Poduti v The State of Western Australia
[2011] WASCA 169
•4 AUGUST 2011
PODUTI -v- THE STATE OF WESTERN AUSTRALIA [2011] WASCA 169
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2011] WASCA 169 | |
| THE COURT OF APPEAL (WA) | |||
| Case No: | CACR:147/2010 | 22 JUNE 2011 | |
| Coram: | McLURE P MURPHY JA MAZZA J | 4/08/11 | |
| 7 | Judgment Part: | 1 of 1 | |
| Result: | Application for extension of time within which to appeal dismissed Appeal dismissed | ||
| B | |||
| PDF Version |
| Parties: | STEVEN VENTURINO PODUTI THE STATE OF WESTERN AUSTRALIA |
Catchwords: | Criminal law Appeal against sentence Effect of guilty plea Manifest excess Turns on own facts |
Legislation: | Bail Act 1982 (WA), s 51(1) Criminal Code (WA), s 378, s 414, s 428 Road Traffic Act 1974 (WA), s 15(3), s 49(1)(a), s 53(1)(b), s 60(1), s 97(d), s 97(f)(iii) Road Traffic Code 2000 (WA), s 11(3) |
Case References: | Eacott v The State of Western Australia [2009] WASCA 112 Godden v The Queen [2003] WASCA 150 Harris v The Queen [2004] WASCA 292 Hili v The Queen [2010] HCA 45 Kickett v The Queen (Unreported, WASCA, Library No 950230, 10 May 1995) Kobeissi v The Queen [2000] WASCA 44 Mignacca v The Queen (Unreported, WASCA, Library No 930348, 23 June 1993) Pieri v The Queen [2002] WASCA 288 Royer v The State of Western Australia [2009] WASCA 139 Trompler v The State of Western Australia [2008] WASCA 265 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : PODUTI -v- THE STATE OF WESTERN AUSTRALIA [2011] WASCA 169 CORAM : McLURE P
- MURPHY JA
MAZZA J
- Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram : FENBURY DCJ
File No : IND 630 of 2010
Catchwords:
Criminal law - Appeal against sentence - Effect of guilty plea - Manifest excess - Turns on own facts
(Page 2)
Legislation:
Bail Act 1982 (WA), s 51(1)
Criminal Code (WA), s 378, s 414, s 428
Road Traffic Act 1974 (WA), s 15(3), s 49(1)(a), s 53(1)(b), s 60(1), s 97(d), s 97(f)(iii)
Road Traffic Code 2000 (WA), s 11(3)
Result:
Application for extension of time within which to appeal dismissed
Appeal dismissed
Category: B
Representation:
Counsel:
Appellant : Ms A S Rogers
Respondent : Mr D Dempster
Solicitors:
Appellant : Andrew Maughan & Associates
Respondent : Director of Public Prosecutions (WA)
Case(s) referred to in judgment(s):
Eacott v The State of Western Australia [2009] WASCA 112
Godden v The Queen [2003] WASCA 150
Harris v The Queen [2004] WASCA 292
Hili v The Queen [2010] HCA 45
Kickett v The Queen (Unreported, WASCA, Library No 950230, 10 May 1995)
Kobeissi v The Queen [2000] WASCA 44
Mignacca v The Queen (Unreported, WASCA, Library No 930348, 23 June 1993)
Pieri v The Queen [2002] WASCA 288
Royer v The State of Western Australia [2009] WASCA 139
Trompler v The State of Western Australia [2008] WASCA 265
(Page 3)
1 McLURE P: The appellant seeks an extension of time within which to appeal against sentence. The notice of appeal was filed approximately three weeks out of time. The delay is adequately explained. If there is merit in the appeal, an extension of time should be granted.
2 On 12 August 2010, the appellant pleaded guilty to one count on an indictment of receiving stolen property, 14 charges the subject of a s 32 notice and to a breach of a suspended imprisonment order. He was sentenced to a term of 2 years' imprisonment for the receiving offence and to a total effective sentence of 3 years' imprisonment. He was made eligible for parole. The appellant contends that the sentence for the receiving offence is manifestly excessive. The relevant details of the offences are as follows:
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s 414 |
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s 97(d) |
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s 11(3) |
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s 51(1) |
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3 The sentences for count 1, charge 2, charge 4 and for breaching the suspended imprisonment order were ordered to be served cumulatively. The indictable offence of receiving was committed whilst the appellant was on parole in relation to a sentence imposed on him in 2005 for drug dealing. At the time of sentencing, the appellant owed 129 parole days which he was required to serve. The sentencing judge ordered that the total effective sentence of 3 years' imprisonment be served concurrently with the parole days owed.
4 The facts of the receiving offence are as follows. Between 5.30 pm on 26 April 2008 and 4.00 pm on 27 April 2008 numerous leather lounge suites and wooden furniture were stolen from Gascoigne Furniture in Midvale (the stolen furniture). The retail value of the stolen furniture was $29,535. Its value at cost was around $13,129. On 26 February 2009, police located the stolen furniture in a storage unit rented by the appellant.
(Page 5)
- The rental contract for the unit was signed by the appellant on 27 April 2008. The appellant also rented a removal truck on 27 April 2008.
5 It is unnecessary to detail the facts of all the remaining offences. It is sufficient to refer to two other offences. In relation to charge 2 on the s 32 notice (reckless driving) the facts are as follows. The appellant drove into a car park off Pinjarra Road contrary to the flow of traffic marked on the bitumen. Police activated their emergency lights in an effort to stop him. The appellant accelerated out of the car park and drove back towards traffic control lights. The appellant drove through those lights while they were showing red and turned left into Pinjarra Road to head west. By doing so, he interfered with westbound traffic who had to brake heavily to avoid a collision. The appellant continued at high speed along Pinjarra Road which was congested with traffic. He swerved in and out of traffic reaching speeds in excess of 100 km per hour where the speed limit is 60 km per hour. In doing so, the appellant interfered with numerous vehicles who had to brake and swerve in an effort to avoid colliding with him. On two occasions he crossed continuous white lines into the lane for on-coming traffic.
6 On 23 October 2009 the appellant was sentenced to 7 months' imprisonment suspended for 18 months for an offence of no authority to drive contrary to s 49(1) of the RTA. The offences the subject of the s 32 notice, committed between December 2009 and June 2010, breached the suspended term of imprisonment.
7 The appellant was aged 42 at the time of sentencing. He had a long record of prior convictions. He had a large number of convictions for breaching the RTA, including eight offences against s 49(1) of the RTA. He also had multiple convictions for dishonesty offences (including forgery, fraud and three prior convictions under s 428 of the CC for possessing stolen property) and drug offences (possession of prohibited drugs with intent to sell or supply and possession of prohibited drugs). Further, the appellant also had a number of convictions for offences committed in the Northern Territory.
8 The appellant has a long history of substance abuse, including using prohibited drugs from the age of 12.
9 The sole ground of appeal is that the sentence of 2 years for the receiving offence is manifestly excessive. One of the particulars of manifest excess is in the following terms:
(Page 6)
- The State accepted that when the Appellant received the goods he was not told that they were stolen, but given the circumstances should have made the appropriate inquiries and failed to do so.
10 The State did not accept that proposition (ts 24) and the sentencing judge did not make a finding to that effect. Moreover, and more importantly, that version of the facts is inconsistent with an element of the offence of receiving under s 414 of the CC. Section 414 relevantly provides:
Any person who receives any property which has been obtained by means of any act constituting an indictable offence … knowing the same to have been so obtained, is guilty of a crime.
11 Thus it is an element of the offence that the offender have actual knowledge of the fact that the property has been obtained by means of stealing or any other act constituting an indictable offence. A plea of guilty is an admission of all the material facts necessary to constitute the offence and negatives all possible defences: Harris v The Queen [2004] WASCA 292 [49].
12 A claim of manifest excess relies upon the implication of an error made by the sentencing judge. In determining manifest excess, regard is had to the maximum penalty for the offence, the standards of sentencing customarily observed with respect to the offence, the seriousness of the circumstances of the offence and the personal circumstances of the offender.
13 The maximum penalty for the offence of receiving stolen property is 14 years' imprisonment. The circumstances of the receiving offence committed by the appellant are towards the higher end of the scale of seriousness. The appellant went to significant lengths to collect the stolen furniture and store it. It can be inferred from the timing of these events that he provided a market for the stolen goods.
14 The appellant relies on one case, Kobeissi v The Queen [2000] WASCA 44, in support of the claim that the sentence for receiving is manifestly excessive. To do so reflects a lack of understanding of the purpose and effect of the reference to standards of sentencing customarily imposed. The purpose is to ensure that the sentence imposed on an offender is, having regard to all sentencing variables and in the knowledge that there is no single correct sentence, broadly consistent with sentences imposed in comparable cases: Hili v The Queen [2010] HCA 45. A single case or a small number of cases is of limited assistance in that
(Page 7)
exercise and cannot establish the range of sentences customarily imposed: Trompler v The State of Western Australia [2008] WASCA 265 [37]. Moreover, it is difficult to discern a range for the offence of receiving because totality considerations ordinarily intrude and the circumstances of the offending vary widely: Eacott v The State of Western Australia [2009] WASCA 112 [15].
15 However, a review of the decided cases confirms that the sentence of 2 years' imprisonment is towards the higher end of sentences customarily imposed for a single offence of receiving: see Pieri v The Queen [2002] WASCA 288; Godden v The Queen [2003] WASCA 150; Mignacca v The Queen (Unreported, WASCA, Library No 930348, 23 June 1993); Eacott; Kickett v The Queen (Unreported, WASCA, Library No 950230, 10 May 1995). On the other hand, the appellant committed the offence whilst he was on parole. Further, the nature and extent of the appellant's prior offending, in particular for offences of dishonesty, requires that significant weight be given to personal deterrence. Having regard to the seriousness of the circumstances of the receiving offence and the appellant's antecedents, the sentence of 2 years' imprisonment is not manifestly excessive.
16 Moreover, even if that sentence was manifestly excessive, it would not in the circumstances of this case have the consequence of undermining the appropriateness of the total effective sentence of 3 years' imprisonment: Royer v The State of Western Australia [2009] WASCA 139 [115] - [116]. The total criminality of the appellant's offending conduct, against the backdrop of his extensive history of offending, demonstrates a contumacious disregard of the criminal law.
17 The application for an extension of time and the appeal should be dismissed.
18 MURPHY JA: I agree with McLure P.
19 MAZZA J: I agree with the President.
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