Tela v The State of Western Australia [No 2]
[2014] WASCA 103
•15 MAY 2014
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: TELA -v- THE STATE OF WESTERN AUSTRALIA [No 2] [2014] WASCA 103
CORAM: NEWNES JA
MAZZA JA
HEARD: 2 MAY 2014
DELIVERED : 15 MAY 2014
FILE NO/S: CACR 228 of 2013
BETWEEN: AJRI TELA
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram :BIRMINGHAM DCJ
File No :IND 978 of 2013
Catchwords:
Criminal law - Application for leave to appeal against sentence - Totality principle - Turns on own facts
Legislation:
Criminal Appeals Act 2004 (WA), s 27
Sentencing Act 1995 (WA), s 32Result:
Leave to appeal refused
Appeal dismissed
Category: B
Representation:
Counsel:
Appellant: Mr A P Skerritt
Respondent: No appearance
Solicitors:
Appellant: Morris Criminal Law
Respondent: Director of Public Prosecutions (WA)
Case(s) referred to in judgment(s):
Roffey v The State of Western Australia [2007] WASCA 246
Wilson v The State of Western Australia [2010] WASCA 82
1JUDGMENT OF THE COURT: This is an application for leave to appeal against sentence.
2The appellant entered fast‑track pleas of guilty to two counts of aggravated burglary and one count of burglary set out in an indictment. He also pleaded guilty to a number of offences in a notice pursuant to s 32 of the Sentencing Act1995 (WA), being one count of reckless driving to escape pursuit, one count of failing to stop when called upon by police, one count of driving whilst disqualified and one count of assault occasioning bodily harm. The first three of these offences occurred on 4 June 2013 in one incident. The assault occasioning bodily harm was committed on 19 August 2012.
3On 1 November 2013, the appellant was sentenced in the District Court to a total effective sentence of 2 years 9 months' immediate imprisonment with eligibility for parole, backdated to commence on 5 June 2013. In addition, the appellant was disqualified from holding or obtaining a motor driver's licence for a total of 5 years and 9 months. A table of the individual sentences imposed upon the appellant, including the relevant maximum penalties, is annexed to these reasons. There is no appeal with respect to the disqualification.
4There is no dispute as to the facts of the offences. We will deal with the indictable offences first.
Count 1 - Aggravated burglary
5Between 8.45 am and 3.45 pm on 28 March 2013, the appellant, in company with two others, went to a house in Glen Forrest. The appellant forced entry to a shed at the premises from which he and his co‑offenders stole a BMX bicycle, a racing bicycle and two mountain bicycles, along with some other items. The total value of the property stolen was $18,750. The only item which has been recovered is the racing bicycle worth $4,500. At the time of this offence, the appellant was subject to a conditional release order.
Count 2 - Aggravated burglary
6Between 9 pm on 2 June 2013 and 5.30 am on 3 June 2013, the appellant, in company with two others, went to a house in the suburb of Aveley. There they forced entry into the house through the garage. The appellant and his co‑offenders stole three off‑road motorcycles worth in total $26,000 and some motorcycle equipment valued at approximately $2,750. The appellant attempted to sell one of the motorcycles for $1,700. Ultimately, the three motorcycles were recovered.
Count 3 - Burglary
7On the afternoon of 2 June 2013, the appellant telephoned the victim who had listed his motorcycle for sale on the internet site, Gumtree. The appellant spoke to the victim and obtained his address, on the false pretence that he wished to purchase the item. Between 6 pm on 2 June 2013 and 9 am on 3 June 2013, the appellant, or someone at the appellant's behest, went to the victim's house in the suburb of Belhus. Whoever it was, cut the rear fence and then cut open the lock on the shed where the motorcycle and other gear was being stored. The person then stole the motorcycle and the gear. The appellant was apprehended for this offence on 4 June 2013. The police located the motorcycle and gear stolen from the victim's house. A subsequent review of the appellant's mobile telephone identified messages negotiating the sale of the stolen motorcycle to a third party.
The s 32 notice - Reckless driving to escape pursuit, failing to stop when called upon and driving whilst disqualified
8On 4 June 2013, the appellant was riding an off‑road motorcycle with others in the Aveley area near Gnangara Road. The police received numerous calls from members of the public to the effect that there were several motorcycles driving around on roads with no lights on. Police were despatched to the area. The appellant and the two others were pursued by police on Gnangara Road after police vehicles activated their emergency lights and sirens. The appellant rode his motorcycle at an excessively high speed, with his lights off. The appellant was followed into bushland by the police air wing helicopter. An infrared camera recorded the appellant's manner of driving, which was plainly reckless. It involved riding the motorcycle not only at speed, but also for substantial periods on the wrong side of the road. At the time, the appellant's driver's licence had been cancelled by order of the Midland Children's Court.
Section 32 notice - Assault occasioning bodily harm
9At about 2.50 am on 19 August 2012, the appellant was at the Ellenbrook Sporting Club. While there, one of his friends was involved in a fight with a member of a local football club. The victim and several other members of the football club went to break up the fight. The appellant's friend got into a car being driven by the appellant. The appellant then drove to the entrance of the car park. He got out of the vehicle, holding a metal baseball bat. The appellant swung the baseball bat at the victim, narrowly missing the victim's legs. The appellant continued to swing the bat and eventually struck the victim in the back and the face. As a result, the victim suffered a bruised hip, a broken nose and severe swelling to the face which required treatment in hospital.
The appellant's antecedents
10The appellant was born on 9 August 1994. Thus, at the time of the offences, he was 18 and, on the date he was sentenced, he was 19. He comes from a good and supportive family. He has been consistently in employment since he left school at the end of year 11. At the time of his offending, he was in full‑time employment. References tendered to the learned sentencing judge spoke well of him and, in particular, of his exemplary work ethic and workmanship.
11The appellant has a record of offending as an adult. He was convicted in the Magistrates Court on 23 October 2012 and 20 November 2012 with a number of relatively minor offences, most notably, possession of a controlled weapon. For this offence he was placed on a 6 month conditional release order commencing on 20 November 2012. He breached the order by committing the aggravated burglary on 28 March 2013.
The sentencing remarks
12The learned sentencing judge described each of the burglary offences as 'premeditated'. He noted that they each involved a number of co‑offenders. He described the offences as 'a targeted campaign to obtain the bicycles and the off‑road motorcycles and associated equipment'. He characterised the offences as 'serious matters'. His Honour observed that the appellant was earning a good wage and did not need the money. He said that the offences were committed for personal gain. His Honour took into account the appellant's fast‑track pleas of guilty. He reduced the sentence pursuant to s 9AA of the Sentencing Act by the maximum allowable, 25%. In addition, he took into account the appellant's youth, favourable background and his future good prospects. His Honour rightly observed that, in sentencing for offences of burglary, weight had to be given to deterrence. His Honour made express reference to both limbs of the totality principle.
The proposed ground of appeal
13There is one proposed ground of appeal. It alleges a breach of the second limb of the totality principle. The written submissions in support of the ground refer to the parity principle, although there is no ground of appeal alleging an infringement of the principle. The appellant's counsel confirmed, in oral submissions, that no allegation of an infringement of this principle was being made. He also confirmed that the one and only point being made by the appellant was that the second limb of the totality principle had been infringed.
General appellate sentencing principles
14The general principles which apply to this appeal were accurately and succinctly stated by McLure P and Owen JA in Wilson v The State of Western Australia [2010] WASCA 82 [2]. There is no need to repeat them here.
The totality principle
15A generally accepted statement of the totality principle was made by McLure JA (as her Honour then was) in Roffey v The State of Western Australia [2007] WASCA 246 [24] ‑ [26]. The totality principle comprises two limbs. The first limb, upon which the appellant does not rely, 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. The second limb, upon which the appellant relies, is that the court must not impose a 'crushing' sentence. The word 'crushing' in this context means the destruction of any reasonable expectation of a useful life after release.
16The total effective sentence imposed upon the appellant was 2 years and 9 months' imprisonment. Assuming that the appellant is required to serve all of this sentence, he will be released on or about 5 February 2016. He will still be a young man with good prospects of putting the setback of immediate imprisonment behind him and living a satisfying and productive life. In no way can it be said that the total effective term of imprisonment that has been imposed upon him will destroy any reasonable prospect of a useful life after release. The proposed ground of appeal has no reasonable prospect of succeeding.
17Although not pursued by the appellant's counsel, we have, in fairness to the appellant, considered whether the total effective sentence of 2 years and 9 months' imprisonment infringes the first limb of the totality principle.
18The appellant takes no issue with the individual sentences. We note that the offence of reckless driving to escape pursuit carries a mandatory minimum penalty of 6 months' immediate imprisonment.
19The indictable offences were undoubtedly serious. They were premeditated and targeted. Substantial amounts of property were taken on each occasion. The appellant's motive for committing them was simply greed. The driving offences committed on 4 June 2013 put the appellant's life and the lives of other road users in jeopardy. Having viewed a DVD of the video taken from the police helicopter, it is apparent that it was fortunate that no one was seriously injured or killed. The assault occasioning bodily harm was unprovoked, involved the use of a weapon and inflicted multiple injuries upon an innocent victim.
20Despite the mitigating factors, particularly the appellant's youth and his early pleas of guilty, personal and general deterrence were important sentencing considerations. As the offences were committed at different times and were multifaceted, some accumulation of the sentences was justified.
21In our opinion, the total effective sentence imposed upon the appellant properly reflected the overall criminality of the offences he committed, viewed in their entirety and having regard to all the circumstances, including those referable to him personally. It could not be reasonably said that the total effective sentence infringed the first limb of the totality principle.
Conclusion and orders
22The ground of appeal has no reasonable prospect of success. In those circumstances, the appeal must be dismissed: s 27(1), (2) and (3) of the Criminal Appeals Act 2004 (WA). The orders we would make are:
1.Leave to appeal is refused.
2.The appeal is dismissed.
ANNEXURE A
Table of individual sentences
Indictment 978/2013
| Count: Indictment | Description | Act | Plea | Maximum Penalty | Final Outcome | Cumulative/ Concurrent | |
| 1 | Aggravated Burglary and Commit Offence in Dwelling | Criminal Code (WA) s 401(2)(a) | Guilty | 20 years | 1 year 6 months' imprisonment Eligible for parole Compensation Order | Cumulative | |
| 2 | Aggravated Burglary and Commit Offence in Dwelling | Criminal Code (WA) s 401(2)(a) | Guilty | 20 years | 1 year 6 months' imprisonment Eligible for parole Compensation Order | Concurrent | |
| 3 | Burglary and Commit Offence in Place | Criminal Code (WA) s 401(2)(c) | Guilty | 14 years | 1 year imprisonment Eligible for parole Compensation Order | Concurrent | |
| Section 32 notice | |||||||
| 1 | Drove a motor vehicle in a manner that was inherently dangerous to escape pursuit | Road Traffic Act 1974 (WA) s 60(1) | Guilty | In circumstances of aggravation (s 49AB(1)(c)), mandatory sentence of 6 months, maximum sentence 5 years, summary conviction penalty 2 years: s 60(5). As a second offence, mandatory driver's licence disqualification for not less than 2 years: s 60(5)(c) | 1 year imprisonment Eligible for parole 3 years' cumulative motor driver's licence disqualification | Cumulative | |
| 2 | Failed to stop when called upon to do so with circumstance of aggravation | Road Traffic Act 1974 (WA) s 53(2A) | Guilty | In circumstances of aggravation (s 49AB(1)(c)), maximum sentence of 2 years, minimum penalty of 100 penalty units. Mandatory driver's licence disqualification for not less than 2 years: s 53(2A)(b) | 3 months' imprisonment Eligible for parole 2 years' cumulative motor driver's licence disqualification | Concurrent | |
| 3 | Drove a motor vehicle whilst not being authorised and who had held a MDL as required but ceased to hold that MDL | Road Traffic Act 1974 (WA) s 53(2A) | Guilty | Section 49(1)(a): 12 penalty units for subsequent offence Section 49(3)(b): minimum of 4 penalty units, maximum of 30 penalty units, and imprisonment for not more than 12 months, and drivers' licence disqualification for not more than 3 years. | Fine $1,000 9 months' cumulative motor driver's licence disqualification | ||
| 4 | Section 32 - Assault occasioning bodily harm | Criminal Code (WA) s 317(1) | Guilty | 5 years | 3 months' imprisonment | Cumulative | |
Total term: | 2 years 9 months' effective from 5 June 2013 Eligible for parole | ||||||
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