Zahra v The Queen

[2002] WASCA 348

ZAHRA -v- THE QUEEN [2002] WASCA 348

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2002] WASCA 348
Court:	COURT OF CRIMINAL APPEAL
Case No:	CCA:171/2002	Heard:	4 DECEMBER 2002
Coram:	MALCOLM CJ STEYTLER J TEMPLEMAN J	Delivered:	16/12/02
No of pages:	6	Judgment Part:	1 of 1
Result:	Application for leave to appeal granted Appeal allowed
Category:	B
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Parties:	DAVID ANTHONY ZAHRA THE QUEEN
Catchwords:	Criminal law and procedure Sentencing Stealing with violence Whether sentence imposed manifestly excessive Turns on own facts
Legislation:	Nil
Case References:	Nil Dinsdale v The Queen (2000) 202 CLR 321 Etrelezis v The Queen [2001] WASCA 327 Miles v The Queen (1997) 17 WAR 518 Wood v The Queen [2002] WASCA 95

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : COURT OF CRIMINAL APPEAL CITATION : ZAHRA -v- THE QUEEN [2002] WASCA 348 CORAM : MALCOLM CJ

STEYTLER J
TEMPLEMAN J

HEARD : 4 DECEMBER 2002 DELIVERED : 16 DECEMBER 2002 FILE NO/S : CCA 171 of 2002 BETWEEN : DAVID ANTHONY ZAHRA

Applicant

AND

THE QUEEN
Respondent

Catchwords:

Criminal law and procedure - Sentencing - Stealing with violence - Whether sentence imposed manifestly excessive - Turns on own facts

Legislation:

Nil

Result:

Application for leave to appeal granted

Appeal allowed

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Category: B

Representation:

Counsel:

Applicant : Ms C S Amsden
Respondent : Mr K P Bates

Solicitors:

Applicant : Legal Aid of Western Australia
Respondent : State Director of Public Prosecutions

Case(s) referred to in judgment(s):

Nil

Case(s) also cited:

Dinsdale v The Queen (2000) 202 CLR 321
Etrelezis v The Queen [2001] WASCA 327
Miles v The Queen (1997) 17 WAR 518
Wood v The Queen [2002] WASCA 95

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1 JUDGMENT OF THE COURT: On 1 August 2002 the applicant was convicted of one count of stealing with violence. On 30 August 2002 he was sentenced to a term of 3 years and 6 months' imprisonment, backdated to 21 May 2002, upon which date he had been taken into custody. He was made eligible for parole. He has applied for leave to appeal against that sentence.

2 In his grounds of appeal the applicant raised only one ground, being to the effect that a sentence of imprisonment to be served immediately was not the only appropriate sentence. However, during the course of the appeal, counsel for the applicant amended the grounds of appeal to raise a contention that the term of 3 years and 6 months' imprisonment imposed upon the applicant was manifestly excessive in the circumstances. In the end, that was the only ground which was pursued.

3 The circumstances of the offence were somewhat unusual. During the afternoon on 13 May 2002 the applicant drove his vehicle into a service station in George Street, Kalgoorlie and there filled it up with 60 litres of unleaded petrol. Having done so, he poured some petrol from the bowser onto the ground. He then moved his vehicle and parked it nearby. He walked back to the bowser, at which point he was approached by a staff member who asked him what he was doing. He said, "I'm going to blow this place up." He had a box of matches in his hand with a match ready to strike on the box. Upon further questioning by another staff member, he said that he did not want to pay for his fuel. The staff members allowed him to return to his vehicle and drive away.

4 What makes the offence extraordinary is that there seems to be no rational explanation as to why, if he wished only to steal the fuel, the applicant did not simply drive away in the first place. The applicant's counsel told the sentencing Judge, without challenge by the Crown, that the applicant had never intended to follow through on his threat.

5 The applicant was arrested and charged with the offence eight days later, on 21 May 2002. He thereupon pleaded guilty on the "fast track" at the earliest opportunity and co-operated with the authorities. Because his subsequent incarceration prevented him from working, his car, on which he owed $34,000, has been re-possessed and he is now effectively bankrupt.

6 He was, at the time of his conviction, 32 years of age. His childhood appears to have been uneventful save that, shortly after leaving school at the age of 15, he was very badly burned, requiring hospitalisation for

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six months, when the fuel tank on a motorbike upon which he was working exploded.

7 At the time of the offence he had travelled to Western Australia from Victoria in order to find work. He had been unable to do so and had run out of money. He had no accommodation other than his motor vehicle and was in a somewhat desperate situation. He wanted to return to Victoria, but had no fuel in his car. He consequently decided to steal it. The sentencing Judge accepted that the offence appeared to be a spontaneous act rather than a planned offence.

8 The sentencing Judge, in the course of his sentencing remarks, took into account the circumstances of the offence. He then turned to the applicant's antecedents. In the course of so doing his Honour mentioned that the applicant (who seemingly suffers from "post traumatic flashbacks" and claustrophobia) did not want any "psychological intervention". He also mentioned a number of minor offences of which the applicant had been convicted, most of these relating to the use of a motor vehicle. His Honour said that, while those offences might not indicate participation in serious crime, they did, nevertheless, appear to show a long-standing disregard of the law and of other people's rights and entitlements. He said that it seemed to him that the applicant showed "an entrenched irresponsibility".

9 His Honour then said that the offence was very serious, given the threat of fire or explosion and its effect on the service station staff and on two other people who had been at the service station at the time of the commission of the offence. He went on to say:

"In imposing sentence I must take into account the need for just punishment, the need to deter you and others from stealing from service stations and generally, an offence which I am afraid is very prevalent, and I must also [take into account] your prospects of rehabilitation and your antecedents. There are a variety of ways in which your case could be dealt with, including release without sentence or a conditional release order or a fine, all of which I consider to be inappropriately lenient having regard to what has happened.

There could be a community based order or an intensive supervision order or a sentence of imprisonment or a suspended sentence. However, in your case I consider that the threat to the staff at the service station and the innocent bystanders who were

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in the car nearby is so grave that only a sentence of imprisonment can be imposed. I sentence you to a period of 3 years and 6 months' imprisonment and I direct that you be eligible for parole."

10 In our respectful opinion, in imposing a sentence of 3 years and 6 months' imprisonment, the sentencing Judge fell into error. He placed too much emphasis on the applicant's prior criminal record, on the gravity of the threat to the staff and bystanders at the service station and on the need to deter others from stealing fuel from service stations.

11 As to the first of these factors, the applicant's record, while it does show some irresponsibility on his part, does not disclose any serious offending and, if anything, demonstrates that this offence was out of character for him.

12 As to the second, in our view, the magnitude of the risk must be assessed on the basis that if the applicant had struck the match, as he threatened to do, he would have been the first person to be caught in an ensuing conflagration. Realistically, therefore, it is unlikely that the applicant would have carried out his threat.

13 As to the third factor, a substantial sentence of imprisonment is, in our view, an excessive deterrent against a first time theft of petrol from a service station, however prevalent that offence might be, even when coupled with the threat to which we have referred. For those reasons, we regard the sentence as manifestly excessive.

14 While the sentencing Judge was inhibited, to some degree (as are we), by the absence of any psychological or psychiatric report, it does seem as though the threat to blow up the service station was, as we have said, an irrational decision made on the spur of the moment in circumstances in which the applicant had decided to steal the petrol with which he had filled his vehicle. Having regard for the spontaneous and irrational nature of that act, the somewhat desperate circumstances in which the applicant then found himself, the fact that the applicant, already 32 years of age, had no criminal record of any significance and the fact of his early plea of guilty and co-operation with the authorities, this would, in our respectful opinion, have been an appropriate case for the imposition of a suspended sentence of imprisonment. However, that is an option which is no longer pursued on behalf of the applicant (who has since been sentenced to a term of imprisonment in respect of a charge of escaping from lawful custody). There being no other disposition which is sensibly

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open than a term of immediate imprisonment, it seems to us that, given the various circumstances to which we have referred, an appropriate term would be one of 18 months' imprisonment.

15 We would consequently grant the application for leave to appeal, allow the appeal, set aside the sentence of imprisonment imposed by the learned sentencing Judge and substitute, in lieu, a sentence of 18 months' imprisonment, backdated to commence on 21 May 2002, with eligibility for parole.