Thomas v The State of Western Australia
[2012] WASCA 22
•1 FEBRUARY 2012
THOMAS -v- THE STATE OF WESTERN AUSTRALIA [2012] WASCA 22
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2012] WASCA 22 | |
| THE COURT OF APPEAL (WA) | |||
| Case No: | CACR:155/2011 | 16 DECEMBER 2011 | |
| Coram: | McLURE P PULLIN JA | 1/02/12 | |
| 6 | Judgment Part: | 1 of 1 | |
| Result: | Leave to appeal refused on all grounds of appeal Appeal dismissed | ||
| B | |||
| PDF Version |
| Parties: | DANIEL WILLIAM THOMAS THE STATE OF WESTERN AUSTRALIA |
Catchwords: | Application for leave to appeal against sentence Whether reasonable prospects of success |
Legislation: | Criminal Appeals Act 2004 (WA), s 27, s 40 |
Case References: | CDJ v VAJ [1998] HCA 67; (1998) 197 CLR 172 Chan v The Queen (1989) 38 A Crim R 337 de la Espriella-Velasco v The Queen [2006] WASCA 31; (2006) 31 WAR 291 Rinaldi v The State of Western Australia [2007] WASCA 53 Samuels v The State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : THOMAS -v- THE STATE OF WESTERN AUSTRALIA [2012] WASCA 22 CORAM : McLURE P
- PULLIN JA
- Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram : MACKNAY AUDCJ
File No : IND 842 of 2011, IND 1138 of 2011
Catchwords:
Application for leave to appeal against sentence - Whether reasonable prospects of success
(Page 2)
Legislation:
Criminal Appeals Act 2004 (WA), s 27, s 40
Result:
Leave to appeal refused on all grounds of appeal
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):
CDJ v VAJ [1998] HCA 67; (1998) 197 CLR 172
Chan v The Queen (1989) 38 A Crim R 337
de la Espriella-Velasco v The Queen [2006] WASCA 31; (2006) 31 WAR 291
Rinaldi v The State of Western Australia [2007] WASCA 53
Samuels v The State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473
(Page 3)
1 McLURE P: I agree with Pullin JA.
2 PULLIN JA: This is an application for leave to appeal against sentences imposed in the District Court. Leave to appeal is required on each ground of appeal: s 27(1) Criminal Appeals Act 2004 (WA) (the Act). The court must not grant leave to appeal on a ground unless it is satisfied that the ground has a reasonable prospect of succeeding: s 27(2) of the Act. To have a reasonable prospect of succeeding, a ground must have a rational and logical prospect of succeeding, or a real prospect of success: Samuels v The State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473 [56].
3 The appellant was convicted on his own plea of six counts in two indictments. Five of the offences were of stealing and one was an offence of attempted stealing. The stealing offences related to:
(a) a Caterpillar 246C skid steer loader worth approximately $68,000 on 20 February 2009;
(b) a Concept Randwick caravan worth approximately $85,000 on 13 April 2010;
(c) a Caterpillar bobcat front door and a Wacker DPU 100-707 industrial compactor with a total worth of approximately $22,000, between 8 July and 13 July 2010;
(d) a Denyo generator worth $30,000 between 31 March 2011 and 5 April 2011;
(e) a Caterpillar 966G Front End Loader which was returned with damage amounting to approximately $20,000 between 30 December 2010 and 5 January 2011.
4 The attempted stealing offence related to an attempt to steal the Denyo generator before he succeeded in stealing it.
5 The trial judge noted that the total value of goods stolen was approximately $205,000 (ts 23).
6 The appellant was 40 years old, with only a minor conviction of stealing 18 years ago. He had otherwise led a comparatively blameless working life and had been employed for all of his working life. He was living with a woman and a child at the time of the offences.
(Page 4)
7 The appellant gave an explanation which was, in reality, no explanation at all. He said he wanted to build a house on a block, and so he took the caravan to live in on the block while he was building and took the equipment to carry out the work. He pleaded guilty at the first opportunity. He had good references.
8 The sentencing judge correctly noted that it was a case where general and personal deterrence were relevant. They were important factors in a case like this.
9 Pilfering from building sites or from locations where items are left in view of the public is a serious problem. Perhaps the appellant thought that he was merely pilfering, but he was in fact engaged in serious criminal offending on a large scale and over a long period of time. The sentencing judge sentenced the appellant to a head sentence of 28 months with eligibility for parole.
10 The grounds of appeal were that:
(a) the sentencing judge failed to adequately look at all other options of sentencing (ground 1);
(b) the sentencing judge imposed a sentence, the total length of which was disproportionate to the total criminality (ground 2);
(c) there was a miscarriage of justice because the sentencing judge was not aware of other matters contained in an affidavit filed in the proceedings (ground 3); and
(d) the total sentence was manifestly excessive and 'beyond that of usual' (ground 4).
Ground 1
11 The sentencing judge did not fail to look at other options of sentencing. The sentencing judge considered that the seriousness of the offences were such that 'only' a sentence of immediate imprisonment could be justified (ts 23). That indicates that the sentencing judge was aware of other options but concluded that a sentence of immediate imprisonment was the only sentence which could be imposed.
Ground 2
12 The assertion that the sentence was for a length of time which was disproportionate to the total criminality cannot be sustained. This was
(Page 5)
- serious criminal conduct over an extended period of time. There is no merit in this ground.
Ground 3
13 The appellant has filed an affidavit which he seeks to rely upon as providing additional evidence which he says should have been taken into account by the sentencing judge. Section 40(1)(e) of the Criminal Appeals Act empowers this court to admit 'other evidence' for the purposes of dealing with an appeal. This provision affords the court with a discretion, but it is not to be construed in a way which would have the practical effect of obliterating the distinction between original and appellate jurisdictions: see CDJ v VAJ [1998] HCA67; (1998) 197 CLR 172 [111]; de la Espriella-Velasco v The Queen [2006] WASCA 31; (2006) 31 WAR 291 [150]; Rinaldi v The State of Western Australia [2007] WASCA 53 [84].
14 The affidavit which the appellant has filed refers to matters which the appellant said the sentencing judge was not informed about by counsel for the appellant. All of the evidence existed and if relevant, could have been disclosed at the time of the hearing before the sentencing judge. As a result, this evidence is what is categorised as 'new' as distinct from 'fresh' evidence. New evidence is evidence that existed at the time of the disposition in the primary court and which could, with the exercise of reasonable diligence, have been discovered or produced to the court. If new evidence is to be admitted, it must demonstrate that there would have been a different outcome. In truth, nothing in the affidavit would have produced a different outcome, even if it had been disclosed. The affidavit, in fact, reveals the appellant does not even now understand the seriousness of his conduct. He seeks to diminish the seriousness of the offences by explaining, for example, that in relation to the skid steer loader, he 'made no attempts to remove any serial numbers from the machine' and that he used the machine to 'keep my bills at bay'. In the affidavit he says that the fact that he had not removed any of the serial numbers on the items stolen, 'allowed for easy identification by the detectives' and that when the generator was recovered, it was 'in perfect operating order'. None of the material in the affidavit would have made the slightest difference to the sentencing outcome. As a result, leave to admit the affidavit should be refused. It follows that ground 3 has no merit.
(Page 6)
Ground 4
15 The appellant contends by this ground that the sentence was manifestly excessive. To determine whether a sentence is manifestly excessive, it is necessary to view it in the perspective of the maximum sentence prescribed by law for the offence, the standards of sentencing customarily observed with respect to that offence, the place which the criminal conduct occupies in the scale of seriousness of offences of that type and the personal circumstances of the offender: Chan v The Queen (1989) 38 A Crim R 337, 342. The appellant did not refer to any cases indicating that this sentence was significantly higher than those offences of a reasonably comparable type. The matters personal to the appellant were taken into account by the sentencing judge. The appellant was a mature adult who engaged in serious criminal conduct over a two year period. The sentences were not manifestly excessive having regard to the maximum sentences prescribed by law for stealing and attempted stealing.
16 This ground has no merit.
17 The result is that none of the grounds of appeal have a reasonable prospect of success. Leave should not be granted in respect of any of the grounds. This has the consequence that the appeal is to be taken to have been dismissed: s 27(3) Criminal Appeals Act.
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