Roncevic v The State of Western Australia
[2012] WASCA 43
•27 FEBRUARY 2012
RONCEVIC -v- THE STATE OF WESTERN AUSTRALIA [2012] WASCA 43
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2012] WASCA 43 | |
| THE COURT OF APPEAL (WA) | |||
| Case No: | CACR:120/2011 | 2 FEBRUARY 2012 | |
| Coram: | MARTIN CJ BUSS JA MAZZA JA | 27/02/12 | |
| 14 | Judgment Part: | 1 of 1 | |
| Result: | Appeal dismissed | ||
| B | |||
| PDF Version |
| Parties: | IVAN JOHN RONCEVIC THE STATE OF WESTERN AUSTRALIA |
Catchwords: | Criminal law Appeal against sentence Application for an extension of time Whether individual sentences manifestly excessive Whether sentences imposed infringed the totality principle One transaction rule |
Legislation: | Criminal Appeals Act 2004 (WA), s 31(4)(a) Criminal Code (WA), s 301, s 381(1)(d), s 428(1) Firearms Act 1973 (WA), s 19(1)(c) Misuse of Drugs Act 1981 (WA), s 5(1)(d), s 6(1)(a), s 6(2) Road Traffic Act 1974 (WA), s 49(1)(a), s 53(1)(b), s 55(1), s 60(1) Sentencing Act 1995 (WA), s 6(1), s 32 Weapons Act 1999 (WA), s 6(1)(b) |
Case References: | Chan v The Queen (1989) 38 A Crim R 337 Hili v The Queen [2010] HCA 45; (2010) 242 CLR 520 Mooney v The State of Western Australia [2007] WASCA 54 Pearce v The Queen [1998] HCA 57; (1998) 194 CLR 610 Quinn v The State of Western Australia [2006] WASCA 99 R v Faithfull [2004] WASCA 39; (2004) 142 A Crim R 554 Roffey v The State of Western Australia [2007] WASCA 246 Walgar v The State of Western Australia [2007] WASCA 241 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : RONCEVIC -v- THE STATE OF WESTERN AUSTRALIA [2012] WASCA 43 CORAM : MARTIN CJ
- BUSS JA
MAZZA JA
- Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram : DAVIS DCJ
File No : IND 1132 of 2009, IND 43 of 2010
Catchwords:
Criminal law - Appeal against sentence - Application for an extension of time - Whether individual sentences manifestly excessive - Whether sentences imposed infringed the totality principle - One transaction rule
(Page 2)
Legislation:
Criminal Appeals Act 2004 (WA), s 31(4)(a)
Criminal Code (WA), s 301, s 381(1)(d), s 428(1)
Firearms Act 1973 (WA), s 19(1)(c)
Misuse of Drugs Act 1981 (WA), s 5(1)(d), s 6(1)(a), s 6(2)
Road Traffic Act 1974 (WA), s 49(1)(a), s 53(1)(b), s 55(1), s 60(1)
Sentencing Act 1995 (WA), s 6(1), s 32
Weapons Act 1999 (WA), s 6(1)(b)
Result:
Appeal dismissed
Category: B
Representation:
Counsel:
Appellant : Mr S B Watters
Respondent : Mr D Dempster
Solicitors:
Appellant : Thames Legal
Respondent : Director of Public Prosecutions (WA)
Case(s) referred to in judgment(s):
Chan v The Queen (1989) 38 A Crim R 337
Hili v The Queen [2010] HCA 45; (2010) 242 CLR 520
Mooney v The State of Western Australia [2007] WASCA 54
Pearce v The Queen [1998] HCA 57; (1998) 194 CLR 610
Quinn v The State of Western Australia [2006] WASCA 99
R v Faithfull [2004] WASCA 39; (2004) 142 A Crim R 554
Roffey v The State of Western Australia [2007] WASCA 246
Walgar v The State of Western Australia [2007] WASCA 241
(Page 3)
1 MARTIN CJ: This appeal should be dismissed for the reasons given by Mazza JA with which I agree.
2 BUSS JA: I agree with Mazza JA.
3 MAZZA JA: This is an application for an extension of time and an appeal against sentences imposed by Davis DCJ. The appeal notice was filed approximately six weeks out of time. The delay has been explained in the appellant's undated affidavit filed on 6 September 2011. I would grant leave to appeal out of time.
4 On 9 October 2009, the appellant pleaded guilty to a single offence contained in indictment 1132 of 2009, of possession of 135.4 g of methylamphetamine with intent to sell or supply it to another. Of this quantity, 21.3 g was 57% pure, and the remainder 9%.
5 Next, on 29 November 2010, on what was the first scheduled day of his trial, the appellant pleaded guilty to four out of seven offences contained in indictment 43 of 2010. The State accepted these pleas in full satisfaction of that indictment. The offences to which the appellant pleaded guilty were:
(1) …
(2) … [O]n 17 April 2009 at Attadale Ivan John Roncevic, unlawfully wounded Christopher Than-Htay.
(3) On 1 May 2009 at Coodanup Ivan John Roncevic assaulted Adam Jason Van Lierop, a public officer who was then performing a function of his office or employment
And that Ivan John Roncevic was armed with a dangerous weapon, namely a firearm.
(4) On the same date and same place as in Count (3) Ivan John Roncevic assaulted Nicole Ann McCallum a public officer who was then performing a function of her office or employment.
And that Ivan John Roncevic was armed with a dangerous weapon, namely a firearm.
(5) …
(6) …
(Page 4)
- (7) On the same date and same place as in Count (4) Ivan John Roncevic had in his possession a prohibited drug, namely methylamphetamine, with intent to sell or supply it to another.
6 Finally, on 12 May 2011, the appellant pleaded guilty to 10 offences contained in a notice pursuant to s 32 of the Sentencing Act 1995 (WA).
7 On 27 May 2011, her Honour imposed the following sentences:
Indictable offences
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(indictment number 43 of 2010) |
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(indictment number 43 of 2010) |
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(Page 5)
Section 32 offences
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(Page 6)
8 The total effective sentence imposed by her Honour was 9 years and 2 months' imprisonment. The appellant was made eligible for parole.
9 At the time of sentence, the appellant was subject to a sentence of 13 years' imprisonment, which had been imposed upon him in the District Court on 29 November 2002, in respect of two counts of sexual penetration without consent, two counts of deprivation of liberty and one count of assault occasioning bodily harm. The appellant had been released on parole in respect of this sentence, but he breached his parole. As a result, he was required to serve the balance of the sentence. Prior to 27 May 2011, the appellant had served 2 years and 10 months' imprisonment as a consequence of his breaches, and he was liable to serve further outstanding parole days until 5 December 2013. Her Honour ordered that the sentence she imposed be served concurrently with those outstanding parole days.
10 The appellant relies on two grounds of appeal. The first ground alleges that each of the sentences imposed for the offences of assaulting a public officer were manifestly excessive. Leave to appeal has not been granted in respect of this ground. The second ground alleges that the total effective sentence of 9 years and 2 months infringes the first limb of the totality principle. Leave to appeal in respect of this ground was granted on 11 September 2011.
The facts of the appellant's offending
11 The facts of the appellant's offending are not in dispute.
12 At about 10.45 pm on 12 February 2008, a vehicle in which the appellant was a passenger was stopped in Wanneroo by the police. The appellant was handcuffed. He complained of needing to urinate and was allowed to do so in a nearby garden. Upon pulling his shorts down and, at that stage, without the police knowing, he removed a clipseal bag which contained 21.3 g of yellow crystal methylamphetamine powder at 57% purity. A short time later, police noticed him holding the clipseal bag in his right hand and removed it from him. The appellant was then thoroughly searched, and a tightly-wrapped ball containing two clipseal bags was found in his underpants. The methylamphetamine found in those bags was 114.1 g, with a purity of 9% (count 1, indictment 1132 of 2009): AB 47 - 48.
13 Police then conducted a search of his house at Coogee. There they found two clipseal bags containing 26.5 g of cannabis (count 2 on the s 32 notice) and a smoking utensil with detectable traces of
(Page 7)
- methylamphetamine (count 3 on the s 32 notice). Also located was a 55 cm long black metal extendible baton (count 1 on the s 32 notice) and two pairs of jeans with the store security tags still attached (count 4 on the s 32 notice): AB 48.
14 In April 2009, the appellant was living at an address in Attadale with Adriano Scaffeta. The appellant and Mr Scaffeta were involved in a dispute with twin brothers, Christopher and Steven Than-Htay. On 17 April 2009, Christopher and Steven Than-Htay, together with three others, attended at the appellant's address. Upon arrival at the address, they were let through the electronic gates and approached the front door. They knocked on the front door and adjoining windows. An argument took place between them and the occupants inside, one of whom was the appellant. During this altercation the appellant threatened on several occasions to shoot someone. The interior door of the home opened, and the appellant, standing behind a security screen door which was still closed, fired a handgun through the security screen, shooting Christopher Than-Htay through the upper left thigh, causing him to suffer a serious injury (count 2 on indictment 43 of 2010). The victim, his brother and their associates retreated. The appellant opened the door and followed them out, still carrying the handgun. Two cars drove off, one of which was carrying the injured Christopher Than-Htay. The appellant fired at the other vehicle being driven by Steven Than-Htay. The projectile just missed Steven Than-Htay's head and struck the bonnet of his car. The appellant then telephoned Christopher Than-Htay while he was on his way to hospital and taunted him about being shot in the leg. Later the appellant sent mocking text messages to Christopher Than-Htay's telephone, again referring to his injured leg.
15 Police executed a search warrant later that day at the appellant's home and found, underneath his pillow, a loaded .357 calibre Smith & Wesson handgun. This handgun was not the one used to shoot Christopher Than-Htay (count 10 on the s 32 notice): AB 51.
16 At about 10.22 am on Friday 1 May 2009, the appellant was driving a motor vehicle in Coodanup. The vehicle was stopped by uniformed police officers, Van Lierop and McCallum, for a traffic matter. After Officer Van Lierop told the appellant that he was going to do a driver's licence check, the appellant drove away at high speed, narrowly missing Officer Van Lierop. The police officers then pursued the appellant, activating their vehicle's emergency lights and sirens. The appellant refused to stop. In the process of trying to evade capture, the appellant
(Page 8)
- drove recklessly and collided with another vehicle. The appellant did not have a valid driver's licence (counts 5 to 9 on the s 32 notice).
17 A short time later, Officers Van Lierop and McCallum saw the appellant's vehicle in a stationary position in Wellstead Way, Coodanup. The two officers approached the appellant's vehicle. When they got to the vehicle the appellant tried to escape. Officer McCallum reached for her handcuffs and, as she did so, the appellant produced a stolen Browning self-loading 9 mm pistol and pointed it at Officer Van Lierop. Officer McCallum fired her taser. The appellant then pointed the handgun at her.
18 The appellant got out of his vehicle and ran down Wellstead Way. When he got to 3 Wellstead Way, he turned and faced the officers. He aimed his handgun at Officer McCallum and racked the firearm; that is, he employed the action which results in a round of ammunition from the magazine being transferred into the chamber barrel, as if ready to fire (count 3, indictment 43 of 2010). The appellant then appeared to rack the firearm again, before aiming it at Officer Van Lierop (count 4, indictment 47 of 2010). Officer Van Lierop then fired his police issue weapon, wounding but not disabling him. The appellant then ran away, and was later found hiding in the rear yard of 3 Josbury Close.
19 Police later located a plastic bag on Wellstead Way containing 5.27 g of methylamphetamine at 64% purity, which the appellant had dropped as he ran from his vehicle (count 7, indictment 43 of 2010). Police found the appellant's 9 mm Browning pistol in the rear yard of 3 Josbury Close. The firearm was unloaded, but the safety mechanism was set to fire. A search of the appellant's vehicle revealed a magazine capable of fitting the firearm, which contained five rounds of ammunition. Also located in the vehicle was $39,990 in cash, two sets of digital scales with traces of methylamphetamine on them, a container of MSM powder (a common cutting agent for methylamphetamine) and two mobile phones: AB 53 - 54.
20 The prosecution tendered a victim impact statement made by Officer McCallum. The statement reveals that, as at the date of sentencing, she was still suffering the emotional and psychological effects of the offence against her: AB 138.
The appellant's antecedents
21 At the date he was sentenced, the appellant was 37 years of age. He was introduced to illicit drugs at high school and has, as an adult, accumulated a significant and serious criminal record, much of which is
(Page 9)
- related to his drug use. I have already referred to the convictions that were recorded in 2002. In addition to these, he has been convicted of possession of amphetamine and cannabis, selling amphetamines, conspiracy to sell or supply drugs, possession of weapons, possessing unlicensed ammunition and numerous traffic offences. Her Honour observed, correctly, that the appellant's record showed that the offences she dealt with were not uncharacteristic of the appellant and showed that he had a disregard for the law: AB 132. Psychiatric evidence before her Honour conjectured that the appellant may have suffered frontal lobe injury in an accident, but it was not suggested that any such injury, if it in fact existed, had any mitigating weight. There was evidence that the appellant's offending in May 2009 was due to self-induced drug psychosis. Of course, no mitigation can be found in this.
22 The pre-sentence report noted the appellant's poor response to past periods of supervision in the community and the high risk of further reoffending that he poses.
23 There is little real evidence of any genuine remorse for his offending. The appellant wrote a letter to her Honour in which he stated that he took responsibility for his actions and that he was taking positive steps towards his rehabilitation. He also claimed that he had 'empathy' for his victims. These claims are difficult to accept, in light of his behaviour after the shooting of Christopher Than-Htay and his behaviour towards Officers Van Lierop and McCallum. Her Honour nevertheless took his expressions into account, stating:
It seems that this is a very late realisation of your responsibility for these offences, but nonetheless I do accept it: AB 134.
Her Honour's sentencing remarks
24 Her Honour found that in light of the appellant's offending and antecedents, the primary sentencing objectives were general and personal deterrence and the protection of the community: AB 135.
25 She noted, in respect of the drug offence committed on 12 February 2008, that the high purity of some of the methylamphetamine seized on that day showed that the appellant was close to the source of the drug: AB 135.
26 She said, in respect of the offence committed on 17 April 2009, that although the behaviour of the victim and his associates was abusive and threatening, his actions in shooting Christopher Than-Htay were
(Page 10)
- disproportionate. Her Honour found that the appellant did not make a spur of the moment decision to shoot, and that his subsequent conduct showed a complete lack of remorse for what he had done: AB 137.
27 With respect to the assaults on Officers Van Lierop and McCallum on 1 May 2009, in addition to giving significant weight to personal and general deterrence, Her Honour also emphasised the need for the protection of public officers in the execution of their duty. She found that this offending was aggravated by:
1. the appellant pointing the gun at close range at the police officers, not once, but twice;
2. the appellant racking the gun, indicating that he was ready to fire it; and
3. the purpose of the assaults was to avoid being lawfully detained by the police: AB 138.
28 Her Honour observed that, in relation to all of the appellant's offending, it occurred while he was on parole.
29 She said that apart from the pleas of guilty, there was very little in his circumstances which was mitigating: AB 131. She expressly took into account the totality principle. She did this by reducing some of the terms of imprisonment she imposed and ordering that the sentences be served concurrently with the unserved breach of parole days.
The appellant's submissions
30 The appellant's primary submission in support of ground 1 was that, when compared with other cases decided in this court and, in particular, having regard to Quinn v The State of Western Australia [2006] WASCA 99, and the cases cited therein, the individual sentences for assaulting the police officers were manifestly excessive, especially when neither officer sustained any physical injury.
31 In relation to ground 2, the appellant submitted that the sentences imposed for the offences of assaulting a public officer should not have been ordered to be served cumulatively because her Honour infringed the one transaction rule. The appellant submitted that the assaults on Officers Van Lierop and McCallum occurred during 'one seamless incident', and consequently should have been the subject of wholly concurrent sentences.
(Page 11)
Analysis of the grounds of appeal
32 With respect to ground 1, the individual sentences imposed for the offences on Officers Van Lierop and McCallum were not manifestly excessive.
33 While an analysis of Quinn v The State of Western Australia, and the cases cited therein, reveals that a sentence of 2 years and 4 months for an offence of assaulting a public officer is high, that is not the only consideration relevant to whether a sentence is manifestly excessive. Other factors must also be weighed, including the statutory maximum penalty (here it was 10 years' imprisonment), the place which the conduct occupies in the scale of seriousness of offences of this type and the personal circumstances of the appellant: Chan v The Queen (1989) 38 A Crim R 337, 341.
34 The offences, having regard to her Honour's findings, were plainly very serious. The need to provide general deterrence with the aim of protecting police officers in the execution of their duty was of particular importance. The fact that the police officers were not physically injured only means that there is an absence of an aggravating factor and is not mitigatory. In any event, the psychological effect on Officer McCallum cannot be lightly dismissed. In cases such as this, the psychological effect of what occurred can have profound consequences for the victim, potentially greater than any physical injury.
35 There is no mitigation in the appellant's antecedents. Although he cannot be punished twice for his prior offending, his record shows that he is no stranger to violence. Consequently, personal deterrence was an important consideration.
36 It is necessary to bear in mind, as this court has said on many occasions, that the range of sentences customarily imposed do not mark the boundaries beyond or below which no sentence can properly pass. While other sentences are relevant to ensure broad consistency, they are not the litmus test of what is a sound exercise of sentencing discretion: Hili v The Queen [2010] HCA 45; (2010) 242 CLR 520. The sentence in each case must be tailored to its own facts and circumstances so that it complies with the requirement in the Sentencing Act that it is 'commensurate with the seriousness of the offence': s 6(1), Sentencing Act.
37 When all the matters I have identified are weighed, it is clear that the individual sentences imposed by her Honour for the offences relating to
(Page 12)
- Officers Van Lierop and McCallum reflected a sound exercise of sentencing discretion. The alleged implied error in ground 1 has not been made out. I would refuse leave to appeal and dismiss it.
38 I now turn to ground 2. The totality principle is well-known. Its terms and how it operates were usefully set out in Roffey v The State of Western Australia [2007] WASCA 246:
The appellant relies on the totality principle which comprises two limbs. The first limb is that the total effective sentence must bear a proper relationship to the overall criminality involved in all the offences, viewed in their entirety and having regard to the circumstances of the case, including those referable to the offender personally: Woods v The Queen (1994) 14 WAR 341.
The second limb is that the court should not impose a 'crushing' sentence. The word crushing in this context connotes the destruction of any reasonable expectation of a useful life after release: Martino v The State of Western Australia [2006] WASCA 78 [16]. An aggregate sentence may be inappropriately long under the first limb even if it cannot be described as crushing: Jarvis v The Queen (1998) 20 WAR 201, 216 (Anderson J) [24] - [25].
39 The one transaction rule, as this court has consistently observed, is not a hard and fast rule, but is a rule of thumb which may assist a sentencer in arriving at an appropriate total sentence which reflects the overall criminality of an offender who commits a number of offences in a continuing episode. The one transaction rule does not preclude the imposition of cumulative offences, even when committed in the one episode: R v Faithfull [2004] WASCA 39; (2004) 142 A Crim R 554 [25] - [28]. What is important is that the punishment imposed upon the appellant reflected the total criminality of what he did: Pearce v The Queen [1998] HCA 57; (1998) 194 CLR 610, 623; and Walgar v The State of Western Australia [2007] WASCA 241 [9].
40 With respect to her Honour, there is merit in the argument that the sentences imposed upon the appellant for the assaults on Officers Van Lierop and McCallum should have been ordered to be served concurrently with each other. They were committed as part of one incident and were separated by only a short period of time. However, even if her Honour erred in imposing cumulative sentences for the offences of assaulting a public officer, it does not follow that the appeal must be allowed. This is because the court may only allow the appeal if, in its opinion, a different sentence should have been imposed: s 31(4)(a) of the Criminal Appeals Act 2004 (WA).
(Page 13)
41 The real question to be considered in this appeal is whether the total sentence of 9 years and 2 months was a proper reflection of the appellant's overall criminality. In my opinion, it was. Without doubt, the appellant's overall offending was extremely serious. The two drug offences show that the appellant was engaged in the business of drug dealing, and the purity of a significant proportion of the drugs he possessed showed that he was close to their source. The presence of a large quantity of cash and some of the typical accoutrements of the drug trade showed that he was not a street dealer.
42 The wounding of Mr Than-Htay, using a handgun, is self-evidently serious. The use of potentially lethal firearms to settle any kind of dispute, let alone a drug dispute, must be denounced and deterred. Her Honour was right to emphasise the appellant's subsequent conduct in shooting at a moving car, and then taunting the victim, showed no remorse. Rather than order that both sentences for assaulting a public officer be served cumulatively, it may have been better to order accumulation in respect of this offence.
43 I do not need to repeat what I have already said with respect to the offences committed against Officers Van Lierop and McCallum.
44 All of the offences are aggravated by the fact that they were committed on parole: Mooney v The State of Western Australia [2007] WASCA 54.
45 Apart from the appellant's pleas of guilty (the majority of which were very late in the proceedings), there were no real mitigating factors.
46 Her Honour applied the totality principle by reducing some of the individual sentences she would have otherwise imposed, by ordering that some of the sentences be served concurrently, and by ordering that the sentences be concurrent with the breach of parole days the appellant is yet to serve. She expressly took into account the fact that the appellant had already served breach of parole days totalling 2 years and 10 months. In my opinion, the total effective sentence properly reflected the appellant's overall criminality, after having regard to all of the circumstances of the case including those referable to the appellant personally. For these reasons, ground 2 has not been made out.
Orders
1. Leave to appeal on ground 1 is refused.
(Page 14)
- 2. The appeal is dismissed.
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