Robert Matthew O'bryan v The State of Western Australia

[2013] HCASL 192

ROBERT MATTHEW O'BRYAN

v

THE STATE OF WESTERN AUSTRALIA

[2013] HCASL 192
P13/2013

1. The applicant, together with a co-accused and after a joint trial before judge and jury in the District Court of Western Australia, was convicted on one count of stealing a motor vehicle and one count of aggravated burglary.  The sentencing judge imposed cumulative sentences, but reduced the term of imprisonment for the second count having regard to the principle of totality.  The applicant was sentenced to four years and four months' imprisonment for the two offences, and a further 12 months for breach of a suspended term of imprisonment.

2. The applicant sought leave to appeal to the Court of Appeal of the Supreme Court of Western Australia against his conviction and sentence.  Leave to appeal against conviction was refused and is not now in issue.  In relation to sentence, the applicant argued that the sentencing judge erred in imposing a cumulative sentence because the stealing of the car was part of one transaction with the aggravated burglary.  He also argued that the total effective sentence infringed the totality principle.  The Court of Appeal (McLure P, Buss and Mazza JJA) held that the sentencing judge was correct not to apply the one transaction "rule" and that the total effective sentence was appropriate in all the circumstances.  It refused leave to appeal against the sentence.

3. The applicant seeks special leave to appeal against the Court of Appeal's refusal of leave to appeal against the sentence.  He seeks to re-agitate the grounds advanced in the Court of Appeal.  He contends that the offending was part of one transaction, such that the sentencing judge erred in imposing cumulative sentences, and that the total effective sentence does not reflect the overall criminality involved.

4. The Court of Appeal applied settled principles to the particular facts of the case.  The applicant has shown no error of principle on the part of the Court of Appeal or the sentencing judge, and the interests of justice do not recommend a grant of special leave.  Special leave to appeal will be refused.

5. Pursuant to r 41.11.1, we direct the Registrar to draw up, sign and seal an order dismissing the application.

V.M. Bell
3 December 2013 S.J. Gageler