Jurisdiction : SUPREME COURT OF WESTERN AUSTRALIA

Criminal law - Application to appeal against sentence - Aggravated burglary - 2 x armed robbery - 2 x attempted armed robbery - Stealing - Arson - Totality principle

Criminal Code (WA), s 371A, s 378, s 392, s 401, s 442, s 552

Sentencing Act 1995 (WA), s 9AA

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

JKL v The State of Western Australia [2012] WASCA 215

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

Morris v The State of Western Australia [2011] WASCA 47

Nannup v The State of Western Australia [2011] WASCA 257

Otway v The State of Western Australia [2008] WASCA 165

Pezzino v The State of Western Australia [2006] WASCA 131

Roffey v The State of Western Australia [2007] WASCA 246

The State of Western Australia v Viskari [2008] WASCA 143

Wright v The State of Western Australia [2010] WASCA 14

1 JUDGMENT OF THE COURT: This is an application for leave to appeal against sentence. The appellant pleaded guilty to one count of aggravated burglary, two counts of attempted armed robbery, two counts of armed robbery, one count of stealing a motor vehicle, and one count of arson. He was sentenced by Hall J to a total effective sentence of 7 years' immediate imprisonment.

2 The appellant seeks leave to appeal on the ground that the total effective sentence infringed the first limb of the totality principle.

Background Count 1 - burglary of a place ordinarily used for human habitation

3 On 20 August 2012, the appellant went to his father's property in Julimar with the intention of committing a burglary. He forced his way into a large shed and removed a firearms safe containing a number of firearms, including a rifle and 200 rounds of ammunition. The appellant loaded the firearm safe into the back of his vehicle and drove to bushland in the Bullsbrook area where he forced open the safe using an oxy-welding torch to gain access to the firearms.

4 At about 10.30 pm the following day, 21 August 2012, the appellant went to a residential address in Ellenbrook near where he lived. The appellant was armed with a rifle and intended to steal a motor vehicle. He tried to gain entry to the residence by kicking at the front door and yelling at the occupant 'Give me your fucking car keys and you won't get hurt'. The occupant armed himself with a golf club and went outside to confront the appellant, but retreated when he realised the appellant had a firearm (count 2).

5 The appellant then went to another house on the same street. The occupant, who was inside the house with his wife and children, heard the appellant shouting and walked to the front of the house to investigate. The appellant walked across the road towards the occupant with the rifle strapped across his body. The appellant shouted 'I'm not going to hurt you. I just want your car keys'. The occupant ran back inside his house and locked the door. He heard the appellant kicking at the door in an attempt to open it (count 3).

Counts 4 and 5 - armed robbery and stealing a motor vehicle

6 The appellant walked to another house in the same street. The female occupant heard the appellant outside her front door shouting 'give me your fucking car keys'. The appellant smashed a window next to the front door with the butt of the rifle. The occupant threw a set of keys through the smashed window. The appellant returned a short while later and told her they were the wrong keys. The occupant then threw her car keys out the window (count 4). The keys were to a Hyundai hatchback parked in the driveway which was driven away by the appellant (count 5).

7 The appellant then drove to a Caltex service station in the Hyundai and entered the service station while armed. The appellant aimed the rifle at the console operator standing behind the service counter and demanded that he give the appellant a cigarette lighter. The console operator did so and the appellant ran from the store, got back in the Hyundai and drove a short distance to one of the fuel bowsers. He again pointed the rifle at the console operator and demanded he activate the fuel pump. When he did so the appellant proceeded to pour fuel inside the vehicle including over the passenger seat. While this was occurring there were a number of customers present. The appellant got in the driver's seat and drove off in a northerly direction.

8 The appellant stopped a short distance from the service station and set the vehicle on fire. He then ran off down the street with the rifle in his hand.

9 The sentencing judge noted that the appellant was 27 years old. He is married and has two step-children whom he regards as his own. His wife is supportive of him despite his incarceration. The appellant's own childhood was unhappy and his parents separated when he was aged three. The appellant remained living with his mother but his relationship with her was not good and he left home at age 12. The appellant was essentially homeless for a time before going to live with his father. He began using drugs and committing offences. The offending continued into his adult years and included offences of aggravated burglary, arson, dangerous driving, assault and stealing (including stealing a motor vehicle), for some of which the appellant received sentences of imprisonment. The sentencing judge observed that there was a gap in the appellant's offending between 2008 and 2012, when the appellant found employment in the mining industry. (We note in passing that on the hearing of the application for leave to appeal the appellant said that period was in fact 2006 to 2012, but nothing turns on this.)

10 His Honour noted that the pre-sentence report placed the appellant's history of substance abuse at the extreme end of the scale. The present offences were committed on what the appellant described as a three month binge on amphetamines and cannabis. His Honour said that having regard to the appellant's past history of illicit drug use, he must have known that on drugs he was a danger to others and more likely to commit offences.

11 The sentencing judge observed that the only significant mitigating factor was that the appellant pleaded guilty at the first reasonable opportunity, having made full admissions to the police. His Honour took that into account by reducing the sentences that would otherwise have been imposed by 25%, the maximum allowable pursuant to s 9AA of the Sentencing Act 1995 (WA). His Honour imposed the following sentences:

Count 1: aggravated burglary (place used for habitation)

18 years' imprisonment - s 401(2)(b) Criminal Code

14 years' imprisonment - s 392 and s 552 Criminal Code

14 years' imprisonment - s 392 and s 552 Criminal Code

7 years' imprisonment - s 371A and s 378 Criminal Code

12 The total effective sentence was 7 years' immediate imprisonment, to commence on 23 August 2012 when the appellant was taken into custody. The appellant was made eligible for parole.

13 The sole ground of appeal is that the total effective sentence infringed the first limb of the totality principle.

14 The first limb of the totality principle requires a judge who is sentencing an offender for multiple offences to ensure that the total effective sentence bears a proper relationship to the overall criminality involved in all the offences, viewed in their entirety and having regard to the circumstances of the case, including those referable to the offender personally: Roffey v The State of Western Australia [2007] WASCA 246 [24] - [26]. A complaint that a sentencing judge has infringed the totality principle involves an allegation of inferred error: JKL v The State of Western Australia [2012] WASCA 215 [58].

15 The appellant referred in his submissions to a number of cases in support of his contention that the sentence of 7 years' imprisonment infringed the first limb of the totality principle; namely, Wright v The State of Western Australia [2010] WASCA 14; McConkey v The State of Western Australia [2012] WASCA 45; The State of Western Australia v Viskari [2008] WASCA 143; JKL v The State of Western Australia; Pezzino v The State of Western Australia [2006] WASCA 131; Nannup v The State of Western Australia [2011] WASCA 257; Morris v The State of Western Australia [2011] WASCA 47 and Otway v The State of Western Australia [2008] WASCA 165.

16 While it is relevant to refer to comparable cases when considering whether the totality principle has been infringed, the utility of doing so is limited. Other cases may provide broad guidance, but there will often be significant differences in the circumstances of the offending and the offenders. In the end, each case must be determined having regard to its own particular circumstances.

17 We have considered the cases referred to by the appellant. There is nothing in them which is capable of demonstrating that the total effective sentence in this case fell outside a sound exercise of the sentencing discretion. It is unnecessary to canvass them all. It is sufficient to refer to the following.

18 In Wright, the offender pleaded guilty to an indictment containing two counts of arson and one count each of stealing a motor vehicle, armed robbery and burglary. He also pleaded guilty to some offences in a s 32 notice. At the time he was sentenced, the appellant was almost 22 years old, but he was only 18 when the first of the offences was committed. The appellant received a total effective sentence of 6 years and 3 months' imprisonment. The issue in the appeal was whether one of the sentences for arson was manifestly excessive. The majority (McLure P and Owen JA) found that it was not manifestly excessive. All members of the court commented that the total effective sentence was appropriate. There are several features that distinguish Wright from this case. First, as serious as the offending was in Wright, it was less serious than the present case. Second, the appellant in Wright was youthful. Third, the appellant in Wright voluntarily disclosed to the police some of his offending. Neither of the last two factors applies to the case at hand.

19 In Nannup, the appellant and three co-offenders committed burglaries on residential premises to obtain the keys for motor vehicles and then stole the vehicles. They also committed a burglary on hotel premises to steal alcohol and an armed robbery in one of the residential premises. The offender pleaded guilty to three counts of aggravated burglary, three counts of stealing a motor vehicle and one count of armed robbery. A total effective sentence of 6 years' imprisonment was set aside on appeal and a sentence of 5 years and 4 months substituted. This was because the appellant had cooperated with law enforcement authorities. Again, in that case the offender's youth (18 years of age) was an additional mitigating factor.

20 In Otway, the offender in company with another broke into a house and threatened the occupant with a dagger-shaped letter opener to obtain the keys to a car in which they then drove away, taking with them the occupant's wallet and a mobile phone. The offender and others subsequently used the car in the course of breaking into three other houses to commit burglaries. The offender pleaded guilty to four counts of aggravated burglary, one count of aggravated armed robbery, one count of stealing and one count of stealing a motor vehicle. On an appeal against sentence, a total effective term of 5 years 6 months' imprisonment was reduced by six weeks to allow for time spent in custody before sentencing but the appeal was otherwise dismissed. The offender's youth (19 years of age) was again an additional mitigating factor.

21 We have also had regard to a number of other cases, including Chadd v The State of Western Australia [2013] WASCA 99. In that case, the 24-year-old offender pleaded guilty to one count each of aggravated armed robbery in company, armed robbery and attempted armed robbery. He also pleaded guilty to one count each of unlawful damage, stealing a motor vehicle, driving without a motor driver's licence and possession of cannabis, pursuant to a s 32 notice. The offence of aggravated armed robbery in company involved the theft of liquor from a liquor store by the appellant and his brother during which an employee of the liquor store was threatened with a small axe. The offences of armed robbery and attempted armed robbery involved the theft of a handbag and car keys, and the attempted theft of a car, while the appellant was armed with a picket he had torn from a fence. The appellant had a history of serious offending. An application for leave to appeal against a total effective sentence of 7 years' immediate imprisonment was dismissed.

22 In this case, the appellant's conduct late on the evening of 21 August 2012 was aptly described by the sentencing judge as a 'rampage', during which the appellant had terrorised people in their homes and at the service station. The appellant was armed with a firearm and had behaved in an aggressive and threatening manner, including pointing the firearm at the service station employee. The fact that the appellant was armed with a firearm was a serious aggravating feature. It is, as the sentencing judge observed, unknown whether the firearm was loaded, but as the victims were likely to assume that it was, that is of little consequence.

23 The appellant has a substantial criminal record. He does not have the advantages of good character or youth. Although he demonstrated some remorse, the level of offending was very serious and understandably caused great distress to the victims. The only significant mitigating factor was his early pleas of guilty which attracted a discount of 25%. The appellant's illicit drug use, while explaining his offending, cannot excuse it. Deterrence, both personal and general, were important considerations.

24 Having regard to all of the circumstances, the total effective sentence of 7 years' immediate imprisonment clearly fell within a sound exercise of the sentencing discretion. The appeal has no reasonable prospect of success.

25 We would refuse leave to appeal, with the result that the appeal is dismissed.