Thomson v Elliott
[2005] WASC 135
THOMSON -v- ELLIOTT [2005] WASC 135
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2005] WASC 135 | |
| Case No: | SJA:1116/2004 | 3 JUNE 2005 | |
| Coram: | MCKECHNIE J | 3/06/05 | |
| 5 | Judgment Part: | 1 of 1 | |
| Result: | Appeal allowed Sentences ordered to be served concurrently | ||
| B | |||
| PDF Version |
| Parties: | PATRICK DAVID THOMSON ANDREW WILLIAM ELLIOTT |
Catchwords: | Criminal law and procedure Sentencing One transaction |
Legislation: | Nil |
Case References: | Faithfull (2004) 142 A Crim R 554 Pieri v The Queen [2002] WASCA 288 R v White [2002] WASCA 112 Nil |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CIVIL
- Appellant
AND
ANDREW WILLIAM ELLIOTT
Respondent
Catchwords:
Criminal law and procedure - Sentencing - One transaction
Legislation:
Nil
Result:
Appeal allowed
Sentences ordered to be served concurrently
(Page 2)
Category: B
Representation:
Counsel:
Appellant : In person
Respondent : Ms S H Linton
Solicitors:
Appellant : In person
Respondent : State Director of Public Prosecutions
Case(s) referred to in judgment(s):
Faithfull (2004) 142 A Crim R 554
Pieri v The Queen [2002] WASCA 288
R v White [2002] WASCA 112
Case(s) also cited:
Nil
(Page 3)
1 MCKECHNIE J: On 25 May 2005 the appellant came before me on an application for leave to appeal against sentences totalling some 2 years' imprisonment. His application for leave to appeal detailed a number of grounds. Under the Criminal Procedure Act 2004, which came into effect at the beginning of May 2005, I am required to consider each ground and to refuse leave to appeal on a ground if there are no reasonable prospects of success.
2 Exercising that power, I refused leave in respect of most of the grounds but gave the appellant leave to appeal on one ground which I will deal with shortly. I directed that the respondent be served. I acknowledge once again the assistance to the court which the DPP has given in a number of these matters in preparing and being available at relatively short notice to deal with appeals by representing the respondent.
3 I think it is important in these appeals against sentence that they are dealt with as quickly as possible and the Court is devising procedures to ensure that this will occur. I acknowledge, as I have said, the assistance of the respondent who is, I suspect, sometimes at some inconvenience but nevertheless responds to the Court's request. In this case the respondent has filed detailed answering submissions for which I am grateful.
4 I return now to the ground of appeal which is, in essence, that the sentences of 12 months that were imposed in respect of two counts of burglary should have been made concurrent rather than cumulative because they arose out of the one transaction. The appellant was sentenced on 1 October 2004 as follows:
Charge Number | Offence | Sentence |
|
|
|
|
|
|
|
|
|
|
|
|
5 This appeal is in respect of charge number RO2867/04 to make the sentence to be served concurrently. The overall sentence, as I have said,
(Page 4)
- was one of 2 years' imprisonment to be served cumulatively on any breach of parole days remaining to be served. The appellant was not made eligible for parole. The appellant before me fairly acknowledged that failure to grant parole was a reasonable decision by the Magistrate.
6 The facts of the two burglaries were stated to the Magistrate and it appears that on 23 May 2003, in the early hours of the morning, the appellant gained entry to some professional offices in Kent Street, Rockingham, which were occupied by a dentist and orthodontist. In one case he broke an interior door and stole some dental equipment and then broke into a door in the same building and stole some ampoules of drugs from an orthodontist or, to be precise, an oral maxillofascial surgeon.
7 The Magistrate, in careful reasons, took into account everything that could be taken into account and said, in respect of the burglary charge:
"…it is my view that you should be sentenced to terms of imprisonment to 12 months' imprisonment on each count of the burglary matters and 6 months' imprisonment on the receiving matter, being concurrent upon the burglary matters, but because the burglary matters were two distinct entrances to different and distinct properties, albeit on the same date, they shall be cumulative upon each other."
8 It is that finding which the appellant attacks as an incorrect finding. There is, what has been described as, a good working principle in law that events arising out of the one transaction are often treated as part of the one continuing course of criminal conduct. That rule has given rise to difficulties from time to time and has been explained and commented upon in a series of cases in this Court; more recently in Faithfull (2004) 142 A Crim R 554 and that case in turn relied upon and explained R v White [2002] WASCA 112.
9 It is the fundamental principle, of course, that an appropriate sentence should be given in respect of the criminality disclosed before the judicial officer. Questions as to whether something is part of one transaction or different transactions can never admit of an absolute answer. All the circumstances have to be considered. That said, I do not understand Faithfull or White to have denied the existence of the one transaction rule as a general, useful, working rule.
10 In the present case, there was, in practical terms, one burglary, that is, the one set of premises broken into. Inside the premises there happened to be two different dental operations and the appellant forced
(Page 5)
- doors internally so that he could steal from each of them. In my opinion, the essence of the criminality was the breaking into the building and stealing items from it. The fact that in the building there were two legally protected interests was, to a degree, happenstance.
11 The criminality was one which, in my opinion, well merits the one transaction rule and in those circumstances the Magistrate who, as I say, was careful in his reasoning and conclusions nevertheless, I think, fell into error in this one aspect. It is not a sufficient answer to say that there are separate legally protected interests. Of course that is true but that will often be true in cases where there are a series of legally protected interests. The case of Pieri v The Queen [2002] WASCA 288 is an example of that where the one transaction rule, by a majority, was nevertheless held to have applied.
12 The respondent argues that the sentence appropriately reflected the total criminality involved and was not manifestly excessive. There is some force in that submission but nevertheless I am faced with the fact that the Magistrate considered that an appropriate sentence was one of 12 months' imprisonment for the burglary and made an error in accumulating those sentences. He did not consider that the appropriate sentence was one of 2 years. To give effect to the respondent's submissions would by, a backdoor route, I consider, negate the one-transaction rule which should apply in the present case.
13 The result of the appeal is that the appeal is allowed, the order on charge RO2867/04, that the sentence of 12 months' imprisonment to be served cumulatively is set aside and in lieu thereof it is ordered that the sentence on charge RO2867/04, 12 months' imprisonment, is to be served concurrently with the other sentences imposed on 1 October 2004 but cumulatively on any breach of parole days remaining to be served.
0
2
0