. Consequently, where the sentence imposed in a particular case does not come within the range of sentences customarily imposed, that does not necessarily lead to the conclusion that the sentence was manifestly excessive. Ultimately, the question is whether the sentence is a sound exercise of the judicial officer's discretion.

28 One decision cannot represent a range of sentences customarily imposed. Further, there is no one correct sentence. In any event, Wallam

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is not an apt comparator in light of the offence committed by the respondent and its plainly different circumstances.

29 The appellant's offending, with respect to counts 5 and 7, was very serious. He used a stolen car, effectively as a weapon, to hit a pursuing police car with the intention of evading apprehension by police officers. The risk of injury to the police officers was both substantial and obvious. Considerations of protection of police officers in the execution of their duty, and deterrence, were paramount.

30 As his Honour found, there were few matters of mitigation. The appellant's youth, although relevant, was, in light of his persistent offending, of little mitigatory weight.

31 For these reasons, it cannot be reasonably argued that 12 months' imprisonment was manifestly excessive. Ground 1 must be dismissed.

32 I now turn to ground 2.

33 The totality principle comprises two limbs. The first limb is that the total effective sentence must bear a proper relationship to the overall criminality involved in all the offences, viewed in their entirety, and having regard to all the circumstances of the case, including those referable to the offender personally. The second limb requires the sentencer not to impose a total effective sentence that is crushing, in the sense that it destroys any reasonable expectation of a useful life after release: Roffey v The State of Western Australia [2007] WASCA 246 [24] - [25]. The appellant alleges a breach of the first limb.

34 My earlier characterisation of the appellant's offending on counts 5 and 7 as very serious is apt to describe his overall offending. Not only did the appellant steal a motor vehicle, but he drove it in a deliberately reckless way to avoid apprehension by the police. His manner of driving was bad. As his Honour pointed out, he put the safety of members of the public at risk and endangered the safety of two police officers in the performance of their duty. The appellant's offending was characteristic of him, and there was little that could be said by way of mitigation, having regard to his antecedents and the circumstances of the offending.

35 This was not a case where the so-called one transaction rule should have been applied so that all the sentences imposed by the judge were to be served concurrently. The one transaction rule was discussed in R v Faithfull [2004] WASCA 39; (2004) 142 A Crim R 554. The one transaction rule is not a rule at all. It will not always be the case that

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individual offences, when committed as part of one episode, will attract concurrent sentences. This is because the ultimate requirement, when sentencing a person who has committed multiple offences, is to impose punishment that is a just and proper reflection of the offender's total criminality: Lesay v The State of Western Australia [2011] WASCA 154 [21].

36 In the present case, although the offences were committed in the course of driving a stolen car, the conduct was multifaceted. Not only did the appellant steal the car, but he drove it so that it put the public at risk. He then used it, in effect, as a weapon to avoid apprehension by the police. The sentencing judge reduced the individual sentences for totality. In these circumstances, the offences warranted cumulative penalties to reflect the high criminality of the appellant's overall offending. The total effective sentence of 4 years was, in all of the circumstances, a just and proper reflection of the appellant's overall criminality.

Conclusion

37 The appellant has not demonstrated that the learned sentencing judge made any implied error. The grounds of appeal have no reasonable prospect of success. Leave to appeal cannot be granted. The appeal must be dismissed.

38 The orders are:

1. Leave to appeal on both grounds is refused.

2. The appeal is dismissed.