Criminal law - Sentence - Two counts of armed robbery - Young offender - No relevant record - Early pleas of guilty - 5 years' imprisonment - Whether sentence infringed totality principle

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

Jarvis v The Queen (1993) 20 WAR 201

Mada v The Queen [2003] WASCA 1

Miles v The Queen (1997) 17 WAR 518

Mill v The Queen (1988) 166 CLR 59

R v Henry [1999] NSWCCA 107

Satonick v The State of Western Australia [2008] WASCA 145

Sein-Thet v The Queen [1999] WASCA 186

1 OWEN JA: I agree with Miller JA that the appeal must be dismissed.

3 MILLER JA: The appellant was indicted on two counts of armed robbery. The indictment read as follows:

(1) On 10 April 2008 at West Perth Kristyna Mejtska stole from Alexandra Claire Lekias, with threats of violence, a hand bag and its contents and a mobile phone the property of Alexandra Claire Lekias.

And that Kristyna Mejtska was armed with an offensive weapon namely a kitchen multi-tool with the knife blade exposed.

(2) On 5 May 2008 at West Perth Kristyna Mejtska stole from Jessica Kate Smith, with threats of violence, a Ford Mondeo sedan, registration number 1AJ0 313 and a sum of money the property of Jessica Kate Smith.

And that Kristyna Mejtska was armed with an offensive weapon namely a carving knife.

4 After the first offence committed by the appellant on 10 April 2008, she was arrested on 15 April 2008. She was charged with the offence of armed robbery and released on bail. The offence committed on 5 May 2008 occurred whilst she was still on bail.

5 The appellant pleaded guilty to the indictment when arraigned on 6 October 2008. She had earlier pleaded guilty on the fast-track and had been committed for sentence. She was sentenced on 8 October 2008 to terms of imprisonment of 2 years on count 1 and 3 years on count 2. The terms were ordered to be served cumulatively, so the aggregate sentence was one of 5 years' imprisonment. An order was made for eligibility for parole and the sentences were backdated to 6 May 2008.

6 The appellant appeals against the severity of the aggregate sentence imposed. The ground of appeal contends that the sentence infringed the principle of totality.

7 The relevant facts were put before the sentencing judge on 6 October 2008. They reveal the following.

8 This offence occurred at about 8.10 pm on 10 April 2008 in Hay Street, West Perth. The complainant had attended an educational course in West Perth and was walking in an easterly direction on Hay Street. She was speaking on the telephone to her brother. The appellant followed the complainant along Hay Street until she got to the intersection of Hay and Outram Streets. There the appellant approached the complainant and held the exposed blade of a kitchen multi-tool very close to her neck. She said 'give me your bag now or I will cut your throat'. The complainant handed the appellant her bag. It contained (inter alia) a thick gold chain necklace, a gold ring with a black stone in it, $15 in cash, and 50 dexamphetamine tablets. The appellant then demanded the complainant's telephone, took it and ran away.

9 On 15 April 2008, police executed a search warrant at the appellant's address. They there located the mobile telephone, two notebooks which had been in the appellant's bag and an empty container of dexamphetamine tablets. When interviewed, the appellant told police that she had found the bag in an alleyway. She was charged with the offence of armed robbery and released to bail.

10 This offence occurred at about 10.05 am on 5 May 2008. The complainant had parked her car at the rear of premises in Walker Avenue, West Perth. She walked into a side lane to gain access to Walker Avenue and as she did so the appellant, who was wearing a covering over her face and who was armed with a carving knife, approached her from behind. The appellant called out to the complainant. The complainant turned and found the appellant in very close proximity to her. She was holding a knife towards her with the blade pointing upwards. The appellant told the complainant to hand over her car keys and she did so. The appellant then forced the complainant to indicate which car was hers, which she did. The appellant endeavoured to unlock the driver's door of the complainant's vehicle, then returned to the complainant's position on the opposite side of the vehicle and demanded that she hand over her money. The complainant opened her purse and handed the appellant $5. The appellant took it and then got into the complainant's vehicle, driving it away at speed. She crashed into a boundary fence.

11 At about 11.55 am on 5 May 2008 the appellant was observed by police to be standing alongside the complainant's vehicle in Hay Street, West Perth. The appellant had the keys to the vehicle in her hand. Police searched the vehicle and located a carving knife and a fork secreted in the driver's door. There was a black zip-up long sleeved jumper on the rear seat and a pair of black leggings in a handbag belonging to the appellant. The appellant said that she had purchased the vehicle for $900.

12 The sentencing judge first stated the facts relevant to each count on the indictment. He then turned to matters personal to the appellant. She was 21 years of age at the time of the offences and 22 years of age at the time of sentencing. She had a substance abuse problem. The sentencing judge considered that she was developing insight into her behaviour but that she had an addiction which caused her behaviour to go out of control. The sentencing judge made reference to a pre-sentence report and a psychological report which had been made available to the court. Counsel for the appellant had taken issue with some of the content of those reports and to the extent that he did the sentencing judge agreed with his submissions. In particular, issue was taken with the recommendation, or reference to the appellant, contained in each of the reports, which indicated that she was distancing herself from her involvement in the offence.

13 The psychological report was written by Ms Roxanne Buktenica, a clinical psychologist. It was dated 18 September 2008. It traces the appellant's family background and substance misuse history. It also contains psychological and psychometric assessments of the appellant.

14 The sentencing judge said that the psychological report gave an insight into the appellant's personality. His Honour quoted the psychologist's opinion that the appellant tended to externalise blame for her behaviour and had difficulties accepting full responsibility. He accepted, however, that this was 'a hard thing to judge' and said that the appellant's pleas of guilty and her letters indicated that she accepted responsibility for what she had done (ts 18).

15 The sentencing judge turned to the appellant's drug addiction. She had become addicted to opiates at the age of 17 years and, although she suffered a head injury late in 2007, associates of the appellant considered that it was excessive drug use which caused her aggressive behaviour. The psychological assessment indicated that the appellant had an avoidant and schizoid personality style with pervasive symptoms of depression and anxiety.

16 The sentencing judge accepted that the appellant's drug addiction had interfered with her decision-making and thought processes and had contributed to her acting without considering the consequences of her behaviour. His Honour said, however, that this was 'an explanation but it only goes so far in mitigation and is cold comfort to the women you terrorised that you were out of your mind on drugs at the time' (ts 18).

17 Ms Buktenica's conclusions on psychometric assessment of the appellant were:

Ms Mejtska's score in this section [the historical scale] suggested that her main risk factors for future violent behaviour are substance abuse, maladjustment and mental health issues. The most significant predicator of future violence is previous violence and it is a positive feature that Ms Mejtska does not have a history of violent offending prior to these offences. However it is of concern that she committed two violent offences within a month of each other and one was committed whilst she was on bail. The Clinical scale is a dynamic measure and assesses individual ongoing risk of offending violently. Clinical factors that would moderate the risk of further violent offending is that she appeared responsive to treatment plans and did not present with any significant negative attitudes that would interfere with treatment interventions. Her main risk factor in this section is the fact that she tended to externalise blame to external factors and had difficulties accepting full responsibility for her behaviour.

The Risk Management Scale is a static measure, which is based on the considerations about the feasibility of future plans, destabilizing influences, personal supports and compliance. Ms Mejtska had several risk factors in this section which increase risk such as; she has few supports in her own ecology and is likely to experience further destabilizing factors related to her relationship with her mother and partner. In sum, her score on this assessment suggested the main factors that increase her risk are her substance use, mental health issues, lack of supports and difficulties accepting full responsibility for her offending behaviour. These are therefore the items that must be targeted in treatment plans.

18 The sentencing judge concluded that the appellant's behaviour was such that the only appropriate sentence was one of immediate imprisonment. He considered that aspects of general deterrence and punishment took precedence over other issues and said:

The sentences I am about to impose are moderated significantly by your age and lack of prior violent offending and mitigated also by your early plea of guilty and what I accept to be some expression of remorse in the letters you have written. But for those factors, you should understand your sentence would be considerably greater. The next time you come before a judge, if you ever do, for sentencing for a crime, you will not be able to claim youth and you will not be able to claim that you do not have a violent background because you now do. (ts 19)

19 The sentencing judge considered the question of concurrency and concluded:

I have considered whether each sentence should be served concurrently or partly concurrently but, in the end, have concluded that the fact that the second offence was committed while on bail and in pursuit of money for drugs and was a serious offence and was a completely different woman, I should properly accumulate each sentence. (ts 19)

20 The sentences of 2 years' imprisonment on count 1 and 3 years' imprisonment on count 2 were adjusted to take account of the totality principle. In this respect, the sentencing judge said:

However, to take account of the total burden upon you for the criminality, I have adjusted again the sentences that I would have passed so that the overall burden is one that is not too great and gives you some hope for the future. Nevertheless it will be a burden. (ts 20)

21 The single ground of appeal (for which leave was granted on 3 December 2008) is in the following terms:

The learned Judge erred in imposing a total effective sentence which infringed the principle of totality, having regard to the overall criminality involved in the offences when viewed in their entirety and all the circumstances of the case, including those referable to the Appellant personally.

22 The written case for the appellant contains reference to a number of cases which are described as 'comparative cases' and concludes with a contention that a proper application of the totality principle would have led to the term of imprisonment imposed on the second count being served partially concurrently with the sentence imposed on the first count. The argument advanced by counsel for the appellant both in the written case and at the hearing of the appeal is that, by ordering total cumulation of the terms, the sentencing judge failed to give the appellant the opportunity to rehabilitate herself in relation to the first term before being called upon to serve the second term. This argument seeks to equate the appellant's position with the position of an offender serving a sentence for some other offence at the time of sentencing. In such cases a sentencing judge may detect some progress towards rehabilitation during the term of the first sentence: see, for example, Barnes v The State of Western Australia [2004] WASCA 258 [37] (McLure J).

23 However, the submission is entirely misconceived. This case involved the imposition of cumulative sentences of imprisonment where both sentences were imposed at the one time. The sentencing judge was dealing with the appellant on one indictment which contained two counts. No sentence had been imposed on the first count prior to consideration of the indictment.

24 In truth, this case was a simple application of the totality principle in a case in which the appellant had committed two serious armed robberies, the second of the offences being committed shortly after the first. An aggravating aspect of the matter was that the appellant was on bail for the first offence at the time she committed the second: see Mada v The Queen [2003] WASCA 1 [56] (Rolfe AJ); and R v Henry [1999] NSWCCA 107 [28] (Hulme J).

25 The sentencing judge was fully aware of the need to take account of the totality principle. His Honour was also aware of the principles by which sentences may be reduced from what they would otherwise be to take account of that principle.

26 The approach taken by the sentencing judge was entirely in accordance with authority. In Mill v The Queen (1988) 166 CLR 59, Wilson, Deane, Dawson, Toohey & Gaudron JJ said:

Where the principle falls to be applied in relation to sentences of imprisonment imposed by a single sentencing court, an appropriate result may be achieved either by making sentences wholly or partially concurrent or by lowering the individual sentences below what would otherwise be appropriate in order to reflect the fact that a number of sentences are being imposed. Where practicable, the former is to be preferred. [63]

27 In my opinion, the aggregate sentence of 5 years' imprisonment imposed for the two armed robberies committed by the appellant took proper account of the totality principle and 'fairly and justly reflect[ed] the total criminality of the offender's conduct': Jarvis v The Queen (1993) 20 WAR 201, 207 (Ipp J).

28 It remains only to consider the 'comparative cases' upon which counsel for the appellant placed importance. Although a number of cases are referred to in the appellant's written case, the two cases upon which primary reliance is placed are Sein-Thet v The Queen [1999] WASCA 186 and Satonick v The State of Western Australia [2008] WASCA 145.

29 Sein-Thet was a case in which the appellant had pleaded guilty to five charges of armed robbery. She had pleaded guilty on the fast-track and had been remanded to the Supreme Court for sentence. All offences occurred on the same day (14 August 1998) and between the hours of approximately 3.00 pm and 4.30 pm. The first offence occurred at a bus stop in Ballajura where the appellant approached a 15-year-old female and began talking to her. She produced a knife, pressed it against the left side of the girl's abdomen and demanded she hand over her money, jewellery, clothing and her bag. She did all of this and the appellant walked away with the property. It was valued at approximately $460.

30 The second and third charges arose out of an incident that occurred at a shopping centre in Ballajura. The offences occurred about 15 minutes after the first offence. The appellant picked up a backpack belonging to a 13-year-old boy. When the boy confronted her, she produced a knife, grabbed the boy's right arm and pushed it behind his back. She pressed the knife to his right side. A second boy, aged 12 years, then approached and the appellant demanded his bag. She was given it. She made both boys sit on the ground while she went through their bags and removed various items. She also asked for their wallets and a watch. These were handed over and she left with property to the value of approximately $140.

31 The fourth offence occurred at about 3.50 pm on the same day. The appellant approached a 16-year-old female walking in a street in Ballajura. She grabbed her from behind by the hair, turned her around, threatened her with the knife and demanded money. She had only $2 which she gave to the appellant. She refused to give jewellery. She pushed the knife away and ran off.

32 The fifth offence occurred at about 4.20 pm, on the same day at a bus stop in a street in Ballajura. The appellant approached a 19-year-old female and started talking to her, produced her knife and demanded money from her. When the female said she had no money the appellant pressed the knife hard against the girl's right thigh and demanded her jewellery. She handed over jewellery to the value of $100.

33 At the time of sentencing, the appellant was 18 years of age. She had no prior convictions. She was a drug user and had been using heroin since the age of 14 years. On the day in question, she had taken about 50 valium tablets. She was taking part in the Naltrexone programme and was thought to be under good control at the time of the commission of her offences. A number of character references were tendered to the court.

34 The trial judge took account of the appellant's age, her lack of prior convictions, her continuing attempts at rehabilitation, her remorse and her pleas of guilty. Sentences of 3 years, 2 years, 2 years, 2 years, and 3 years were respectively imposed on each count. They were all ordered to be served concurrently, with the result that the aggregate term of imprisonment was 3 years.

35 In the Court of Appeal, it was argued that the terms of imprisonment should have been suspended having regard to the appellant's good antecedents and the fact that her rehabilitation would be better met within the community. The Court of Appeal refused to interfere with the sentence, taking the view that it was a 'very moderate total sentence in all the circumstances' [13].

36 There are a number of points of distinction between Sein-Thet and the present case. The first is that Ms Sein-Thet was only 18 years of age at the time she committed the offences. The second is that the offences all occurred on the one day and during the course of a period of about 1 1/2 hours. The third is that Ms Sein-Thet made no attempt to disguise herself during the commission of any of the offences. The appellant committed two separate offences approximately three weeks apart. One of those offences was committed whilst the appellant was on bail for the other. The appellant was disguised during the commission of the second offence. She was some years older than Ms Sein-Thet.

37 In Satonick, the appellant pleaded guilty to the offence of armed robbery. A plea was entered at the earliest opportunity. The offence occurred on 27 December 2007 at a liquor store in Carey Park. The appellant selected a carton of bourbon and cola cans and placed them on the counter before asking for a packet of cigarettes. When the shop assistant placed the cigarettes on the counter, the appellant lifted his shirt to reveal a 15 cm knife hidden in his pants. He extracted the knife and rested it on the counter. He said to the shop assistant that he had had a bad week and did not wish to do what he was doing, but that he was not going to hurt anybody. The appellant was told to take the property. He was later located and interviewed. He made full admissions.

38 The appellant was sentenced to 18 months' immediate imprisonment. He appealed against that sentence on the basis that it was manifestly excessive and a suspended sentence of imprisonment should have been imposed. The Court of Appeal allowed the appeal and imposed a suspended term because of the exceptional circumstances of the case. They included the fact that the appellant was only 20 years of age at the time of the offence; he had no relevant previous criminal record; he pleaded guilty at the earliest opportunity; he expressed remorse and empathy for the victim; the offence occurred under pressure of emotional upset aggravated by a bout of alcohol consumption triggered by the breakup with his girlfriend and a car accident; and he had an alcohol problem. The court was impressed with the fact that the appellant had voluntarily submitted himself to a treatment programme in relation to alcohol consumption and had been seeing a doctor in relation to his problems. About two months prior to the commission of the offence, he had committed himself to treatment with the South West Community Drug Service Team and since commission of the offence he had continued treatment. The court considered that the community would be better served by the appellant being given the opportunity to continue that treatment programme and to continue his treatment for a chronic anxiety syndrome.

39 Satonick was clearly determined on the basis that it was an exceptional case. The court said so on a number of occasions: see, for example, Satonick [27] (Pullin JA). Clearly the mitigating effect of the appellant's significant attempts to rehabilitate himself weighed heavily in the decision. The case is distinguishable from the present case in which there was some suggestion that the appellant had engaged sporadically in counselling with Youth Link between 2003 and 2007, but had continued to use illicit substances.

40 In my opinion, the cases to which counsel for the appellant has referred do not demonstrate that the aggregate sentence imposed upon the appellant in the present case was beyond the range of a sound exercise of the sentencing judge's sentencing discretion. Nor does it offend against the totality principle. It was well within the general range of sentences ordinarily applicable to offences of armed robbery, that range having been fixed by the Court of Criminal Appeal in Miles v The Queen (1997) 17 WAR 518 at 6 - 9 years for a single offence (or 4 - 6 years after application of the transitional provisions): see Miles (521).

41 In my opinion, the ground of appeal has no merit and should be dismissed.