O'Donnell v The State of Western Australia
[2011] WASCA 272
•23 DECEMBER 2011
O'DONNELL -v- THE STATE OF WESTERN AUSTRALIA [2011] WASCA 272
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2011] WASCA 272 | |
| THE COURT OF APPEAL (WA) | |||
| Case No: | CACR:119/2011 | 15 NOVEMBER 2011 | |
| Coram: | McLURE P MAZZA JA | 23/12/11 | |
| 5 | Judgment Part: | 1 of 1 | |
| Result: | Leave to appeal refused Appeal dismissed | ||
| B | |||
| PDF Version |
| Parties: | DAMIAN GREGORY O'DONNELL THE STATE OF WESTERN AUSTRALIA |
Catchwords: | Criminal law Appeal against sentence Totality One transaction rule Turns on own facts |
Legislation: | Nil |
Case References: | Bennell v The State of Western Australia [2011] WASCA 174 Devine v The State of Western Australia [2010] WASCA 94 Eves v The State of Western Australia [2008] WASCA 7 Pearce v The Queen [1998] HCA 57; (1998) 194 CLR 610 R v Faithfull [2004] WASCA 39 Roffey v The State of Western Australia [2007] WASCA 246 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : O'DONNELL -v- THE STATE OF WESTERN AUSTRALIA [2011] WASCA 272 CORAM : McLURE P
- MAZZA JA
- Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
ON APPEAL FROM:
Jurisdiction : SUPREME COURT OF WESTERN AUSTRALIA
Coram : COMMISSIONER SLEIGHT
Citation : THE STATE OF WESTERN AUSTRALIA -v- O'DONNELL [2011] WASCSR 82
File No : INS 132 of 2010
Catchwords:
Criminal law - Appeal against sentence - Totality - One transaction rule - Turns on own facts
(Page 2)
Legislation:
Nil
Result:
Leave to appeal refused
Appeal dismissed
Category: B
Representation:
Counsel:
Appellant : Mr J Thomson
Respondent : No appearance
Solicitors:
Appellant : Justine Fisher
Respondent : Director of Public Prosecutions (WA)
Case(s) referred to in judgment(s):
Bennell v The State of Western Australia [2011] WASCA 174
Devine v The State of Western Australia [2010] WASCA 94
Eves v The State of Western Australia [2008] WASCA 7
Pearce v The Queen [1998] HCA 57; (1998) 194 CLR 610
R v Faithfull [2004] WASCA 39
Roffey v The State of Western Australia [2007] WASCA 246
(Page 3)
1 McLURE P: This is an application for leave to appeal against sentence. The appellant was convicted on his own plea of guilty of three counts of robbery in company. The appellant was sentenced to a total sentence of 4 years' imprisonment by Commissioner Sleight on 4 July 2011. He was made eligible for parole.
2 The facts are as follows. At around 10.10 pm on Saturday 15 August 2009, the appellant was a passenger in a car with four co-offenders, a male juvenile and three females. Three young female complainants were waiting alone at a bus stop. The appellant and his co-offenders decided to rob the complainants. The appellant and three others got out of the vehicle. The three girls were manhandled, punched and threatened. A co-offender robbed one complainant by grabbing her around the throat and punching her in the face before she handed her bag over to him. A co-offender also repeatedly punched another complainant to the neck and chest causing her to fall backwards. The attacked stopped when the complainant handed over her wallet and a small amount of cash. The third complainant was punched to the right side of her face before handing over her handbag. There was no finding that the appellant had inflicted any physical violence on the complainants. However the sentencing judge noted that the appellant was a very large person whose presence would have added considerably to the terror of the three young women waiting at night at the bus stop.
3 The appellant entered a plea of guilty shortly before trial, after the State agreed to drop an allegation of him being in possession of an offensive weapon.
4 The appellant was aged 36 at the time of sentencing. He had an unfortunate upbringing. At various times he lived with his grandparents, his parents and in foster homes. At his parents' home he witnessed his father inflict violence on his mother, both of whom consumed large quantities of alcohol. The appellant left school halfway through year 8, having been expelled for violence against the school principal. He also has an extensive history of substance use, commencing at the age of 10 with the use of solvents. He progressed from there to using cannabis and then amphetamines and occasionally heroin.
5 The appellant has a very lengthy history of offending, starting at the age of 9. The offending continued into adulthood and his adult offending history was virtually continuous. As the sentencing judge noted, the long criminal history indicated a consistent disregard for the law with the
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- consequence that greater emphasis had to be given to personal deterrence. The sentencing judge continued:
In my opinion, before taking into account your pleas of guilty, a sentence of 3 years and 6 months' imprisonment should be imposed in relation to each matter, which I will further reduce for your pleas of guilty to 2 years and 10 months. I must also take into account the totality principle, which requires the judge who is sentencing an offender for a number of offences to ensure that the aggregate of the sentences imposed is a just and appropriate measure of the total criminality involved. Although each of these offences occurred at the one time, each offence involved a separate victim, who has been damaged by your offending behaviour. To give adequate reflection of the total criminality involved, it is necessary for there to be a part-cumulative term in relation to the sentences [15].
I conclude that the appropriate sentence in all the circumstances, taking into account the factors that I have mentioned, is a term of imprisonment of 4 years. To achieve this result, I will reduce the penalty on count 2 to 1 year and 2 months' imprisonment and make that term cumulative on count 1. The penalty on count 3 will be concurrent [18].
7 The appellant contends that the total effective sentence of 4 years' imprisonment infringes the first limb of the totality principle. The first limb of the totality principle requires that the total effective sentence bear a proper relationship to the overall criminality involved in all the offences, viewed in their entirety and having regard to the circumstances of the case, including those referable to the offender personally: Roffey v The State of Western Australia [2007] WASCA 246 [24].
8 The practical effect of the totality principle is ordinarily to arrive at an aggregate sentence that is less than that which would be arrived at by simply adding up all the terms appropriate for the individual offences. A rationale for the totality principle is that there is assumed rehabilitation and reduced demand for retribution after the initial sentences have been served: Roffey [26].
9 The appellant placed particular reliance on the 'one transaction rule'. The nature and scope of the rule and its application are well-known and do not require repetition. See R v Faithfull [2004] WASCA 39 [25] - [28]; Bennell v The State of Western Australia [2011] WASCA 174. It is sufficient for present purposes to note that there is no principle of law or sentencing that requires concurrent sentences to be imposed for
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- multiple offences constituting one transaction or a continuing episode. Wholly concurrent sentences may not reflect the total criminality of the offending. It is clear from the sentencing judge's express remarks that he understood and correctly applied the relevant principles on this subject. There is no arguable basis for a claim that the sentencing judge erred in the exercise of his discretion to order partial cumulation of the sentences in circumstances where actual violence was inflicted on, and property taken from, each of the three complainants.
10 The appellant's reliance on Devine v The State of Western Australia [2010] WASCA 94 is misconceived. That case is one of a series in which the court has considered the proper approach to sentencing for multiple offences of dangerous driving causing death or grievous bodily harm. The starting point for that discussion was the majority judgment in Eves v The State of Western Australia [2008] WASCA 7 which addressed the notion of double punishment discussed in Pearce v The Queen (1998) 194 CLR 610.
11 The sole ground of appeal has no reasonable prospect of success. Leave to appeal should be refused and the appeal dismissed.
12 MAZZA JA: I agree with McLure P.
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