Pezzino v The State of Western Australia
[2006] WASCA 7
•11 JANUARY 2006
PEZZINO -v- THE STATE OF WESTERN AUSTRALIA [2006] WASCA 7
| Link to Appeal : |
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| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2006] WASCA 7 | |
| THE COURT OF APPEAL (WA) | |||
| Case No: | CACR:173/2005 | 11 JANUARY 2006 | |
| Coram: | STEYTLER P | 11/01/06 | |
| 12 | Judgment Part: | 1 of 1 | |
| Result: | Application for leave to appeal against conviction dismissed Application for leave to appeal against sentence allowed on ground 1 only | ||
| B | |||
| PDF Version |
| Parties: | BRETT COLIN PEZZINO THE STATE OF WESTERN AUSTRALIA |
Catchwords: | Practice and procedure Application for leave to appeal against conviction and sentence Whether reasonable prospect of succeeding Turns on own facts |
Legislation: | Criminal Appeals Act 2004 (WA), s 27(2) Sentencing Act 1995 (WA), s 89(4) |
Case References: | Festa v The Queen (2001) 208 CLR 593 Samuels v Western Australia (2005) 30 WAR 473 Worthington v The State of Western Australia (2005) 152 A Crim R 585 Carr v The Queen (1988) 165 CLR 314 Domican v The Queen (1992) 173 CLR 555 Holford v Melbourne Tramway & Omnibus Co Ltd [1909] VLR 497 King v The Queen [2001] WASCA 198 Longman v The Queen (1989) 168 CLR 79 Lowndes v The Queen (1999) 195 CLR 665 Mill v The Queen (1988) 166 CLR 59 R v Browne (1982) 5 A Crim R 404 R v Dickens (2004) 147 A Crim R 343 R v Faithfull (2004) 142 A Crim R 554 R v Griffiths (1994) 76 A Crim R 164 R v Jones (1995) 78 A Crim R 504 R v Kay (2004) 147 A Crim R 401 R v Matthews & Ford [1972] VR 3 R v Neville (2004) 145 A Crim R 108 R v Ruane (1979) 1 A Crim R 284 R v White [2002] WASCA 112 R v Zorad (1990) 47 A Crim R 211 RPS v The Queen (2000) 199 CLR 620 Thompson v The Queen (1968) 117 CLR 313 Thompson v The Queen (1992) 8 WAR 387 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : PEZZINO -v- THE STATE OF WESTERN AUSTRALIA [2006] WASCA 7 CORAM : STEYTLER P HEARD : 11 JANUARY 2006 DELIVERED : 11 JANUARY 2006 FILE NO/S : CACR 173 of 2005
- CACR 174 of 2005
- Applicant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
ON APPEAL FROM:
Jurisdiction : SUPREME COURT OF WESTERN AUSTRALIA
Coram : MCKECHNIE J
File No : INS 54 of 2004
Catchwords:
Practice and procedure - Application for leave to appeal against conviction and sentence - Whether reasonable prospect of succeeding - Turns on own facts
(Page 2)
Legislation:
Criminal Appeals Act 2004 (WA), s 27(2)
Sentencing Act 1995 (WA), s 89(4)
Result:
Application for leave to appeal against conviction dismissed
Application for leave to appeal against sentence allowed on ground 1 only
Category: B
Representation:
Counsel:
Applicant : Mr S B Watters
Respondent : No Appearance
Solicitors:
Applicant : Simon Watters
Respondent : State Director of Public Prosecutions
Case(s) referred to in judgment(s):
Festa v The Queen (2001) 208 CLR 593
Samuels v Western Australia (2005) 30 WAR 473
Worthington v The State of Western Australia (2005) 152 A Crim R 585
Case(s) also cited:
Carr v The Queen (1988) 165 CLR 314
Domican v The Queen (1992) 173 CLR 555
Holford v Melbourne Tramway & Omnibus Co Ltd [1909] VLR 497
King v The Queen [2001] WASCA 198
Longman v The Queen (1989) 168 CLR 79
Lowndes v The Queen (1999) 195 CLR 665
Mill v The Queen (1988) 166 CLR 59
(Page 3)
R v Browne (1982) 5 A Crim R 404
R v Dickens (2004) 147 A Crim R 343
R v Faithfull (2004) 142 A Crim R 554
R v Griffiths (1994) 76 A Crim R 164
R v Jones (1995) 78 A Crim R 504
R v Kay (2004) 147 A Crim R 401
R v Matthews & Ford [1972] VR 3
R v Neville (2004) 145 A Crim R 108
R v Ruane (1979) 1 A Crim R 284
R v White [2002] WASCA 112
R v Zorad (1990) 47 A Crim R 211
RPS v The Queen (2000) 199 CLR 620
Thompson v The Queen (1968) 117 CLR 313
Thompson v The Queen (1992) 8 WAR 387
(Page 4)
1 STEYTLER P: This is an application for leave to appeal against conviction and sentence.
2 The applicant was convicted after a trial by jury of one count of burglary, one count of stealing a motor vehicle, four counts of armed robbery and one count of attempted armed robbery. The prosecution case was that on 29 May 2003 the applicant entered into the Nedlands property of Mr Robin Morritt. There, he broke into a locked shed and stole various items valued at several thousand dollars. These included a satellite phone, a global positioning system, some radios, a visored motorcycle helmet and gloves. He also stole a BMW motorcycle from Mr Morritt that was valued at over $20,000. The motorcycle was said to have been used in the commission of the four armed robberies and the attempted armed robbery. It was later abandoned. When it was found and returned to its owner it was in a damaged condition.
3 The four armed robberies and the attempted armed robbery took place on 30 May 2003, the day after the burglary of Mr Morritt's property and the theft of his motorcycle. The prosecution case was that the applicant went first to the Guildford post office. He was wearing a visored motorcycle helmet and carried a large knife. He demanded money and was given $1345 by a staff member, Ms Lisa Hamilton. He departed on a BMW motorcycle registration 1BB-811, being the registration of the motorcycle which had been stolen from Mr Morritt.
4 A short while later the applicant is said to have robbed a pharmacy in Bassendean. Once again he is said to have been wearing a visored motorcycle helmet and to have been brandishing a large knife. The applicant is then said to have travelled to Morley, where he attempted to rob another pharmacy. However, he was foiled when the owner of the pharmacy threatened him with a machete. About a half an hour later the applicant is said to have driven the stolen motorcycle to a newsagency in Yokine. Still wearing the motorcycle helmet, he is said to have wielded a weapon that was either a metal pole or a large knife. He demanded, and was given, money. After an altercation with the owner of the newsagency, the applicant fled on the motorcycle registration 1BB-811.
5 A short while later the applicant was said to have robbed a pharmacy in Floreat. Again he is said to have been wearing the visored motorcycle helmet and to have been carrying a knife. The pharmacist and an employee handed over a sum of money.
(Page 5)
6 Some 10 days later the police searched a house in Darlington where the applicant had been staying from time to time with his girlfriend.
7 In the room which had been occupied by the applicant the police found several thousand dollars worth of property, primarily electrical equipment, that Mr Morritt was able to identify as his own. The applicant claimed that this property had been given to him by an acquaintance, one Peter Harich, by way of payment of a debt. Some time later, on 24 June 2003, a motorcycle helmet and gloves were found abandoned in Jolimont. Mr Morritt was able to identify the helmet as his own.
8 At the trial the prosecution produced telephone records which showed that the applicant's mobile telephone had been in use on 30 May 2003 and that he had made calls from certain places at times which were consistent with the route taken in the course of commission of the offences. The applicant claimed that he had not made the calls, that he had been with his mother at the material time and that, when Harich had given him the electrical equipment on 29 May 2003, he had loaned his telephone to Harich for half a day.
9 Evidence was also led from the applicant's mother, who said that the applicant had been with her at the time of the offending. However, the applicant's mother may have been confused concerning the date as she described the applicant as having worn distinctive shoes and these had been given to him by his girlfriend on his birthday, being 31 May 2003.
Appeal against conviction: CACR 173 of 2005
10 There are seven grounds of appeal against conviction which are sought to be agitated. Section 27(2) of the Criminal Appeals Act 2004 (WA) requires that leave should not be given on a ground of appeal unless the Court of Appeal is satisfied that the ground has a reasonable prospect of succeeding. The meaning of that phrase and the approach which the Court should adopt has been discussed in Samuels v Western Australia (2005) 30 WAR 473 at 487 - 488. That is the approach which I propose to follow in dealing with each ground.
Ground 1
11 Ground 1 challenges the trial Judge's directions concerning the issue of identification. The ground, which is somewhat argumentative in form, essentially contends that in a case which was based on circumstantial evidence, where the defence raised an alibi, in which there was no reliable identification evidence and in which there was no fingerprint or DNA
(Page 6)
- evidence linking the applicant to any of the crimes charged, the trial Judge failed to "state and clarify the nature of the identification evidence for the jury" and, in particular, to remind the jury of divergences in the identification evidence.
12 The prosecution did not place much reliance upon the identification evidence which was given. Rather, it appears to have relied principally upon the finding of property that matched the description of that stolen from Mr Morritt at the place where the applicant had been living and also upon the fact that the motorcycle and helmet that had been stolen from Mr Morritt had been used on the following day in the series of armed robberies.
13 The trial Judge told the jury on more than one occasion that the prosecution did not have a witness who went so far as to identify the applicant as the man who had committed the offences and that the prosecution did not rely upon identification. Most of the witnesses who gave a description of the offender had gone no further than to say that the person concerned had been wearing a full-faced motorcycle helmet and dark clothing. However, there had been some discrepancies in the descriptions given. The trial Judge did not take the jury to the evidence of each of these persons, including a Ms Pilkadaris and a Ms Finlen, because, he said, the trial had only been a short one (it had lasted for some five days) and also because the jury was able to ask to be reminded of any part of the evidence, if they wished. However, his Honour went on to say (transcript 421):
"You will remember that the witnesses described the person. In general the description was of a person in a full-faced motorcycle helmet wearing dark clothing … Ms Pilkadaris described significantly different clothing. You will take that into account. She also noted the number of the motorbike. But you have descriptions and what you make of those is a matter for you.
You may or may not conclude that the descriptions are generally consistent with one another. That's a question for you. But no witness has positively identified the accused person … "
14 The trial Judge went on to say (transcript 422):
"The prosecution doesn't put forward to you any evidence that they say any witness positively identifies the accused, and you
(Page 7)
- should proceed on the basis that in the circumstances of the case, whatever view you take as to the consistency of the various descriptions and what that might tell you, no witness has positively said the accused was that person. So you will weigh up all of these descriptions.
I remind you, as Mr de Vries did yesterday, of Ms Pilkadaris's description of the jacket, which was quite different. I think she said blue with, I think, a tartan, and that she saw a person riding by, which she assumed was the person who robbed her, with sandy-coloured, shoulder-length hair. Now, that description is at odds with some others. You remember Ms Finlen described the person as having acne and with short, brown hair. She saw about an inch under the helmet.
What you make of those descriptions, bearing in mind what I have said to you about the burden and standard of proof, is a matter for you but it is one of the circumstances, not the only one, upon which the prosecution rely."
15 In my opinion this was a more than adequate summary of the identification evidence and quite plainly drew the jury's attention to the shortcomings in it. This case is, in my opinion, unlike that of Festa v The Queen (2001) 208 CLR 593, upon which counsel for the applicant relied, which was a case in which positive identification evidence was given. I am not persuaded that this ground discloses any reasonable prospect of success.
Ground 2
16 Ground 2 complains that the trial Judge erred by removing questions of fact from the jury by saying, at one point in his charge, that the applicant was directly tied to counts 4, 7 and 8 (transcript 423):
"because the bike, or in one case the helmet, was identified and in the case of count 5 and count 6, bearing in mind the geography and the timing, then the only conclusion is that the same person who did the others, namely the accused, did them."
17 However, it is plain from what was said by the trial Judge that he was there merely summarising the prosecution case in this respect. These remarks were made in the course of a summary of contentions advanced by the prosecutor and, in the sentence which immediately followed those
(Page 8)
- which I have quoted, the trial Judge said, "That, in essence, is the prosecution case on circumstantial evidence …"
18 There is consequently no substance to this ground.
Ground 3
19 By ground 3, the applicant complains of what was said by the trial Judge as regards the prosecution's reliance on the circumstances of the finding of Mr Morritt's property at the place where the applicant had been living. He said in this respect, (transcript 423):
"That has two trains of thought. You might think, well, if we accept that Mr Morritt's shed was broken into and his property was stolen and we accept that later that same property turns up in the accused's possession, then clearly an inference is available that he stole it. Whether that is the only inference is a matter for you."
20 The complaint is made that the trial Judge set out only one train of thought, being that which was favourable to the prosecution, and failed to set out any second train of thought which might have been favourable to the applicant. That contention is not supported by the transcript of what was said. Immediately following the words which I have quoted, the trial Judge went on to say:
"Whether that is the only inference is a matter for you. You have heard his explanation about that. His explanation is, effectively, that it was given to him by Peter Harich at the Claremont train station, some items in payment of a debt that he says was owed to him and some items to keep."
21 It is plain that this was the second "train of thought" to which the trial Judge referred, being the defence explanation of the fact that the property was found in his possession.
22 Ground 3 consequently has no substance.
Ground 4
23 Ground 4 complains of a failure by the trial Judge to exclude the evidence of an apparent identification of the applicant given by a witness, Ms Karen Olivier. She had identified the applicant from a photograph but, in the course of doing so, had said only that she thought that the
(Page 9)
- person in the photograph was the offender. She went on to say that she was identifying him from the area of his eyes.
24 Once again this ground is largely argumentative but it asserts, in effect, that this evidence was more prejudicial than probative and that it should have been excluded.
25 I am not persuaded that this ground has any reasonable prospect of succeeding. The evidence was probative, albeit it was of relatively limited value. So long as the jury was adequately directed as to its shortcomings, I am unable to accept that the prejudicial value exceeded its probative value. In fact the trial Judge gave an appropriate direction. He made it quite plain (transcript 422), indeed repeatedly so, that the prosecution did not put forward a case to the effect that any witness positively identified the applicant. Moreover he said, as regards Ms Olivier, that while she had identified a photograph, she had been able to say no more than, "I think that's the man". His Honour went on to say that while she said that this was chiefly, "due to his eyes", she acknowledged that she had had only a very brief look and that this was at a time of stress and in circumstances in which the person she was looking at was wearing a helmet.
26 Given that the evidence had some probative value, and because the trial Judge was able to make a direction of the kind which was ultimately made by him, the evidence was rightly found to be admissible. This ground has no reasonable prospect of success.
Ground 5
27 By ground 5, the applicant challenges the direction which the trial Judge gave in respect of Ms Olivier's evidence. I have already said that the trial Judge's charge in this respect was appropriate, and in my opinion ground 5 has consequently no reasonable prospect of succeeding.
Ground 6
28 Ground 6 complains of what was said by the trial Judge in the course of a redirection concerning the evidence of Ms Olivier. It had been suggested to him that he had misdescribed her evidence. He consequently read to the jury relevant excerpts from the transcript of it. Having done so, he said (transcript 432):
"That's the evidence of it, which is slightly different to the way I put it, and that's the evidence you remember."
(Page 10)
29 Counsel for the applicant contends in his written submissions that by these last words the trial Judge asserted that the jury should accept that part of Ms Olivier's evidence without question. In my opinion, that is plainly not the case. Read in its context, all that the trial Judge was saying and all that the jury could sensibly have understood him to be saying was that the jury should remember the evidence as he had just read it rather than as he had earlier misdescribed it. This ground, too, consequently has no reasonable prospect of succeeding.
Ground 7
30 Ground 7 is merely that if any of the individual grounds are not sufficient to found a miscarriage of justice all of the grounds taken together are such that a miscarriage of justice occurred. I have already said that none of the grounds has a reasonable prospect of succeeding. Consequently no issue arises whether or not any errors viewed cumulatively led to a substantial miscarriage of justice.
31 I should add that had any such question arisen it would have been left for determination on the appeal proper rather than be decided in the course of an application of this kind: see Samuels at 487.
32 Consequently, ground 7, too, has no reasonable prospect of succeeding.
Conclusion
33 It follows that the application for leave to appeal against conviction should be dismissed.
Appeal against sentence: CACR 174 of 2005
34 The appeal against sentence raises three grounds. These challenge the aggregate of the sentences imposed and also the trial Judge's refusal to make the applicant eligible for parole.
35 When he came to sentence the applicant the trial Judge imposed a term of 2 years' imprisonment on the burglary count, one of 3 years' imprisonment in respect of the stealing of the motorcycle, and one of 6 years' imprisonment on each of the armed robbery counts and on the attempted armed robbery count. The terms imposed with respect to the burglary and the stealing of the motorcycle were ordered to be served concurrently with each other, as were the terms imposed in respect of each of the armed robberies and the attempted armed robbery. However, the last category of sentences was ordered to be served cumulatively upon the
(Page 11)
- first, making a total of 9 years' imprisonment. These sentences were to be served cumulatively on a term of imprisonment already being served by the applicant in respect of which his earliest date for release on parole was 11 September 2006, some 13 or so months after the date of sentencing on these offences.
36 The applicant had a significant criminal history. The trial Judge said that, because of the seriousness of the offences of which he had been convicted and because of his past lawless behaviour, he would not exercise his discretion to grant parole. He added that the protection of the community was a relevant factor.
Ground 1
37 By ground 1 of the grounds of appeal against sentence, the applicant contends that the aggregation of the sentences appropriate for each offence was not just and was not an appropriate measure of the total criminality involved.
38 Given the age of the applicant who was 28 years old at the time of sentencing and 26 years old at the time of the offending, given that the trial Judge must have considered that a total sentence of 13 years and 6 months' imprisonment was appropriate having regard for the effect of the transitional provisions, and given that the sentences imposed were to be served cumulatively upon that already being served by the appellant, I am prepared to accept that this ground has a reasonable prospect of succeeding in the sense described in Samuels. I say nothing otherwise as regards the merits of the ground.
Ground 2
39 Ground 2 is that which challenges the trial Judge's exercise of discretion in deciding not to make the applicant eligible for parole.
40 Section 89(4) of the Sentencing Act1995 (WA)provides that:
"A court may decide not to make a parole eligibility order in respect of a fixed term imposed on an offender if the court considers that the offender should not be eligible for parole because of at least 2 of the following 4 factors -
(a) the offence is serious;
(b) the offender has a significant criminal record;
(Page 12)
- (c) the offender, when released from custody under a release order made previously, did not comply with the order;
(d) any other reason the court considers relevant."
41 While the applicant's submissions in this respect touched upon what was said during the course of discussions between the trial Judge and counsel, what is important is what was said by the trial Judge in the course of his sentencing remarks. I have already said that the trial Judge said, in the course of those remarks, that parole should be refused because of the seriousness of the applicant's offending, because of his past lawless behaviour, and taking into account the protection of the community. There is no doubt that under s 89(4) of the Sentencing Act the trial Judge was entitled to decide not to make a parole eligibility order on those grounds. There is no reasonable prospect that this ground of appeal will succeed.
Ground 3
42 Ground challenges the total sentence imposed upon the applicant. It is said to have offended the "one transaction rule" and to have been crushing in its effect.
43 I fail to see any basis upon which the sentence could be said to have offended the so-called "one transaction rule", which has recently been discussed in a number of cases, including Worthington v The State of Western Australia (2005) 152 A Crim R 585. That "rule", even if could be called a rule and if it could otherwise he applied to the circumstances of the applicant's offending, could not be taken so far as to suggest that the trial Judge was obliged to regard the offences committed on the second day of the offending as being part of the same transaction as those committed on the first day. The trial Judge having ordered that the sentences imposed in respect of the offences committed on 29 May 2003 should be served concurrently with each other and that those imposed in respect of the offences committed on 30 May 2003 should also be served concurrently with each other, there is no reasonable prospect that any reliance upon this rule will succeed. Because the balance of the ground adds nothing to ground 1, I would not be prepared to give the applicant leave to raise it.
Conclusion
44 It follows that the applicant should be given leave to appeal against sentence only on ground 1 of the grounds of appeal.
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