Rini v The State of Western Australia
[2015] WASCA 124
•19 JUNE 2015
RINI -v- THE STATE OF WESTERN AUSTRALIA [2015] WASCA 124
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2015] WASCA 124 | |
| THE COURT OF APPEAL (WA) | |||
| Case No: | CACR:22/2015 | 4 JUNE 2015 | |
| Coram: | McLURE P BUSS JA | 19/06/15 | |
| 6 | Judgment Part: | 1 of 1 | |
| Result: | Leave to appeal refused Appeal dismissed | ||
| B | |||
| PDF Version |
| Parties: | FRANCESCO DI ALESSANDRO RINI THE STATE OF WESTERN AUSTRALIA |
Catchwords: | Criminal law Sentence Stealing Alleged errors of fact in sentencing Turns on own facts |
Legislation: | Criminal Appeals Act 2004 (WA) Criminal Code (WA) |
Case References: | Nil |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : RINI -v- THE STATE OF WESTERN AUSTRALIA [2015] WASCA 124 CORAM : McLURE P
- BUSS JA
- Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram : SWEENEY DCJ
File No : IND 617 of 2014
Catchwords:
Criminal law - Sentence - Stealing - Alleged errors of fact in sentencing - Turns on own facts
Legislation:
Criminal Appeals Act 2004 (WA)
Criminal Code (WA)
Result:
Leave to appeal refused
Appeal dismissed
Category: B
Representation:
Counsel:
Appellant : In person
Respondent : No appearance
Solicitors:
Appellant : In person
Respondent : Director of Public Prosecutions (WA)
Case(s) referred to in judgment(s):
Nil
1 McLURE P: This is an application for leave to appeal against sentence.
2 On 5 December 2014 the appellant was convicted after trial on one count of stealing communication equipment, wheels and fire extinguishers contrary to s 378 of the Criminal Code (WA) (the stealing offence). The owner of the stolen property was OAQ 4x4 Hire WA Pty Ltd (the owner).
3 The appellant was sentenced by Sweeney DCJ to 2 years 6 months imprisonment and was made eligible for parole.
4 The facts found by the sentencing judge are as follows. Some time over the Anzac Day long weekend in April 2013 the appellant went to the owner's business premises where multiple hire vehicles were stored. The vehicles were hired to mining companies and were fitted with two-way radios and other equipment. The perimeter fence was cut to gain access to the premises. Once inside, the appellant stole about 40 separate radio units, 19 spare tyres, six fire extinguishers and two light bars.
5 Most of the vehicles were unlocked. However, the windows to three vehicles were smashed and one vehicle had a door forced. The appellant's blood was found on the interior door of one of the vehicles and on a piece of smashed window on the ground.
6 The sentencing judge found that:
The property stolen from the yard was worth in excess of $40,000, leaving aside the damage to the vehicles. The radios stolen also had to be fitted to the car, so for the company to have those cars fitted again with identical radios will add another $10,000 approximately to the loss to the company (ts 192).
7 The sentencing judge also said that following his arrest for this offence on 3 May 2013, and while on bail awaiting trial, the appellant committed a further offence of possession of stolen or unlawfully obtained property some time between 6 and 27 August 2013 for which he was convicted and fined on 11 March 2014 (the August 2013 offence).
8 The appellant was aged 36 at the time of sentencing and had a number of prior convictions for assault and dishonesty offences. The appellant suffers from bipolar disorder with resulting mood swings, depression and anxiety. However, he resists treatment and counselling for his disorder.
9 The sentencing judge found that the appellant was not remorseful and had not accepted responsibility for his conduct. None of the stolen property was recovered.
10 The appellant relies on two grounds of appeal, being in effect that the sentencing judge made two errors of fact in sentencing. The appellant contends the sentencing judge erred in her findings as to the value and fitting costs of the stolen property and that he was on bail for the stealing offence when the August 2013 offence was committed. This court can only intervene if the sentencing judge made a material error of fact or law. A material error is one which is capable of altering the outcome.
11 The appellant seeks leave to adduce evidence in support of the grounds. As to the value of the stolen property, the appellant seeks to rely on a witness statement of Amber Hazell dated 7 January 2014, an internal email to Ms Hazell from another employee of the owner dated 13 May 2013 and a police incident report compiled on 5 December 2013.
12 The sentencing judge's findings as to the value of the stolen property and the cost of refitting the radios was based on the unchallenged evidence at trial of Ms Hazell. The items stolen by the appellant included 20 UHF radios, 20 VHF radios, 18 spare tyres and six fire extinguishers (exhibit B; ts 93 - 95). Ms Hazell's evidence was that each UHF radio was valued at approximately $418; to supply and fit each UHF radio was $605; each VHF radio was valued at $1,050; to supply and fit each VHF radio was $1,400; the value of the tyres ranged between $580 - $650 per tyre and rim and the value of the fire extinguishers ranged between $100 and $160 per extinguisher (ts 96).
13 Counsel for the State did the maths, and averaging out the value of the fire extinguishers and tyres, valued the stolen equipment at $41,210 and the fitting cost for the radios at $10,740 (ts 179). Those values are in accordance with the evidence.
14 Ms Hazell's witness statement on value is confined to the value of the UHF radios and one fire extinguisher and is consistent with her evidence at trial. There is nothing of relevance in the email. As to the police incident report, that does not list 18 of the VHF radios. Apart from that omission, the values listed in the incident report are consistent with the evidence at trial, with the exception that the spare tyres are valued at $200. The unsourced, unsworn allocation of value recorded in the incident report is incapable of undermining the unchallenged sworn evidence at trial.
15 Leave to adduce the new evidence relating to value should be refused. Ground 1 has no reasonable prospect of succeeding. Thus, leave to appeal must be refused.
16 As to ground 2, an examination of the court file confirms the appellant's sworn evidence that he was not on bail for the stealing offence when he committed the August 2013 offence. The appellant was arrested on the stealing offence on 3 May 2013. On that day, police searched his home and found a number of items of radio equipment similar to that which had been stolen from the owner. However, because the owner did not keep records of the serial numbers of the stolen radios, they could not be matched with those seized from the appellant's home. As a result, the appellant was not charged on the date of his arrest. He was charged by summons which, according to the appellant, was served three months after his arrest. I have obtained a copy of the summons, which was signed on 11 August 2013 and lodged in the Magistrates Court on 29 August 2013. Accordingly, I will proceed on the basis most favourable to the appellant that he committed the August 2013 offence before being served with the summons for the stealing offence.
17 Although the sentencing judge made an error of fact in finding that the appellant was on bail when he committed the August 2013 offence, I am satisfied that, in the circumstances of this case, a different sentence should not have been imposed. In that event, this court has no jurisdiction to allow the appeal: Criminal Appeals Act 2004 (WA), s 31(4)(a).
18 The agreed facts of the August 2013 offence (exhibit A) are as follows. Between 6 and 27 August 2013 the appellant arranged to meet a third party and purchased eight Simoco radio units which he thought were stolen. On 27 August 2013, a search warrant was executed at Sentinel Self-Storage in Maddington. The appellant had leased a storage unit there after his arrest on 3 May 2013 for the stealing offence (ts 150). This conduct demonstrates that personal deterrence was clearly a weighty sentencing consideration, underscored by the psychologist's assessment of the appellant, accepted by the sentencing judge, that he failed to take responsibility for his actions and saw himself as always the victim of circumstances (ts 194).
19 I am satisfied that the error made by the sentencing judge was not material and thus does not give rise to an arguable ground of appeal.
20 Ground 2 has no reasonable prospect of succeeding. Accordingly, leave to appeal must be refused. As leave has been refused on all grounds, the appeal is taken to have been dismissed.
21 BUSS JA: I agree with McLure P.
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