Pieri v The Queen
[2002] WASCA 288
•2 OCTOBER 2002
PIERI -v- THE QUEEN [2002] WASCA 288
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2002] WASCA 288 | |
| COURT OF CRIMINAL APPEAL | |||
| Case No: | CCA:38/2002 | 2 OCTOBER 2002 | |
| Coram: | STEYTLER J MILLER J SHEPPARD AUJ | 2/10/02 | |
| 8 | Judgment Part: | 1 of 1 | |
| Result: | Application for leave to appeal refused | ||
| B | |||
| PDF Version |
| Parties: | MARIO GUISEPPE PIERI THE QUEEN |
Catchwords: | Criminal law and procedure Sentencing Receiving stolen property 18 months' imprisonment imposed Whether sentencing Judge failed to consider effect of sentence being made cumulative upon sentences being served by applicant for other offences Application of totality principle Whether insufficient weight accorded to applicant's plea of guilty Turns on own facts |
Legislation: | Criminal Code (WA), s 414, s 689(3) Sentencing Act 1995 (WA), s 93(1)(b), s 94(1), s 94(2), s 94(3) |
Case References: | Vlek v The Queen, unreported; CCA SCt of WA; Library No 990153; 29 March 1999 Anglesey v The Queen [2002] WASCA 194 Bessell v The Queen, unreported; CCA SCt of WA; Library No 980199; 4 March 1998 Cameron v The Queen (2002) 76 ALJR 382 Mill v The Queen (1988) 166 CLR 59 Pearce v The Queen (1998) 194 CLR 610 R v Ford (1998) 103 A Crim R 501 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : COURT OF CRIMINAL APPEAL CITATION : PIERI -v- THE QUEEN [2002] WASCA 288 CORAM : STEYTLER J
- MILLER J
SHEPPARD AUJ
- Applicant
AND
THE QUEEN
The Respondent
Catchwords:
Criminal law and procedure - Sentencing - Receiving stolen property - 18 months' imprisonment imposed - Whether sentencing Judge failed to consider effect of sentence being made cumulative upon sentences being served by applicant for other offences - Application of totality principle - Whether insufficient weight accorded to applicant's plea of guilty - Turns on own facts
Legislation:
Criminal Code (WA), s 414, s 689(3)
Sentencing Act 1995 (WA), s 93(1)(b), s 94(1), s 94(2), s 94(3)
(Page 2)
Result:
Application for leave to appeal refused
Category: B
Representation:
Counsel:
Applicant : Mr M M Flynn
The Respondent : Mr J Mactaggart
Solicitors:
Applicant : Legal Aid of Western Australia
The Respondent : State Director of Public Prosecutions
Case(s) referred to in judgment(s):
Vlek v The Queen, unreported; CCA SCt of WA; Library No 990153; 29 March 1999
Case(s) also cited:
Anglesey v The Queen [2002] WASCA 194
Bessell v The Queen, unreported; CCA SCt of WA; Library No 980199; 4 March 1998
Cameron v The Queen (2002) 76 ALJR 382
Mill v The Queen (1988) 166 CLR 59
Pearce v The Queen (1998) 194 CLR 610
R v Ford (1998) 103 A Crim R 501
(Page 3)
1 STEYTLER J: This is an application for leave to appeal against sentence.
2 On 22 February 2002 the applicant was convicted on his plea of guilty in the District Court to a charge of receiving stolen property contrary to the provisions of s 414 of the Criminal Code. The applicant was found to have received, on 16 April 2000, a stolen television set, a video recorder, a laptop computer and a video camera. He was sentenced to a period of 18 months' imprisonment and made eligible for parole.
3 At the time at which he was sentenced the applicant had previously been sentenced to a term of 6 and a half years' imprisonment with eligibility for parole in respect of other offences. Those offences included an offence of breach of bail, an offence of robbery whilst pretending to be armed, an offence of attempted robbery, a further offence of robbery whilst pretending to be armed and an offence of possession of heroin.
4 The previous terms of imprisonment had commenced on 4 September 2000 and, were it not for the further sentencing, the applicant would have been eligible for release on parole on 4 January 2003. The sentence the subject of this application was ordered to be served cumulatively upon the earlier sentences and the result of that was that the date upon which the applicant became eligible for release on parole was effectively extended by one year from 4 January 2003 to 4 November 2004.
5 Those circumstances have given rise to ground 1 of the proposed grounds of appeal which is to the effect that the sentencing Judge erred in law in failing to place any or proper weight on the effect of s 93(1)(b) of the Sentencing Act 1995 upon any cumulative sentence imposed upon the applicant.
6 Counsel for the applicant pointed out that, on sentencing the applicant on 22 February 2002, the sentencing Judge was told that the applicant was eligible for work release in July 2002 in relation to the previous term and that the effect of the Sentencing Act was that the date that the applicant would be eligible for parole and work release would be extended by two-thirds of any term ordered to be served cumulatively upon the previous term. He contended that, in making the applicant eligible for parole in respect of the sentence imposed for the offence of receiving stolen property and omitting to mention the effect of the accumulation of the sentence upon the date that the applicant would be
(Page 4)
- eligible for parole, the sentencing Judge appears to have failed to place any or proper weight on the effect of s 93(1)(b) of the Sentencing Act.
7 That section provides that, if a total term of imprisonment imposed upon an offender is more than 6 years, a period of 2 years will be the maximum parole period. Section 94(1) then provides that, in the case of a prisoner serving two or more parole terms, the time when he or she is eligible to be released on parole and the parole period for such a prisoner are to be calculated by reference to the aggregate of those terms if, under s 94(2) or s 94(3), those terms are to be aggregated. Section 94(3) provides that a parole term imposed at a different time to another parole term is to be aggregated with that other term for the purposes of s 94(1) unless it is to be served concurrently with that other term or partly cumulatively with it. The effect of these sections, having regard for the fact that the whole of the sentence of 18 months imprisonment was ordered to be served cumulatively upon the earlier sentence, was, as counsel for the applicant pointed out, that, so far as the sentence of 18 months' imprisonment was concerned, there would effectively be no period of parole, as the maximum period of parole for the aggregated sentences was one of two years and that full period had already been taken up by the earlier sentence. It was this that the sentencing Judge was said to have overlooked.
8 The second ground of appeal is to the effect that the sentencing Judge erred in law in failing properly to apply the totality principle. In sentencing the applicant her Honour said:
"I'm aware that you are currently serving a relatively lengthy period of imprisonment and if I were to impose a term upon you without having regard to that for this offence of receiving it would in the end make the sentence rather crushing and give you no hope for life in the future and it would not assist your rehabilitation when you go back into the community and that's important.
So in structuring the sentence that I am about to impose I take into account the totality principle and the sentence will reflect that accordingly."
9 The applicant contends that the correct application of the totality principle did not require the sentencing Judge to consider whether the accumulation of the sentence of 18 months' imprisonment imposed in respect of the receiving charge upon the sentence of 6-1/2 years'
(Page 5)
- imprisonment previously imposed would result in a sentence that was "crushing" but, rather, whether it would result in one that was disproportionate to the overall level of criminality of the applicant.
10 His counsel submits that the distinction between the avoiding of a "crushing" sentence and the proper application of the totality principle was made clear by the members of the Court in Vlek v The Queen, unreported; CCA SCt of WA; Library No 990153; 29 March 1999 at 11 - 13, where Anderson J, with whom the other two members of the Court were in agreement, said:
"As to the totality principle itself, his Honour [the sentencing Judge] said:
'There are a number of principles that have to be brought to bear in thinking of any appropriate sentencing ... One of these is called the totality principle by which I understand that I have got to look at all of the offences that you have committed, notwithstanding they're committed at separate places at separate times and separate properties against separate people, and look at the total length of time that you would have to spend in prison to see whether that would be so, I think, crushing upon you as to deprive you of any hope. The law requires me not to do that. I have got to impose a sentence upon you that gives you some hope and a prospect, a realistic prospect of rehabilitation.'
With respect to his Honour, I do not think we are here dealing with a crushing set of sentences. The question was not whether sentences aggregating eight years would be crushing in the sense in which that word is generally understood in this field. In R v Yates [1985] VR 41 at 48, Young CJ, Starke, Crockett and Hampel JJ, in the Victorian Court of Criminal Appeal, defined 'crushing' as 'connot(ing) the destruction of any reasonable expectation of useful life after release'. See also R v Bazley (1993) 65 A Crim R 154 at 158; Vaitos v R (1981) 4 A Crim R 238. Burnett v R (1994) 70 A Crim R 469 at 473 - 474. There could not really be any question of that in this case. However, sentences which are not crushing may nevertheless offend the totality principle by being, in the aggregate, just too long having regard for the overall criminality in the conduct of the offender.
(Page 6)
- So far as one can tell from his Honour's remarks, he looked only to whether the cumulative sentence which he intended to pass would be crushing in its effect upon the applicant. Obviously, he decided it would not and, if the test of 'crushing' is as stipulated in Yates, plainly it was not a crushing sentence in its totality. I think, however, that what we are really concerned with here are other aspects of the totality principle which are concerned not so much with considerations of mercy arising from the conclusion that a sentence is of crushing effect, but (as Mr D A Thomas op cit put it at p58 of his work) with the principle of 'proportionality between offence and sentence' and with the matters I have mentioned above - the harsher effect of a cumulative sentence and the diminished need to punish the particular offender by reason that the offender is already suffering custodial punishment. In other words, the sentencing court was not so much concerned to mitigate an otherwise appropriate sentence as an act of mercy to avoid a crushing effect on the particular offender, but to arrive at an appropriate sentence in the first place, having regard for the fact that the offender was already in prison required to serve out a custodial term before commencing to serve the sentence about to be imposed."
11 Counsel for the applicant submits, as I have said, that the same error as was made by the sentencing Judge in Vlek was made by the sentencing Judge in this case.
12 Ground 3 of the grounds of appeal is to the effect that the sentencing Judge erred in failing to place any or proper weight upon the fact that the applicant pleaded guilty at the first reasonable opportunity. The indictment alleging the offence of aggravated burglary was first laid on 17 January 2001. The applicant pleaded not guilty to that indictment. Then, on 22 February 2002, a nolle prosequi was entered in respect of that indictment and a second indictment charging the applicant with an aggravated burglary and, in the alternative, an offence of receiving was laid. The applicant thereupon indicated a preparedness to plead guilty to the count of receiving, in full satisfaction of the indictment, and that plea was so accepted. The applicant's counsel submits that the sentencing Judge's sentencing remarks reveal that she had regard to the applicant's plea of guilty as a mitigating factor, but that she did not attribute sufficient weight to that plea. That submission is based upon her Honour's comment
(Page 7)
- to the effect that the plea of guilty came "late in the day". However, the applicant, by his counsel, concedes that her Honour did go on to reduce what would otherwise have been a sentence of 2 years' imprisonment to one of 18 months' imprisonment in order to take account of all factors, including the plea of guilty.
13 In the end, the task of an applicant in an application for leave to appeal against sentence is that of persuading the Court of Criminal Appeal that a different sentence should have been passed to that which was in fact passed by the sentencing Judge: see s 689(3) of the Criminal Code.
14 This was a serious case of its kind. The relevant facts were that on 16 April 2000 the applicant, together with an associate, travelled by car to a house in Bayswater which was the home of the complainant. It became apparent to the applicant, when he arrived at that location, that his co-offender did not know the occupants of the house. He behaved in what the sentencing Judge said was a highly suspicious manner. He parked his car in a side laneway and entered the property by jumping a fence. The applicant stayed outside the property, checking through the fence from time to time, no doubt, as her Honour said, to see what was happening. The applicant told the police later that, in those circumstances, he was fully aware that his co-offender was up to no good. Some 15 to 20 minutes later the co-offender emerged from the house and passed the stolen items in a blue blanket over the fence and they were placed in the rear seat of the car. The vehicle was then driven to a nearby petrol station where the applicant was able to see what had been stolen. I have earlier mentioned that the stolen items included a laptop computer, a video-recorder, a television set and a video camera. The stolen items were taken to a pawn shop where the applicant pawned one of the items for an amount of $300. The applicant and his de facto then went to a Cash Converters shop in Mount Lawley on the following day, with the intent of pawning the remaining items. Not long thereafter, he was apprehended.
15 It seems to me, as I have said, that the circumstances of the offence were serious. Even taking into account the various matters which have been raised in mitigation, including the applicant's plea of guilty, and having regard to the applicant's antecedents, the sentence of 18 months' imprisonment that was imposed on the applicant was fully justified, even allowing for the proper application of the totality principle and also for the fact that the accumulation of that sentence on the earlier sentence will have the result that the applicant will, in effect, serve no part of that sentence on parole.
(Page 8)
16 I am consequently not persuaded that any different sentence should have been imposed and I would accordingly refuse the applicant's application for leave to appeal.
17 MILLER J: I agree, and I have nothing to add.
18 SHEPPARD AUJ: I also agree, and I have nothing to add.
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