Whitelaw v Quin
[2014] WASC 19
•28 JANUARY 2014
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL
CITATION: WHITELAW -v- QUIN [2014] WASC 19
CORAM: CORBOY J
HEARD: 8 & 14 JANUARY 2014
DELIVERED : 28 JANUARY 2014
FILE NO/S: SJA 1094 of 2013
BETWEEN: PAUL WHITELAW
Appellant
AND
TENNEILLE ELIZABETH QUIN
Respondent
Catchwords:
Criminal appeal - Appeal against sentence - Whether sentence manifestly excessive - Stealing a motor vehicle and reckless driving
Legislation:
Criminal Appeals Act 2004 (WA), s 9, s 14(2)
Result:
Leave to appeal granted
Appeal dismissed
Category: B
Representation:
Counsel:
Appellant: In person
Respondent: Mr L Fox (8 January 2014) & Ms A C Longden (14 January 2014)
Solicitors:
Appellant: In person
Respondent: Director of Public Prosecutions (WA)
Case(s) referred to in judgment(s):
Gillespie v The State of Western Australia [2013] WASCA 149
Able Lott Holdings Pty Ltd v City of Fremantle [2011] WASC 87
Boyd v The Queen [2002] WASCA 239
Brown v The State of Western Australia [2010] WASCA 228
Colbung v The Queen [1999] WASCA 138
Fullgrabe v The State of Western Australia [2006] WASCA 138
Hansen v Pikkert [2012] WASC 424
Hume v The Queen [2000] WASCA 306
Jardim v The State of Western Australia [2011] WASCA 83
Karolides v The State of Western Australia [2006] WASCA 240
Lowe v The Queen (1984) 154 CLR 606
McDougall v The State of Western Australia [2009] WASCA 232
Morcom v The State of Western Australia [2013] WASCA 31
Narrier v The State of Western Australia [2011] WASCA 193
Nicolaides v The State of Western Australia [2012] WASCA 199
Penny v The State of Western Australia [2006] WASCA 173
Plant v Harrington [2010] WASC 364
Samuels v The State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473
The State of Western Australia v Atherton [2009] WASCA 148
Trinh v The Queen [2013] WASCA 258
Trompler v The State of Western Australia [2008] WASCA 265
Vagh v The State of Western Australia [2007] WASCA 17
Wilson v The State of Western Australia [2010] WASC 82
CORBOY J:
The proposed appeal
The offences and the sentences imposed
The appellant was charged with nine offences by a prosecution notice dated 10 October 2012. The offences were alleged to have been committed in September and October 2012.
The appellant pleaded guilty on 15 March 2013 to eight of the nine charges contained in the prosecution notice. The remaining charge, to which he pleaded not guilty, was listed for trial on 9 May 2013. The appellant changed his plea to that charge on the morning of the trial. He was sentenced on that day.
The charges to which the appellant pleaded guilty and the sentences that were imposed by the learned magistrate were as follows:
(a)Charge 48633 – 'on 10 October 2012 at Bayswater, [the appellant] stole a motor vehicle, namely a Nissan coupe registered number RX14WA, valued at $5,000, the property of Alban Gerard Lewis and on the said date wilfully drove the said motor vehicle in a manner that constituted an offence, namely reckless driving, under s 60 of the Road Traffic Act 1974 (WA)', contrary to s 378(2)(a) of the Criminal Code. The appellant was sentenced to an immediate term of imprisonment of 2 years. He was disqualified from driving a motor vehicle for 2 years.
(b)Charge 48634 – 'on 10 October 2012 at Bayswater, [the appellant] drove a motor vehicle, namely a Nissan coupe registered number RX14WA on a road, namely Guildford Road, in circumstances of aggravation within the meaning of s 59B(3) of the Road Traffic Act, in a manner that was, having regard to all the circumstances, dangerous to the public or any person, and was involved in an incident occasioning bodily harm to Farida Savitri Duncan', contrary to s 59A(1)(b) of the Road Traffic Act. The appellant was sentenced to a term of imprisonment of 18 months to be served concurrently. He was disqualified from holding a driver's licence for a period of 3 years concurrent.
(c)Charge 48635 – 'on 10 October 2012 at Bayswater, [the appellant] drove a motor vehicle, namely a Nissan coupe registered number RX14WA on a road, namely Guildford Road, whilst not being a person authorised by pt IVA of the Road Traffic Act and who had held an Australian driver's licence of a kind required but ceased to hold the licence of that kind most recently held other than because the licence was voluntarily surrendered or had expired or was a person no longer authorised to drive because of penalty enforcement laws as described in s 49(9) of the Road Traffic Act', contrary to 49(1)(a) and s 49(3)(b) of the Road Traffic Act. The appellant was sentenced to 6 months' imprisonment concurrent. He was disqualified from holding a driver's licence for a period of 12 months concurrent.
(d)Charge 48636 – 'on 10 October 2012 at Bayswater, [the appellant] being the driver of a vehicle registered number RX14WA on a road, namely Guildford Road, and when called upon to stop his vehicle by a member of the police force, failed to stop', contrary to s 53(1)(b) of the Road Traffic Act. The appellant was fined $500.
(e)Charge 48637 – 'on 10 October 2012 at Bayswater, [the appellant] wilfully drove a motor vehicle, namely a Nissan coupe registered number RX14WA on a road, namely Guildford Road, in a manner that was, having regard to all of the circumstances, dangerous to the public or to any person', contrary to s 60(1) of the Road Traffic Act. The appellant was sentenced to 6 months' imprisonment concurrent. He was disqualified from holding a driver's licence for a period of 2 years concurrent.
(f)Charge 48638 – 'on 10 September 2012 at Perth, [the appellant], without reasonable cause, failed to appear at the Perth Magistrates Court and failed to appear as soon as practicable thereafter, such appearance being a requirement of a bail undertaking entered into by him on 25 June 2012', contrary to s 51(2) of the Bail Act 1982 (WA). The appellant was sentenced to a term of imprisonment of 1 month concurrent.
(g)Charge 48640 – 'on 26 September 2012 at East Perth, [the appellant] stole an iPod Nano to the value of $169, the property of Lap Kwan Chan', contrary to s 378 of the Criminal Code. A fine of $250 was imposed.
(h)Charge 48641 – 'on 26 September 2012 at East Perth, [the appellant] unlawfully damaged the property of Carl Casilli, being a motor vehicle registration IDFH830, valued at $300', contrary to s 445 of the Criminal Code. The appellant was sentenced to a term of imprisonment of 1 month concurrent and ordered to pay $9,000 in restitution.
The total effective sentence imposed by the learned magistrate was 2 years' imprisonment, backdated to 11 October 2012. The appellant was made eligible for parole.
The proposed grounds of appeal
The appellant appeals from the sentences of imprisonment imposed for charges 48633 (stealing a motor vehicle and reckless driving); charge 48634 (dangerous driving occasioning bodily harm); charge 48635 (driving while not authorised to do so); charge 48637 (dangerous driving) and charge 48638 (breach of a bail undertaking).
By his notice of appeal, the appellant sought leave to appeal on a single ground: that, 'the sentence imposed was manifestly excessive when considered in the light of the circumstances of the offending, the personal circumstances of the appellant and sentencing standards'. However, the appellant raised a question of parity at the first hearing of the appeal: that there was a lack of parity with the sentence that had been imposed on another offender, Robert Wayne Ninyette, who actually stole the motor vehicle that was the subject of charge 48633 (the Nissan Coupe).
Mr Ninyette had pleaded guilty to a charge of stealing the Nissan Coupe and driving it recklessly. He was sentenced on 5 March 2013 to a term of immediate imprisonment of 12 months. He was also sentenced on that date on a number of other charges, including a charge of receiving the Nissan Coupe. He was sentenced to a term of 6 months imprisonment for that offence, the term to be served concurrently with the term imposed for stealing the vehicle.
The hearing of the appeal was adjourned to enable a transcript of the sentencing of Mr Ninyette to be obtained. The parties were then provided with an opportunity to make further submissions on the question of parity.
Section 8(1) of the Criminal Appeals Act 2004 (WA) (the Act) provides that an appeal from a decision of a court of summary jurisdiction (as specified by s 6) may be made on grounds that include that the court made an error of law or fact or imposed a sentence that was excessive. I have treated the appellant's appeal as raising two proposed grounds of appeal, both involving an allegation that the sentence was excessive for the purpose of s 8(1).
An allegation that a sentence is manifestly excessive is an assertion of implied error derived from the fact that the sentence exceeds the range reasonably available to the sentencing judicial officer in the exercise of a sound discretionary judgment: Gillespie v The State of Western Australia [2013] WASCA 149; (2013) 45 WAR 207 [204] (Martin CJ); Vagh v The State of Western Australia [2007] WASCA 17. It is an allegation that the sentence imposed is so unreasonable or unjust that the appeal court must conclude that a substantial wrong has occurred even though it is not possible to identify the exact nature of the error: Morcom v The State of Western Australia [2013] WASCA 31 [31]. That is the ground of appeal alleged by the appellant in his notice of appeal.
There was no submission made to the learned magistrate about the sentence imposed on Mr Ninyette and his Honour did not refer to the sentence in his remarks. However, the respondent did not object to the appellant raising the question of parity for the first time in the appeal.
It will be apparent that the learned magistrate treated the sentence imposed on charge 48633 as the head sentence. Accordingly, the gist of the appellant's appeal was that the sentence imposed on that charge was manifestly excessive.
The result
The appellant commenced his appeal outside the time prescribed by s 10(3) of the Act. He made an affidavit in which he explained the circumstances in which his appeal had been commenced out of time. I am satisfied by that explanation that the appellant should be given leave to commence his appeal out of time.
Section 9(1) of the Act provides that the leave of the Supreme Court is required for each ground of appeal in an appeal from a court of summary jurisdiction. The court must not give leave to appeal on a ground of appeal unless it is satisfied that the ground has a reasonable prospect of succeeding: s 9(2). A ground must have a rational and logical prospect of succeeding, or a real prospect of success, to have a reasonable prospect of succeeding: Samuels v The State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473 [25] ‑ [61], especially [56]. The appeal is taken to have been dismissed unless the Supreme Court gives leave to appeal on at least one ground of appeal: s 9(3).
I have treated the appellant's appeal as raising two possible grounds. In my view, there was a rational and logical prospect of the appeal succeeding on either of those grounds and I grant the appellant leave to appeal. However, I have found that the appeal should be dismissed for the reasons that follow.
The other offences
There were other charges to which the appellant pleaded guilty on 15 March 2013: charges 602 of 2013 to 605 of 2013 (criminal damage); charge 56903 of 2011 (breach of a police order); charge 56904 of 2011 (aggravated common assault) and charge 5562 of 2012 (driving while suspended). Charges 56903 and 5562 alleged that the appellant had committed offences in December 2011. Consequently, there was also a charge before the learned magistrate on which a plea of guilty had been entered on 14 September 2011 and for which the appellant had been sentenced to 8 months' imprisonment, suspended for 6 months: charge 6422 of 2011 (driving while suspended). The appellant admitted by his pleas of guilty to charges 56903 and 5562 that he had breached the conditionally suspended imprisonment order made on charge 6422.
The learned magistrate adjourned the sentencing hearing for those charges to 18 March 2013. At the adjourned hearing, his Honour activated the suspended term of imprisonment; imposed a term of 2 months' imprisonment cumulative in respect of charge 602 of 2013 and imposed other terms of imprisonment to be served concurrently. Accordingly, a total effective sentence of 10 months imprisonment was imposed (18 March 2013, ts 16 ‑ 17).
The appellant had been in custody since 9 October 2012. He had been arrested on that date and held in custody in relation to the charges that were incorporated into the prosecution notice dated 10 October 2012. The learned magistrate indicated, in sentencing the appellant on 18 March 2013, that he had made some allowance for the fact that the appellant had been in custody since October 2012, notwithstanding that he had been held in relation to other offences than for those for which he was being sentenced. His Honour said:
I make clear to you I've proceeded on the basis that there is no time in custody to be taken into account per se, but I have also factored into account that there is some time in custody, albeit that you were in custody for other reasons. I have factored into account and given some discretion in my sentencing exercise in fixing those terms of imprisonment that I have just announced (18 March 2013, ts 17).
However, the learned magistrate did not indicate the extent to which he had adjusted the sentences to reflect the fact that the appellant had been detained in custody for some time.
The facts of the offending
The facts alleged by the prosecutor in respect of the offences committed on 10 October 2012 were that police had observed the Nissan Coupe travelling at high speed on Guildford Road, Bayswater, at approximately midday. The appellant was driving the vehicle. It had been stolen the previous night or some time earlier on the morning of 10 October. As has been mentioned, it was not alleged that the appellant stole the vehicle but rather, that he had used the vehicle knowing that it had been stolen.
A police car followed the Nissan Coupe along Guildford Road with its emergency lights and siren activated. The Nissan Coupe immediately accelerated, veered onto the wrong side of the road in order to overtake other vehicles and travelled at considerable speed - 'well over 140 km an hour' (9 May 2013, ts 5). The vehicle passed through an intersection at high speed.
Another vehicle pulled out of a side street into Guildford Road in front of the Nissan Coupe. The appellant applied the vehicle's brakes and skidded into the rear of the other vehicle, causing that vehicle to catapult over the median strip.
The appellant was taken into custody. It was subsequently ascertained that his driver's licence had been cancelled on 14 September 2011.
The appellant was represented at the hearing on 9 May 2013 and a plea in mitigation was made on his behalf. It was stated in the plea that Mr Ninyette had taken the Nissan Coupe to the appellant's residence and had indicated to him that he needed the vehicle to be moved. The appellant realised by looking at the vehicle that there had been some damage to the steering lock and inferred that it had been stolen. Mr Ninyette had behaved in a threatening manner towards the appellant and had demanded that he drive the vehicle. However, the appellant's counsel did not further explain the nature of the threats allegedly made by Mr Ninyette. In the course of the appeal, the appellant stated that he could not recall what was actually stated but that the threats were ' pretty full on' and were sufficient to induce him to drive the car (ts 19 ‑ 20).
It was submitted that the appellant had panicked when the police commenced chasing the Nissan Coupe. He had endeavoured to escape from their pursuit as a result.
The sentencing of the appellant
Mitigating factors
It was said that the appellant was in full‑time employment as a plasterer at the time of the offences. He was in a stable relationship but had 'relapsed into mixing with negative peers' about three to four weeks prior to the offences being committed. He had re-commenced using amphetamines as a result (9 May 2013, ts 7).
It was also said the appellant understood and accepted that an immediate term of imprisonment was the only appropriate sentence. However, it was submitted that the term imposed should reflect certain mitigating factors: the appellant had employment on his release; he had an ability to make restitution; he was supported by his partner and he presented 'as somebody who really needs to turn his life around. A four week relapse has led him to some serious offending' (ts 8).
The appellant appeared before a different magistrate on 9 May 2013 to the magistrate who had taken his pleas and sentenced him on 18 March 2013. Accordingly, the court was advised at the hearing on 9 May 2013 of the total effective sentence that had been imposed on 18 March and the fact that the term of imprisonment had not been backdated. It was submitted by the appellant's counsel that:
… there was some leniency shown by the sentencing magistrate on that occasion, and I would ask your Honour to exhibit a similar degree of leniency only for this reason: Mr Whitelaw, who had been working and does have work to go to immediately upon his release, does have the ability to make restitution upon his release to those people who have been affected by his criminal conduct. (ts 7)
The learned magistrate's sentencing remarks
The appellant has an extensive criminal record, including convictions for stealing motor vehicles. His record no doubt explained the learned magistrate's opening remarks that were to the effect that the appellant had spent much time wasting his life in prison. He then referred to the risk that the appellant's behaviour posed to possible victims and observed:
You've been putting people's lives at risk, and there's no point saying to me if you cause injury, oh, I'm sorry. Okay? If I was a victim, that wouldn't cut it with me I can assure you, because my life's been stuffed up.
…
--- because you simply haven't been able to sort of control your own actions.
And as I say, until – you're in a situation, Mr Whitelaw that until such time as that happens you can put, you know, five years behind you. You might do something, hopefully not as serious as this one, after five years the court can say, well, look, he has made a genuine effort to change his life and not – you know, and then I can be sympathetic to you. I can't be sympathetic to somebody over an extended period of time who continues to come before the court with these sorts of offences which, as I say, cause misery to many others. I just hope that this may well be at the time when you reconsider your future before it's too late (ts 9).
The learned magistrate indicated that he would take into account the appellant's pleas of guilty, accepting that there had been a 'legitimate issue' in relation to the charge to which the appellant had changed his plea. His Honour stated that he would reduce the term of imprisonment that he would otherwise have imposed for the offence of stealing a motor vehicle and reckless driving (charge 48633) by 20% or 6 months on account of the appellant's plea of guilty. As has been noted, that sentence was treated as the head sentence with the terms of imprisonment imposed for the other offences to be served concurrently.
The terms of imprisonment to which the appellant was sentenced were backdated to 11 October 2012. The effect of the backdating was that:
(a)the time spent in custody between 12 October 2012 and 18 March 2013 (approximately 5 months) counted towards completion of the sentences imposed on 9 May 2013;
(b)the time spent in custody from 18 March 2013 onwards counted towards completion of the sentences that had been imposed on 18 March and 9 May 2013;
(c)the sentences imposed on 18 March were effectively made concurrent with the sentences imposed on 9 May 2013.
The relevant legal principles
Appeals against sentence
The principles relevant to an appeal against sentence were identified by the Court of Appeal in Wilson v The State of Western Australia [2010] WASC 82. The Court of Appeal stated at [2]:
1.The imposition of a sentence involves the exercise of a discretion. An appellate court can only intervene if the appellant demonstrates that the judge erred in exercising the discretion in one of two ways. The first is called express error and it involves acting on a wrong principle, for example, by mistaking the law, mistaking the facts, taking into account an irrelevant matter or failing to take into account a relevant consideration. The second is referred to as implied or inferred error. It arises where, although it is not possible to discover the exact nature of the error, the end result is so unreasonable or unjust that the court must conclude that a substantial wrong has occurred: House v The King (1936) 55 CLR 499, 505. In most instances a challenge based on implied error will involve the contention that an individual sentence is manifestly excessive (or inadequate) and (or) that the total effective term imposed for all charges offends the totality principle.
2.It follows that the appeal court will not intervene simply because the members of the court, had they been sentencing the offender at the original hearing, might have imposed a different sentence: House, 505.
3.Even if error is demonstrated the appellate court can intervene only if it is satisfied that a different sentence should have been imposed at the original hearing: Criminal Appeals Act s 31(4)(a).
Section 14(2) of the Act provides that even if a ground of appeal might be decided in favour of the appellant, the Supreme Court may dismiss the appeal if it considers that no substantial miscarriage of justice has occurred. Murray J observed in Able Lott Holdings Pty Ltd v City of Fremantle [2011] WASC 87 that:
In relation to an appeal against sentence, that power may be restated by the proposition that, although it may be found that the magistrate has erred in some respect bearing upon the exercise of the sentencing discretion, if, nonetheless, absent the error and upon the factual basis which ought to have been found, the sentences should be upheld as within the range of a proper exercise of sentencing discretion, then the appeal should be dismissed [41].
That statement accords with the propositions identified by the Court of Appeal in Wilson. Similarly, Hall J stated in Plant v Harrington [2010] WASC 364:
In submissions it was suggested that if I formed the view that a suspended sentence was not inappropriate then it followed that there must have been error on the part of the magistrate. Whilst I readily accept that it would not be appropriate to impose a sentence of imprisonment to be served unless a suspended sentence had been excluded, it does not follow that my own view of what outcomes may be appropriate must necessarily prevail. If that were the case then the deference accorded to discretionary decisions would be undermined.
The very existence of a discretion presupposes that sentences other than that imposed may have been open. I accept that the discretion is constrained by the requirements of s 39 of the Sentencing Act. However, the discretion of the primary sentencer does not only operate at the level of determining the final disposition. It also operates in determining what weight is to be given to relevant factors. In this regard I refer to what was said by Roberts-Smith JA in Vagh v The State of Western Australia at [47]:
The attribution of weight to one or more factors in a combination of factors is the very essence of discretionary judgment and (in the absence of a statutory requirement), ordinarily not to be quantified in sentencing (Markarian v The Queen (2005) 79 ALJR 1048). So the question can only be whether, having regard to all those relevant factors, the sentence imposed falls so far outside the range of sentences for offences of the kind as to lead to the conclusion that some error in the exercise of the discretion must have been made even though it cannot be identified (Cranssen v The King (1936) 55 CLR 509; House v The King (1936) 55 CLR 499).
An appellate judge must avoid the risk of too readily concluding that there was error on the basis of his or her own assessment of the circumstances. Accordingly, in my view, the appropriate question is not whether the appellate court considers on its own assessment of the circumstances that it was open to impose a suspended sentence but whether it was reasonably open to the magistrate to take a view of the facts and circumstances that would result in a conclusion that a suspended sentence was not appropriate [34] – [36].
Manifestly excessive
In determining whether a sentence was manifestly excessive, regard is to be had to the maximum sentence prescribed by law for the crime; the standards of sentencing customarily observed with respect to the crime; the place which the criminal conduct occupies on a scale of seriousness for crimes of that type and the personal circumstances of the offender: McDougall v The State of Western Australia [2009] WASCA 232 [13]. Manifest excess is not determined by reference to the reasons or reasoning of the sentencing judge: Trompler v The State of Western Australia [2008] WASCA 265 [32] (McLure JA).
Parity
As has been noted, the appellant's counsel made no reference in his submissions on sentencing to the sentence imposed on Mr Ninyette. The appellant explained that he was not aware of the sentence that had been imposed on Mr Ninyette until after 9 May 2013. It follows that no inquiries had been made about the sentence received by Mr Ninyette prior to the appellant being sentenced.
The principle of parity in sentencing does not require that co‑offenders receive identical sentences. The principle is only infringed if the sentence imposed on one offender, when compared to that imposed on a co‑offender, gives rise to a justifiable sense of grievance on the part of the offender who received the greater penalty: Nicolaides v The State of Western Australia [2012] WASCA 199 [102] (Buss JA, Mazza JA agreeing). Whether there is a justifiable sense of grievance must be determined by taking into account the application and effect of all relevant sentencing principles: Jardim v The State of Western Australia [2011] WASCA 83 [12] ‑ [13] (McLure P, Pullin JA agreeing). As Gibbs CJ explained in Lowe v The Queen [1984] HCA 46; (1984) 154 CLR 606:
It is obviously desirable that persons who have been parties to the same offence should, if other things are equal, receive the same sentence, but other things are not always equal, and such matters as the age, background, previous criminal history and general character of the offender, and the part that he or she played in the commission of the offence, have to be taken into account (609).
Ground 1: manifest excess
Maximum penalty and sentencing range
Section 378 of the Criminal Code provides that any person who steals anything capable of being stolen is guilty of a crime. Section 378(2)(a) further provides that if the thing stolen is a motor vehicle and the offender wilfully drives the vehicle in a manner that constitutes an offence under s 60 of the Road Traffic Act, the offender is liable to imprisonment for 8 years.
In Hume v The Queen [2000] WASCA 306, Wheeler J (with whom Pidgeon and Ipp JJ agreed) observed:
In relation to the offence of stealing a motor vehicle aggravated by reckless driving, the court has observed that this offence involves 'a calculated disregard for the lives, safety and property of others, the authority of the police and the public concern as to the prevalence and demonstrated dangers of so driving': Franklyn J, Bropho v The Queen, unreported; CCA SCt of WA; Library No 940197; 14 April 1994.
Sentences in the range of four to six years have been imposed in respect of offences of this kind, where the court considers the driving to be a serious example of reckless driving towards the upper range of such conduct, even where a plea of guilty has been entered at the earliest opportunity; see Howard v The Queen, unreported; CCA SCt of WA; Library No 960638; 7 November 1996, McColgan v The Queen, unreported; CCA SCt of WA; Library No 970035; 6 February 1997, Dewar v The Queen, unreported; CCA SCt of WA; Library No 970662; 2 December 1997 and Colbung v The Queen [1999] WASCA 138. However, it appears to be more common for a starting point of the order of 6 years to be adopted, and for the ultimate sentence imposed to be of 4 ‑ 5 years, depending upon the discount which is thought appropriate in the circumstances [14] ‑ [15].
In Hansen v Pikkert [2012] WASC 424, Hall J referred to the range of sentencing identified by Wheeler J in Hume as indicating the range of sentences commonly imposed for stealing a motor vehicle, aggravated by reckless driving [21]. That is, his Honour accepted that the range suggested by Wheeler J in Hume was still indicative of the range of sentences customarily imposed for the offence.
It is relevant to note in this context the comments of Martin CJ in Fullgrabe v The State of Western Australia [2006] WASCA 138:
It follows then that [the term imposed by the sentencing judge] would be justified if it could be concluded that the offence committed by the appellant was within the category of the most serious offences of its kind and that there were no mitigating circumstances other than the early plea of guilty. … For my part, I have no hesitation in expressing the view that the appellant's conduct in stealing and recklessly driving the four‑wheel drive vehicle was amongst the most serious which could be imagined in respect of this kind of offence. For a substantial period during the middle of a day, the appellant drove a heavy and powerful vehicle recklessly through the suburbs of Perth, endangering the lives of innocent road users in a desperate and forlorn attempt to make good his escape. It is entirely fortuitous that no other road user was in fact injured or killed. This community has seen far too many tragic circumstances from desperate attempts to outrun the police to be at all tolerant of such dangerous conduct. Both the need to deter others who might be minded to commit similar offences and the specific need to deter the appellant from conduct of this kind, justify the imposition of a severe sentence [33].
The sentencing judge in Fullgrabe had imposed a term of imprisonment of 4 years. The Chief Justice indicated that he would have had no hesitation in concluding that the sentence imposed was within the range of sentences open to the sentencing judge and did not reveal any error in principle but for the sentencing judge's failure to take into account the effect of the appellant's parole being revoked.
The facts in Fullgrabe were that the appellant and other prisoners had escaped from the holding cells of the Supreme Court. A group of the escapees then stole a four‑wheel drive vehicle. The appellant was driving the vehicle when it was spotted by police. The police activated the emergency lights on their vehicle and the appellant drove away at speed through a red traffic light. The police pursued the vehicle through various suburbs, with the appellant, at times, driving on the incorrect side of the road at speeds of 100 kph or more. He drove through a road block that had been set up by the police, causing officers to take evasive action. He also drove onto a freeway and, at times, the vehicle was driven at speed on the wrong side of the lanes of the freeway. The vehicle was eventually stopped through the use of a set of 'stingers' at a road block set up on the freeway.
I accept that the facts in Fullgrabe disclose offending of a more serious kind than that involved in the offence committed by the appellant. Nevertheless, the appellant was involved in a police pursuit during which he drove the Nissan Coupe at high speeds and, at times, on the wrong side of a busy road. The Chief Justice's observations regarding the seriousness of this kind of offence and the need for general and specific deterrence are obviously relevant to this appeal.
There are a number of other cases in which the Court of Appeal has considered appeals against sentence where the appellant has been convicted of stealing a motor vehicle and driving the vehicle recklessly while being pursued by the police. I have reviewed the following cases:
(a)Colbung v The Queen [1999] WASCA 138 - a term of imprisonment of 5 to 6 years before considering the appellant's personal circumstances was said to be appropriate.
(b)Boyd v The Queen [2002] WASCA 239 - an appeal against sentence of 18 months was dismissed.
(c)Penny v The State of Western Australia [2006] WASCA 173; (2006) 33 WAR 48 - a sentence of 3 years imprisonment for stealing a motor vehicle and driving it recklessly was said to be well within a sound discretionary range [19] (McLure JA) and the appropriate starting point for taking into account mitigatory factors and the application of the transitional provisions [112] (Buss JA).
(d)Karolides v The State of Western Australia [2006] WASCA 240 - a term of imprisonment of 3 years was imposed by the sentencing judge as part of sentencing the appellant for a number of offences. The total effective sentence was upheld on appeal. The issue in the appeal was totality rather than the terms imposed for individual offences. The sentence was 'post-transitional'.
(e)Brown v The State of Western Australia [2010] WASCA 228 - a sentence of 16 months imprisonment was imposed. The total effective sentence was upheld on appeal where, again, totality was the issue.
(f)Narrier v The State of Western Australia [2011] WASCA 193 - a sentence of 2 years' imprisonment was imposed. The sentence was not challenge on appeal – the issue on appeal was totality.
A review of cases to determine the pattern of sentencing for an offence where it is asserted on appeal that the sentence imposed was manifestly excessive involves a complex and multi-faceted comparative exercise: see, for example, the comments of Pullin JA in The State of Western Australia v Atherton [2009] WASCA 148 [27]. Further, as Wheeler JA observed in Hume:
…it is very difficult to compare offences of reckless driving. In particular, however bad the driving may be, it is always possible to imagine a worse case – higher speeds, or a longer pursuit, or contravention of a greater number of road traffic signs or traffic control lights or the like. The particular circumstances of each offence will be of considerable importance, and an examination of the cases to which I have referred reveals that, even between serious offences characterised as being at the higher end of the scale, there is significant variation. [17]
Nevertheless, the learned magistrate's starting point of 30 months' imprisonment prior to reducing the sentence for his plea of guilty was within the range customarily imposed for the offence.
The seriousness of the offending
The offence is stealing a motor vehicle, aggravated by reckless driving. The fact that the reckless driving occurred in the course of a police pursuit is, in my view, a circumstance that places the offending at the more serious end of a notional scale of seriousness for the offence before the actual recklessness of the driving is considered. That is for the reasons identified by the Chief Justice in Fullgrabe.
As for the recklessness of the appellant's driving, I accept that it was not as grossly reckless as in cases such as Fullgrabe or Narrier (where Mazza JA described the appellant in that appeal as having used a stolen vehicle, in effect, as a weapon to avoid apprehension by the police [36]). However, the police pursuit ended only when the appellant collided with another vehicle. It was not suggested that the driver of that vehicle was injured but the risk of serious injury was obvious.
The appellant's personal circumstances
The mitigating factors concerning the appellant's personal circumstances that were identified in his counsel's submissions to the learned magistrate have already been noted. In addition to those matters, the appellant stated that the offences that he committed in September and October 2012 were due to his escalating use of methylamphetamine. That impaired his decision‑making. He explained that his increased use of methylamphetamine had been precipitated by domestic crises involving his sister and his partner.
I accept the appellant's statements about those matters. However, the effect of an illicit substance on an offender's state of mind does not excuse the offending. It merely provides a possible explanation.
The appellant was 30 years of age as at October 2012. He was first convicted of offences in March 1998 – stealing a motor vehicle and driving without a motor vehicle driver's licence. He was convicted of further offences as a juvenile between 1998 and 2000, including on a number of charges of stealing motor vehicles. He was first convicted of offences as an adult in February 2001 – stealing a motor vehicle, stealing, aggravated burglary and possession of amphetamines. He was sentenced in the District Court to a total effective sentence of 18 months.
The appellant was convicted in March 2002 on four charges of stealing motor vehicles, 12 counts of burglary, stealing and possessing a prohibited drug. He was sentenced to a total of 4 years' imprisonment, including 12 months concurrent on each charge of stealing a motor vehicle.
The appellant was again convicted in August 2004 of stealing a motor vehicle, stealing and aggravated burglary. He was convicted of traffic offences in November 2006 and attempted robbery in February 2007. Those convictions were recorded in various Courts of Petty Sessions. He was convicted in the District Court in January 2008 of various offences including on two counts of stealing a motor vehicle, two counts of burglary and one count of robbery with violence. He was sentenced to 4 years and 2 months' imprisonment. That sentence included a term of imprisonment of 10 months for one of the stealing motor vehicle offences that was ordered to be served cumulatively on the sentence imposed for robbery.
The appellant was convicted of driving offences, unlawful damage and stealing in February 2008 and of driving without authority in September 2011. He was convicted of breaching his bail undertakings in April 2012. Finally, he was convicted of the offences for which he was sentenced on 18 March 2012. All of those convictions were recorded in the Magistrates Court.
In my view, some weight ought to have accorded to the mitigating factors that were identified by the appellant's counsel in his submissions to the learned magistrate. It would appear that the nature of the appellant's offending is associated with substance abuse. The fact that the appellant had been in employment and in a stable relationship were factors that were obviously relevant to assessing his prospects of rehabilitation. However, the learned magistrate was entitled to take a guarded view about those prospects having regard to the appellant's criminal history. The offending could not have been regarded as uncharacteristic.
Totality
Although the focus of the appellant's appeal was on the sentence imposed for the offence of stealing a motor vehicle, that sentence was the head sentence for the purpose of sentencing the appellant for a number of offences. The maximum penalties for the other offences for which the appellant was convicted were 9 months' imprisonment - dangerous driving, s 59A(1) of the Road Traffic Act); 12 months' imprisonment - driving without authority; a fine of 48 PU – failing to stop (the appellant has a previous offence); 9 months' imprisonment – reckless driving (the appellant has a previous offence); breach of bail – 3 years' imprisonment and a fine of $10,000; 7 years' imprisonment – stealing and 2 years and a fine of $24,000.
The driving offences formed part of a single criminal enterprise with the stealing of the motor vehicle. The remaining offences were separate events.
As has been explained, the effect of backdating the sentences was that all of the terms of imprisonment imposed on 18 March 2013 and 9 May 2013 have been served concurrently. That was notwithstanding that the learned magistrate had made some allowance for the fact that the appellant had been in custody since October 2012 when he sentenced the appellant on 9 May 2013. The appellant has had the benefit of the time that he spent in custody taken into account twice in his favour.
Ground 2: the sentencing of Mr Ninyette
The statement of material facts in respect of the theft of the Nissan Coupe to which Mr Ninyette pleaded guilty alleged that the vehicle had been stolen sometime after 11.30 pm on 9 October 2012. Mr Ninyette was observed between 7.00 am and 11.00 am the following day driving the vehicle at high speed along several streets in the metropolitan area, including Tonkin Highway and Guildford Road. He was observed to negotiate several roundabouts and corners at high speed, causing the wheels to spin and the vehicle to slide sideways.
Mr Ninyette pleaded guilty to a number of other offences at the same time that he pleaded guilty to stealing the Nissan Coupe and driving that vehicle recklessly. Mr Ninyette was 22 years of age at the time of the offence. The learned magistrate noted that Mr Ninyette had not been previously sentenced to a term of imprisonment. He had been sentenced to a suspended term of imprisonment in September 2012 for an offence that involved 'a very serious high speed chase in a stolen car' (5 March 2013, ts 2). The learned magistrate activated that sentence and, as has been noted, sentenced Mr Ninyette to 12 months' imprisonment cumulative. The term of imprisonment of 12 months reflected a reduction of 3 months on account of Mr Ninyette's plea of guilty and other mitigating factors.
Mr Ninyette was not strictly a co-offender in the offences committed by the appellant; Gibbs CJ referred in Lowe to persons who have been parties to the same offence. Nevertheless, the sentence imposed on Mr Ninyette was, in my view, a relevant consideration in sentencing the appellant given that Mr Ninyette had:
(a) stolen the Nissan Coupe the night before the offence committed by the appellant;
(b)driven the vehicle on the day of the offence to the premises at which the appellant was residing; and
(c)coerced the appellant into driving the vehicle.
However, the connections between Mr Ninyette's offending and that of the appellant provide only one point of comparison. There were obvious differences in his personal circumstances – relative youth and seemly, some mitigation in his criminal record in that he had not been previously sentenced to a term of imprisonment. Further, there were some differences in the circumstances of the offending. It was not alleged that Mr Ninyette had been involved in a high speed police pursuit despite the fact that his driving was observed by police.
Conclusion
The appellant's allegation in the appeal is that the sentence imposed by the learned magistrate for the offence of stealing a motor vehicle and reckless driving was excessive, with the result that the terms of imprisonment imposed for the offences for which he was sentenced on 9 May 2013 were excessive. The sentenced imposed was either manifestly excessive (implied error) and/or excessive when the sentence imposed on Mr Ninyette is considered.
The appellant's counsel rightly conceded in his sentencing submissions that an immediate term of imprisonment was the only appropriate sentencing disposition. In my view, the starting point of 30 months' imprisonment adopted by the learned magistrate for sentencing the appellant for the offence of stealing a motor vehicle, aggravated by reckless driving was within the appropriate discretionary range of sentences having regard to the following matters:
(a)The maximum penalty and the range of sentences customarily imposed for the offence. The nature of the offence is such that general deterrence and the need to protect the community are obvious by significant factors for sentencing.
(b)The circumstances of the offending. The aggravating circumstance of reckless driving was committed during a police pursuit. The Nissan Coupe was driven at speed and, at times, on the wrong side of a busy road in the middle of the day. The vehicle collided with another vehicle. The risk to the public caused by the appellant's driving was obvious. Those matters reinforce the significance of general deterrence and the protection of the community as relevant factors for sentencing. The need to protect police officers acting in the course of their duty was also a relevant consideration.
(c)The appellant's criminal history. The appellant is not, of course, to be punished because of his criminal record. However, his criminal history indicates that personal deterrence was a relevant factor in sentencing him.
The learned magistrate reduced the sentence that would have otherwise been imposed by 20% on account of the appellant's plea of guilty. There is no challenge to that allowance – and the appellant would have had no basis for contending that the allowance ought to have been greater.
I have indicated that, in my view, some weight ought to have been given to the mitigating factors identified by the appellant's counsel in his submissions on sentence. It is not clear from the learned magistrate's sentencing remarks whether he gave no weight or only minimal weight to those factors. However, in the absence of a failure to exercise the discretion vested in a sentencing judicial officer, a weighting error is not an independent ground that justifies appellate intervention. Rather, it is a conclusion that is implicit in and flows from a finding that a sentence is manifestly excessive: Trinh v The Queen [2013] WASCA 258 [22] (Mazza JA).
I have also concluded that the sentence imposed on Mr Ninyette was a relevant sentencing consideration but that there were significant differences in the circumstances of the offending and the antecedents of the appellant and Mr Ninyette.
The ultimate issue on an appeal against sentence is whether the sentence imposed was within the range of a proper exercise of the sentencing discretion. I am unable to conclude that the sentences imposed on the appellant fell outside the range of sentences that were reasonably open to the learned magistrate in the proper exercise of his sentencing discretion so as to be manifestly excessive. I have reached that view having regard to all of the relevant sentencing considerations, including the effect of the backdating of the sentences on the totality of the sentences imposed on 18 March and 9 May 2013.
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