Thompson v The State of Western Australia - [2013] WASCA 1

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT : THE COURT OF APPEAL (WA)

CITATION: THOMPSON -v- THE STATE OF WESTERN AUSTRALIA [2013] WASCA 1

CORAM: McLURE P
BUSS JA
MAZZA JA

HEARD: 12 OCTOBER 2012

DELIVERED : 4 JANUARY 2013

FILE NO/S: CACR 153 of 2012
CACR 154 of 2012

BETWEEN: BRETT ANTHONY THOMPSON
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent

FILE NO/S :CACR 156 of 2012
CACR 157 of 2012

BETWEEN :ROBERT MATTHEW O'BRYAN
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent

ON APPEAL FROM:
Jurisdiction              :  DISTRICT COURT OF WESTERN AUSTRALIA
Coram  :O'NEAL DCJ
File No  :IND 1376 of 2011

Catchwords:

Criminal law - Appeals against conviction and sentence - Appellants convicted after trial of stealing a motor vehicle and aggravated burglary - Vehicle used in a 'ram raid' on business premises with the intention of stealing money from an automatic teller machine - Each appellant sentenced to 12 months' immediate imprisonment for stealing and 3 years 4 months' immediate imprisonment for aggravated burglary with the sentences to be served cumulatively - Whether the trial judge misdirected the jury on inferences as to guilt - Whether the total effective sentence infringed the first limb of the totality principle or the so-called one transaction 'rule'

Legislation:

Criminal Code (WA), s 371A, s 378, s 401(1)(a)
Firearms Act 1973 (WA), s 19(1)(c)

Result:

Leave to appeal refused
Appeals dismissed

Category: B

Representation:

CACR 153 of 2012

CACR 154 of 2012

Counsel:

Appellant: Mr K P Bates
Respondent: No appearance

Solicitors:

Appellant: Bates Legal Pty Ltd
Respondent: No appearance

CACR 156 of 2012

CACR 157 of 2012

Counsel:

Appellant: Mr D J McKenzie
Respondent: No appearance

Solicitors:

Appellant: David McKenzie Legal Pty Ltd
Respondent: No appearance

Case(s) referred to in judgment(s):

Ashworth v The State of Western Australia [2006] WASCA 36
Doney v The Queen [1990] HCA 51; (1990) 171 CLR 207
Drake v The State of Western Australia [2006] WASCA 209
Dunks v The State of Western Australia [2009] WASCA 82; (2009) 195 A Crim R 130
Festa v The Queen [2001] HCA 72; (2001) 208 CLR 593
Karolides v The State of Western Australia [2006] WASCA 240
Nannup v The State of Western Australia [2011] WASCA 257
Nguyen v The State of Western Australia [2007] WASCA 114
Shepherd v The Queen [1990] HCA 56; (1990) 170 CLR 573
The State of Western Australia v Viskari [2008] WASCA 143
Worthington v The State of Western Australia [2005] WASCA 72; (2005) 152 A Crim R 585

McLURE P: I agree with Buss JA.
BUSS JA: The appellant in CACR 153 of 2012 and CACR 154 of 2012 (Mr Thompson), and the appellant in CACR 156 of 2012 and CACR 157 of 2012 (Mr O'Bryan), have applied to this court for leave to appeal against conviction and sentence.
Mr Thompson and Mr O'Bryan were convicted, after a joint trial in the District Court before O'Neal DCJ and a jury, on two counts in an indictment.
Count 1 alleged, relevantly, that on 1 March 2011, at Applecross, Mr Thompson and Mr O'Bryan stole a motor vehicle, namely a Holden station wagon, contrary to s 371A read with s 378 of the Criminal Code (WA) (the Code).
Count 2 alleged, relevantly, that also on 1 March 2011, at Applecross, Mr Thompson and Mr O'Bryan entered or were in the place of Realty One Pty Ltd, without its consent, with intent to commit an offence of stealing therein, and that Mr Thompson and Mr O'Bryan were in company with each other, contrary to s 401(1)(a) of the Code.
The trial judge sentenced each of Mr Thompson and Mr O'Bryan to 12 months' immediate imprisonment on count 1 and 3 years 4 months' immediate imprisonment on count 2. His Honour also sentenced Mr O'Bryan to 12 months' immediate imprisonment for breach of a suspended imprisonment order made on 19 January 2010 for possession of an unlicensed firearm and ammunition, contrary to s 19(1)(c) of the Firearms Act 1973 (WA).
The individual sentences were ordered to be served cumulatively. The total effective sentence, in the case of Mr Thompson, was 4 years 4 months' imprisonment and, in the case of Mr O'Bryan, was 5 years 4 months' imprisonment.
A parole eligibility order was made in respect of each of them.

The facts and circumstances of the offending

On the morning of 9 February 2011, the Holden station wagon the subject of count 1 was stolen from a car park near the Trigg Surf Lifesaving Club. There was no evidence that Mr Thompson or Mr O'Bryan was involved in the stealing of the vehicle at this time.

About three weeks later, on 1 March 2011, at about 2.00 am, the stolen motor vehicle was used in a ram raid at a shopping precinct in Applecross. The vehicle was repeatedly reversed into one of the shops with the object of extracting money from an automatic teller machine (ATM) installed at the shop front.
Mr Thompson, Mr O'Bryan and another man, Bala Huri, were involved in the offending. Mr Huri was also charged but, shortly after being granted bail, he absconded.
Although the shop was broken and entered, the offenders were unable to extract any money from the ATM. Eventually, they discontinued the ram raid and drove the stolen motor vehicle to a nearby parking lot. The offenders abandoned that vehicle and departed from the parking lot in a Ford sedan which they had parked there earlier.
Shortly afterwards, detectives from the Fremantle police station, who had been informed that the ram raid was in progress, stopped the Ford sedan. Mr O'Bryan was in the driver's seat, Mr Thompson was in the front passenger seat and Mr Huri was in the back seat. The police searched the Ford sedan and found torches, a pair of work gloves and wire cutters.

Appeals against conviction: the proposed grounds of appeal

Each of Mr Thompson and Mr O'Bryan relies on one ground in his appeal against conviction. The grounds are identical.
The proposed grounds allege that the trial judge erred in law 'in respect of his direction on inferences by not directing the jury that if there was a reasonable inference consistent with innocence that they must draw that inference'.

Appeals against conviction: the merits of the proposed grounds of appeal

Mr Thompson gave evidence at the trial. Mr O'Bryan did not give evidence, but he relied in his defence on Mr Thompson's evidence.
The trial judge gave the jury orthodox directions, in his summing up, on the presumption of innocence, the burden and standard of proof, the nature of evidence, how the jury might assess and evaluate the evidence, and the nature of inferences.
His Honour gave these (and other) instructions to the jury on the presumption of innocence and the burden and standard of proof:
Mr Thompson did give evidence during the trial. He didn't have to. He was quite at liberty not to give evidence but he chose to give evidence and, as a result, has submitted himself to cross-examination. The fact that he chose to give evidence does not detract in any way from that important principle that I've just told you about, that the onus is on the State to prove the charges that it presents against an accused and that the accused is presumed to be innocent until the charge against him has been proved beyond reasonable doubt.
It may be that you believe all of Mr Thompson's evidence. In that event, you would acquit him and, logically, you would acquit Mr O'Bryan. Even if you prefer the evidence for the prosecution, you can't deliver a verdict of guilty unless you're satisfied beyond reasonable doubt of the truth of that evidence. Even if you were not to believe Mr Thompson's evidence, you can't find an issue against him contrary to his evidence and, logically, against Mr O'Bryan, if his evidence has given rise to a reasonable doubt on that issue.
It's extremely important that you remember that the question for you to consider is whether, on all of the evidence before you, the State has proved a charge or charges against either man beyond reasonable doubt. If Mr Thompson's evidence has given rise to a reasonable doubt then the accused are entitled to the benefit of that reasonable doubt and you cannot convict him or them on any count on which that reasonable doubt has arisen.
Further, even if you were not to accept Mr Thompson's evidence and to reject it, then it doesn't ‑ wouldn't follow automatically that your verdict would be guilty. If you don't believe him, you put his evidence to one side. Remember I've told you that the accused don't have to prove anything. The question has to remain, has the State, on the basis of the evidence that you do accept, proved an accused's guilty beyond reasonable doubt? (ts 234).
Further, the trial judge directed the jury on three occasions, in substance, that it must not draw an inference of guilt against Mr Thompson or Mr O'Bryan unless it was satisfied that the inference was the only inference reasonably open on the evidence. In particular, his Honour said:
[B]oth of the accused men, are presumed to be innocent unless they're proved guilty beyond reasonable doubt. Therefore, before you can draw an inference against them of guilt, you have to be satisfied that it's the only inference reasonably available in this case.
In this case, the State submits that you should draw the inference that these two accused were the men observed taking part in the ram raid, either as the [men] who were observed at the shopfront, or as the driver of the blue [Holden]. And they were two of the men who left the parking lot in the white Ford when the blue [Holden] was abandoned there.
That is why, the State says, they were in the white Ford minutes later, and you will determined [sic] how many minutes, when it was stopped by the police, and when the various items that, it seems to me are ‑ it's accepted were certainly capable of being used in the burglary were found in the car. And they were found in the car with a man who, it seems to be accepted, was involved in the burglary.
In relation to the facts from which the State asks you to draw this inference of guilt, you don't consider them in isolation. You consider them as a [whole] to determine whether the inference of guilt is the only inference reasonably available. You can't draw an inference that an accused person is guilty of an offence with which they've been charged unless the evidence is inconsistent with any reasonable conclusion other than that the person is guilty of that charge (ts 256).
Counsel for Mr Thompson and counsel for Mr O'Bryan submitted that his Honour's directions on inferences as to guilt were inadequate. They argued that, in addition to the directions he gave, his Honour was bound to instruct the jury that if there was a reasonable inference open on the evidence, consistent with the innocence of Mr Thompson or Mr O'Bryan, then the jury must draw that inference. No authority was cited in support of this proposition. Counsel admitted, in response to questioning from the court, that they had been unable to find any support for their submission in the case law. This is not surprising.
Circumstantial evidence is evidence which, if accepted, tends to prove a fact from which the tribunal of fact may infer the existence of a fact in issue. See Festa v The Queen [2001] HCA 72; (2001) 208 CLR 593 [5] (Gleeson CJ). Circumstantial evidence can prove a fact or facts beyond reasonable doubt only if all other reasonable hypotheses are excluded. See Doney v The Queen [1990] HCA 51; (1990) 171 CLR 207, 211 (Deane, Dawson, Toohey, Gaudron & McHugh JJ).
In Shepherd v The Queen [1990] HCA 56; (1990) 170 CLR 573, Dawson J said:
The learned trial judge gave the customary direction that, where the jury relied upon circumstantial evidence, guilt should not only be a rational inference but should be the only rational inference that could be drawn from the circumstances: see Hodge's Case ((1838) 2 Lewin 227 [168 ER 1136]); Peacock v The King ((1911) 13 CLR 619); Plomp v The Queen ((1963) 110 CLR 234). Whilst a direction of that kind is customarily given in cases turning upon circumstantial evidence, it is no more than an amplification of the rule that the prosecution must prove its case beyond reasonable doubt. In many, if not most, cases involving substantial circumstantial evidence, it will be a helpful direction. In other cases, particularly where the amount of circumstantial evidence involved is slight, a direction in those terms may be confusing rather than helpful. Sometimes such a direction may be necessary to enable the jury to go about their task properly. But there is no invariable rule of practice, let alone rule of law, that the direction should be given in every case involving circumstantial evidence. It will be for the trial judge in the first instance to determine whether it should be given (578).
It is not uncommon for a trial judge, in a case involving substantial circumstantial evidence, to direct the jury:
(a)positively, that if there is a reasonable inference open on the evidence, consistent with the innocence of the accused, then the jury must draw that inference; and
(b)negatively, that the jury must not draw an inference of guilt against the accused unless it is satisfied that the inference is the only inference reasonably open on the evidence.
However, where it is appropriate to direct the jury on inferences as to guilt, a trial judge is not bound, as a matter of law, to give the direction in both its positive form and its negative form.
In my opinion, the directions the trial judge gave, in the present case, on inferences as to guilt were adequate in the circumstances of the case. No additional or other directions in relation to the drawing of inferences of guilt against Mr Thompson or Mr O'Bryan were necessary to ensure a fair trial or to avoid any perceptible risk of a miscarriage of justice.
The proposed grounds of appeal against conviction are without merit.

Appeals against sentence: the proposed grounds of appeal

Each of Mr Thompson and Mr O'Bryan relies on two grounds in his appeal against sentence. The grounds are identical.
Proposed ground 1 alleges that the total effective sentence imposed by the trial judge infringed the first limb of the totality principle.
Proposed ground 2 alleges that his Honour erred in imposing a cumulative sentence for count 1 because that offence (from the point of view of the offender's involvement) was part of 'one transaction with count 2'.
Mr O'Bryan does not complain about the sentence of 12 months' immediate imprisonment for breach of the suspended imprisonment order or the accumulation of that sentence. His proposed grounds, like those of Mr Thompson, relate to the sentences imposed for the counts in the indictment.

Appeals against sentence: the merits of the proposed grounds of appeal

A complaint that a sentencing judge has infringed the totality principle involves an allegation of inferred error. The first limb of the principle requires that the total effective sentence imposed on an offender who has committed multiple offences must bear a proper relationship to the overall criminality involved in all of the offences (including those, if any, in respect of which the offender is still serving a term of imprisonment), viewed in their entirety, and after having regard to all relevant circumstances, including those referable to the offender personally (and including, for example, the desirability of accommodating any wish to rehabilitate), and the total effective sentences imposed in comparable cases.
In Worthington v The State of Western Australia [2005] WASCA 72; (2005) 152 A Crim R 585, Steytler P examined the so-called one transaction 'rule' or continuing episode 'rule'. His Honour said:
It is plain that this 'rule' is not a rule at all, but merely a guideline or, as it was described in Ruane v The Queen (1979) 1 A Crim R 284, a 'good working rule'. Each case must, in the end, depend upon its own circumstances and it is for the sentencing Judge to determine, in every case, whether the application of the general rule would result in an appropriate measure of the total criminality involved in the conduct: R v Faithfull (2004) 142 A Crim R 554 at [28] per McLure J (with whom the other members of the Court were in agreement); R v White [2002] WASCA 112; R v O'Rourke [1997] 1 VR 246 at 253 and R v O'Brien and Gloster [1997] 2 VR 714 at 720 ‑ 721 [23].
In the present case, the trial judge said, in his sentencing remarks, that the appropriate individual sentences were 12 months' immediate imprisonment for the stealing of the motor vehicle (count 1) and 3 years 8 months' immediate imprisonment for the aggravated burglary (count 2). However, in the application of the totality principle, his Honour reduced the sentence for count 2 from 3 years 8 months to 3 years 4 months.
The maximum penalty for the offence of stealing a motor vehicle (count 1), contrary to s 371A read with s 378 of the Code, is 7 years' imprisonment.
I have had regard to the sentences for stealing a motor vehicle referred to in such cases as Karolides v The State of Western Australia [2006] WASCA 240, The State of Western Australia v Viskari [2008] WASCA 143, Dunks v The State of Western Australia [2009] WASCA 82; (2009) 195 A Crim R 130 and Nannup v The State of Western Australia [2011] WASCA 257.
The maximum penalty for the offence of aggravated burglary, contrary to s 401(1)(a) of the Code, is 20 years' imprisonment.
The primary sentencing considerations in relation to aggravated burglary are personal and general deterrence. Ordinarily, a substantial penalty is imposed. The standards of sentencing customarily imposed for burglary and aggravated burglary were reviewed by this court in Ashworth v The State of Western Australia [2006] WASCA 36, Drake v The State of Western Australia [2006] WASCA 209 and Nguyen v The State of Western Australia [2007] WASCA 114. Aggravated burglaries can be and are, of course, committed in a wide range of circumstances and the sentence to be imposed for a particular offence must be commensurate with the seriousness of the particular offence, after taking into account the maximum penalty, the circumstances of the offending (including the vulnerability of any victim), any aggravating factors and any mitigating factors.
Each of Mr Thompson and Mr O'Bryan has a serious and extensive prior criminal record. His Honour noted in effect that Mr Thompson's record was worse.
Mr Thompson's previous convictions include stealing a motor vehicle (multiple offences), stealing (multiple offences), burglary (multiple offences), reckless driving (multiple offences), receiving, breach of sentencing orders (multiple offences), aggravated burglary, possession of prohibited drugs (multiple offences) and traffic matters (multiple offences).
Mr O'Bryan's previous convictions include receiving (multiple offences) aggravated burglary (multiple offences), possessing prohibited drugs (multiple offences), stealing a motor vehicle (multiple offences), stealing, robbery whilst armed and in company, possessing car breaking implements, breach of a sentencing order, unlicensed possession of dangerous goods, possession of an unlicensed firearm, possession of unlicensed ammunition and traffic matters (multiple offences).
Mr Thompson was born on 6 November 1980. He was aged 30 when he committed the offences and was 31 when sentenced. Mr Thompson has a history of methylamphetamine abuse. The only mitigating factors were his consistent history of employment, his relationship with members of his family and his provision for them.
Mr O'Bryan was born on 14 June 1979. He was aged 31 when he committed the offences and was 33 when sentenced. Like Mr Thompson, Mr O'Bryan has a history of illicit drug use. He also consumes alcohol to excess. The only mitigating factors were his consistent history of employment and his relationship with his partner and children.
The offending involved substantial premeditation and planning. The offences were not committed impulsively. A vehicle suitable for the purposes of a ram raid had to be located and stolen. The aggravated burglary was brazen and persistent. Significant damage was caused to the shop, the ATM and the stolen vehicle. The cost of repairing the ATM was in excess of $18,000.

Neither Mr Thompson nor Mr O'Bryan had the mitigation that pleas of guilty would have brought. His Honour found that neither of them evinced any remorse or contrition.
In my opinion, the total effective sentence of 4 years 4 months' immediate imprisonment imposed on each of Mr Thompson and Mr O'Bryan bears a proper relationship to the overall criminality involved in both of the offences, viewed together, and having regard to all relevant circumstances and sentencing factors. The dominant sentencing factors were appropriate punishment and personal and general deterrence. The objective circumstances of the offending were very serious. There was little by way of mitigation. Mr Thompson and Mr O'Bryan did not plead guilty and they were not remorseful or contrite. They were not of good character and they were no longer youthful for sentencing purposes.
The trial judge correctly understood that the critical issue in fixing the total effective sentence was the proper sentence to be imposed for the overall criminality involved in the two offences, in the case of Mr Thompson, and the two offences and the breach of the suspended imprisonment order, in the case of Mr O'Bryan. His Honour appropriately refused to apply the one transaction 'rule' in relation to the counts in the indictment. As I have mentioned, in the application of the totality principle, his Honour reduced the individual sentences otherwise appropriate for the aggravated burglary.

In my opinion, the total effective sentences were of a severity that was appropriate in all the circumstances of the case. It is not reasonably arguable that error should be inferred from the outcome of the sentencing process.
The proposed grounds of appeal against sentence are without merit.

Conclusion

None of the proposed grounds of appeal has a reasonable prospect of success. Leave to appeal should be refused. The appeals by Mr Thompson and Mr O'Bryan must therefore be dismissed.
MAZZA JA: I agree with Buss JA.