Jurisdiction : SUPREME COURT OF WESTERN AUSTRALIA

Criminal law - Application for leave to appeal against sentence - 6 x armed robbery - Total effective sentence of 5 years' imprisonment - Whether breach of the totality principle

Bello v The State of Western Australia [2010] WASCA 181

Carr v The State of Western Australia [2013] WASCA 192

Chadd v The State of Western Australia [2013] WASCA 99

Forkin v The State of Western Australia [2013] WASCA 51

McConkey v The State of Western Australia [2012] WASCA 45

Pilling v The State of Western Australia [2014] WASCA 146

Sein-Thet v The Queen [1999] WASCA 186

The State of Western Australia v Drew [2012] WASCA 86

The State of Western Australia v Eades [2011] WASCA 157

Walgar v The State of Western Australia [2007] WASCA 241

2 HALL J: This is an application for leave to appeal against sentence.

3 The appellant pleaded guilty to six charges of armed robbery contrary to s 392 of the Criminal Code (WA) and on 10 November 2014 was sentenced to a total effective sentence of 5 years' imprisonment. He now seeks leave to appeal against that sentence. There are three grounds of appeal but the essential issue is whether the total effective sentence of five years breached the first limb of the totality principle.

4 The facts are not in dispute. The offences all occurred between the evening of 5 May 2014 and the morning of 6 May 2014.

5 At about 8.46 pm on 5 May 2014 the appellant entered a drive through bottle shop at the Craigie Tavern. He selected a stubbie of beer from a fridge and then approached the counter. He was holding an unused syringe. He demanded that the attendant give him money from the till. As he made this demand he was brandishing the syringe so that the attendant could see it. The attendant handed over $830 in cash and the appellant then left the store (count 1).

6 At about 12.45 am on 6 May 2014 the appellant went to a service station in Burswood. He selected two cans of drink from a fridge and then went to the counter. He placed his right hand under his jumper and pretended to be armed with a gun. He demanded money from the attendant stating that he would shoot him if he did not comply with the demand. He repeated the threat and the attended handed over $900 in cash. The appellant then left the store (count 2).

7 At about 3.55 am on 6 May 2014 the appellant went to another service station in Osborne Park. The service station was open but the doors were locked as a security measure. The appellant pressed a bell in order to obtain entry. The attendant refused to open the doors unless the appellant removed his hood. He complied with that request but on entry pulled the hood back over his head. He then walked to the front counter with his hand under his jumper so as to pretend to be armed with a gun. He demanded cash from the attendant threatening to shoot him if he did not comply. The attendant handed the appellant $150 in cash. The appellant then left (count 3).

8 At some time between 3.50 am and 4.10 am on 6 May 2014 the appellant attended another service station in Northlands. He took a can of drink from a refrigerator and then went to the counter. As he did so he put a hand under his jumper so as to pretend to be armed with a gun. Again he demanded that the attendant give him cash from the till. The attendant refused and the appellant became angry. He jumped on the counter and reached through the security wiring in an attempt to grab cash from the till. The attendant, fearful for his safety, handed over $1,000 in cash. The appellant took the money and attempted to leave the store. The doors had been closed by the attendant such that the appellant was locked inside. He then kicked at the glass doors until he succeeded in dislodging one from its mountings. He then pushed on the door until the glass shattered and he was able to exit the shop (count 4).

9 At about 9.33 am on 6 May 2014 the appellant attended another service station in Padbury. He walked to the counter with his hand under his jumper so as to pretend to be armed with a firearm. He demanded that the attendant provide him with money from the till. The attendant opened the till and started taking out money. The appellant then reached over and attempted to take money from the till. The attendant tried to stop him by pushing his hand away. He then tried to take cash that was in the attendant's hand. He managed to grab $150 in cash before leaving the store (count 5).

10 At about 9.46 am on 6 May 2014 the appellant attended at another service station in Ocean Reef. Again he took a can of drink from a refrigerator before going to the counter. He placed his hand under his jumper so as to pretend to be armed with a gun and demanded that the attendant give him cash from the till. The attendant handed over $280 in cash and the appellant then left the service station (count 6).

11 The appellant was 27 years old at the time he came to be sentenced. He comes from a stable and supportive family. Whilst he liked school he did not apply himself and left to work in his father's construction company. He worked for that company for about 10 years before injuring his knee. He was unable to work for a period of about ten months and during this period his drug and alcohol use increased.

12 The appellant started drinking alcohol and smoking cannabis when he was about 16 years old. He started smoking methamphetamine when he was about 18 years old. His use of the latter drug increased over time to a level where he was using about $1,000 a day worth of drugs. He was selling drugs to fund his use and living costs.

13 In the period immediately preceding the offences the appellant had accumulated a significant drug debt. His parents had assisted him financially in the past but were unwilling to continue paying his debts. He came under increasing pressure to pay the debt. He reported to the psychologist that he made an attempt on his life as a way of resolving his problems. He also said that he was abducted, assaulted and threatened by men who were seeking repayment of the debt. He tried to borrow money without success. He then decided to commit the armed robberies. He did so after taking a shot of methamphetamine and drinking a large amount of alcohol.

14 After committing the first robbery the appellant was told by the men to whom he owed the debt that the money he had stolen was not enough and that they wanted the whole amount that night. Further threats were made regarding his family and it was in that context that he carried out the other armed robberies. After committing those robberies he met the men and handed over the money. He then handed himself in to the police later on 6 May 2014. When interviewed he admitted each of the offences and said that they had been committed because he owed money to people who had threatened harm to members of his family, his girlfriend and members of her family.

15 The appellant has a relatively minor criminal record. It includes offences of assault, obstructing a public officer, trespass and traffic offences. He has not previously been sentenced to a term of imprisonment.

16 The psychological report referred to the appellant having feelings of inadequacy and despair and a history of depression and anxiety. The history of drug use reflected that he had resorted to taking drugs to escape personal problems. He presented to the psychologist as being remorseful and concerned about the effects of his actions on the victims. He was assessed as being a low to moderate risk of future violent offending. However that risk would be exacerbated if he continued to use methamphetamines. The psychologist considered that he would benefit from programmes to address drug use and cognitive skills. Whilst in custody awaiting sentence the appellant had taken the opportunity to complete some programmes in this regard.

17 It is not suggested that there was any express error in the sentencing judge's remarks. Accordingly it is not necessary to engage in a detailed examination of those remarks.

18 His Honour referred to the circumstances of the offences, the maximum penalties and the appellant's personal circumstances. He noted that there were several factors that aggravated the offences. In particular that the robberies were committed on soft targets; that is, premises that are very vulnerable to being robbed because they are open at night, frequently hold substantial quantities of cash and are often staffed with a single attendant, frequently a young person. It was also an aggravating factor that the first robbery was committed using a syringe as a weapon, albeit that the syringe was empty. His Honour referred to the fact that many armed robberies are committed by offenders who abuse methamphetamines. He also referred to the need for deterrence in imposing sentences for such offences.

19 In regard to mitigating factors, his Honour accepted that the appellant had shown remorse for the offending and some insight as to the effect of the offences on the attendants at the six premises that were robbed. The expressions of remorse were consistent with the fact that the appellant had surrendered himself to police, made frank admissions when interviewed and pleaded guilty at the first reasonable opportunity. A discount of 25% was afforded pursuant to s 9AA of the Sentencing Act 1995 (WA). His Honour also referred to the support by the appellant's family, the favourable pre-sentence report and the relatively low risk of reoffending if the appellant is able to overcome his substance abuse. His Honour also specifically noted that in respect of counts 2 to 6 the appellant had only pretended to be armed.

20 His Honour made a finding that the appellant committed the offences out of desperation as a result of the threats that had been made to him. He also accepted that the offences would not have been committed but for the threats. That was mitigating to some extent however his Honour said that the appellant found himself in the position he was in because of his use of and addiction to an illicit substance. As his Honour said, it is not unusual for those who supply drugs to do so on credit and then to enforce the debt in the manner described:

To view the circumstances in which you came to offend entirely from your prospective would be to obscure the seriousness of your offending, its effect on your victims and the other considerations that are relevant in sentencing offenders for this type of offence; in particular, the need for general deterrence.

21 His Honour accepted that whilst each offence was separate they formed a course of connected criminal acts over a relatively short period. He referred specifically to the totality principle and the need to ensure that the total sentence not be one that is disproportionate to the total criminality involved.

22 The sentences imposed were as follows: count 1 - 3 years' imprisonment; count 2 - 1 year's imprisonment; count 3 - 2 years 9 months' imprisonment; count 4 - 1 year's imprisonment; and counts 5 and 6 - 2 years 9 months' imprisonment. The sentences on counts 1, 2 and 4 were ordered to be served cumulatively and the sentences on counts 3, 5 and 6 were ordered to be served concurrently. The sentences on counts 2 and 4 were reduced for reasons of totality. His Honour said that the reason for cumulative terms on counts 2 and 4 was because count 2 was the first armed robbery that was committed after the appellant went back to those to whom he owed money and decided to continue with his offending and because there was a level of violence in respect of count 4 which was different from, and more significant than, the other counts.

23 There are three proposed grounds of appeal. The first asserts that the total effective sentence breached the first limb of the totality principle. The second asserts that the sentencing judge was in error to order that the sentence on count 2 be served cumulatively. The third asserts that the sentencing judge was in error to order that the sentence on count 4 be served cumulatively.

24 The first limb of the totality principle provides that the total effective sentence must bear a proper relationship to the overall criminality involved in the offences, viewed in their entirety and having regard to the circumstances of the case, including those referable to the offender personally. A ground that refers to breach of the totality principle asserts the existence of an implied error, that is to say that although no error in the sentencing remarks is identified the outcome is said to be one that could not be reached in the proper exercise of discretion. It is important to recognise that the question is not what sentence the appeal court would have imposed, but whether the sentence imposed was open to the sentencing judge in all of the circumstances.

25 In the present case the appellant submits that the criminality was towards the lower end of the scale and that his personal circumstances were unusually favourable. In particular, the appellant refers to the fact that he voluntarily surrendered himself to the police, made full admissions, entered pleas of guilty at the first opportunity, committed the offences due to threats, has a history of anxiety and depression, demonstrated genuine remorse, was at low risk of reoffending and had withdrawn from the drug culture he was involved in prior to the offending.

26 As regards the seriousness of the offending, each of the offences was punishable by a maximum of life imprisonment. The offences were reasonably serious examples of their type, not least because the appellant targeted premises that were open late at night and were vulnerable. It is true that five of the offences did not involve use of an actual weapon. This does not result in a lower applicable maximum penalty but it is a relevant consideration. However, the fact that there is no weapon that could be used to inflict harm needs to be seen in the context that an offender who pretends to be armed intends that those he confronts will believe that he is armed and will comply with his demands out of fear for their safety. The appellant clearly had such an intention and reinforced it by making verbal threats. The appellant's threats were clearly convincing and he largely achieved his objectives. The use of a syringe in the first offence was correctly described by the sentencing judge as an aggravating factor.

27 The appellant submits that the offending occurred over a 13 hour period and was neither premeditated nor planned. However, each of the offences was a separate and distinct offence; the appellant had to travel from one location to another and he persisted in the conduct. Whilst there is no suggestion that the offending involved significant planning, it could not be said to have occurred on the spur of the moment.

28 Whilst the appellant accepts that the circumstances of offending of this nature can vary greatly and comparable cases can only provide broad guidance, he relies on three cases as indicating that the total sentence here infringed the totality principle. Those cases are Forkin v The State of Western Australia [2013] WASCA 51; The State of Western Australia v Drew [2012] WASCA 86; Sein-Thet v The Queen [1999] WASCA 186.

29 In Forkin the appellant was convicted on his fast track pleas of guilty of two counts of armed robbery and three counts of stealing, all committed on the same day. The offences had been committed six days before the expiration of a conditional suspended term of imprisonment imposed for an offence of aggravated robbery. The objective circumstances of the offences in that case were described as not being at the high end of the scale of seriousness. There were significant mitigating factors including the appellant's fast track pleas of guilty, youth, deprived and dysfunctional background and suicidal mind frame when he offended. A total effective sentence of 6 years and 6 months was found to have breached the first limb of the totality principle and a total effective sentence of 3 years and 6 months was substituted.

30 Whilst there are some similarities with Forkin, including that the offences occurred over a short period of time, that there was early pleas of guilty and the offender had a history of depression, anxiety and drug use, there are also significant differences. The offending in Forkin effectively related to two incidents. In the first incident he had approached the driver of a vehicle, produced a knife and ordered the driver out of the car. The second incident occurred some hours later when the appellant stole a kitchen knife from a supermarket and then approached a man in a stationary car and asked for a lift. When this was refused the offender asked to use the driver's mobile telephone and walked off with it. A little later he returned to the vehicle, produced the large kitchen knife and told the driver to get out of the car. He then drove off in the car. When the appellant was subsequently apprehended he was found in possession of a GPS device that had been stolen from another car that had been broken into. This conduct involved the commission of two armed robberies as opposed to the appellant's six. The circumstances of the offending were quite different. For those reasons Forkin is not a suitable comparison.

31 In Drew the offender pleaded guilty to five counts of armed robbery and one count of aggravated armed robbery. He was also convicted of breaching a community based order imposed for offences of burglary and stealing. A total effective sentence of 3 years and 6 months was imposed. The robbery offences occurred over an eight month period between June 2010 and February 2011 and involved holding up pharmacies at night and with use of a knife in order to obtain prescription drugs. The offender in that case was aged 19 years old when he committed the offences and was 20 at the time of sentencing. He had a very substantial drug addiction and a minor criminal record. The total effective sentence was described as lenient and merciful. Buss JA, with whom McLure P and Newnes JA agreed, was not persuaded that the outcome was outside the range of sentences open to the sentencing judge in a proper exercise of the sentencing discretion. It was noted that there were substantial mitigating factors, notably the offender's pleas of guilty at the first reasonable opportunity, his remorse, his youth, his cooperation with the police and his mental health issues. A psychological report indicated that the offender had longstanding anxiety and depression, that he had an unstable lifestyle, often living on the streets and that he had resorted to significant substance abuse to alleviate emotional distress and his undiagnosed mental health issues.

32 The appellant submits that the offending in Drew was more serious than his. In some respects this is true, however Drew was significantly younger than the appellant. In any event there is little value in comparing the appellant's sentence with one that was described as being lenient. Drew involved a prosecution appeal against sentence. The dismissal of such an appeal against sentence does not indicate that the sentence is a standard by which other sentences are to be measured.

33 In Sein-Thet the offender pleaded guilty to five offences of armed robbery and was sentenced to a total effective sentence of 3 years' imprisonment (equivalent to 2 years' imprisonment in post-transitional terms). An appeal against that sentence was dismissed. The dismissal of an appeal by the offender in such circumstances provides no useful indication of sentences for comparison purposes. In any event that case is now 16 years old and there are many more recent cases which are more useful as comparisons. At the hearing counsel conceded that this case was of limited utility.

34 Consistency in sentencing is an important consideration. However inconsistency is not demonstrated by referring only to a small number of other cases. In addition to the cases referred to by the appellant I have considered a number of other cases that involve multiple offences of armed robbery against smaller business premises. They are Pilling v The State of Western Australia [2014] WASCA 146 (total effective sentence 10 years); Carr v The State of Western Australia [2013] WASCA 192 (total effective sentence 7 years); Chadd v The State of Western Australia [2013] WASCA 99 (total effective sentence 7 years); McConkey v The State of Western Australia [2012] WASCA 45 (total effective sentence 8 years); The State of Western Australia v Eades [2011] WASCA 157 (total effective sentence 8 years); Bello v The State of Western Australia [2010] WASCA 181 (total effective sentence 7 years). While there will always be points of difference and similarity when comparing cases, these cases do not suggest the total sentence imposed on the appellant was in error.

35 Bello bears significant similarities to the appellant's offending. In Bello the offender was convicted after trial of three armed robbery offences. In each case the offender had held up pharmacies by putting a hand inside his jumper and pretending to be armed with a gun. The offences were committed in order to obtain drugs to feed the offender's addiction. They were committed over a two day period. As compared to that case, whilst the appellant pleaded guilty, he committed twice as many offences.

36 As regards grounds 2 and 3, these essentially relate to the same issue. It is suggested that the sentences for counts 2 and 4 should have been made concurrent so as to ensure that the total effective sentence was not disproportionate. The appellant's written submissions also make reference to the 'one transaction rule'. In regard to the latter, it is sufficient to note that it is no more than a rule of thumb and that there is no sentencing principle that requires concurrent sentences to be imposed for multiple offences constituting one transaction or a continuing episode. This is because wholly concurrent sentences may not properly reflect the total criminality of the offending. The guiding principle is whether the punishment imposed on an offender reflects the total criminality of what he or she did: Walgar v The State of Western Australia [2007] WASCA 241 [9].

37 In my view it is not reasonably arguable that the total effective sentence of 5 years' imprisonment infringed the totality principle. There is no challenge to the individual sentences imposed in this case and they clearly fell within the range customarily imposed for such offences. Some degree of accumulation was appropriate to reflect the number of offences and the persistence of the offending. The sentencing judge significantly reduced the sentences on counts 2 and 4 in order to reflect the totality principle.

38 On the hearing of the application senior counsel for the appellant suggested that the total sentence was in excess of what was appropriate by an order of six to 12 months. However, in my view, it is not reasonably arguable that the total effective sentence is one that reflects an implied error in the exercise of discretion.