Papworth v The State of Western Australia
[2017] WASCA 82
•21 APRIL 2017
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: PAPWORTH -v- THE STATE OF WESTERN AUSTRALIA [2017] WASCA 82
CORAM: BUSS P
NEWNES JA
MAZZA JA
HEARD: 17 MARCH 2017
DELIVERED : 21 APRIL 2017
FILE NO/S: CACR 177 of 2016
BETWEEN: ANDREW LEE PAPWORTH
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram :GETHING DCJ
File No :IND 701 of 2016
Catchwords:
Criminal law - Appeal against sentence - Appellant convicted of reckless driving in circumstances of aggravation, assaulting a public officer in circumstances of aggravation and obstructing a public officer in the performance of his functions Pleas of guilty - Total effective sentence of 3 years' immediate imprisonment - Whether the sentencing judge made an error of fact in finding that the appellant 'deliberately rammed' a police vehicle - Whether different sentences should have been imposed - Totality principle
Legislation:
Criminal Appeals Act 2004 (WA), s 31(4)(a), s 40(1)(e)
Criminal Code (WA), s 172(2), s 318(1)(d), s 318(1)(l)(i)
Road Traffic Act 1974 (WA), s 60(1), s 60(4), s 60(5)
Result:
Appellant's application dated 30 January 2017 for leave to adduce additional evidence in the appeal dismissed
Respondent's application dated 24 February 2017 for leave to adduce additional evidence in the appeal dismissed
Leave to appeal on grounds 1 and 2 granted
Appeal dismissed
Category: B
Representation:
Counsel:
Appellant: Ms N R Sinton
Respondent: Mr B M Murray
Solicitors:
Appellant: Legal Aid (WA)
Respondent: Director of Public Prosecutions (WA)
Case(s) referred to in judgment(s):
AH v The State of Western Australia [2014] WASCA 228; (2014) 247 A Crim R 34
Bloomfield v The State of Western Australia [2017] WASCA 10
Garlett v The State of Western Australia [2016] WASCA 80
Giglia v The State of Western Australia [2010] WASCA 9
Quinn v The State of Western Australia [2006] WASCA 99
Roncevic v The State of Western Australia [2012] WASCA 43
Tela v The State of Western Australia [No 2] [2014] WASCA 103
The State of Western Australia v Fleming [2010] WASCA 162
The State of Western Australia v Hyder [2011] WASCA 256
Wheeler v The Queen [No 2] [2010] WASCA 105
Winmar v The State of Western Australia [2016] WASCA 184
BUSS P: The appellant has appealed against sentence.
On 4 October 2016, he was convicted, on his pleas of guilty in the District Court before Gething DCJ, of three counts in an indictment.
Count 1 alleged that on 30 August 2015, at Bentley, the appellant wilfully drove a Holden Caprice motor vehicle in a manner that was, having regard to all the circumstances, dangerous to the public or to any person, and that the appellant was driving the vehicle concerned to escape pursuit by a member of the police force, contrary to s 60(1) and s 60(4) of the Road Traffic Act 1974 (WA) (the RT Act).
Count 2 alleged that on 30 August 2015, at Byford, the appellant assaulted Jason Hartley, a public officer, who was then performing a function of his office or employment, and that the appellant was armed with a dangerous or offensive weapon or instrument, namely a tomahawk, contrary to s 318(1)(d) and s 318(1)(l)(i) of the Criminal Code (WA) (the Code).
Count 3 alleged that on the same date and at the same place as in count 2, the appellant obstructed Brian Connelly, a public officer, in the performance of his functions, contrary to s 172(2) of the Code.
The sentencing judge imposed the following individual sentences of immediate imprisonment:
(a)count 1: 18 months;
(b)count 2: 18 months; and
(c)count 3: 12 months.
His Honour ordered that the sentence for count 2 be served cumulatively upon the sentence for count 1 and that the sentence for count 3 be served concurrently with the sentence for count 1. The total effective sentence was therefore 3 years' immediate imprisonment. The total effective sentence was backdated to 30 August 2015. A parole eligibility order was made.
The facts and circumstances of the offending
On 30 August 2015, at about 3.08 am, the appellant was driving a Holden Caprice motor vehicle on Manning Road, Bentley. He was the only occupant.
Police officers attempted to stop the appellant's vehicle. They activated the emergency lights and siren on their police vehicle. The appellant did not stop. He accelerated heavily.
The police officers pursued the appellant for about 34 minutes through various suburbs in the south east metropolitan area. The appellant travelled at speeds well in excess of the speed limits. He reached a speed of about 140 km per hour. Frequently, he exceeded the speed limit by more than 45 km per hour.
During the police pursuit, the appellant disregarded a number of red traffic control lights and other traffic control signs. On two occasions he travelled on the incorrect side of the road, including travelling in the incorrect direction on an off‑ramp from Leach Highway to avoid a stinger deflation device which had been deployed by the police. On two occasions the appellant collided with roadwork signs.
On Tonkin Highway, near Ranford Road, the front tyres of the appellant's vehicle were shredded by a stinger deflation device. The appellant continued to drive his vehicle on the rims of the front wheels. He travelled at about 100 km per hour on Tonkin Highway until Thomas Road, Byford. The appellant then travelled east on Thomas Road at about 20 km per hour. His vehicle 'fishtailed' from left to right on Thomas Road as a result of the damage to the vehicle.
A marked police vehicle that was also pursuing the appellant was able to drive about 20 m in front of the appellant's vehicle. The police officers stopped their vehicle across two lanes in an effort to arrest the appellant and prevent him continuing along Thomas Road. The appellant did not stop. He collided with the driver's door of the police vehicle. Another police vehicle was parked at the rear of the appellant's vehicle to prevent his escape.
Detective First Class Constable Hartley alighted from the other police vehicle and approached the driver's door of the appellant's vehicle. Detective Hartley attempted to open the door and arrest the appellant. However, the appellant held the interior door handle and prevented the front door from being opened. Detective Hartley used his police baton to break the driver's side window and enable him to open the driver's door.
The appellant threw a tomahawk at Detective Hartley. The tomahawk narrowly missed his head. It was about 40 cm long and had a 10 cm blade.
The appellant ignored directions from the police, including Detective Sergeant Brian Connelly, to alight from his vehicle and lie on the ground. He threw various items of property at police. Police used a taser device on him. This enabled the police to remove the appellant from his vehicle and arrest him.
The applications for leave to adduce additional evidence in the appeal
Section 40(1)(e) of the Criminal Appeals Act 2004 (WA) confers on this court power to admit additional evidence in an appeal. The power should be exercised, in the context of an appeal against sentence, when, relevantly, had the additional evidence been before the sentencing judge, a different sentence should have been imposed. See Wheeler v The Queen [No 2] [2010] WASCA 105 [3] (McLure P), [53] (Owen JA); The State of Western Australia v Hyder [2011] WASCA 256 [25] (McLure P, Buss JA & Mazza J agreeing); AH v The State of Western Australia [2014] WASCA 228; (2014) 247 A Crim R 34 [94], [123] - [124] (Martin CJ, Mazza JA & Hall J).
By an application in the appeal dated 30 January 2017, the appellant applied for leave to adduce additional evidence in the appeal. The additional evidence includes, relevantly, a disc labelled 'WA Police Operations Centre Audio Recording Pursuit Incident 30/Aug/2015 Defence Copy' (the Disc), which was annexed to the affidavit of Natalie Rae Sinton affirmed 30 January 2017. The Disc was not before the sentencing judge.
By an application in the appeal dated 24 February 2017, the State applied for leave to adduce additional evidence in the appeal, namely a DVD labelled in part 'copy JK182-Dash Cam Footage 30/08/2015' (the DVD), which was annexed to the affidavit of Catherine Shade affirmed 24 February 2017. The DVD was not before his Honour.
I have listened to the Disc and watched the DVD.
The Disc contains a statement by a police officer, who was in the police vehicle which had pursued the appellant, that '[the appellant has] rolled into us, I'm not quite sure of the damage'.
The DVD contains footage taken from a dash board camera in another police vehicle involved in the apprehension of the appellant. The DVD shows part of the incident that culminated in the appellant's vehicle colliding with the driver's door of the police vehicle which had pursued the appellant (that is, the vehicle which had stopped across two lanes in an effort to arrest the appellant and prevent him continuing along Thomas Road).
The grounds of appeal
The appellant relies on two grounds of appeal.
Ground 1 alleges, in effect, that the sentencing judge erred in fact in relation to count 1 in finding that the appellant 'deliberately rammed' a police car.
Ground 2 alleges, in effect, that there was a miscarriage of justice in that the appellant was sentenced on the basis that he 'deliberately rammed' a police car during the police pursuit, the subject of count 1, 'when audio of that pursuit, which was not before [his Honour], reveal[ed] that he "rolled" into [the police car], a distinction that was material to his sentencing'.
On 5 February 2017, Mazza JA referred the application for leave to appeal to the hearing of the appeal.
It is convenient to consider grounds 1 and 2 together.
Grounds 1 and 2: the prosecutor's statement of the material facts at the sentencing hearing
At the beginning of his submissions at the sentencing hearing, the prosecutor tendered the State brief including the exhibits (ts 5).
The prosecutor said in stating the material facts:
Senior Constable Whalley, driving a marked police vehicle and having his emergency lights and sirens activated, was able to get approximately 20 metres in front of [the appellant's] vehicle and positioned his police vehicle across two lanes in an effort to lawfully arrest [the appellant] and prevent him continuing on Thomas Road. [The appellant] continued accelerating and as a result collided with the driver's door of the police vehicle (ts 5 ‑ 6). (emphasis added)
Grounds 1 and 2: defence counsel's approach at the sentencing hearing
At the sentencing hearing, defence counsel (who was not counsel for the appellant on the appeal) did not submit that the appellant did not intend to collide with the police vehicle.
Also, defence counsel did not dispute the prosecutor's assertion that the appellant had 'continued accelerating' (ts 6).
Grounds 1 and 2: the sentencing judge's sentencing remarks
The sentencing judge said in his sentencing remarks:
(a)Now, a stinger tyre deflation device was successfully [deployed] on your car. Despite losing your two front tyres and having to drive on the rims you continued to travel at 100 kilometres [per hour] on Tonkin Highway until Thomas Road in Byford. You continued to travel on Thomas Road in Byford and due to the condition of your vehicle it fishtailed from left to right.
A police officer driving a marked police vehicle having its emergency lights and siren activated was able to get 20 metres in front of you. It positioned across two lanes in an effort to lawfully arrest you and prevent you from continuing down Thomas Road. You continued accelerating and as a result collided with the driver's door of the police vehicle (ts 17). (emphasis added)
(b)Turning to the circumstances of the commission of the offence, there are a number of factors which make the reckless driving offence a serious incidence of this type of offending. You were driving without a licence. You were driving a car that you were not entitled to drive. At the time you had consumed methylamphetamine and were heavily intoxicated.
The pursuit continued for approximately 34 minutes. You travelled at excessive speeds. You contravened a number of red light controls and other traffic controls. On two separate occasions you travelled through road work signage. You deliberately rammed your vehicle into the side of a police vehicle, endangering the occupants of the police vehicle (ts 20 ‑ 21). (emphasis added)
Grounds 1 and 2: their merits
I am satisfied, on my examination of the information before the sentencing judge and the additional evidence sought to be adduced by the parties in the appeal, that the only reasonable inference is that the appellant intentionally collided with the police vehicle.
However, I am satisfied, on my examination of the information before his Honour and the additional evidence, that his Honour was in error in finding that:
(a)the appellant had 'rammed' the police vehicle; and
(b)the 'ramming' of the police vehicle had '[endangered] the occupants of [the vehicle]' (ts 20 ‑ 21).
The word 'rammed', in the applicable context, connotes the application of substantial force.
The notion of a collision 'endangering the occupants' of a vehicle, in the applicable context, connotes that the collision would, objectively and of its nature, have the capacity to cause bodily injury to or injury to the health of the occupants.
The only findings reasonably open on the material before this court are that:
(a)The collision between the appellant's vehicle and the police vehicle involved the application of little force. There was very minor contact between the vehicles. The damage to the police vehicle was confined to a small dent in the driver's door.
(b)The collision did not, objectively and of its nature, have the capacity to cause bodily harm to or injury to the health of the occupants.
However, notwithstanding the errors I have identified, I am of the opinion, for the following reasons, that different sentences should not have been imposed. See s 31(4)(a) of the Criminal Appeals Act.
First, the maximum penalty for count 1 was 5 years' imprisonment. See s 60(4) of the RT Act. The minimum penalty for count 1 was 6 months' immediate imprisonment. See s 60(5) of the RT Act. The maximum penalty for count 2 was 10 years' imprisonment. See s 318(1)(d) read with s 318(1)(l)(i) of the Code. The maximum penalty for count 3 was 3 years' imprisonment. See s 172(2) of the Code.
Secondly, it is necessary, in evaluating the sentences that were imposed by the sentencing judge, to have regard to the whole of the facts and circumstances of the offending (including the whole of the duration of the reckless driving and not merely the driving immediately before the appellant's arrest).
Thirdly, as to count 1, the offending was very serious. The appellant was driving a vehicle which he was not entitled to drive: he had borrowed the vehicle from the workshop where he was employed. He was driving without a licence. He had consumed methylamphetamine and was heavily intoxicated. The police pursuit continued for about 34 minutes through the south east metropolitan area and involved the appellant travelling at speeds well in excess of the speed limits and contravening traffic control lights and other traffic control signs. His conduct put at risk the lives of the police officers who pursued him at high speed and, also, those of innocent bystanders.
Fourthly, as to count 2, the appellant's assault on Detective Hartley was also very serious. The tomahawk thrown by the appellant narrowly missed Detective Hartley's head. If the tomahawk had struck his head there would have been a serious risk of at least very significant injury.
Fifthly, the appellant was aged 27 at the time of the offending and was 29 when sentenced. He did not have the mitigation of youth.
Sixthly, the appellant had an extensive criminal record for driving and drug offences. His criminal history included five convictions for unauthorised driving, one for stealing a motor vehicle and one for failing to stop. However, he had not previously been sentenced to a term of imprisonment. The current offences represented a serious escalation in his offending. The prior convictions and the fact that the previous sentences did not achieve the purposes for which they were imposed did not aggravate the seriousness of the offences in question, but the prior convictions demonstrated that the current offences were not aberrations by a person who was otherwise of good character.
Seventhly, the mitigating factors comprised the appellant's early pleas of guilty (for which his Honour allowed a discount of 25% pursuant to s 9AA of the Sentencing Act 1995 (WA)), his dysfunctional childhood including paternal abuse, his expressions of remorse and his efforts at rehabilitation including dealing with his drug addiction.
Eighthly, I have had regard to previous sentences imposed for the offence of reckless driving in circumstances of aggravation. See, for example, Tela v The State of Western Australia [No 2] [2014] WASCA 103; Garlett v The State of Western Australia [2016] WASCA 80; Winmar v The State of Western Australia [2016] WASCA 184; and Bloomfield v The State of Western Australia [2017] WASCA 10. Although the sentence imposed on the appellant in the present case was, in the circumstances, high, I am not persuaded that it was outside the available range.
Ninthly, I have had regard to previous sentences imposed for the offence of assaulting a public officer in circumstances of aggravation. See, for example, Quinn v The State of Western Australia [2006] WASCA 99; The State of Western Australia v Fleming [2010] WASCA 162; and Roncevic v The State of Western Australia [2012] WASCA 43.
The sentence imposed on the appellant in the present case was, in the circumstances, within the available range but lenient.
Tenthly, the severity or leniency of an individual sentence is relevant in evaluating whether a total effective sentence infringes the first limb of the totality principle. See Giglia v The State of Western Australia [2010] WASCA 9 [40] (Owen JA, McLure P & Pullin JA agreeing). I am satisfied that, in the present case, the total effective sentence of 3 years' immediate imprisonment was within the available sentencing range after taking into account the maximum penalty for each of the three offences; the facts and circumstances of the offending viewed as a whole; the total effective sentences imposed in prior cases with at least some features comparable to the appellant's offending; the place which the appellant's overall criminal conduct occupies on the scale of seriousness of offences of this kind; the personal circumstances of the appellant; and all other sentencing factors (including the mitigating features).
Conclusion
Both the appellant's application and the State's application for leave to adduce additional evidence in the appeal should be dismissed. I would grant leave to appeal on grounds 1 and 2, but the appeal must be dismissed.
NEWNES JA: I agree with Buss P.
MAZZA JA: I agree with Buss P.
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