Perry v The State of Western Australia
[2016] WASCA 139
•8 AUGUST 2016
PERRY -v- THE STATE OF WESTERN AUSTRALIA [2016] WASCA 139
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2016] WASCA 139 | |
| THE COURT OF APPEAL (WA) | |||
| Case No: | CACR:65/2016 | 20 JULY 2016 | |
| Coram: | MAZZA JA MITCHELL JA | 8/08/16 | |
| 7 | Judgment Part: | 1 of 1 | |
| Result: | Extension of time granted Leave to appeal refused on all grounds Appeal dismissed | ||
| B | |||
| PDF Version |
| Parties: | WIREMU HEPARA PERRY THE STATE OF WESTERN AUSTRALIA |
Catchwords: | Criminal law Sentencing Manifest excess Express error Extortion |
Legislation: | Nil |
Case References: | Barry v The State of Western Australia [2012] WASCA 175 Manisco v The State of Western Australia [No 2] [2013] WASCA 190 R v Drinkwater [2006] QCA 82 The State of Western Australia v Amoore [2008] WASCA 65; (2008) 182 A Crim R 165 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 : PERRY -v- THE STATE OF WESTERN AUSTRALIA [2016] WASCA 139 CORAM : MAZZA JA
- MITCHELL JA
- Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram : O'NEAL DCJ
File No : IND 1875 of 2015
Catchwords:
Criminal law - Sentencing - Manifest excess - Express error - Extortion
Legislation:
Nil
Result:
Extension of time granted
Leave to appeal refused on all grounds
Appeal dismissed
Category: B
Representation:
Counsel:
Appellant : Mr S B Watters
Respondent : No appearance
Solicitors:
Appellant : Michael Tudori & Associates
Respondent : Director of Public Prosecutions (WA)
Case(s) referred to in judgment(s):
Barry v The State of Western Australia [2012] WASCA 175
Manisco v The State of Western Australia [No 2] [2013] WASCA 190
R v Drinkwater [2006] QCA 82
The State of Western Australia v Amoore [2008] WASCA 65; (2008) 182 A Crim R 165
Wilson v The State of Western Australia [2010] WASCA 82
1 REASONS OF THE COURT: This is an application for leave to appeal against sentence. The appeal was filed four days out of time. The delay has been satisfactorily explained by the appellant's solicitor. We would grant an extension of time.
2 On 15 April 2016, the appellant was convicted, after his plea of guilty, of one count of extortion, contrary to s 397(2) of the Criminal Code (WA). He was sentenced by O'Neal DCJ to 3 years and 2 months' imprisonment. He seeks leave to appeal against this sentence on two grounds. Ground 1 alleges that the sentence was manifestly excessive. Ground 2 alleges, in effect, that his Honour erred in characterising the offending as an 'objectively serious case of extortion'.
3 For the reasons that follow, neither ground has a reasonable prospect of succeeding. We would refuse leave to appeal, with the consequence that the appeal is taken to be dismissed.
Background
4 The appellant was, at the time of the offending, 31 years of age. He is 199 cm tall, with a large build. The victim was, at the time, 52 years old. He is 160 cm tall, with a slender build.
5 The victim was a director of a company which owned several businesses in the hospitality industry, including Indian restaurants situated at Murray Street, Perth, and Carr Place, Leederville.
6 In 2013, the victim engaged the services of a building company to undertake renovations at one of his restaurants. At the completion of the refurbishment, the builder and the victim became involved in a civil dispute. The builder claimed that the victim owed him $70,000. The victim disputed the debt.
7 The builder engaged the services of the appellant to make contact with the victim in an attempt to extort payment of the alleged debt. At 1 pm on 17 June 2014, the appellant attended the Murray Street restaurant and spoke to the victim. The appellant forced the victim into a room at the restaurant and demanded that the victim pay the builder $70,000. The victim explained the nature of the dispute to the appellant, who nevertheless demanded a cheque from the victim there and then. When the victim refused to oblige, the appellant said, 'You have a beautiful house in Applecross. Give me the cheque now or you'll have problems' (ts 5). The appellant then slapped the victim across the face, causing him to fall against a wall. The appellant said, 'If you call the police, you and your family will have problems' (ts 5). The appellant then left the premises. As a result of being assaulted, the victim sought medical treatment.
8 On the afternoon of 24 July 2014, the appellant attended the Carr Place restaurant and demanded to see the victim. At the time, the victim was somewhere else. The victim's son contacted him by mobile telephone. Via a live video transmission, the victim saw and heard the appellant tell the victim's son that the victim now owed the builder $72,000. The victim's son ran from the restaurant, fearing for his safety. The appellant then spoke to a chef and made threats directed at the victim, stating that 'they' did not know who he was and of what he was capable (ts 6).
9 On 3 September 2014, the victim was in his office at the Carr Place premises when the appellant entered the restaurant and walked into the office unannounced. The appellant confronted the victim and demanded payment of $72,000 to the builder. The victim refused to pay. As the appellant left the restaurant, he said to the victim, 'If you call the police, I will destroy your shop and I will come back past your house too' (ts 6).
10 The following day, the appellant contacted the victim via mobile telephone and demanded that the victim contact the builder. This was the last contact the appellant had with the victim. Subsequently, the victim spoke to the builder.
The appellant's personal circumstances
11 At the time he was sentenced, the appellant was 32 years old. He was born in New Zealand. His mother died when he was 13 years of age, and after that he was raised by other relatives. He came to Australia in 1999 and is a permanent resident. He has a 7-year-old son by a former partner and had also raised another former partner's son, now 10 years old, as his own. Since arriving in Australia he has been in work.
12 The appellant has a history of illicit drug use, although he informed the pre-sentence report writer that he had abstained from illicit drug use for years prior to the commission of the offence. His Honour was somewhat doubtful about this, but said that it was unnecessary to resolve that issue.
13 His Honour described the appellant's record of prior offending as 'relatively limited', consisting mostly of Road Traffic Act 1974 (WA) offences (sentencing remarks ts 3). However, his Honour noted that the appellant had been convicted of stealing in August 2001, resulting in a fine and a spent conviction, and common assault in 2005, resulting in a fine. A character reference was tendered which described the appellant in positive terms (sentencing remarks ts 4).
14 His Honour noted that the appellant was not particularly cooperative in the preparation of the pre-sentence report. He did inform the author of the report that his involvement in the offence was a 'mistake'. The appellant displayed little or limited victim empathy (sentencing remarks ts 4).
The sentencing remarks
15 His Honour took into account as a mitigating factor the plea of guilty. His Honour said that the plea was not entered at the earliest opportunity and was made in the face of 'a strong prosecution case'. His Honour gave a discount of 15% pursuant to s 9AA of the Sentencing Act 1995 (WA). In addition, his Honour gave mitigating weight to the appellant's work history and to the fact that he had helped raise a child. Based on a letter written by the appellant to his Honour, it was accepted that there was 'a degree of contrition' on his part (sentencing remarks ts 5).
16 His Honour characterised the case as 'an objectively serious case of extortion' (sentencing remarks ts 5). His Honour elaborated on this point, stating that the threats were maintained and repeated over an extended period of time and that the appellant used his size and appearance to terrorise the victim. His Honour noted the use of actual violence at the outset of his offending behaviour. His Honour further commented on the 'calculation and persistence' of the offending which he found to be motivated by a desire for financial gain (sentencing remarks ts 6). His Honour also observed that not only did the appellant instil fear in the victim for his own safety, but also for the safety of the victim's family. His Honour commented on the vulnerability of the victim.
17 His Honour noted that the appellant's experienced counsel accepted that an immediate term of imprisonment was the only appropriate disposition in the circumstances of the case, a conclusion that he too had reached because of the seriousness of the offence. His Honour considered that the appropriate term of imprisonment was 3 years and 2 months. The appellant was made eligible for parole and the sentence was backdated to commence on 22 January 2015, to take into account the time the appellant had spent on remand.
General principles applicable to this appeal
18 The general principles applicable to this appeal were set out by McLure P and Owen JA in Wilson v The State of Western Australia [2010] WASCA 82 [2]. They are well known and uncontroversial. They do not need to be repeated here.
19 It is convenient to deal with ground 2 first.
Proposed ground 2
20 The appellant submits that his Honour erred in characterising the offending as an 'objectively serious case of extortion' because:
1. The appellant was never in company when making demands.
2. The appellant only attended the victim's place of business, never his personal residence.
3. The appellant only intended to approach the victim, never members of the victim's family.
4. There was no finding of premeditation.
5. The appellant's payment was to come from the builder and not by way of a separate payment direct from the victim.
21 We will accept, for the sake of argument, that these factors were absent. That does not mean that the present case was not a serious case of its type. The features his Honour noted, which we have summarised at [16] of these reasons and which are unchallenged in this appeal, amply justify, in our view, the conclusion that the offending was objectively serious. The contention that the facts of the case were not objectively serious cannot reasonably be sustained.
22 Leave to appeal on proposed ground 2 should be refused.
Proposed ground 1
23 When considering whether a sentence is manifestly excessive, it is necessary to view the sentence in light of the maximum sentence prescribed by law for the offence (in this instance, 14 years' imprisonment), the standards of sentencing customarily observed with respect to the offence, the place that the criminal conduct occupies in the scale of seriousness of offences of that type and the personal circumstances of the offender.
24 We will not repeat what we have already written about the seriousness of the offence and the personal circumstances of the appellant.
25 The appellant referred to other cases of extortion decided in this court, being The State of Western Australia v Amoore [2008] WASCA 65; (2008) 182 A Crim R 165; Barry v The State of Western Australia [2012] WASCA 175 and Manisco v The State of Western Australia [No 2] [2013] WASCA 190. The appellant also cited the Queensland case of R v Drinkwater [2006] QCA 82. As the appellant correctly observed in his written submissions, offences of extortion occur in a variety of circumstances which are mostly unique. There is no tariff for the offence and the differences between the present case and those cases cited by the appellant are such that the comparators are of very limited utility. In any event, they do not point to the sentence in this case being erroneous.
26 There were mitigating factors; most importantly, the plea of guilty. However, the aggravating factors in this case far outweigh the mitigating factors. Moreover, general deterrence was an important sentencing consideration.
27 Having considered all of the relevant sentencing factors, we are far from being persuaded that the sentence imposed by his Honour was manifestly excessive. Leave to appeal on proposed ground 1 should be refused.
Conclusion and orders
28 In our opinion, neither ground of appeal has a reasonable prospect of succeeding. Accordingly, the appeal must be taken to be dismissed. The orders that we would make are as follows:
1. An extension of time is granted.
2. Leave to appeal is refused on all grounds.
3. The appeal is dismissed.
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