Rouse v Wilson
[2008] WASC 66
•8 MAY 2008
ROUSE -v- WILSON [2008] WASC 66
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2008] WASC 66 | |
| Case No: | SJA:1097/2007 | 28 MARCH 2008 | |
| Coram: | LE MIERE J | 8/05/08 | |
| 8 | Judgment Part: | 1 of 1 | |
| Result: | Appeal allowed | ||
| B | |||
| PDF Version |
| Parties: | DAMIEN COLIN ROUSE KEVIN WILSON |
Catchwords: | Criminal law Sentencing Appeal against sentences Stealing a motor vehicle Dangerous driving causing bodily harm Whether sentences should be served concurrently Turns on own facts |
Legislation: | Road Traffic Act 1974 (WA), s 59B(3)(a) |
Case References: | Pearce v The Queen [1998] HCA 57; (1998) 194 CLR 610 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CIVIL
- Appellant
AND
KEVIN WILSON
Respondent
ON APPEAL FROM:
Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram : MAGISTRATE W G TARR
File No : PE 42843 of 2007, PE 42844 of 2007, PE 42845 of 2007, PE 42846 of 2007
Catchwords:
Criminal law - Sentencing - Appeal against sentences - Stealing a motor vehicle - Dangerous driving causing bodily harm - Whether sentences should be served concurrently - Turns on own facts
(Page 2)
Legislation:
Road Traffic Act 1974 (WA), s 59B(3)(a)
Result:
Appeal allowed
Category: B
Representation:
Counsel:
Appellant : In person
Respondent : Mr J G Nicholls
Solicitors:
Appellant : In person
Respondent : Director of Public Prosecutions (WA)
Case(s) referred to in judgment(s):
Pearce v The Queen [1998] HCA 57; (1998) 194 CLR 610
(Page 3)
1 LE MIERE J: On 12 November 2007 the appellant was sentenced to 12 months' imprisonment for dangerous driving causing bodily harm and 12 months' imprisonment for stealing a motor vehicle. The sentencing magistrate ordered that the sentences be served cumulatively. The appellant appeals against those sentences.
The offences
2 The offences were described by the prosecutor as follows:
At 2.30 pm Saturday 21 July 2007 the victim's wife parked his Ford Falcon station wagon in Beaufort Street, near Francis Street in Perth. The victim's wife and two children returned to where she parked the vehicle at 4.15 pm but the vehicle was gone. Walked to Perth Police Station, reported the vehicle stolen, contacted her husband to pick her up. The victim and his wife decided to drive around the area to see if they could find the vehicle. As they approach[ed] the intersection of Beaufort Street and Newcastle Street the victim observed his vehicle [being] driven by the accused at the traffic lights. The victim stopped his car, ran to the stolen vehicle. There [were] two other males whose identities were unknown in the vehicle. The victim reached into the car to turn off the keys in the ignition only to find there weren't any. He yelled at the accused to get out of the car. The accused placed his foot on the accelerator, drove away with the victims arm inside the window. The victim could not release his arm, continually asked the accused to stop the vehicle. The accused said, 'Let go, I don't want to kill you.' Continued driving the vehicle on Newcastle Street before turning right into Pier Street, with the victim being dragged alongside the side of the vehicle. As the accused approached the railway line there, the McIver train station, the boom gates were down; the accused drove the car onto the footpath through buses hidden along the side of the railway line. The victim was struck by the bushes and thrown to the ground and suffered severe bruising and grazing to his right head. Received bruising to his right upper arm, grazing to the top of his head. His jeans, shoes and belt were ripped from being dragged along the bitumen. The accused continued driving the vehicle along the footpath until he reached Newcastle Street; drove away from the area. Stated he parked the vehicle on Stuart Street and abandoned it. 7.40 am on 23 July 2007, police observed the accused driving the stolen vehicle on Perry Street, near the intersection of Stirling Street, Perth. They were alerted to the vehicle as it was not displaying any registration plates. The police stopped the vehicle, spoke to the accused; he admitted the vehicle was not his and he did not have a drivers licence. Further inquiries ascertained the vehicle was stolen.
The accused was arrested, taken to Perth Police Station, took part in a record of interview, made full admission to driving the vehicle knowing it was not his. Did not have permission to drive it and driving without a licence. Refused to make comments about the stealing of the vehicle or the incident involving the victim. On completion of the video of interview
(Page 4)
- the accused asked for a cigarette. Taken outside, he asked police the extent of the victim's injuries. The police advised the accused what injuries the victim has sustained. The accused became upset and admitted he was the person who stole the vehicle and was driving it when the victim got injured. Took part in a second of interview, made full admissions to all the offences and subsequently charged. Costs in the matter of $58. There is a request of reparation of $110 for damage to the victim's clothing (ts 2 - 3).
Submissions in mitigation
3 The appellant represented himself before the magistrate. He made his submissions in mitigation in the course of the following exchange with the magistrate:
[APPELLANT]: Well, I can't condone my actions your Worship, they were pretty stupid. I was under the influence of something I usually don't indulge in but it still doesn't condone my actions. I wasn't prepared to accept the charges at first but when I realised I actually hurt the old fellow involved that owned the vehicle, I actually felt like a prick. So I made full admissions to the charges. Basically your Worship, I'm not going to piss in your pocket and tell you its sunshine. My fate's in your hand, I done the wrong thing and I'm prepared to - - -
HIS HONOUR: Well it's a fairly serious matter, isn't it?
[APPELLANT]: Yes, it is your Worship.
HIS HONOUR: Stealing a car in itself is serious, but then to risk the life of the owner who is trying to get his car back, it just aggravates the - - -
[APPELLANT]: It went from one extremity to another, yes your Worship (ts 3 - 4).
Sentencing remarks
4 The sentencing magistrate made the following remarks in the course of sentencing the appellant:
HIS HONOUR: Well, the magistrate that had you before on the 9 October ordered a pre-sentence report, I've had an opportunity to read this. There is nothing in this that would persuade me from sentencing you to a term of imprisonment. I see you [owe] $9,000 odd dollars to the fines enforcement registry.
…
HIS HONOUR: - - - [S]o to impose a fine in my view, is not appropriate. In any event, the offence is too serious for a fine in my view. And it's no excuse to say to me that you're on some substance that you don't normally
(Page 5)
- use. You chose to take whatever substances it was and you suffered the consequences. As I've indicated my view is that the seriousness of the offence warrants an immediate term of imprisonment and I'd be failing in my duty if I didn't impose a custodial term - - -
[APPELLANT]: Will that be suspended, your Worship?
HIS HONOUR: No they won't. There was a good chance that this person could have suffered serious life-threatening injuries.
[APPELLANT]: Since the offence, your Worship, I have actually contacted the arresting officer a few times trying to organise a meeting between me and the actual plaintiff to sit down to organise - to let him know I actually didn't - it wasn't my intention of actually hurting the fellow but it happened - - -
HIS HONOUR: It doesn't matter, it would have - - -
APPELLANT: It did happen - - -
HIS HONOUR: - - - been no consolation for him if he'd lost a leg or suffered some serious injury because of [the] way you were driving with him hanging off the vehicle - hanging off his vehicle. In relation to the charge of stealing the motor vehicle you will be sentenced to 12 months' imprisonment. And on the charge of the dangerous driving occasioning bodily harm you will be sentenced to 12 months' imprisonment, that term will be cumulative. I'll make you eligible for parole. You will be disqualified from holding or obtaining a motor drivers licence for 18 months.
On the other two charges I'm required to impose a fine; you will be fined $200 for driving without a licence and $250 for driving a vehicle without number plates (ts 4 - 5).
The appeal
5 The appellant drafted and filed the notice of appeal himself. The grounds of appeal were as follows:
1. The Judge on the day didn't read the Pre-sentence report.
2. Also was not interested in hearing character witnesses.
3. Also did not take into account the prosecutors brief.
4. The judge also didn't enter the recommendation from Milligan St for a suspended prison term.
5. The judge did not even care that I was employed.
6. I was under influence of drugs at time of offence.
(Page 6)
6 On 14 December 2007 the appellant was given leave to appeal by a judge of this court on the ground that in failing to order the sentence for stealing a motor vehicle to be served concurrently with the sentence for assault occasioning bodily harm, the magistrate erred in the exercise of his discretion having regard to the matters set out in the pre-sentence report, and other personal factors.
The dangerous driving causing bodily harm offence
7 The appellant and the respondent both submitted that the offence of dangerous driving causing bodily harm was more serious than the offence of stealing the motor vehicle. The dangerous driving causing bodily harm offence was committed in circumstances of aggravation as provided for in s 59B(3)(a) of the Road Traffic Act 1974 (WA) in that at the time of the offence the appellant 'was unlawfully driving the vehicle concerned without the consent of the owner or person in charge of the vehicle'. The maximum sentence is imprisonment for 7 years. The maximum penalty on summary conviction is imprisonment for 18 months. Counsel for the respondent submitted that the offence committed by the appellant was at the higher end of seriousness for offences of that nature and that the sentence imposed by the magistrate was an appropriate exercise of his discretion. I agree. The appellant risked serious injury to his victim. The appellant was conscious of that when he chose to continue driving the vehicle rather than stopping. The appellant disregarded his victim's welfare in dragging him along the road for some time and a substantial distance.
The stealing offence
8 The sentence for stealing a motor vehicle was a heavy sentence. The maximum penalty was imprisonment for 2 years, before application of the transitional provisions of sch 1 to the Sentencing Act 1995 (WA), or 16 months after application of the transitional provisions. The appellant was entitled to have taken into account the fact that he pleaded guilty. The magistrate should also have had regard to the appellant's apparent remorse and the matters set out in the pre-sentence report. Having regard to all those matters the sentence of 12 months' imprisonment is a heavy sentence.
9 A sentencing judge imposing sentences for multiple offences must have regard to the aggregate of the sentences and to reach an overall disposition which is just and appropriate: Pearce v The Queen [1998] HCA 57; (1998) 194 CLR 610. Furthermore, to the extent to which two offences of which a person is convicted contain common elements it
(Page 7)
- would be wrong to punish the offender twice for the commission of elements that are common: Pearce v The Queen [40]. The offence of dangerous driving causing bodily harm was committed in circumstances of aggravation. The circumstances of aggravation were that the appellant was unlawfully driving the vehicle concerned without the consent of the owner or person in charge of the vehicle. There is a measure of overlap between the facts constituting that circumstance of aggravation and the facts constituting the offence of stealing the motor vehicle. The sentencing magistrate did not have regard to that fact.
10 The principle of totality requires the court to assess whether the aggregate of the sentences is appropriate for the offender's criminal conduct when viewed as a whole.
11 Having regard to all of the matters to which I have referred the sentencing magistrate erred in the exercise of his discretion in imposing a sentence of 12 months' imprisonment for stealing the motor vehicle cumulative upon the sentence of 12 months' imprisonment for the offence of dangerous driving causing bodily harm. I will set aside the sentence imposed and substitute the sentence that should have been made.
12 The sentence of 12 months' imprisonment for the offence of dangerous driving causing bodily harm is appropriate. The appellant did not argue otherwise.
13 The offence of stealing a motor vehicle was not at the higher end of offences of that nature. There were no aggravating circumstances accompanying the taking of the motor vehicle.
14 At the time of sentencing the appellant was 31 years old. The pre-sentence report discloses that the appellant had an unfortunate upbringing. He has a history of substance abuse. On the day of the offence the appellant claims that he and two acquaintances consumed several beers followed by Rivotril pills. He indicated to the Community Corrections officer who produced the pre-sentence report that the mixture of Rivotril and alcohol affected him and caused him to steal the vehicle. The community corrections officer stated that the appellant accepted his charges and exhibited signs of remorse towards the victim. The appellant pleaded guilty.
15 As I have said, there is some measure of overlap between the stealing of the motor vehicle offence and the dangerous driving causing bodily harm offence. It would be open to the court to impose sentences that were concurrent or partly concurrent. However, in my view it is appropriate to
(Page 8)
- impose a sentence of 6 months' imprisonment for the offence of stealing a motor vehicle which is to be cumulative upon the sentence for dangerous driving causing bodily harm. The imposing of cumulative sentences recognises that the appellant deliberately engaged in two separate courses of conduct, one of which involved taking the victim's property and the other involved him subsequently assaulting the victim. The two offences, although related, were separated in time and place.
Conclusion
16 I allow the appeal and vary the decision of the magistrate by imposing a sentence of 6 months' imprisonment for the offence of stealing a motor vehicle to be served cumulatively upon the sentence for the offence of dangerous driving causing bodily harm. The appellant will be eligible for parole. The other sentences imposed by the magistrate will stand.
1
1