Vuletic v The State of Western Australia
[2014] WASCA 135
•23 JULY 2014
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: VULETIC -v- THE STATE OF WESTERN AUSTRALIA [2014] WASCA 135
CORAM: NEWNES JA
MAZZA JA
HEARD: 16 JUNE 2014
DELIVERED : 23 JULY 2014
FILE NO/S: CACR 36 of 2014
BETWEEN: DRAGO ZLATKO VULETIC
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
ON APPEAL FROM:
Jurisdiction : SUPREME COURT OF WESTERN AUSTRALIA
Coram :CORBOY J
File No :INS 254 of 2012
Catchwords:
Criminal law - Unlawfully attempting to strike a person with a projectile with intent to maim, disfigure or disable - Criminal Code (WA), s 294(2) - Four shots fired at complainant's moving vehicle - Plea of guilty - Application for leave to appeal against sentence of 4 years' imprisonment
Legislation:
Criminal Code (WA), s 294(2)
Result:
Application for leave to appeal dismissed
Appeal dismissed
Category: B
Representation:
Counsel:
Appellant: Mr A C McIntosh
Respondent: No appearance
Solicitors:
Appellant: Fiocco's Lawyers
Respondent: No appearance
Case(s) referred to in judgment(s):
Chan v The Queen (1989) 38 A Crim R 337
Munda v The State of Western Australia [2013] HCA 38; (2013) 302 ALR 207
R v Norman [1999] QCA 77
The State of Western Australia v Hillier [2008] WASCA 184
JUDGMENT OF THE COURT: This is an application for leave to appeal against sentence. The applicant was sentenced by Corboy J in the Supreme Court to a term of 4 years' immediate imprisonment on one count of unlawfully attempting to strike a person with a projectile with intent to maim, disfigure or disable, contrary to s 294(2) of the Criminal Code (WA). The applicant seeks leave to appeal against the sentence on the ground that it was manifestly excessive.
We would refuse leave to appeal and dismiss the appeal for the following reasons.
The background
The complainant resided with his wife and family in Nicholson Road, Forrestdale. On three occasions on 15 June 2012, a person in a silver Chrysler 300C sedan had come to his property, apparently to speak to the complainant's adult son. The first occasion was at about 3.30 am. The complainant swore at the person and told him to leave, which the person did.
However, at about 5.30 am the complainant saw the same vehicle driving up the driveway of his house. The complainant went outside and berated the driver about the earlier incident and punched him. After a short altercation the driver of the vehicle reversed the car and left the property.
At about 10.30 pm that evening, the complainant observed the headlights of the same Chrysler motor vehicle coming up his driveway. He went out to the vehicle and observed that it was being driven by a different person. He again attempted to punch the driver, who swore at him and drove off.
A few hours later, at approximately 12.30 am on the morning of 16 June 2012, the complainant noticed two sets of headlights pulling up on the road in front of his property. The complainant observed two vehicles: the Chrysler vehicle that he had seen the day before and another car that he identified as a maroon Holden Commodore. The complainant went to and got into his car. He applied the brake pedal, presumably activating the rear brake lights of the car. The two cars started to drive away from the complainant's property and the complainant followed them in his car. He followed the cars down Nicholson Road and then onto Thomas Road.
The Commodore then pulled over off Thomas Road and the complainant stopped alongside the driver's side of the vehicle with the intention of confronting the driver about why he kept coming to his house and disturbing his family. Through the half‑open passenger side window, the complainant saw that the applicant, who was the driver of the Commodore, was pointing what looked like a handgun with the barrel upward.
The complainant then drove off. The applicant followed him in the Commodore, turning the lights of the Commodore on and off. The complainant did a U‑turn with the intention of returning home. As the complainant turned back onto Nicholson Road, he could see the Commodore coming straight towards the door of his vehicle. The applicant drove the Commodore up alongside the complainant's car so that the two vehicles were only a couple of metres apart with the windows of each vehicle adjacent. The applicant then deliberately fired at least four bullets from a Caspian 9 mm pistol at the rear of the complainant's vehicle.
The complainant felt something at his lower back and thought that he had been hit by a bullet. He dialled 000 on his mobile phone and made a report to the police. The complainant drove home without further incident.
A subsequent examination of the complainant's vehicle by a police ballistics expert revealed that four bullets had been fired into the boot of the vehicle. The bullets appear to have been fired from positions to the rear of the vehicle with a left to right and slight downwards trajectory. One bullet perforated the front left side of the driver's seat and another bullet fractured the interior side of the right rear passenger window. At least two of the bullets narrowly missed striking the complainant while he was driving the vehicle.
The applicant pleaded guilty to one count of unlawfully attempting to strike a person with a projectile with intent to maim, disfigure or disable, contrary to s 294(2) of the Criminal Code. He also pleaded guilty to a further charge on the same indictment, namely, having ready access to both a dangerous weapon, a Caspian 9 mm pistol, and methylamphetamine, contrary to s 68E of the Criminal Code.
The applicant's personal circumstances
The applicant was born in New Zealand and was 31 years of age at the time of the offending. His childhood had been marred by domestic violence, including frequent beatings of the applicant by his father. The applicant had been subjected to sexual abuse as a young child and had lived on the streets for a time in New Zealand as an adolescent.
At approximately 16 years of age, the applicant came to Australia to live with his mother, who had moved to Australia some four years earlier. The applicant subsequently completed an apprenticeship in mechanics in Queensland and came to Western Australia in about 2011 to work in the mines. He worked on mine sites until approximately two months prior to the offence.
According to the applicant, he commenced using cannabis at the age of 11 years, and amphetamines and LSD by the time that he was 15 years of age. He progressed to using cocaine and methylamphetamine regularly and has abused benzodiazepines, morphine, cocaine and ecstasy. The applicant had attempted to stop using methylamphetamine approximately two years ago but had resumed using it following the breakdown of a relationship. He had since formed a new relationship and at the time of sentencing his partner was expecting their child. He had stopped taking methylamphetamine approximately six months before sentencing and had obtained employment and sought counselling for his substance abuse.
The applicant has convictions in the Supreme Court of Queensland for producing dangerous drugs, possessing dangerous drugs, supplying dangerous drugs and unlawful possession of a weapon, for which he served a term of imprisonment. He also has convictions in the Magistrates Court in Queensland for possessing dangerous drugs, possessing tainted property, bringing stolen goods into Queensland and public nuisance offences. He has convictions in the Magistrates Court in this state for traffic offences and possessing a prohibited drug. As Corboy J observed (at [54]), while the applicant is not, of course, to be punished for his past criminal record, there is nothing mitigatory in the applicant's history of offending.
The sentencing remarks
The sentencing judge accepted that at the time of the offence the applicant had been using methylamphetamine and was in a highly emotional and agitated state. He had experienced symptoms of paranoia, as a result of which he had feared that his life was threatened by the complainant. His Honour noted that a psychiatric report had linked the applicant's paranoia to his abuse of methylamphetamine. It had also concluded that the applicant exhibited features of an anti‑social personality. In the report, the applicant had been assessed at a low risk of violent re‑offending, dependent upon the applicant not using methylamphetamine or other illicit drugs.
In mitigation, his Honour took into account the applicant's dysfunctional childhood and the attempts he had made to address his longstanding abuse of illicit substances. He considered that the applicant had positive prospects of rehabilitation in light of his employment qualifications and history and the support of mother and stepfather, and that he had a real incentive to do so with his partner pregnant with his child. The sentencing judge also took into account that the applicant had pleaded guilty at the first opportunity and reduced the sentence that would otherwise have been imposed by 25%.
The applicant was sentenced to 4 years' immediate imprisonment on the charge of unlawfully attempting to strike a person with a projectile with intent to maim, disfigure or disable. He was sentenced to 14 months' immediate imprisonment on the charge of having ready access to both a dangerous weapon, the Caspian 9 mm pistol, and methylamphetamine, that sentence being ordered to be served concurrently with the 4‑year term. In addition, he was sentenced, pursuant to a s 32 notice, to short terms of imprisonment on two drug offences, a failure to comply with protective bail conditions, and possession of $400 reasonably suspected to be unlawfully obtained. Those terms of imprisonment were also ordered to be served concurrently with the 4‑year term.
The ground of appeal
The sole ground of appeal is that the sentence of 4 years' imprisonment on the count of unlawfully attempting to strike a person with a projectile with intent to maim, disfigure or disable, was manifestly excessive.
The disposition of the application
The relevant legal principles are well‑established. An appellate court may not substitute its own opinion for that of the sentencing judge merely because it would have exercised its discretion in a different way. An appellate court can intervene only where there has been error. An allegation that a sentence is manifestly excessive is an allegation that error is to be inferred.
In determining whether a sentence is manifestly excessive, the sentence must be viewed in the light of the maximum sentence prescribed for the offence (in this case, 20 years' imprisonment); the standards of sentencing customarily observed with respect to the offence; the place which the criminal conduct occupies on the scale of seriousness of crimes of that type; and the personal circumstances of the offender: Chan v The Queen (1989) 38 A Crim R 337, 342. While for consistency it is necessary to have regard to sentences customarily imposed in cases involving similar offending, the range of sentences that have been imposed in the past does not fix the boundaries within which future judges must, or even ought to, sentence: Munda v The State of Western Australia [2013] HCA 38; (2013) 302 ALR 207 [39] ‑ [40].
Before the sentencing judge, neither counsel was able to refer to any comparable cases for the offence in this jurisdiction. Counsel for the respondent referred, however, to The State of Western Australia v Hillier [2008] WASCA 184, a case of attempted murder, where Steytler P had reviewed a number of cases, including cases of causing grievous bodily harm with intent. His Honour noted that the range of sentences for the latter offence (which, like the present offence, carries a maximum penalty of 20 years' imprisonment) was between 4 years and 8 months' imprisonment and 8 years' imprisonment [35]. Counsel for the respondent submitted to the sentencing judge, and his Honour accepted, that this sentencing range was applicable by analogy.
On this application, counsel who prepared the written submissions on behalf of the applicant (who was not counsel who appeared on the hearing of the application) contended that his Honour had erred in doing so, arguing that the maximum penalty for attempted murder was 14 years' imprisonment, whereas the maximum penalty for this offence was 10 years' imprisonment. The latter contention was based on the proposition that whilst the maximum penalty for an offence under s 294(2) of the Criminal Code was 20 years' imprisonment, pursuant to s 10E and s 552(2)(b) of the Criminal Code the penalty for an attempt to commit an indictable offence, where the maximum penalty for the offence is not life imprisonment, is half the maximum penalty for the offence.
Those submissions are misconceived. First, the maximum penalty for attempted murder is life imprisonment, not 14 years' imprisonment. Second, s 552(2)(b) and s 10E have no application. The applicant was not charged with attempting to commit an offence under s 294(2), but with committing an offence under s 294(2). The maximum penalty for that offence is 20 years' imprisonment.
In our view, what was said in Hillier is of some, albeit limited, assistance in the present case. We were not referred to any other cases in this jurisdiction and our own research has not revealed any apt comparators.
Counsel for the applicant did, however, refer to a Queensland case, R v Norman [1999] QCA 77, for comparative purposes. There the offender had gone to a neighbour's house armed with a rifle and fired it a number of times. He struck one complainant in the head and aimed at, but missed, another neighbour. In relation to the former, he pleaded guilty to doing grievous bodily harm with intent, the maximum penalty for which was life imprisonment, and was sentenced to 7 years' imprisonment. In relation to the latter, he pleaded guilty to what was described as 'the lesser offence' of attempting to strike a person with a projectile with intent to do grievous bodily harm, for which he was sentenced to 5 years' imprisonment. An appeal against the sentences was dismissed, the court describing the sentences as 'modest'.
We do not consider that this case is of any assistance to the applicant.
There can be no doubt that the offending in the present case was very serious. In firing at least four shots at the complainant's moving vehicle the applicant put at risk the safety not only of the complainant but of anyone in the vicinity who might have been hit by the bullets or, if the complainant or his vehicle had been disabled, with whom the vehicle might have collided. It was very dangerous conduct which could well have had tragic consequences. It was simply a matter of good fortune that it did not.
It is the case that there were mitigating factors, including the applicant's dysfunctional childhood, the attempts he has made to address his longstanding abuse of illicit substances, and his positive prospects of rehabilitation. A significant mitigating factor was the applicant's plea of guilty, for which the sentencing judge allowed a reduction of 25%.
Nevertheless, in light of the serious nature of the offending it could not be said that a sentence of 4 years' immediate imprisonment, in the context of an offence with a maximum penalty of 20 years' imprisonment, fell outside a sound exercise of the sentencing discretion. The appeal has no reasonable prospect of success.
Conclusion
We would refuse leave to appeal and dismiss the appeal.
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