Walgar v The State of Western Australia
[2007] WASCA 241
•9 NOVEMBER 2007
WALGAR -v- THE STATE OF WESTERN AUSTRALIA [2007] WASCA 241
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2007] WASCA 241 | |
| THE COURT OF APPEAL (WA) | |||
| Case No: | CACR:1/2007 | 6 NOVEMBER 2007 | |
| Coram: | STEYTLER P McLURE JA MILLER JA | 8/11/07 | |
| 6 | Judgment Part: | 1 of 1 | |
| Result: | Appeal allowed | ||
| D | |||
| PDF Version |
| Parties: | LEANNE MARGARET WALGAR THE STATE OF WESTERN AUSTRALIA |
Catchwords: | Criminal law Appeal against sentence Assaults upon two complainants on same day in same location Whether part of the same transaction Application of totality principle Turns on own facts |
Legislation: | Criminal Code (WA), s 317(1), s 393 |
Case References: | Borbil v The State of Western Australia [2007] WASCA 24; (2007) 169 A Crim R 152 Dinsdale v The Queen (2000) 202 CLR 321 Mallet v Mallet (1984) 156 CLR 605 R v Faithfull [2004] WASCA 39; (2004) 142 A Crim R 554 Worthington v The State of Western Australia [2005] WASCA 72; (2005) 152 A Crim R 585 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : WALGAR -v- THE STATE OF WESTERN AUSTRALIA [2007] WASCA 241 CORAM : STEYTLER P
- McLURE JA
MILLER JA
- Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram : SWEENEY DCJ
File No : GER 7 of 2004
Catchwords:
Criminal law - Appeal against sentence - Assaults upon two complainants on same day in same location - Whether part of the same transaction - Application of totality principle - Turns on own facts
(Page 2)
Legislation:
Criminal Code (WA), s 317(1), s 393
Result:
Appeal allowed
Category: D
Representation:
Counsel:
Appellant : Mr R P Arndt
Respondent : Mr S Vandongen
Solicitors:
Appellant : George Giudice Law Chambers
Respondent : Director of Public Prosecutions (WA)
Case(s) referred to in judgment(s):
Borbil v The State of Western Australia [2007] WASCA 24; (2007) 169 A Crim R 152
Dinsdale v The Queen (2000) 202 CLR 321
Mallet v Mallet (1984) 156 CLR 605
R v Faithfull [2004] WASCA 39; (2004) 142 A Crim R 554
Worthington v The State of Western Australia [2005] WASCA 72; (2005) 152 A Crim R 585
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1 STEYTLER P: I agree with McLure JA.
2 McLURE JA: This is an appeal against sentence. The appellant was convicted after trial of two counts of assault with intent to steal contrary to s 393 of the Criminal Code (WA) (the Code), one of which was committed in circumstances of aggravation, and one count of assault occasioning bodily harm contrary to s 317(1) of the Code.
3 The aggravated assault with intent to steal (count 1) and assault occasioning bodily harm (count 2) were committed on the same complainant, a man aged 72. The appellant was sentenced by Sweeney DCJ on 19 December 2006 to terms of immediate imprisonment of 19 months and 12 months respectively for those offences. The sentence of 19 months incorporates a 5-month reduction to take into account the time the appellant had spent in custody for the offences in question. The appellant was sentenced to 16 months' imprisonment on the further count of assault with intent to steal (count 3). The sentencing judge ordered that all the sentences be served cumulatively resulting in a total effective sentence of 3 years 11 months (5 years 11 months under the former sentencing regime).
4 The appellant contends the sentencing judge failed to give any, or any proper, consideration to whether the sentences should be served concurrently (ground 1) and failed to give any, or any adequate, weight to the totality principle thereby imposing a total sentence that was excessive (ground 2). There is no challenge to the individual sentences. The grounds are framed in such a way as to present an inappropriately high success threshold; it is notoriously difficult to establish a material error of the types relied on. A failure to give consideration to a relevant factor is not established merely from the absence of any express reference to it in the reasons. Further, a failure to give adequate weight to a relevant sentencing factor only gives rise to an appealable error if it amounts to a failure to exercise the discretion actually entrusted to the Court: Dinsdale v The Queen (2000) 202 CLR 321 [26] approving the statement of Gibbs CJ in Mallet v Mallet (1984) 156 CLR 605, 614. I will proceed on the basis that the appellant's complaints are that the sentencing judge failed to apply the one transaction rule and imposed a total sentence that breached the totality principle.
5 The sentencing judge found the following facts. On 1 July 2003 the appellant was in a mall in Geraldton approaching people for money. She approached the complainant, Mr Shoesmith, who had just accessed an automatic teller machine. She badgered Mr Shoesmith, asking for money,
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- and he moved towards a shop to avoid her. The appellant followed him, began to yell at him and gave him a solid bump in the back of the shoulder to get him to turn around. When Mr Shoesmith tried to enter the shop, the appellant gave him a blow or push to the centre of his back while continuing to yell at him. The appellant raised one of her arms in a loose fist and Mr Shoesmith brushed it away. The appellant then hit Mr Shoesmith hard to the forehead. A moment later Mr Shoesmith was seen on the ground. He received three abrasions from the punch. The punch to Mr Shoesmith's forehead comprises count 2. The balance of the facts gave rise to count 1. At the time of the offences Mr Shoesmith was recovering from major surgery and suffered from chronic dizziness, matters which were not known to the appellant. It was not suggested that the punch caused Mr Shoesmith to fall to the ground.
6 The assault on Mr Shoesmith was witnessed by Ms Thuijs, who had been approached earlier by the appellant. This complainant kept the appellant in her view while waiting for police to attend the mall. The appellant noticed this, and again demanded money from Ms Thuijs. The appellant pushed the complainant against the window of a pharmacy, pushed her chest against the complainant's chest, bared her teeth and, yelling, raised both her fists to Ms Thuijs' face level as though to hit her. These facts comprise count 3 on the indictment.
7 The appellant was aged 30 at the time of the offences, 34 at the time of trial and sentencing. Her childhood was marred by parental neglect and physical, sexual and emotional abuse. She lived mainly on the streets from an early age. At the time of the offending, she had entrenched alcohol and amphetamine abuse problems. She also suffers from a major mental illness, chronic paranoid schizophrenia, which was complicated by her substance abuse and her non-compliance with prescribed medication for her illness. The appellant has no meaningful family or other support, often has no accommodation and has considerable difficulties functioning in the community. In light of her personal circumstances, it is not surprising that the appellant has a lengthy record which, with the exception of two offences of armed robbery, involve offences towards the lower end of the scale of seriousness.
8 The legal principles relevant to the disposition of this appeal are not in dispute. An appellate court is not entitled to intervene merely because it would have exercised the sentencing discretion in a manner different than the sentencing judge. It can only intervene if the sentencing judge has made an express or implied material error of fact or law.
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9 The appellant contends that the three offences were part of one transaction and thus should have been ordered to be served concurrently. The scope of the one transaction rule and its relationship with the totality principle have been considered by this court and its predecessor on a number of occasions including in R v Faithfull [2004] WASCA 39; (2004) 142 A Crim R 554 [25] - [28]; Worthington v The State of Western Australia [2005] WASCA 72; (2005) 152 A Crim R 585 [20] - [24]; and Borbil v The State of Western Australia [2007] WASCA 24; (2007) 169 A Crim R 152 [84] - [87]. It is unnecessary to repeat the detail of what was said in those cases. In summary, multiple offences will be part of one transaction if the offender was truly engaged upon one multifaceted course of criminal conduct or if all the offences taken together constitute a single invasion of the same legally protected interest. If the offences are part of one transaction, it is a general rule (or what has been described as a good working rule) that any terms of imprisonment are made concurrent. However, a sentencing judge must in each case consider whether the application of the general rule would result in an appropriate measure of the total criminality involved in the conduct.
10 I accept the appellant's submission that the offences against Mr Shoesmith were a single invasion of the same legally protected interest and part of one multifaceted course of criminal conduct. However, that is not the case in relation to the separate assault on Ms Thuijs. The mere fact that the assault on Ms Thuijs was temporally and geographically close to the offences against Mr Shoesmith is insufficient. Applying the general rule, that would result in the terms of imprisonment on counts 1 and 2 being served concurrently and cumulatively with the sentence on count 3 resulting in a total effective sentence of 2 years 11 months. The next question is whether a total sentence of 2 years 11 months infringes the totality principle (either because it is less or more than what is an appropriate measure of the total criminality of the appellant's conduct). Having regard to the fact that that sentence incorporates a 5-month reduction for time already spent in custody, I am satisfied that the application of the general rule results in a total sentence that bears a proper relationship to the overall criminality involved in all of the offences. The level of violence directed at the complainants was not such as to require total cumulation of the sentences. Accordingly, the trial judge erred in failing to apply the one transaction rule to counts 1 and 2. I would allow the appeal, set aside the order that the sentences on counts 1 and 2 be served cumulatively and in lieu thereof order that they be served concurrently with the consequence that, with the existing order for
(Page 6)
- cumulation of the sentence on count 3, the total effective sentence is 2 years 11 months.
11 MILLER JA: I agree with McLure JA.
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