Tran v The State of Western Australia
[2013] WASCA 77
•19 MARCH 2013
TRAN -v- THE STATE OF WESTERN AUSTRALIA [2013] WASCA 77
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2013] WASCA 77 | |
| THE COURT OF APPEAL (WA) | |||
| Case No: | CACR:160/2012 | 12 FEBRUARY 2013 | |
| Coram: | BUSS JA NEWNES JA MAZZA JA | 19/03/13 | |
| 15 | Judgment Part: | 1 of 1 | |
| Result: | Appeal allowed | ||
| D | |||
| PDF Version |
| Parties: | MINH QUANG TRAN THE STATE OF WESTERN AUSTRALIA |
Catchwords: | Criminal law Appeal against sentence Appellant convicted of four counts in an indictment and 24 offences on a notice under s 32 of the Sentencing Act 1995 (WA) Total effective sentence of 5 years' immediate imprisonment and $9,600 fines and 6 years motor vehicle driver's licence disqualification Pleas of guilty Whether the total effective custodial sentence infringed the first limb of the totality principle Whether the sentencing judge erred in imposing fines, in addition to imprisonment, for multiple offences of driving while under suspension |
Legislation: | Fines, Penalties and Infringement Notices Enforcement Act 1994 (WA), pt 4, s 29(1) Misuse of Drugs Act 1981 (WA), s 6(1)(c), s 34 Road Traffic Act 1974 (WA), s 49(1) Sentencing Act 1995 (WA), s 39, s 42, s 53, s 57, s 59 |
Case References: | Eacott v The State of Western Australia [2009] WASCA 112 Furber v The Queen [2008] WASCA 233 Ness v The State of Western Australia [No 2] [2013] WASCA 56 O'Driscoll v The State of Western Australia [2011] WASCA 156 Poduti v The State of Western Australia [2011] WASCA 169 R v Munro [2000] WASCA 285 Ridley v The State of Western Australia [2013] WASCA 45 RJB v The State of Western Australia [2009] WASCA 49 Schriever v The State of Western Australia [2008] WASCA 133 Veen v The Queen (No 2) [1988] HCA 14; (1988) 164 CLR 465 Worthington v The State of Western Australia [2005] WASCA 72 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : TRAN -v- THE STATE OF WESTERN AUSTRALIA [2013] WASCA 77 CORAM : BUSS JA
- NEWNES JA
MAZZA JA
- Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram : SCOTT DCJ
File No : IND 339 of 2012
Catchwords:
Criminal law - Appeal against sentence - Appellant convicted of four counts in an indictment and 24 offences on a notice under s 32 of the Sentencing Act 1995 (WA) - Total effective sentence of 5 years' immediate imprisonment and $9,600 fines and 6 years motor vehicle driver's licence disqualification - Pleas of guilty - Whether the total effective custodial sentence infringed the first limb of the totality principle - Whether the sentencing judge erred in imposing fines, in addition to imprisonment, for multiple offences of driving while under suspension
Legislation:
Fines, Penalties and Infringement Notices Enforcement Act 1994 (WA), pt 4, s 29(1)
Misuse of Drugs Act 1981 (WA), s 6(1)(c), s 34
Road Traffic Act 1974 (WA), s 49(1)
Sentencing Act 1995 (WA), s 39, s 42, s 53, s 57, s 59
Result:
Appeal allowed
Category: D
Representation:
Counsel:
Appellant : Mr A J Robson
Respondent : Mr R G Wilson
Solicitors:
Appellant : Legal Aid (WA)
Respondent : Director of Public Prosecutions (WA)
Case(s) referred to in judgment(s):
Eacott v The State of Western Australia [2009] WASCA 112
Furber v The Queen [2008] WASCA 233
Ness v The State of Western Australia [No 2] [2013] WASCA 56
O'Driscoll v The State of Western Australia [2011] WASCA 156
Poduti v The State of Western Australia [2011] WASCA 169
R v Munro [2000] WASCA 285
Ridley v The State of Western Australia [2013] WASCA 45
RJB v The State of Western Australia [2009] WASCA 49
Schriever v The State of Western Australia [2008] WASCA 133
Veen v The Queen (No 2) [1988] HCA 14; (1988) 164 CLR 465
Worthington v The State of Western Australia [2005] WASCA 72
1 BUSS JA: The appellant appeals to this court against sentence.
2 On 29 June 2012, the appellant appeared in the District Court before Scott DCJ. He entered pleas of guilty to four counts in an indictment, each of which alleged that he had supplied a prohibited drug, namely heroin, to another, contrary to s 6(1)(c) of the Misuse of Drugs Act 1981 (WA) (the Act). Also, he entered pleas of guilty to 24 offences the subject of a notice pursuant to s 32 of the Sentencing Act 1995 (WA).
3 After hearing the material facts and submissions from the prosecutor and defence counsel, his Honour imposed individual sentences for each of the offences and a total effective sentence.
4 The total effective custodial sentence was 5 years' immediate imprisonment, backdated to 27 August 2011, with eligibility for parole. The appellant was also fined a total of $9,600, with pt 4 of the Fines, Penalties and Infringement Notices Enforcement Act 1994 (WA) to apply. In addition, his motor vehicle driver's licence was disqualified for a total of 6 years, cumulative upon any other applicable period of disqualification.
5 A summary of the offences and the sentences imposed is set out in the Schedule to these reasons.
The facts and circumstances of the offending: the counts in the indictment
6 On 13 January 2012, police searched the appellant's hotel room at the Great Eastern Motor Lodge. He was in possession of a number of stolen laptop computers and other items as well as drug dealing paraphernalia. As to counts 1, 2 and 3 in the indictment, the appellant admitted to the police, in a video-recorded interview, that he had supplied small amounts of heroin to others in exchange for three of the laptop computers and a stolen credit card. As to count 4, the appellant admitted to the police during the interview that he had supplied his partner with heroin on a daily basis for her personal use, including 0.4 g of heroin the previous morning.
The facts and circumstances of the offending: the s 32 notice offences
7 On 21 October 2010, police stopped the appellant while he was driving a motor vehicle. He gave the police a false name and was driving while his licence was suspended.
8 On 25 October 2010, the appellant was driving a motor vehicle recklessly. Once again, he was driving while his licence was suspended. Also, he was in possession of a prohibited drug, namely 0.1 g of amphetamine.
9 On 25 October 2010, the appellant was released on bail. He failed to appear in court on two occasions and, as a result, breached his bail undertaking. On 29 March 2011, he was arrested.
10 Between the evening of 5 March 2011 and the morning of 6 March 2011, the appellant committed a burglary. He stole goods having a total value of $2,200 from an unoccupied dwelling.
11 On 29 March 2011, when the police arrested the appellant, he was in possession of a utensil used for smoking amphetamine.
12 On 8 June 2011, the appellant was released on bail. He failed to appear in court in accordance with his bail undertaking.
13 On 13 July 2011, police stopped the appellant while he was driving a motor vehicle. He gave the police a false name and a false driver's licence. Once again, he was driving while his licence was suspended. Also, the vehicle he was driving was unlicensed. He was arrested.
14 On 17 October 2011, the appellant was released on bail. He failed to appear in court as required by his bail undertaking. On 13 January 2012, he was arrested.
15 On 11 December 2011, the appellant knowingly received stolen goods (a laptop computer and a credit card) in exchange for supplying heroin.
16 On the same date, the appellant used the stolen credit card to purchase or attempt to purchase various goods. He thereby committed the offences of fraud and attempted fraud which are set out in charges 16 - 23 on the s 32 notice.
17 Between 16 December 2011 and 19 December 2011, the appellant knowingly received stolen goods in exchange for the supply of heroin.
18 On 13 January 2012, when the police searched the appellant's hotel room, he was in possession of the stolen goods.
The appellant's personal circumstances and antecedents and the mitigating factors
19 The appellant was born on 3 December 1983. He was aged 28 when sentenced. He left school in Year 11 and had a reasonable employment history.
20 The information before the sentencing judge included a pre-sentence report dated 4 May 2012. According to the author of the report, the appellant's offending behaviour occurred in the context of 'entrenched illicit substance use, negative peer association, poor coping skills, financial gain and poor stress resilience'. The author was of the view that the appellant remained 'at elevated risk of reoffending without intensive treatment intervention, particularly in relation to substance use, relapse prevention and coping skills'. The author concluded:
[The appellant] has an extensive Court History reflecting drugs, dishonesty, weapons, breach, property, traffic and defy authority offences. He demonstrated some insight into his offending behaviour, however externalised his actions to illicit substance use, predominantly heroin … [The appellant] has previously been subject to five previous periods of community supervision, however all Orders were breached through non-compliance.
21 The principal mitigating factor was the appellant's fast-track pleas of guilty. The sentencing judge was not satisfied that the appellant was, in fact, genuinely remorseful for his offending, but he said the appellant was still entitled to 'a significant discount on sentence' for the pleas (ts 24).
22 His Honour noted that the appellant had cooperated with the police. He had made admissions which may have enabled the police to charge him with some of the offences in question. The appellant was entitled to a discount on sentence for his cooperation.
23 The voluntary disclosure of offending conduct is a mitigating factor. See Schriever v The State of Western Australia [2008] WASCA 133 [22] (Steytler P, McLure & Miller JJA agreeing). In the present case, the appellant was not found in possession of heroin. His admissions to the police enabled the police to charge him with the counts in the indictment. As to the appellant's admissions concerning the stolen property, the police would have been able, without the admissions, to charge the appellant with offences in relation to that property. However, his cooperation assisted the police in identifying the precise nature of his criminal conduct. See RJB v The State of Western Australia [2009] WASCA 49 [25] - [33] (Owen, Wheeler & Miller JJA).
24 The appellant was not of good character. He had an extensive prior criminal record including convictions for fraud (multiple offences), possessing prohibited drugs (multiple offences), receiving (multiple offences), possessing a prohibited or controlled weapon (multiple offences), breach of a bail undertaking (multiple offences), wilfully destroying evidence, trespass (multiple offences), stealing, burglary (multiple offences), wilfully misleading the police (multiple offences) and breaching a community based order (multiple offences). He also had numerous prior convictions for traffic offences including driving while his licence was suspended or disqualified (14 prior offences), dangerous driving (multiple offences), careless driving (multiple offences) and driving with a blood alcohol level exceeding 0.05%.
25 The appellant's prior criminal record did not aggravate the offences for which he was being sentenced by the sentencing judge, but it did underscore the importance of personal deterrence as a sentencing consideration.
Grounds of appeal
26 The appellant relies on two grounds of appeal.
27 Ground 1 alleges that the sentencing judge erred in law by imposing a total effective sentence of imprisonment which infringed the first limb of the totality principle.
28 Ground 2 alleges that his Honour erred in law by imposing fines, in addition to imprisonment, for the offences of driving under suspension in that his Honour failed 'to take into account the financial circumstances of the appellant and the totality principle in relation to the imposition of fines'.
29 On 2 September 2012, Mazza JA granted leave to appeal on grounds 1 and 2.
30 Initially, the appellant relied on a third ground of appeal, but this ground was abandoned by letter dated 21 January 2013 sent by the appellant's solicitors to the Court of Appeal Registrar.
The merits of ground 1
31 By the first limb of the totality principle, 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, 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.
32 The maximum penalty for each offence committed by the appellant is set out in the Schedule to these reasons.
33 The sentencing judge arrived at the total effective custodial sentence of 5 years' immediate imprisonment by ordering the accumulation of the following individual sentences:
(a) The 12 months' imprisonment for count 1 in the indictment.
(b) The 6 months' imprisonment for driving under suspension on 21 October 2010.
(c) The 18 months' imprisonment for the burglary of a dwelling on 5 March 2011.
(d) The 4 months' imprisonment for the breach of a bail undertaking on 13 July 2011.
(e) The 7 months' imprisonment for receiving on 11 December 2011.
(f) The 7 months' imprisonment for one of the charges of fraud on 11 December 2011.
(g) The 6 months' imprisonment for one of the charges of attempted fraud on 11 December 2011.
34 In my opinion, the total effective custodial sentence of 5 years' imprisonment was high, but it nevertheless bears a proper relationship to the overall criminality involved in all of the offences, viewed together, and having regard to all relevant facts and circumstances and all relevant sentencing considerations, including the appellant's fast-track pleas of guilty and his cooperation with the police. My reasons for this opinion are as follows.
35 The appellant's overall offending was serious, diverse and persistent. The offences for which terms of imprisonment were imposed occurred over a period of about 15 months between October 2010 and January 2012. There were four offences of drug dealing, three offences of driving under suspension, one offence involving burglary of a dwelling, three offences of breach of a bail undertaking, two offences of receiving, five offences of fraud and three offences of attempted fraud.
36 The major sentencing considerations for offences of dealing in prohibited drugs have been stated by this court on countless occasions. The appellant's drug dealing was not an uncharacteristic aberration. See, generally, Ness v The State of Western Australia [No 2] [2013] WASCA 56 [23] - [24], [28], [31] - [32] (Buss JA, McLure P agreeing).
37 Driving a motor vehicle while under suspension is a serious offence. The appellant had 14 previous convictions for driving while his licence was suspended or disqualified. This history illuminated the appellant's moral culpability and emphasised the need for personal deterrence. See Veen v The Queen (No 2) [1988] HCA 14; (1988) 164 CLR 465, 477 (Mason CJ, Brennan, Dawson & Toohey JJ).
38 The appellant committed the burglary on his neighbour's dwelling. He entered her home unit by climbing onto her balcony and entering through a window. It appears that none of the property (which, as I have mentioned, had a total value of $2,200) was recovered. As to the primary sentencing considerations in relation to burglary, and the standards of sentencing customarily imposed, see Ridley v The State of Western Australia [2013] WASCA 45 [13] (Buss JA, McLure P & Mazza JA agreeing).
39 The appellant's offences of receiving were serious. He was a drug dealer who was prepared knowingly to receive stolen goods in lieu of cash as payment for prohibited drugs. See, generally, in relation to sentencing for receiving, Eacott v The State of Western Australia [2009] WASCA 112 [15] - [16] (Wheeler JA); Poduti v The State of Western Australia [2011] WASCA 169 [13] - [15] (McLure P).
40 All of the fraud and attempted fraud charges occurred on 11 December 2011. The appellant used a stolen credit card (which he received in exchange for supplying heroin) on eight occasions to purchase or attempt to purchase goods. The offences were committed against a number of different businesses. The appellant was unable to complete the three transactions charged as attempted frauds because the credit card had, by that stage, been reported stolen, and the payment was unable to be processed. It is of significance that the appellant was not deterred by the first refusal to accept the card. He attempted twice to use it again. The so-called 'one transaction rule' or 'continuing episode rule' is merely a guideline and it is for the sentencing court to decide, in each case, whether the application of this guideline would result in an appropriate measure of the total criminality involved in the offending conduct. See Worthington v The State of Western Australia [2005] WASCA 72 [23] (Steytler P). In the present case, it was appropriate for the sentencing judge to mark the persistent nature of this aspect of the appellant's criminality by accumulating two of the individual sentences for the fraud and attempted fraud charges. But in any event, the critical question, in the context of ground 1, is whether the length of the total term of imprisonment bears a proper relationship to the overall criminality involved in all of the offences.
41 Counsel for the appellant and counsel for the State referred to a number of cases on the issue of totality, including R v Munro [2000] WASCA 285 and O'Driscoll v The State of Western Australia [2011] WASCA 156. The cases cited by counsel are of little use because of the unusual collection of offences committed by the appellant.
42 The appellant was not youthful or inexperienced for sentencing purposes. He had an entrenched history of illicit drug abuse and he remained at an elevated risk of reoffending without intensive treatment intervention. He had some insight into his offending behaviour, but he failed to take personal responsibility by blaming illicit drug abuse for his actions. His fast-track pleas of guilty did not reflect genuine remorse. He had a significant prior criminal record. Some of his offending was committed while he was on bail. The principal sentencing considerations were appropriate punishment and personal and general deterrence.
43 The total effective custodial sentence, although high, was of a severity that was appropriate in all the circumstances. Error should not be inferred from this aspect of the outcome of the sentencing process.
44 Ground 1 fails.
The merits of ground 2
45 The totality principle applies where terms of imprisonment and fines are imposed on an offender. See Furber v The Queen [2008] WASCA 233 [73] (Murray AJA, Buss & Miller JJA agreeing).
46 If a court decides to fine an offender then, in deciding the amount of the fine, the court must, as far as is practicable, take into account the means of the offender and the extent to which payment of the fine will burden the offender. See s 53(1) of the Sentencing Act. A court must not fine an offender if satisfied that, after paying compensation to the victim in accordance with a compensation order under pt 16, the offender will be unable to pay the fine within a reasonable time. See s 53(3) of the Sentencing Act.
47 The appellant was convicted of three offences of driving under suspension. The individual sentence was, in each case, 6 months' imprisonment, a fine of $2,000 and disqualification of the appellant's driver's licence for 2 years. The fines therefore totalled $6,000. His Honour did not make an order under s 59(8) of the Sentencing Act. As I have mentioned, pt 4 of the Fines, Penalties and Infringement Notices Enforcement Act applied to the fines: see s 29(1) of that Act and s 57 of the Sentencing Act.
48 Ground 2 challenges the imposition of these fines. Counsel for the appellant confirmed at the hearing that no complaint is made about the other fines imposed by the sentencing judge (appeal ts 16).
49 Section 49(1) of the Road Traffic Act 1974 (WA) creates the offence of driving a motor vehicle while disqualified or suspended. The offence is punishable by a fine and imprisonment.
50 However, by s 42(2) of the Sentencing Act, if the statutory penalty for an offence is such that both imprisonment and a fine may be imposed, and if the offender is a natural person, then, subject to s 42(2a), the court may 'use any one of the sentencing options in section 39(2)'. Accordingly, subject to s 42(2a), it is open to the court to impose a term of imprisonment or a fine.
51 It is unusual for a sentencing judge to impose a term of immediate imprisonment and a fine for the offence of driving while disqualified or suspended.
52 In the present case, his Honour did not explain in his sentencing remarks why he had imposed both a term of imprisonment and a fine. The appellant disclosed to the author of the pre-sentence report that, prior to being incarcerated, he was earning $650 per week in wages. There was no information before his Honour about the nature or extent of any other income or assets of the appellant. There appears to be little doubt that, while he is serving the term of imprisonment, the appellant will not have the capacity to make any material reduction in the outstanding amount of the fines.
53 As I have mentioned in the course of considering ground 1, the total effective custodial term of 5 years' immediate imprisonment was high. I am persuaded that, in the circumstances, the imposition of the fines totalling $6,000 for the offences of driving under suspension exceeded what was necessary to satisfy all relevant sentencing objectives, including appropriate punishment and personal and general deterrence.
54 The imposition of the fines in question resulted in a total effective sentence that does not bear a proper relationship to the overall criminality involved in all of the offences, viewed together, and having regard to all relevant circumstances and sentencing objectives.
55 Ground 2 has been made out.
Conclusion
56 I would allow the appeal in part. The fine of $2,000 imposed for each offence of driving under suspension (being a total of $6,000 for charges 2, 5 and 13 on the s 32 notice) should be set aside. Otherwise, the appeal should be dismissed.
57 NEWNES JA: I agree with Buss JA.
58 MAZZA JA: I agree with Buss JA.
SCHEDULE
SUMMARY OF OFFENCES AND SENTENCES
| ||||
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Summary Offences - s 32 Notice
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Cumulative |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
+ $9600 fines
- + 6 yr MDL Disqualification cumulative
8
12
4