Penny v The State of Western Australia
[2010] WASCA 65
•8 APRIL 2010
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: PENNY -v- THE STATE OF WESTERN AUSTRALIA [2010] WASCA 65
CORAM: McLURE P
BUSS JA
JENKINS J
HEARD: 26 MARCH 2010
DELIVERED : 8 APRIL 2010
FILE NO/S: CACR 166 of 2009
BETWEEN: RAYLENE ANNE PENNY
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram :O'NEAL DCJ
File No :IND 1374 of 2009
Catchwords:
Criminal law - Sentencing - Stealing - Driving while disqualified - Attempting to pervert the course of justice - Failure to take into account recent completion of a prison sentence of 6 months and 1 day - Whether accumulation of terms of imprisonment infringed the totality principle - Turns on own facts
Legislation:
Nil
Result:
Leave to appeal granted
Appeal allowed
Appellant re-sentenced
Category: B
Representation:
Counsel:
Appellant: Mr M R Jones
Respondent: Mr D Dempster
Solicitors:
Appellant: Michael Jones
Respondent: Director of Public Prosecutions (WA)
Case(s) referred to in judgment(s):
Barnes v The State of Western Australia [2004] WASCA 258
Carr v The State of Western Australia [2006] WASCA 125; (2006) 166 A Crim R 1
Jarvis v The Queen (1993) 20 WAR 201
Johnson v The Queen [2004] HCA 15; (2004) 78 ALJR 616
Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357
Mill v The Queen [1988] HCA 70; (1988) 166 CLR 59
Pearce v The Queen [1998] HCA 57; (1998) 194 CLR 610
Postiglione v The Queen [1997] HCA 26; (1997) 189 CLR 295
R v Abboud [2005] NSWCCA 251
The State of Western Australia v Amoore [2008] WASCA 65; (2008) 182 A Crim R 165
Vlek v The Queen (Unreported, WASCA, Library No 990153, 29 March 1999)
Walgar v The State of Western Australia [2007] WASCA 241
McLURE P: I agree with the orders proposed by Buss JA. I do so because I am satisfied that, in determining the total effective sentence, the sentencing judge erred in failing to take into account the sentence of immediate imprisonment which the appellant had completed serving the previous day. The offences for which the appellant was being sentenced on 29 October 2009 were committed before she had commenced serving the sentence of 6 months and 1 day imposed on 28 April 2009.
I infer there was no challenge to the sentence imposed for the stealing offence because of the appellant's long history of dishonesty offences, some of which had attracted a sentence of immediate imprisonment. My conclusion on the disposition of this appeal does not depend on a determination that the sentence for the stealing offence was manifestly excessive.
BUSS JA: On 26 February 2004, the appellant was convicted of numerous traffic offences and, as a result, was disqualified from obtaining or holding a driver's licence for life.
On 2 April 2009, the appellant was arrested by police in connection with an offence of stealing. A tin containing $200 was stolen from the Sawyer's Tavern. When the appellant was arrested, she had recently been driving a motor vehicle. Upon her arrest, she gave a false name and date of birth to the police, being those of her sister, Aileen Coral Penny. The appellant was taken to the Wundowie Police Station. There she maintained the false name, despite being challenged by the police. She was charged, in the name of Aileen Coral Penny, with stealing. The appellant then signed a bail undertaking in the false name and was released on bail to appear on 7 April 2009 at the Midland Magistrates Court.
On the morning of 7 April 2009, the appellant telephoned the Midland Magistrates Court. She used the false name, Aileen Coral Penny, and informed a court officer that she was unable to attend the court. A bench warrant (to lie) was issued. Later, the investigating police officer ascertained that the appellant was, in fact, Raylene Anne Penny. The Midland Magistrates Court was informed of this circumstance and the charge of stealing in the name of Aileen Coral Penny was dismissed.
On 28 April 2009, the appellant was convicted and sentenced to a term of 6 months and 1 day imprisonment for two offences of driving while disqualified. These offences were committed on 4 and 8 December 2008. After the appellant commenced serving this term of imprisonment,
she was charged with three offences, namely, stealing the tin containing $200 from the Sawyer's Tavern, driving on 2 April 2009 while disqualified and attempting to pervert the course of justice.
On 29 October 2009, at the conclusion of her 6 month and 1 day sentence, and being the date on which she was due to be released from prison, the appellant appeared before O'Neal DCJ in the District Court and pleaded guilty, on the fast‑track system, to the offences of stealing, driving on 2 April 2009 while disqualified and attempting to pervert the course of justice. The offence of attempting to pervert the course of justice was charged on indictment and the other offences were the subject of a notice under s 32 of the Sentencing Act 1995 (WA).
The sentencing judge imposed individual sentences of immediate imprisonment for these offences, as follows:
(a)stealing: 6 months;
(b)driving while disqualified: 6 months (and a fine of $1,000); and
(c)attempting to pervert the course of justice: 9 months.
His Honour made the sentences for stealing and driving while disqualified cumulative on each other and on the sentence for attempting to pervert the course of justice. In the result, the appellant received a total effective sentence of 21 months' immediate imprisonment. A parole eligibility order was made.
The appellant appeals to this court against the sentencing judge's decision. On 18 January 2010, Wheeler JA ordered that the application for leave to appeal be referred to the hearing of the appeal.
The ground of appeal
At the hearing of the appeal, counsel for the appellant relied on one ground of appeal, being that the sentencing judge erred by accumulating each discrete term of imprisonment.
The submissions of counsel for the appellant and counsel for the State
The oral submissions of counsel for the appellant and counsel for the State were, appropriately, brief.
Counsel for the appellant submitted that the sentencing judge had erred in making the sentence of 6 months' imprisonment for the stealing offence cumulative on the sentences for the other offences. Counsel contended, in essence, that his Honour's sentencing discretion had miscarried in that:
(a)he failed to take into account, as a relevant sentencing consideration in determining whether the sentences should be wholly cumulative or not, the fact that on the date the appellant was sentenced for the three offences, she had completed the sentence of 6 months and 1 day imprisonment and was due to be released; and
(b)the imposition of cumulative sentences infringed the totality principle.
Counsel for the State submitted that upon taking into account all factors relevant to the offending, including the lack of mitigation in the appellant's antecedents, it could not be said that a total effective term of 21 months' imprisonment was beyond the bounds of a reasonable exercise of judicial discretion.
Multiple offences: the 'one transaction' or 'continuing episode' rule and the totality principle
As Pullin JA noted in The State of Western Australia v Amoore [2008] WASCA 65; (2008) 182 A Crim R 165, whether sentences for multiple offences should be made cumulative, partly concurrent or wholly concurrent arises at two of the three stages in the sentencing process. The orthodox approach is to decide upon the appropriate sentence for each offence, then to decide whether the sentences should be made cumulative, partly concurrent or wholly concurrent in accordance with established principle and, finally, to decide upon the net effective or total head sentence by reference to the totality principle [54].
In relation to the second stage (that is, deciding whether the sentences should be made cumulative, partly concurrent or wholly concurrent), Pullin JA said:
At the second stage the relevant principle is what is variously described as the 'one transaction' or 'continuing episode' rule. This working rule is that when a number of offences arise out of the one transaction or continuing episode, any terms of imprisonment for the offences will usually be made concurrent: Dickens v The Queen [2004] WASCA 179; (2004) 147 A Crim R 343 [11] ‑ [12] (McLure J). See also Borbil v Western Australia [2007] WASCA 24; (2007) 169 A Crim R 152 and R v Faithfull [2004] WASCA 39; (2004) 142 A Crim R 554. See also Dicker v Asherton (1974) 65 LSJS 150, 151 (Wells J) and LJM (A Child) v The State of Western Australia [2005] WASCA 172 [9]. In Johnson, Gleeson CJ [5] said when discussing an appeal against the decision to impose cumulative sentences that:
'Ultimately, justice requires due consideration of whether, and to what extent, the appellant "was truly engaged upon one multi-faceted course of criminal conduct", and whether the sentences imposed properly reflected the outcome of that consideration' [55].
See also Walgar v The State of Western Australia [2007] WASCA 241 [9] (McLure JA).
The totality principle usually applies where an offender is to be sentenced for more than one offence or where he or she is serving a term of imprisonment, at the time of sentencing, for another offence. The principle comprises two aspects. First, the total effective sentence imposed on the offender must bear a proper relationship to the overall criminality involved in all of the offences (including those, if any, in respect of which the offender is still serving a term of imprisonment), viewed in their entirety, having regard to all relevant circumstances including those referable to the offender personally (and including, for example, the desirability of accommodating any wish to rehabilitate). Secondly, the total effective sentence imposed on an offender should not constitute a 'crushing' sentence; that is, it should not destroy any reasonable expectation of useful life after release from custody. Generally see Postiglione v The Queen [1997] HCA 26; (1997) 189 CLR 295, 307 ‑ 308 (McHugh J); Jarvis v The Queen (1993) 20 WAR 201, 216 (Anderson J); Johnson v The Queen [2004] HCA 15; (2004) 78 ALJR 616 [21] ‑ [22] (Gummow, Callinan & Heydon JJ); Vlek v The Queen (Unreported, WASCA, Library No 990153, 29 March 1999), 12 (Anderson J); Carr v The State of Western Australia [2006] WASCA 125; (2006) 166 A Crim R 1 [6] (McLure JA), [66] (Buss JA).
Also, the totality principle may have application, in some limited circumstances, by way of analogy, where an offender has already served a term of imprisonment imposed for a prior offence. See Mill v The Queen [1988] HCA 70; (1988) 166 CLR 59, 66 (Wilson, Deane, Dawson, Toohey & Gaudron JJ); Vlek, 10 (Anderson J); Barnes v The State of Western Australia [2004] WASCA 258 [15] (McKechnie J); Carr [7] (McLure JA).
It is plain, from the decision of the High Court in Pearce v The Queen [1998] HCA 57; (1998) 194 CLR 610, that where an offender is being sentenced for more than one offence, the sentencing judge must determine an appropriate sentence for each offence and then consider questions of cumulation or concurrence, as well as the question of totality [45]. There is, however, some flexibility in the application of the principle enunciated in Pearce. See Johnson [26] (Gummow, Callinan & Heydon JJ); Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357 [27] (Gleeson CJ, Gummow, Hayne & Callinan JJ); R v Abboud [2005] NSWCCA 251 [36] (Rothman J, Grove & Howie JJ agreeing).
The merits of the appeal
The appellant was born on 15 July 1979 and was aged 30 years at the time of sentencing.
The sentencing judge noted, early in his sentencing remarks and in the context of the appellant's lengthy criminal record, that she had been convicted on 28 April 2009 of the two counts of driving while disqualified and had been sentenced to 6 months and 1 day imprisonment (ts 21). Later in his remarks, his Honour mentioned again that the appellant had been in custody since 28 April 2009, but added that 'those are on matters that are unrelated to those that bring you before the court today' (ts 23). Towards the end of his remarks, his Honour referred to the first and second limbs of the totality principle, but in applying the principle he did not take into account, by analogy or otherwise, the 6 months and 1 day that the appellant had just spent in custody. It is plain from his Honour's remarks, considered as a whole, that he considered this period of custody to be irrelevant to the sentencing process before him.
There is no doubt, in my opinion, that the fact the appellant had completed serving a term of imprisonment, and was due for immediate release, was a relevant consideration in determining the total effective sentence to be imposed for the three offences in question.
Although no challenge is made to the individual sentence of 6 months' imprisonment for the offence of stealing, the circumstances of that offence (including those referable to the appellant personally, in particular, her poor antecedents) did not justify custodial punishment. The material facts, as stated by the prosecutor and not disputed by the appellant, were that on 2 April 2009 the appellant had entered the premises of the Sawyer's Tavern with a hand bag for the purpose of stealing a roll of toilet paper. She asked the licensee of the tavern if she could use the toilet. He gave her permission and suggested that she walk through the bar and the dining room area. When she was in the dining room, the appellant noticed a tin, which contained tips left by patrons for the staff of the tavern, on a counter. She placed the tin in her hand bag. However, she was then disturbed by the licensee and, in consequence, dropped the hand bag (containing the tin), and left the premises. The stealing was unpremeditated and opportunistic, no loss was suffered by the victim and there was a plea of guilty at the earliest opportunity.
It is true that the appellant has an extensive criminal record, but it comprises principally traffic offences (in particular, driving while suspended or disqualified) and relatively minor offences of dishonesty (in particular, stealing and fraud). His Honour rightly described her background and personal circumstances as 'very, very difficult' (ts 22). As I have mentioned, she pleaded guilty on the fast-track system.
I am satisfied that the total effective sentence of 21 months' imprisonment was disproportionate to the appellant's overall criminality in relation to the three offences in question, especially in the context of the term of 6 months and 1 day which she had just completed. My satisfaction in relation to this issue does not depend on my view that the individual sentence imposed for the offence of stealing was manifestly excessive.
In my opinion, his Honour's sentencing decision was vitiated by an express error (failing to take into account the term of 6 months and 1 day) and an inferred error (based on the unreasonable result from the application of the first limb of the totality principle). I would, accordingly, grant leave to appeal and allow the appeal. This court has the material necessary for the purpose of re‑sentencing the appellant.
The ground of appeal does not challenge the individual sentences for the three offences and therefore they should not be disturbed. The sentence of 6 months' imprisonment for driving while disqualified should be served cumulatively on the sentence of 9 months' imprisonment for attempting to pervert the course of justice, but the sentence of 6 months' imprisonment for stealing should be served concurrently with the sentence for attempting to pervert the course of justice. The total effective sentence is therefore 15 months' imprisonment. The appellant should remain eligible for parole and the sentences for attempting to pervert the course of justice and for stealing should commence on 29 October 2009, being the date on which the sentencing judge passed sentence. She will be eligible to be considered for release on parole upon having served 7 1/2 months calculated from 29 October 2009.
JENKINS J: I have had the advantage of reading the draft reasons of Buss JA. For the reasons his Honour gives, I would grant leave to appeal, allow the appeal and re‑sentence the appellant as indicated.
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