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[2015] WASCA 132
General information, not legal advice.
Court of Appeal (WA)
2015-06-29
Martin CJ
Original judgment source is linked above.
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
CITATION : WALLAM -v- THE STATE OF WESTERN AUSTRALIA [2015] WASCA 132
Jurisdiction : SUPREME COURT OF WESTERN AUSTRALIA
Criminal law - Sentencing - Aggravated armed robbery - Aggravated assault with intent to rob - Stealing a motor vehicle - Breach of conditional suspended imprisonment order - Whether total effective sentence of 6 years and 6 months' imprisonment breached first limb of the totality principle - Whether sentence of 4 years and 6 months for the aggravated armed robbery offence was manifestly excessive - Whether cooperation with police taken into account - Whether there was an error in calculating the discount for pleading guilty
Bello v The State of Western Australia [2010] WASCA 181
Chadd v The State of Western Australia [2013] WASCA 99
Forkin v The State of Western Australia [2013] WASCA 51
MXP v The State of Western Australia [2010] WASCA 215; (2010) 41 WAR 149
Readhead v The State of Western Australia [2005] WASCA 191
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
The State of Western Australia v Tran [2008] WASCA 183
The State of Western Australia v Walley [2014] WASCA 85
Williams v The State of Western Australia [2015] WASCA 16
1 MARTIN CJ: This appeal against sentence should be allowed and the appellant resentenced in the manner proposed by Hall J for the reasons which he gives, and with which I agree.
4 On 24 March 2014 the appellant was sentenced to a total effective sentence of 6 years and 6 months' imprisonment. That sentence was imposed following his conviction for three offences specified on an indictment and for the breach of a conditional suspended imprisonment order (CSIO). The sentences imposed were as follows:
giving a total effective sentence of 6 years and 6 months' imprisonment.
5 An appeal notice was not filed until 24 June 2014. Accordingly an extension of time is required. An affidavit from the appellant's solicitor states that the reasons for the delay were that the sentencing judge's remarks were not published on the Supreme Court website until 7 May 2014. An opinion was sought from counsel on 13 May 2014, the appellant completed a legal aid application on 26 May 2014 and legal aid was granted on 6 June 2014 for the appeal. The availability of sentencing remarks on the Supreme Court website does not justify the delay. A transcript of the proceedings appears to have been prepared and certified on 24 March 2014. Whilst the transcript did not include the sentencing remarks a request for that part of the proceedings to be transcribed could have been made. However, genuine efforts appear to have been made to pursue an appeal and the delay is neither significant nor prejudicial. In the circumstances I would grant the extension of time.
6 With one exception the facts were not in dispute.
7 The facts alleged by the prosecution were as follows. At 7.50 pm on Tuesday 16 April 2013 the appellant was a passenger in a Mazda vehicle which had been stolen from Scarborough the day before. It is not alleged that the appellant stole the motor vehicle but rather that he travelled in it knowing it to be stolen and became a party to the offence of stealing by that conduct.
8 The appellant was a passenger in the vehicle as it was driven through the car park of a shopping centre in Nollamara. The driver of the vehicle was subsequently identified by the appellant as being his cousin. The appellant got out of the vehicle and yelled out to a young woman who was walking across the car park and demanded that she hand her handbag to him. The appellant approached the victim and tried to pull the bag away from her and in the ensuing struggle he struck her to the side of the head with a clenched fist. He continued to demand the handbag and struck the victim to the head several times as she lay on the ground. He was then joined by the driver of the vehicle who also assaulted the victim and a female friend of the victim who was trying to assist. The appellant and his co-offender then ran off and left in the stolen vehicle without having gained possession of the handbag.
9 Forensic examination of the handbag provided a DNA sample that was a match to the appellant. The stolen vehicle was recovered the following day and a hat found within it also provided a positive DNA match to the appellant. This incident relates to counts 1 and 2 on the indictment.
10 At about 7.00 pm on Monday 17 June 2013 the appellant entered a liquor store in Scarborough armed with a machete. He approached the counter and demanded money. The attendant began to open the tills to get out money and whilst this was occurring the appellant menaced him with the machete. Surveillance footage showed the attendant to be very apprehensive and recoiling out of fear of the appellant's actions. After being given a quantity of cash the appellant approached a drinks fridge and selected a four pack of pre-mixed alcoholic drinks. He then left the store with the drinks and the money. This incident relates to count 3 on the indictment.
11 On 1 July 2013 the appellant was arrested at an address in Thornlie. He was later interviewed by police but made limited admissions to the offences.
12 At the time the appellant entered his pleas of guilty to these charges he denied striking the woman who was the victim of count 2 and claimed that it was his co-offender who inflicted all of the violence. He claimed that he had done no more than place his leg or foot on the shoulder of the victim as she was on the ground and when the co-offender struck her. Whilst this was not accepted by the prosecution the judge who took the plea indicated that a trial of issues was unnecessary as the appellant's version did not render him significantly less culpable.
13 At the time of the offences the appellant was subject to a CSIO imposed in the District Court on 5 April 2013. That sentence was one of 12 months' imprisonment conditionally suspended for 12 months for an offence of aggravated robbery. The appellant breached that order by reoffending on 17 April 2013 when he committed a bail offence by failing to appear as required. There was also a breach of the order by failing to attend supervision appointments as required. He failed to report on six occasions between April and June 2013. By breaching the order the appellant became liable to serve the sentence that had been suspended. The facts of the aggravated robbery offence were as follows.
14 At about 1.00 am on 3 January 2013 the appellant and two others waved down a taxi in the City. The taxi stopped and the appellant and his friends got in. The appellant was in the front passenger seat and on being asked for advance payment began to create a disturbance by going through the glove box, playing with the driver's identification notice and turning up the music on the radio. He demanded that the driver give him money. He got out of the vehicle, opened the driver's door and punched the driver two or three times. Whilst this was occurring one of the other passengers took the coin dispenser from the central console of the taxi. All three then fled on foot. They were arrested about half an hour later. Police located loose change from the coin dispenser in the appellant's pockets.
15 Defence counsel at the sentencing proceedings submitted that at the time of counts 1 and 2 the appellant was residing with his father in Scarborough. His mental health at this time was poor. The co-offender, the appellant's cousin, arrived in a car and invited the appellant to take a ride with him. The appellant accepted that this was the car that was the subject of count 1. He and the co-offender consumed two cartons of beer and some Bourbon pre-mix and became very intoxicated. They decided to go to the local shops to purchase some cigarettes and did not have a plan to commit any offence. However in the car park the events constituting count 2 occurred.
16 The appellant said that the co-offender told him that he had sighted a woman in the car park and suggested that the appellant should get her bag. Disinhibited by alcohol and affected by his poor mental health the appellant did as suggested by the co-offender. He said that as he was struggling with the woman the co-offender came over and struck her while she was on the ground. The appellant admitted that whilst the woman was on the ground he put his foot on her shoulder and that it was quite possible that she was again struck by the co-offender at that time.
17 In regard to count 3 it was submitted that prior to this incident the appellant had an argument with his partner. He was emotional and decided to cope by purchasing and using amphetamine. He tried to borrow money for that purpose from his father and another argument ensued. He then went to the liquor shop with a machete, where the offence was committed.
18 In regard to the breaches of the CSIO it was submitted that the appellant missed appointments because 'there was too much going on' in his life and because of his poor mental health. It was suggested that he was using drugs at this time to self-medicate for mental illness.
19 The appellant was 19 at the time he came to be sentenced. His parents separated when he was about 14 years of age and he took that separation badly.
20 The appellant was a talented footballer and received medals for his achievements. He was educated to year 10 but has no employment history. He was in receipt of social security benefits at the time of the offences.
21 The pre-sentence report noted that the appellant's history was one of continual offending over several years. Despite being afforded the opportunity of community based dispositions, violent offending and continued substance abuse had not abated. He was considered to be a risk to community safety and there was a need for him to engage in intensive programmes of intervention to address violence, substance abuse, poor peer association, immaturity, lack of victim empathy and poor consequential thinking. The report concluded by observing that imprisonment appeared to be the only option and that the appellant would not benefit from non-custodial dispositions.
22 A psychiatric report noted that the appellant's mental state deteriorated about two years ago and this had been exacerbated by drug use. The appellant has a number of traits falling within the category of borderline personality disorder and also experiences significant depression, paranoid ideation, auditory hallucinations and anxiety. The psychiatrist concluded that the appellant had a relatively chronic major depressive episode with significant anti-social personality traits. He was in receipt of anti-psychotic and anti-depressant medication. The risk of reoffending was assessed as being at the higher end of the spectrum.
23 The appellant pleaded guilty to the charges on 8 November 2013 and at that time indicated a willingness to provide information regarding the identity of the co-offender in respect of counts 1 and 2. The matter was then adjourned in order to allow time for the issue of the appellant's cooperation to be settled.
24 On 16 December 2013 the appellant signed a brief statement setting out his version of the events in relation to counts 1 and 2. The statement is consistent with the version of events put forward by the appellant's counsel. The only part of it which might be thought to be of assistance to the authorities is a description and name of the co-offender. There was no indication of any future assistance by the appellant, in particular as to whether he was willing to give evidence against the co-offender if apprehended and charged.
25 In the sentencing proceedings on 24 March 2014 the prosecutor informed the sentencing judge that the offer of assistance did not produce any information of value to the authorities. The police were not satisfied that the evidence of the appellant would be sufficient to allow for a successful prosecution of the nominated co-offender. Furthermore, the statement was at odds with the evidence of the victim and an eye witness as well as being inconsistent with the CCTV footage in regard to the sequence of events.
26 After referring to the relevant facts and personal circumstances of the appellant his Honour noted that the appellant had entered pleas at the first reasonable opportunity and was entitled to a discount of 25% pursuant to s 9AA of the Sentencing Act 1995 (WA). His Honour then applied that discount to the sentences that he would have imposed in respect of each of the offences. He did this by reducing a 12 month sentence on count 1 to 9 months, a 7 year sentence on count 2 to 5 years and 6 months, and a 6 year sentence on count 3 to 4 years and 6 months.
I come now to the offences which were the subject of the indictment, the first being the stealing, which I regard, for reasons already given, as being the least serious, which carries a maximum penalty of 7 years' imprisonment. I consider that, in the present circumstances, an appropriate starting point would be a term of 1 year's imprisonment for that offence but, because of the immediate plea of guilty, I will reduce that by a factor of 25% to a term of 9 months' imprisonment. That 9 months should be served cumulatively upon the 12-month sentence for the breach of the conditional suspended imprisonment order.
The second offence, the aggravated assault with intent to rob, carries a maximum term of imprisonment of 14 years. I consider this to be by far the most serious of the offences committed. It was an unprovoked assault on a young woman in a car park, with the offender alighting from a vehicle, taking her by surprise, and punching and assaulting her in an attempt to obtain her handbag, and, in the process, forcing her to the ground and continuing to assault her. You were joined in this assault by your co-offender, and only the bravery of the young woman preserved the handbag before you and your co-offender ran off, after about a minute's pummelling and punching and kicking. It seems to me that an appropriate starting point for this offence would be a sentence of 7 years' imprisonment. But, having regard to the plea of guilty and the fact that there is an element of psychiatric disorder which may have diminished your sense of the means to comply with lawful behaviour, I will reduce that by a factor of 1 year and 6 months, to a term of 5 1/2 years' imprisonment, that is, 5 years and 6 months. That term will be concurrent with the 9 months for the stealing, but both will be cumulative upon the 12 months for the breach of the conditional suspended imprisonment order.
The third offence, the aggravated armed robbery with the machete at the liquor centre, was certainly a very serious offence and were it not for the fact that nobody was injured in this event, it would have seriousness comparable with the second offence. But fortunately, because nobody was injured, I will begin with a head sentence of 6 years' imprisonment, which I reduce by a period of 1 year and 6 months because of the pleas of guilty and the other mitigating factors which I have identified, to a term of 4 1/2 years' imprisonment, or 4 years and 6 months [60] - [62].
28 Whilst not referred to in the grounds as originally framed by the appellant, it was conceded by the State that the sentencing judge made an arithmetical error in relation to count 2 because the discount afforded was 3 months short of the 25% reduction that his Honour intended to give. Furthermore, in respect of all three counts on the indictment his Honour acknowledged that there were other mitigating factors besides the pleas of guilty. They included the appellant's youth, mental illness and (limited) cooperation in respect of counts 1 and 2. No allowance for those other factors is apparent in the calculations undertaken by his Honour.
1.1 the plea of guilty;
1.2 the criminality involved;
1.3 the appellant's antecedents;
1.4 the appellant's cooperation with the police;
1.5 the appellant's pre-existing mental illness; and
1.6 sentences imposed in broadly comparative cases.
30 On 30 September 2014 McLure P granted leave in respect of ground 3 and referred the application for leave on grounds 1 and 2 to the hearing of the appeal.
31 At the hearing of the appeal leave was granted to add a further ground:
32 The first limb of the totality principles provides that the total effective sentence must bear a proper relationship to the overall criminality involving the offences, viewed in their entirety and having regard to the circumstances of the case, including those referrable 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 a proper exercise of discretion.
33 The appellant has cited a number of cases that are said to be broadly comparable to his own. In particular, Forkin v The State of Western Australia [2013] WASCA 51; Sein-Thet v The Queen [1999] WASCA 186; Readhead v The State of Western Australia [2005] WASCA 191; and The State of Western Australia v Drew [2012] WASCA 86.
34 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 were 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.
35 Whilst there are some similarities with Forkin, including that the offences occurred over a relatively short period of time, that there were early pleas of guilty, that the offender had a history of mental illness and was relatively youthful, there are also significant differences. In Forkin the offences took place a matter of days before the expiration of a suspended term of imprisonment. By contrast the appellant committed counts 1 and 2 on 16 April 2013, 11 days after he had been placed on a CSIO in the District Court. The seriousness of the offending of the appellant's case in respect of count 2 was also greater than that involved in Forkin because of the use of actual violence. Whether or not the appellant was the primary aggressor, even on his own account he and his co-offender had acted in concert and he had assisted the co-offender by holding down the victim with his foot as she was being attacked.
36 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. That case concerned an 18-year-old offender who had no prior record. The sentence in that case was described as very moderate in all of the circumstances. On any view Sein-Thet was an exceptionally lenient decision. 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.
37 Readhead involved an appellant who was sentenced to 9 years imprisonment at first instance. On appeal it was not argued that 9 years was beyond the appropriate discretionary range rather the issue was that having served the 9 years in full the appellant was potentially liable to serve an additional 3 years' imprisonment by way of breach of parole days. Readhead turns on its own particular circumstances and is distinguishable from the appellant's case.
38 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 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 the 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.
39 Whilst there are some similarities between the appellant's case and Drew the appellant had a significantly more serious criminal record. The pre-sentence report also noted his high risk of reoffending and this heightened the need for personal deterrence. 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 does not necessarily indicate that the sentence is a standard by which other sentences are to be measured.
40 Other cases not cited by the appellant support a conclusion that the total effective sentence imposed on the appellant was proportionate to the overall criminality and his personal circumstances. The respondent has directed attention to Chadd v The State of Western Australia [2013] WASCA 99; The State of Western Australia v Eades [2011] WASCA 157; and Bello v The State of Western Australia [2010] WASCA 181. It is unnecessary to refer to the facts of those cases other than to note that the total effective sentences of 7 years, 8 years and 7 years respectively imposed in circumstances that are comparable to those of the appellant do not support his contention that the first limb of the totality principle was infringed.
41 For those reasons I would refuse leave in respect of this ground.
Ground 2: sentence for count 3 manifestly excessive
42 The appellant alleges that the sentence imposed with respect to count 3, the aggravated armed robbery offence, is manifestly excessive.
43 A sentence is manifestly excessive if it is unreasonable or plainly unjust. In order to determine whether a sentence is manifestly excessive it is necessary to view it in the perspective of the maximum sentence prescribed by law for the offence, the standards of sentence customarily imposed for offences of that type, the place which the criminal conduct occupies in the scale of seriousness of offences of that type and the personal circumstances of the offender.
44 The maximum penalty for the offence of aggravated armed robbery is life imprisonment: s 392(c) of the Criminal Code (WA). That penalty reflects the seriousness with which the legislature regards this offence.
45 The offence was a serious example of aggravated armed robbery. The appellant armed himself with a dangerous and frightening weapon which he wielded at an employee of the liquor store in order to intimidate. Clearly some level of planning was involved albeit that this was not a sophisticated offence. The value of the property stolen was not large. Liquor stores are however a common target for this kind of offending and are often open at night and staffed by few employees. Such premises are vulnerable targets and this enhances the need for general deterrence.
46 The appellant pleaded guilty at an early stage, although this may be unsurprising given that the case against him was strong. However, it is not disputed that his early plea of guilty entitled him to a discount of 25%. The failure to afford the whole of that discount was a specific error that is the subject of ground 4.
47 At the time of this offence the appellant was subject to a conditionally suspended period of imprisonment. The first two offences were committed within two weeks of that sentence being imposed. To offend in these circumstances shows contempt for the law. The appellant's relatively lengthy criminal record also revealed a continuing pattern of disobedience and a heightened need for personal deterrence and community protection.
48 In the appellant's favour he was comparatively youthful. Youth is usually a factor deserving of a more merciful disposition. However, when young people have been before the courts on numerous occasions and shown no inclination for reform the relevance of youth as a mitigating factor will diminish.
49 The appellant's history of mental illness was also a relevant factor. The sentencing judge accepted that this had diminished the appellant's ability to think rationally. This is a factor which reduced his culpability, but it was offset by the fact that his psychological difficulties heightened the risk of reoffending and the need to protect the public. It was also offset by the fact that his mental illness was exacerbated by voluntary use of drugs.
50 As to the standards of sentences commonly imposed for offences of this type, a range of 4 - 6 years' imprisonment has been recognised as being an appropriate starting point for offences of armed robbery before taking aggravating and mitigating factors into account. In this case there were a number of aggravating factors which justified a sentence at the upper end of the customary range. The respondent refers to The State of Western Australia v Walley [2014] WASCA 85 as demonstrating that the sentence of 4 years 6 months imposed for count 3 in the present case was not of itself manifestly excessive. In Walley the State successfully appealed against a sentence of 2 years and 6 months originally imposed for an offence of aggravated armed robbery. In that case the robbery was also upon a liquor store although it involved the additional serious aspect of the infliction of a wound upon the liquor store attendant. A sentence of 4 years' imprisonment was substituted on appeal which took account of the fact that the respondent had conceded that the sentence imposed upon her had been inadequate.
51 This ground is not reasonably arguable and I would refuse leave in respect of it.
52 The relevant principles in relation to a reduction in sentence for providing assistance to the authorities are well established: see The State of Western Australia v Tran [2008] WASCA 183; and MXP v The State of Western Australia [2010] WASCA 215; (2010) 41 WAR 149. Discounts for cooperation can be given even when the assistance is of little or no value irrespective of whether the assistance demonstrates remorse or contrition. The more potentially useful the information is to authorities the greater should be the discount. Where the information or assistance demonstrates remorse or contrition the discount should be greater. In addition any danger or hardship which the person assisting authorities may be placed in or may undergo as a result of cooperation should also be taken into account.
53 In the present case the offer of assistance did not produce any information of value to the authorities. The statement submitted by the appellant was largely self-serving insofar as it referred to his role in the offending. The only element of it which could be thought to be of assistance was the naming of the co-offender. However, there was no indication that the appellant would agree to give evidence against the co-offender if that man was caught. In the circumstances the police were not satisfied that the information provided by the appellant was sufficient to allow successful prosecution of the nominated co-offender.
54 The content of the statement given by the appellant and the fact that it was inconsistent with statements given by prosecution witnesses and the CCTV footage show that this was not an attempt to accept responsibility and cooperate with the authorities because the appellant was genuinely contrite but was merely an attempt to obtain an advantage at sentence. In these circumstances, whilst the cooperation was not entirely devoid of substance, its value was substantially reduced. However, for the reasons I give in relation to ground 4, it is apparent that no discount at all was given for cooperation. That was an error that justifies the appeal being allowed on this ground.
55 This ground was anticipated in the State's written submissions and effectively conceded. That concession was entirely appropriate.
56 The sentencing judge nominated starting points for each of the three sentences he imposed for the counts on the indictment. He was not obliged to do this, but having done so it is apparent that a calculation error occurred. In respect of count 2 his Honour reduced the sentence by 18 months, but this is less than the 25% that he said he would allow. The correct amount was 21 months. A similar error occurred in Williams v The State of Western Australia [2015] WASCA 16.
57 Perhaps even more significantly it is apparent that the discounts for pleading guilty were the only reductions allowed in respect of all three counts. This is not consistent with the fact that the sentencing judge acknowledged that the appellant's youth, limited cooperation and mental illness were deserving of some weight. The starting points referred to by his Honour were clearly calculated prior to taking any mitigating factors into account. It would be expected, therefore, that those starting points would be reduced by an allowance for other mitigating factors and also the discount for pleading guilty. The reductions appear to be for the pleas of guilty alone and make no allowance for other factors. Alternatively, other factors may have been taken into account but the full discount for pleading guilty has not been afforded.
58 I would grant leave in respect of this ground and allow the appeal. For the reasons I have stated the full 25% discount should be allowed for each sentence but there should also be an additional allowance to take into account the other mitigating factors. As I have noted in respect of ground 2, the weight to be accorded to the appellant's cooperation and youth was limited. His mental illness is a more significant factor, though it is offset by the need for community protection. Accordingly, I would re-sentence the appellant to 6 months' imprisonment on count 1, 4 years and 9 months' imprisonment on count 2 and 4 years' imprisonment on count 3. The orders for concurrency and cumulation should remain and the requirement to serve the previously suspended sentence is unaffected.
(3) The appeal is allowed in respect of grounds 3 and 4 and the appellant is resentenced to 6 months' imprisonment on count 1; 4 years and 9 months' imprisonment on count 2; and 4 years' imprisonment on count 3. The sentences on counts 1 and 3 are to be served concurrently with that on count 2. The breach of the CSIO of 12 months' imprisonment is to be cumulative, producing a total effective sentence of 5 years and 9 months' imprisonment.
Bello
The State of Western Australia
(2010) 41 WAR 149