Jurisdiction : SUPREME COURT OF WESTERN AUSTRALIA

Criminal law - Sentencing - Multiple offences of armed robbery - Inveterate armed robber with appalling criminal history - Comparable cases - Totality principle

Application for an extension of time to apply for leave to appeal dismissed

AD v The State of Western Australia [No 2] [2007] WASCA 207

Barnes v The State of Western Australia [2004] WASCA 258

Carr v The State of Western Australia [2006] WASCA 125; (2006) 166 A Crim R 1

Davis v The State of Western Australia [2007] WASCA 147

Jarvis v The Queen (1993) 20 WAR 201

Johnson v The Queen [2004] HCA 15; (2004) 78 ALJR 616

Kiesey v The State of Western Australia [2005] WASCA 229

Lancaster v The Queen [1989] WAR 83

Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357

Maroney v The State of Western Australia [2006] WASCA 130

Mill v The Queen [1988] HCA 70; (1988) 166 CLR 59

Nancarrow v The State of Western Australia [2006] WASCA 238

Pearce v The Queen [1998] HCA 57; (1998) 194 CLR 610

Postiglione v The Queen [1997] HCA 26; (1997) 189 CLR 295

R v Abboud [2005] NSWCCA 251

R v Roworth [2003] WASCA 120

Readhead v The State of Western Australia [2005] WASCA 191

Veen v The Queen (No 2) [1988] HCA 14; (1988) 164 CLR 465

Vlek v The Queen (Unreported, WASCA, Library No 990153, 29 March 1999)

Wheeler v The State of Western Australia [2007] WASCA 109

1 OWEN JA: For the reasons expressed by Buss JA I agree that the appellant's single ground of appeal lacks merit. Accordingly, the application for an extension of time within which to apply for leave to appeal should be refused.

2 BUSS JA: The appellant was convicted in the Supreme Court of Western Australia, on his pleas of guilty, on three counts in an indictment and six offences in a notice under s 32 of the Sentencing Act 1995 (WA).

3 The three counts in the indictment were these. Count 1 alleged that on 18 March 2008, at Willetton, the appellant stole from Natalie Joy Zimmermann, with threats of violence, money the property of Home Building Society, and that the appellant was armed with an offensive instrument (namely, a knife), contrary to s 393(c) of the Criminal Code (WA). Count 2 alleged that on 27 May 2008, at Innaloo, the appellant stole from Trevor Frederick Hess, with threats of violence, money the property of Collins Food Group Pty Ltd trading as Sizzler Innaloo, that the appellant was armed with a dangerous weapon (namely, a rifle) and an offensive instrument (namely, a knife), and that the appellant was in company with another, contrary to s 393(c) and (d) of the Criminal Code. Count 3 alleged that on 21 June 2008, at Woodlands, the appellant stole from Surendran Subramaqmiam, with threats of violence, money the property of The Williams Family Trust and Feng Pty Ltd trading as TAB Woodlands, and that the appellant was armed with a dangerous weapon (namely, a rifle), contrary to s 393(c) of the Criminal Code.

4 The learned sentencing judge, McKechnie J, imposed terms of immediate imprisonment of 4 years 8 months on count 1, 5 years 4 months on count 2 and 4 years 8 months on count 3.

5 Details of the charges in the s 32 notice and the sentences imposed are as follows:

6 The learned sentencing judge ordered that the sentence for count 2 on the indictment (5 years 4 months) be served cumulatively upon the sentence for count 1 (4 years 8 months). All other sentences were ordered to be served concurrently with count 1. Hence, the appellant was sentenced to a total effective sentence of 10 years' imprisonment. A parole eligibility order was made (ts 19).

7 The appellant was sentenced on 5 September 2008. The last date for appealing was 26 September 2008.

The application for an extension of time to appeal

8 On 19 November 2008, the appellant filed an appeal notice. He applied for an extension of time to appeal and for leave to appeal. The application to extend time was supported by an affidavit of the appellant's solicitor, Paul Lothar Ralf Meyer, sworn 19 November 2008. In par 6 of his affidavit Mr Meyer deposes that he has been informed by an articled clerk, Jennifer Cass, whom he believes has spoken to the appellant, that the reasons for the appellant's delay in filing the appeal notice were:

(a) he had difficulty obtaining the sentencing transcript from his previous solicitor;

(b) he was advised by his previous solicitor that he did not have any grounds for an appeal;

(c) he suffered an illness which caused him to be in hospital for one week; and

(d) he applied for a grant of legal aid from the Legal Aid Commission of Western Australia at the beginning of November 2008.

In par 7, Mr Meyer deposes that a grant of legal aid was obtained on 12 November 2008.

9 It is well settled that where there has been a lengthy delay, the court requires exceptional circumstances to be shown before granting an extension of time for leave to appeal, unless it can be shown that there will be a miscarriage of justice if an extension is not granted. See Lancaster v The Queen [1989] WAR 83, 85 (Malcolm CJ); AD v The State of Western Australia [No 2] [2007] WASCA 207 [15] (Buss JA, Pullin JA & Miller AJA agreeing).

The salient facts relating to the counts on the indictment

10 I will now set out the salient facts relating to the counts on the indictment.

11 Count 1: On the afternoon of 18 March 2008, the appellant entered the Home Building Society in the Southlands Shopping Centre. He was wearing a beanie and dark sunglasses. The appellant approached one of the two staff members on duty, placed a plastic shopping bag on the counter and stated that it was a 'hold-up'. He then reached into a black canvas bag he was holding and produced a 30 centimetre carving knife, and demanded money.

12 The two staff members removed cash from their drawers and placed it into the plastic bag. The appellant became agitated and attempted to climb over the counter. He then brandished the knife as he requested the teller to open the safe. The teller told the appellant that she could not open the safe. He grabbed the shopping bag containing $378.15 and escaped. A 68 year old customer was in the premises when the offence was committed. The appellant ordered him to get on the ground.

13 Count 2: At around 8:55 pm (that is, around closing time) on 27 May 2008, the appellant attended at Sizzler's restaurant in Innaloo with another male person. The co-offender had armed himself with a sawn-off rifle and was wearing a balaclava, sunglasses and gloves. The appellant was armed with a knife of approximately 25 centimetres in length, and was also wearing a balaclava, sunglasses and gloves. After the two men gained entry, the appellant used cable ties to tie up two female workers in a staff room whilst his co-offender stood by with the rifle. The appellant then ushered the remaining staff members into a storeroom whilst the co-offender confronted the store manager and forced him to open the safe. The manager placed the safe's contents into a bag and the appellant and his co-offender then left the restaurant. They obtained $6,055.

14 Count 3: At about 6:50 pm on 21 June 2008, the appellant rushed into the TAB in Woodlands wearing a blue hooded jumpsuit, a mask and gloves. He was carrying a backpack and was armed with a sawn-off rifle. The appellant ordered two customers to the ground, jumped over the counter and pointed the firearm at the manager. He demanded money and the manager complied. The appellant then ordered the manager onto the ground and searched some drawers. He took the manager's wallet and a customer's wallet before running off. The appellant obtained $8,120.55.

The salient facts relating to the charges in the s 32 notice

15 The salient facts relating to the charges in the s 32 notice are as follows.

16 Charge 39914 (breach of bail): On 30 May 2008, the appellant failed to appear in court in accordance with a bail undertaking he entered into on 9 May 2008.

17 Charges 4392 and 4395 (possession of a controlled weapon and no motor vehicle driver's licence): On 15 April 2008, the appellant was found leaning into a stolen motor vehicle. He admitted having driven the vehicle when his licence had expired and been suspended due to non-payment of fines. When searched by the police, he had a large knife attached to a belt under his jumper.

18 Charge 41372 (steal motor vehicle): When escaping the scene of the armed robbery at the Home Building Society on 18 March 2008 (count 1 on the indictment), the appellant approached a woman in a motor vehicle, held a knife in front of him and demanded that she get out of her vehicle. He then drove away in her vehicle.

19 Charge 41373 (burglary): On 23 May 2008, the appellant entered Darkzone Laser Games via a rear fire exit door. He entered the staffroom and stole two safes containing approximately $800. The appellant enlisted the help of a security guard, telling him that he was conducting repairs. It would appear from charge 39914 that the appellant was on bail at the time he committed this burglary.

20 Charge 41376 (attempted armed robbery): At around 6:15 pm on 24 June 2008, the appellant walked to the Beechboro Newsagency and Lotto shop in possession of a rifle. He knocked on the roller door of the shop and yelled that he had a delivery. The shop owner opened the roller door and was confronted by the appellant pointing the firearm directly at his face. The appellant demanded money and the shop owner directed him towards the rear office where money was being counted by his business partner.

21 Nearing the entrance to the office, the shop owner, fearing he was to be shot, swiped the firearm and punched the appellant. He called out to his partner. A struggle ensued. The three men fell to the ground. During the struggle the firearm discharged. The appellant was then restrained until the police arrived.

The learned sentencing judge's sentencing remarks

22 After reciting the material facts, the learned sentencing judge said, relevantly:

You displayed a certain ruthlessness throughout and the crimes individually and together are of great seriousness. A number of people who were simply lawfully going about their business earning money were held up and threatened by you with no doubt consequent psychological consequences.

I turn to matters personal to you and, as I say, I have had the material that I have outlined and I have also taken the trouble to read the letters that were supplied on your behalf and your letter to me. There is a disconnect. The letters from your partner, from you and from others display you as a man trying to do your best, with a family, a girlfriend who is pregnant and I think nearly due with your second child - you have a child - looking after her, working for a time. In other words, one picture is of an ordinary person going about trying to make his way in the world.

There is a complete disconnect with your past. You are and have been all your life a violent criminal and this year simply shows that. Whenever you get the stress of finances or, in latter days gone by, drugs you resort to violent behaviour to overcome your cash shortage. The fact is you are now 37 and that is middle-aged by most accounts. I am prepared to accept that the many convictions that you had, 34 although some may have been doubled up, in 1997 were the result of your drug addiction to heroin, but that doesn't explain these offences because you had a naltrexone implant which was successful.

I note your comments about what it did to your head. That's not a recognised side effect but no doubt you weren't thinking all that clearly. Nevertheless that might explain one crime, not the number you have committed. As I say, I have noted your relationship and this disconnect. You were in financial problems. I note your employment history and what happened in relation to that but the psychologist has assessed you as a relatively high risk of reoffending if you do not make significant changes to your behaviour and learn appropriate skills to deal with your stresses and increased thoughts.

One would have to say that, you having reached the age of 37, offending continually as you do, chances of change are not looking good. In fact they are bleak ...

I have noted what [your counsel] has pointed out to be mitigating factors although I take a slightly less mitigatory view of some of them but certainly you pleaded guilty at the earliest opportunity and did cooperate to some extent in the records of interview. Your counsel submits that nobody was physically injured, which might be true but, as I have said, the psychological effect of being confronted in the workplace with a knife or a gun are well known and, as I said before, the Sizzlers robbery in particular is extreme. I am unable to decide who was the lead offender.

The fact that you were softly spoken and apologised carries little weight. It was President Roosevelt who said, 'Speak softly but carry a big stick'. Well, that's what you did. I am sure now you are remorseful but that can only carry very little weight because, quite frankly, the seriousness of the crimes overwhelms most of the matters personal to you. Your family will suffer, your partner will suffer, your children will suffer by the sentence that I am about to impose on you. That suffering has been brought about directly by your decision to commit a series of violent offences, nothing else (ts 18 - 19).

23 The sole ground of appeal alleges that the total effective sentence imposed by the learned sentencing judge infringed the totality principle, having regard to the overall criminality involved in the offences when viewed in their entirety and in all the circumstances of the case, including those referrable to the appellant personally.

24 Counsel for the appellant submitted that, although the offences were serious and the appellant had 'an appalling previous record', the total effective sentence of 10 years' immediate imprisonment was disproportionately high, having regard to the appellant's early pleas of guilty and the circumstances of the offences themselves. It was submitted that, as a result, the sentence did not bear a proper relationship to the overall criminality involved in all of the offences.

25 The appellant's counsel referred to Davis v The State of Western Australia [2007] WASCA 147; Nancarrow v The State of Western Australia [2006] WASCA 238; R v Roworth [2003] WASCA 120; Wheeler v The State of Western Australia [2007] WASCA 109; Kiesey v The State of Western Australia [2005] WASCA 229; Readhead v The State of Western Australia [2005] WASCA 191 and Maroney v The State of Western Australia [2006] WASCA 130. It was submitted that these cases were authority for the proposition that the sentencing range for an inveterate armed robber who is being sentenced for offences of armed robbery committed while on parole is 7 to 10 years' immediate imprisonment. Counsel said that the appellant was not on parole when he committed the offences in question, and it followed that the total effective sentence of 10 years was outside the established range of total effective sentences for multiple counts of armed robbery.

26 The totality principle usually applies where an offender is to be sentenced for more than one offence or where he or she is serving a term of imprisonment, at the time of sentencing, for another offence. The principle comprises two aspects. First, the total effective sentence imposed on the offender must bear a proper relationship to the overall criminality involved in all of the offences (including those, if any, in respect of which the offender is still serving a term of imprisonment), viewed in their entirety, having regard to all relevant circumstances including those referable to the offender personally (and including, for example, the desirability of accommodating any wish to rehabilitate). Secondly, the total effective sentence imposed on an offender should not constitute a 'crushing' sentence; that is, it should not destroy any reasonable expectation of useful life after release from custody. See, generally, Postiglione v The Queen [1997] HCA 26; (1997) 189 CLR 295, 307 - 308 (McHugh J); Jarvis v The Queen (1993) 20 WAR 201, 216 (Anderson J); Johnson v The Queen [2004] HCA 15; (2004) 78 ALJR 616 [22]; Vlek v The Queen (Unreported, WASCA, Library No 990153, 29 March 1999), 12 (Anderson J); Carr v The State of Western Australia [2006] WASCA 125; (2006) 166 A Crim R 1 [6] (McLure JA), [66] (Buss JA).

27 Also, the totality principle may have application, in some limited circumstances, by way of analogy, where an offender has already served a term of imprisonment imposed for a prior offence. See Mill v The Queen [1988] HCA 70; (1988) 166 CLR 59, 66; Vlek, (10) (Anderson J); Barnes v The State of Western Australia [2004] WASCA 258 [15] (McKechnie J); Carr [7] (McLure JA).

28 It is plain, from the decision of the High Court in Pearce v The Queen [1998] HCA 57; (1998) 194 CLR 610, 624, that where an offender is being sentenced for more than one offence, the sentencing judge must determine an appropriate sentence for each offence and then consider questions of cumulation or concurrence, as well as the question of totality. There is, however, some flexibility in the application of the principle enunciated in Pearce. See Johnson [26]; Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357 [27]. In R v Abboud [2005] NSWCCA 251 [36].

29 In Wheeler, the offender was charged with seven counts of armed robbery in contravention of s 392(c) of the Criminal Code and one count of assault with intent to rob in contravention of s 393(c)(i) of the Criminal Code. The offender pleaded not guilty and a trial commenced on 19 June 2006. After the complainants had given evidence and been cross-examined, the appellant indicated on 22 June 2006 that he would plead guilty to four charges of armed robbery. He did so on 27 June 2006 and the State accepted those pleas of guilty in full satisfaction of the indictment. The remaining charges were discontinued. The offender was sentenced to 5 years' immediate imprisonment on each of two of the counts and to terms of 4 years' immediate imprisonment on each of the other two counts. The sentencing judge imposed a total effective sentence of 10 years' imprisonment and refused to make a parole eligibility order. The sentences were ordered to be served concurrently with some 2,318 outstanding parole days then owed by the offender.

30 The offender appealed to this court. He argued, relevantly, that the total effective sentence was 'contrary to the totality principle'. Steytler P, McLure JA and Miller AJA dismissed the appeal. Their Honours said, in joint reasons:

Offences of the kind committed by the appellant are regarded extremely seriously by the legislature. That is evident from the fact that s 329(c) of the Code provides for a maximum sentence of life imprisonment for an offence of armed robbery. In the case of each of these robberies the appellant was armed with what appeared to be a handgun. On each occasion it was pointed at the complainant in question in a threatening manner. The businesses targeted by the appellant were two service stations and two TAB outlets. During the course of each robbery the appellant was disguised with a black stocking-like mask pulled over his head. In the course of the robbery the subject of count 5 on the indictment, the appellant approached a woman who was paying for petrol at the time of the robbery, pushed her up against the counter with his arm against her shoulder blade and pinned her there throughout the robbery. In the case of the robbery charged in count 8 on the indictment, the appellant pointed the handgun at a male customer who was in the TAB at the time of the robbery and who was crouched on the floor.

There was little by way of mitigation. The appellant was, at the time of sentencing, 58 years old and had an extensive history of convictions for armed robberies and other dishonesty and property offences. His history of offending behaviour had been contributed to by a gambling problem, although the sentencing Judge was told by the appellant's counsel that he no longer suffered from it, 'albeit he still does dabble in horses'. Whatever may be the position in that respect, there seems to be little prospect of rehabilitation. The appellant's record reveals that he has made a career out of crime. His latest convictions took the total number of armed robberies committed by him to 14.

The appellant was entitled to some reduction in sentence as a result of his pleas of guilty. However, even these did not carry the usual weight, given that they were entered only part-way through the trial (and immediately after the tendering of evidence of an intercepted telephone call in which the appellant had admitted to his mother that he had committed four robberies) [8] - [10].

Their Honours concluded that it was 'impossible to argue' that the total effective sentence imposed, even when considered together with the time which the offender had spent in custody (he was remanded in custody on 21 October 2004 and remained there, arising out of his breach of parole in respect of unrelated sentences, until he was sentenced for the offences in question), was so excessive as to reveal an error in the application of the totality principle [11]. That was especially so in circumstances where the sentences under challenge were ordered to be served concurrently with the outstanding parole days. Their Honours' conclusion was re-enforced, in their view, by an examination of Kiesey, Readhead, Maroney and Nancarrow, being four of the cases relied on by the appellant's counsel in the present case. They said in relation to these cases:

In Kiesey v The State of Western Australia [2005] WASCA 229, the appellant pleaded guilty to two counts of aggravated armed robbery and two counts of stealing a motor vehicle, the offences having been committed while he was on parole. He was a 25-year old man with a long record arising out of a drug problem. He was sentenced to a total of 7 years' imprisonment to be served cumulatively upon an existing sentence with 465 unexpired parole days to be served. His appeal against sentence was dismissed.

In Readhead v The State of Western Australia [2005] WASCA 191, the appellant had pleaded guilty to five counts of armed robbery and one of attempted armed robbery. Once again, the offences were committed while he was on parole. He had a long record. He was 35 years old. He was a drug user and had a long standing schizophrenic illness. On the appeal, he was sentenced to 7 years' imprisonment to be served cumulatively upon an existing term of 3 years' imprisonment. That sentence took account of his pleas of guilty and his mental illness.

In Maroney v The State of Western Australia [2006] WASCA 130, the appellant was convicted of five offences of armed robbery, some with actual or personal violence and two in company. He was also convicted of attempted armed robbery, robbery with violence, stealing a motor vehicle and driving recklessly, unlawful detention, assault of a police officer and a number of minor offences. Most of the offences were committed while he was on parole for previous offences. After a successful appeal he was sentenced to a total term of 9 years and 6 months' imprisonment to be served cumulatively upon an existing term of 4 years' imprisonment. It is not apparent from the judgment of the Court of Appeal whether the appellant had pleaded guilty on all charges.

In Nancarrow v The State of Western Australia [2006] WASCA 238, the appellant had been convicted, on his plea of guilty, of five offences of armed robbery in company and one of assault occasioning bodily harm. He was an amphetamine addict and had cooperated with the police. There was an element of coercion by a co-offender. He was sentenced to a total term of 8 years and 3 months' imprisonment. This sentence was upheld on appeal [13] - [16].

31 After examining Kiesey, Readhead, Maroney and Nancarrow, Steytler P, McLure JA and Miller AJA said that, given the seriousness of the offences committed by the offender, the large number of parole days owing by him and the limited circumstances of mitigation, there was nothing in any of these cases (or in any other authorities to which the court was referred) to suggest that the total effective sentence was disproportionate to his offending [17].

32 I turn now to the other cases relied on by the appellant's counsel in the present case; that is, Davis and Roworth.

33 In Davis, the offender was convicted, after an early plea of guilty, on eight counts of armed robbery, one count of aggravated armed robbery, one count of attempted armed robbery, two counts of assault with intent to prevent arrest and one count of fraud. Also, he was dealt with under s 32 of the Sentencing Act for eight charges of fraud and one of stealing. The offender was sentenced to a total effective term of 10 years' imprisonment with eligibility for parole. He sought leave to appeal on several grounds including that the sentence offended the totality principle and was manifestly excessive. Miller JA refused leave to appeal. His Honour said that the sentencing judge 'took full account' of the totality principle [38]. His Honour was also of the view that, for the following reasons, the total effective sentence was not manifestly excessive:

The appellant committed a series of very bad offences. As the learned sentencing Judge said, vulnerable people were threatened with frightening weapons and a very substantial amount of money was stolen. They were multiple offences in which at least 10 different people were terrorised on different occasions with a firearm, or a replica firearm.

In these circumstances, deterrent sentences of substantial length were called for. In my view, a total sentence of 10 years' imprisonment (which equated to 15 years' imprisonment before the transitional provisions) could not be said to be manifestly excessive [39] - [40].

34 Roworth was a Crown appeal against sentence. The offender pleaded guilty to seven counts of armed robbery and five counts of stealing motor vehicles. He pleaded guilty at the first available opportunity but otherwise there were few mitigating factors. He was aged 25 and had an appalling record. The offences in questions were committed shortly after he was released from prison after serving a term for armed robbery in company, burglary and assault causing grievous bodily harm. His conduct in prison disentitled him from parole. The sentencing judge imposed a total effective sentence of 9 years 6 months' imprisonment. The Court of Criminal Appeal allowed the Crown's appeal and substituted a total effective sentence of 12 years 6 months' imprisonment. This sentence was, of course, imposed before the commencement of the transitional provisions. McKechnie J (with whom Pullin J agreed) indicated that if it had not been necessary to moderate the new sentence on appeal as a result of the double jeopardy principle, he would have imposed a total effective sentence of 13 years 6 months [58].

35 The offenders in Wheeler, Kiesey and Readhead committed their offences while on parole. The offender in Maroney committed most of his offences while on parole. The total effective sentences (excluding outstanding terms for prior offences to be served cumulatively) were 7 years in Kiesey, 7 years in Readhead, 10 years in Wheeler and 9 years 6 months in Maroney. However, the total effective sentences (including outstanding terms for prior offences to be served cumulatively) were about 8 years 3 months in Kiesey, 10 years in Readhead, 10 years in Wheeler and 13 years 6 months in Maroney.

36 The offenders in Davis, Roworth and Nancarrow do not appear to have committed their offences while on parole. However, the offender in Roworth committed some of his offences while on bail (McKechnie J at [20] - [21]) and the offender in Nancarrow committed his offences while on a community release order (Roberts-Smith JA at [44]). The total effective sentences were 8 years 3 months in Nancarrow, 12 years 6 months (or 8 years 4 months if the transitional provisions had applied) in Roworth and 10 years in Davis. As I have mentioned, Roworth was a Crown appeal. In that case, McKechnie J (Pullin J agreeing) expressed the view that, without moderation on account of the double jeopardy principle, a total effective sentence of 13 years 6 months (or 9 years if the transitional provisions had applied) would have been appropriate.

37 In my opinion, nothing in the cases relied on by the appellant's counsel in the present case is inconsistent with two important propositions. First, the totality principle does not necessarily preclude a sentencing judge from making the sentences he or she is imposing on an inveterate armed robber, for multiple armed robbery offences, cumulative on other terms of imprisonment the offender has served, is serving or is about to serve (whether the new offences have been committed on parole or not). Secondly, nothing in the cases relied on by the appellant's counsel precludes a sentencing judge from sentencing an inveterate armed robber to a total effective sentence of 7 to 10 years' immediate imprisonment (or, indeed, to a term in excess of 10 years), for multiple armed robbery offences (whether or not the offences were committed while the offender was on parole), if the seriousness of the offences, when viewed in their entirety and in all the circumstances of the case, including those referable to the offender personally, requires the imposition of such a sentence.

38 The appellant, in the present case, engaged in sustained and violent criminal activity until it was brought to an end by the actions of two citizens. He displayed a significant degree of ruthlessness and the offences were, individually and collectively, of great seriousness.

39 The appellant's offending occurred over a four-month period. He confronted numerous members of the community while disguised and armed. His motivation for committing the robberies was to obtain money for the purpose of relieving family and financial pressures.

40 The learned sentencing judge took into account all matters which the appellant's counsel contended at the sentencing hearing were, at least to some extent, mitigatory. In particular, his Honour had regard to the following:

(a) correspondence from the appellant and from people on his behalf;

(b) the appellant is the father of a child, and his partner (with whom he had been in a relationship for five years) was pregnant with another child;

(e) the appellant's early pleas of guilty and his cooperation with the police; and

(f) no-one was physically harmed in the course of the offending (ts 18 - 19).

41 The appellant's prior criminal record is devoid of any mitigatory feature. He has 34 prior convictions for armed robbery (although, as the learned sentencing judge noted, some of these may have been 'doubled up': ts 18). He also has numerous other convictions for offences of dishonesty (including stealing, receiving and burglary) and drug-related offences.

42 On 10 June 1997, the appellant was sentenced in the Supreme Court to:

(a) a term of 2 years' imprisonment on one count of possessing heroin with intent to sell or supply;

(b) a total effective sentence of 10 years' imprisonment on 34 counts of armed robbery; and

(c) 1 year's imprisonment on eight counts of stealing a motor vehicle.

The total effective sentence for all of these offences was 13 years' imprisonment. The appellant was released from prison in February 2006 and his parole expired on 1 August 2007.

43 Although the appellant was not on parole when he committed the offences with which this appeal is concerned, he re-offended within about 2 years of his release from prison and within about 7 to 8 months after his parole expired.

44 The appellant was aged about 36 years when he committed the offences in question. He has spent about 15 years of his adult life in custody. A report dated 28 August 2008 from a clinical psychologist, Roxanne Buktenica (which was before the learned sentencing judge) suggests that he is at a 'relatively high risk of re-offending' if he does not make significant changes to his behaviour and lifestyle, and does not learn appropriate skills to deal with stress (including the formation of pro-social

friendships). Ms Buktenica said the appellant does not have any symptoms of a significant psychiatric disorder.

45 The pre-sentence report dated 1 September 2008 (which was before the learned sentencing judge) notes that the appellant was not under the influence of illicit drugs when he committed the relevant offences. The appellant has a history of drug abuse, but at one stage he successfully underwent a naltrexone implant.

46 In my opinion, the learned sentencing judge did not make any error in principle in sentencing the appellant and his exercise of the sentencing discretion did not miscarry. The appellant's criminal history, in particular, the numerous and repeated armed robberies committed by him, suggests that he has chosen crime as a vocation. He must have been aware that his violent and ongoing criminal conduct in the course of 2008 would inevitably result in a long term of imprisonment upon his being apprehended. The appellant has manifested, in his commission of the present offences, a continuing attitude of disobedience of the law. See Veen v The Queen (No 2) [1988] HCA 14; [1988] HCA 14; (1988) 164 CLR 465, 477 - 478 (Mason CJ, Brennan, Dawson & Toohey JJ). While the appellant cannot be (and is not being) punished again for past criminal conduct, his prior record reflects on his moral culpability for the offences with which he was charged on this occasion. It also demonstrates that these offences were not an uncharacteristic aberration. The total effective sentence of 10 years' imprisonment was appropriate in all of the circumstances. It was not disproportionate to his offending and it cannot reasonably be said that he has been left without any reasonable prospect of useful life after his release.

47 The appellant's ground of appeal is without merit. I would, as a result, refuse his application for an extension of time to apply for leave to appeal.