Jurisdiction : SUPREME COURT OF WESTERN AUSTRALIA

Criminal law - Leave to appeal - Sentence - Four counts of deprivation of liberty and one count of aggravated armed robbery - Aggregate sentence of 7 years' imprisonment - Whether manifestly excessive - Obligation of prosecution to make submissions in relation to sentence

Criminal Appeals Act 2004 (WA), s 9(2)

Sentencing Act 1995 (WA), s 32

Abbott v The State of Western Australia [2007] WASCA 105

GMS v The State of Western Australia [2009] WASCA 107

Mejtska v The State of Western Australia [2009] WASCA 80

Miles v The Queen (1997) 17 WAR 518

R v Isaacs (1997) 41 NSWLR 374

Robertson v The State of Western Australia [2009] WASCA 83

Samuels v The State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473

The State of Western Australia v BLM [2009] WASCA 88; (2009) 256 ALR 129

Thompson v The Queen [1999] HCA 43; (1999) 73 ALJR 1319

1 MILLER JA: The appellant was charged on indictment with four counts of deprivation of liberty and one count of aggravated armed robbery. The count of armed robbery alleged the stealing of money with threats of violence whilst armed with offensive or dangerous weapons, namely a knife and a firearm, and in the company of another.

2 The appellant was found guilty after trial on all counts. He was sentenced by the sentencing judge to imprisonment for 4 years in relation to each of the counts of deprivation of liberty and 7 years in relation to the count of aggravated armed robbery. All sentences were ordered to be served concurrently. There was an order for eligibility for parole and the sentence was backdated to 17 December 2008.

3 The facts of the case reveal that the offences occurred on 27 May 2008. They took place at the Sizzler restaurant in Innaloo (Sizzler Innaloo). The appellant was in company with a co-offender, Ty Nathan Robertson.

4 The appellant and Robertson went to Sizzler Innaloo at about 8.50 pm on 27 May 2008. They were both wearing balaclavas, sunglasses and gloves. The appellant was armed with a knife, and Robertson was armed with a sawn-off shotgun. The appellant and Robertson entered the restaurant through the back door, which led into the kitchen area. They entered unnoticed and hid in a women's change room. Shortly afterwards, a young female staff member came across them. She was forced into the staff room, where she was made to sit on a chair. Her wrists were bound with a plastic cable tie. An attempt was made to bind her legs with cable ties, but the attempt was unsuccessful. When the staff member complained that the cable tie around her wrists was too tight, the appellant cut the tie and replaced it. In the course of doing so, he unintentionally cut the staff member on the chest.

5 The detained staff member was questioned about the location of other staff and about the keys to the safe in the restaurant. She told the appellant and his co-offender that the restaurant manager had the keys. They demanded advice as to where he was.

6 Another young female staff member then entered the room. She, too, was made to sit on a chair and her wrists were bound with a cable tie.

7 Shortly afterwards, the appellant and Robertson left the staff room and forced other staff members into a dry store. There were approximately eight staff members who were detained in that area.

8 The restaurant manager and his assistant came to the kitchen looking for missing staff. The restaurant manager was in possession of safe keys. The appellant and Robertson then forced the restaurant manager and his assistant into the office, where the manager was made to open the safe. The assistant manager was forced to go to the front of the restaurant and bring back the cash till. He did this under threat that the manager would be killed if he did not obey.

9 The total amount of money which was taken by the appellant and Robertson was approximately $4,500. It was placed into a bag which they had brought with them. The restaurant manager and his assistant were then forced into the dry store with the other members of staff. All staff members were warned to stay where they were and the appellant and Robertson then left the restaurant through the back door.

10 Police conducted a forensic investigation of the scene and found the presence of DNA on a cable tie which had been cut. This DNA matched that of the appellant. The appellant and Robertson were later arrested. Robertson pleaded guilty, but the appellant proceeded to trial.

11 After the appellant's conviction, the sentencing judge ordered a pre-sentence report. The appellant was then brought before him on 5 June 2009. On that day, counsel for the appellant corrected an error in the pre-sentence report and the appellant's record, and then said that he relied on written submissions. Counsel asked the sentencing judge whether he wanted the submissions read and the following exchange occurred:

BLAXELL J: I have read the submissions from yourself and I have had regard to them. I have also had regard to the letter I received this morning from your client, in which he suggests or he inquires whether it's possible to arrive at some sort of suspended sentence which would allow him to serve in the ADF and I have to tell him that's not possible (indistinct) contents.

CAAMANO, MR: Yes.

BLAXELL J: And I have also received the two references from John Roberts and Cameron Schmah and I have received two victim impact statements from the state. So I have read all the materials, it's just a matter of what you might wish to add.

CAAMANO, MR: No, your Honour.

BLAXELL J: Very well. Yes, Mr Karunaratne?

KARUNARATNE, MR: May it please your Honour; I have nothing further to add.

BLAXELL J: You've got nothing further to add.

KARUNARATNE, MR: No, thank you.

12 The appellant was asked whether he wished to say anything himself and he responded that he did not. The sentencing judge then sentenced the appellant.

13 After reviewing the facts of the case, the sentencing judge turned to matters personal to the appellant. He noted that the appellant was 36 years of age, single and was unemployed at the time of commission of the offences. He had a significant past record of convictions, which included convictions for nine armed robberies in 1996. Terms of imprisonment totalling 10 years were imposed at that time.

14 The sentencing judge was satisfied that the armed robberies for which the appellant was convicted in 1996 were committed because of a serious drug habit. He was also satisfied that the offences for which the appellant was to be sentenced by him had occurred after the appellant's relapse into the same drug habit.

15 The sentencing judge made reference to the pre-sentence report, which fully outlined the appellant's family and background circumstances. It is unnecessary to refer to the appellant's background, save to note that the appellant had commenced a university course in biology and chemistry, but failed to complete that course because of imprisonment. The appellant had otherwise worked as a metallurgical technician and in the crayfishing industry. The sentencing judge concluded that the appellant's drug problem was the major reason for his offending. He said:

Your downfall has been your substance abuse. From the age of 13 you habitually used alcohol and cannabis and when 20 years old you also commenced using heroin. By 1995 you were using heroin daily and it was not long afterwards that you committed the previous armed robberies. These offences involved the use of a starting pistol to rob three post offices, three video stores and three service stations.

After leaving prison you commenced a seven-year relationship with a de facto partner which produced two children. This relationship came to an end when you relapsed into drug use and for the past two years you have had little or no contact with your two daughters.

According to the pre-sentence report, in the period leading up to your arrest for the present offences you were using heroin on a daily basis. Although you have participated in treatment programs in the past, you do not appear to have gained from these interventions. At the present time you are participating once again in a methadone program.

16 The sentencing judge noted that the victims of the appellant's offences were very vulnerable and had no way of defending themselves, particularly as the appellant and Robertson were armed. Mention was made of the psychological damage that victims suffer in armed robberies. Specific reference was made to the contents of the victim impact statements of two of the victims. Each had suffered detrimental psychological effects.

17 The sentencing judge considered that there were a number of aggravating factors which made the offences serious. His Honour said:

There also a number of other aggravating factors which make the offences more serious than they otherwise would have been. You targeted young workers providing a service to the public at night. They were also threatened with violence and two of them had their wrists bound with plastic cable ties. You also inadvertently cut one of the victims with your knife.

All of the offences were clearly premeditated and planned for some time beforehand. Your preparations included the use of balaclavas, sunglasses and gloves. The methodical, systematic manner in which the two of you went about the offences further confirms the extent to which there had been significant preparation and planning. I am unable to find any mitigating factors and in particular there is no evidence of any remorse.

18 The sentencing judge then imposed the sentences to which I have referred, namely, sentences of 4 years' imprisonment on each of the four counts of deprivation of liberty and 7 years' imprisonment in respect of the count of armed robbery.

19 Robertson pleaded guilty to three counts on an indictment and six offences contained in a notice under s 32 of the Sentencing Act 1995 (WA). The indictment contained three counts of armed robbery, which occurred on 18 March, 27 May and 21 June 2008. Robertson was sentenced to 4 years 8 months on the first count, 5 years 4 months on the second count and 4 years 8 months on the third count. Various sentences, including imprisonment and fines, were imposed in relation to the s 32 matters. The total effective sentence was 10 years' imprisonment.

20 The sentence imposed upon Robertson for the offence committed on 27 May 2008 at Sizzler Innaloo was 5 years 4 months' imprisonment. It took account of his plea of guilty on the fast-track system.

21 Robertson appealed against the severity of sentence. The grounds of appeal related to the aggregate sentence imposed, the contention being that the sentencing judge had infringed the totality principle. He was refused an extension of time within which to seek leave to appeal and his appeal was considered to be without merit: Robertson v The State of Western Australia [2009] WASCA 83.

22 There are two grounds of appeal upon which the appellant seeks leave. They are:

1. 1. The sentence imposed for the aggravated armed robbery was, given the circumstances of the offence, beyond an appropriate range.

1. 2. The sentencing Judge erred in fact when he did not receive any submissions as to sentence from the State.

23 This ground contends that the sentence imposed for the aggravated armed robbery was 'beyond an appropriate range'.

24 The submissions made on behalf of the appellant rely primarily upon the fact that in Miles v The Queen (1997) 17 WAR 518, Malcolm CJ (with whom Pidgeon J agreed and White J generally agreed) said, at 521:

[S]entences have tended to firm up as a result of the increasing prevalence of the offence by giving greater weight to the requirement of deterrence and less weight to the antecedents and other matters personal to the offender in the manner described by Burt CJ in R v Peterson [1984] WAR 329 at 332. The offence of armed robbery has become significantly more prevalent since 1989 and sentences have been firmed up in that period. At present, the range of sentences commonly imposed for a single offence, depending upon the circumstances, would be from six to nine years.

25 By reason of the decision in The State of Western Australia v BLM [2009] WASCA 88; (2009) 256 ALR 129, the range of sentences Malcolm CJ referred to is now 4 to 6 years' imprisonment: Mejtska v The State of Western Australia [2009] WASCA 80, Miller JA (Owen and Buss JJA concurring) at [40].

26 It should be stressed that when Malcolm CJ spoke of a range of 6 to 9 years' imprisonment (now 4 to 6 years' imprisonment), his Honour was speaking of the range of sentences commonly imposed for a single offence of armed robbery. Again, the sentence was said to '[depend] upon the circumstances'.

27 It is a mistake to think that a range of 4 to 6 years' imprisonment is anything more than a range of sentences commonly imposed. In Abbott v The State of Western Australia [2007] WASCA 105, McLure JA (Steytler P and Miller JA concurring) said at [16] - [17]:

The Court of Criminal Appeal in Miles v The Queen (1997) 17 WAR 518 provided guidance as to the range of sentences commonly imposed for the offence of armed robbery, before taking into account mitigating factors. The range is not prescriptive or mandatory but rather identifies that which is generally regarded as the range.

The seriousness of the circumstances of the offending can vary widely and towards the extremes may fall outside the upper and lower limit of the range. In each case, a sentencing judge must consider whether the circumstances of the case at hand are of a scale of seriousness as to fall outside the range.

28 As I said in GMS v The State of Western Australia [2009] WASCA 107 at [58]:

[T]he range is only a range, and the top of the range is not to be considered as the maximum for serious offences of that kind. A judge may rise above the range if it is necessary to do so (R v Bangard [2005] VSCA 313; (2005) 13 VR 146 [39] (Nettle JA)).

29 The present case was a very serious case of aggravated armed robbery. All the circumstances surrounding the offence had to be taken into account. The sentencing judge was correct to conclude that aggravating factors included the targeting of young workers who were providing a service to the public at night; the premeditation of the offence; the preparation for the offence; and the 'methodical, systematic manner' in which the appellant and Robertson went about the offence. His Honour also noted the lack of any mitigating factors.

30 In my opinion, a sentence of 7 years' imprisonment for the offence of aggravated armed robbery was entirely appropriate in the circumstances.

31 The ground of appeal does not contend that the sentence was manifestly excessive, but rather that it was 'beyond an appropriate range'. The ground has no merit (a) because the sentence was one which was open and, indeed, appropriate in the circumstances and (b) because the fact that the sentence was beyond the range of 4 to 6 years in relation to which the Court of Criminal Appeal has provided guidance for the 'ordinary case' does not, of itself, make the sentence wrong.

32 For leave to appeal to be granted, the court has to be satisfied that a ground of appeal has a reasonable prospect of succeeding: Criminal Appeals Act 2004 (WA), s 9(2). To have a reasonable prospect of succeeding, a ground must have a rational and logical prospect of succeeding, or a real prospect of success: Samuels v The State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473. The first ground of appeal has no reasonable prospect of succeeding and leave should be refused.

33 This ground of appeal contends that the sentencing judge erred in failing to 'receive any submissions as to sentence from the State'.

34 I have already set out what occurred on the day upon which sentence was pronounced.

35 It is clear that the sentencing judge, having been the trial judge who heard all the evidence, had before him all relevant materials. They included a pre-sentence report, references in relation to the appellant and victim impact statements provided by the State.

36 Both counsel for the appellant and the prosecutor were told by the sentencing judge that he had read all the materials and it was a matter 'of what [they] might wish to add'. Counsel for the appellant did not wish to add anything and nor did the prosecutor. The prosecutor said that he had 'nothing further to add', which indicates that he had nothing further to add to the materials that the sentencing judge already had.

37 The submissions of the appellant contend that for the sentencing judge to proceed without receiving submissions from the State reflected 'a process contrary to the general principles stated in R v Isaacs (1997) 41 NSWLR 374 at 377 - 378'.

38 In Isaacs, Gleeson CJ, Mason P, Hunt CJ at CL, Simpson and Hidden JJ set out at 377 - 378 a number of principles concerning the law and practice of sentencing in the State of New South Wales. There is nothing contained within the passage in question which requires the prosecutor to make detailed submissions on sentence. What is required of the prosecution is to provide the judge with the facts relevant to sentencing. However, in a case which has gone to trial, those facts will have emerged in evidence at the trial (Isaacs at 378). In the present case, the sentencing judge clearly had the relevant materials, including the pre-sentence report, references supplied on behalf of the appellant and victim impact statements supplied by the prosecution.

39 Counsel for the appellant suggests that 'proper procedures were not observed', relying upon Thompson v The Queen [1999] HCA 43; (1999) 73 ALJR 1319, where Kirby J at [18] spoke of the necessity to observe procedures 'regular[ly] and scrupulously', with the provision of pre-sentence reports which were 'as adequate and complete as fairness to the prisoner required'. Nothing said by Kirby J in this passage suggests that the prosecution has an obligation at law to make submissions over and above what was said in the present case.

40 It may be that in the context of a prosecution appeal against inadequacy of sentence there are other considerations, and, in such a case, counsel for the appellant may be precluded otherwise than in exceptional circumstances from putting contentions which were not put before the sentencing court. That is not the present case.

41 In my opinion, ground 2 of the grounds of appeal has no reasonable prospect of success and leave to appeal should be refused.