AD v The State of Western Australia [No 2]

AD v The State of Western Australia [No 2] - [2009] WASCA 83 - WASCA 2009 case summary — Zoe

[58]

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).

[67]

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].

[69]

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].

At a glance

Court

Decision date

Before

Catchwords

Source

Catchwords

Judgment (96 paragraphs)

ROBERTSON -v- THE STATE OF WESTERN AUSTRALIA [2009] WASCA 83 (7 May 2009)

Parties

Cases Cited (7)