Court of Appeal (WA)|2010-11-10|Before: Mazza J, Murray J, Lure P

DRURY -v- THE STATE OF WESTERN AUSTRALIA [2010] WASCA 220 (10 November 2010)

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

CITATION : DRURY -v- THE STATE OF WESTERN AUSTRALIA [2010] WASCA 220

Jurisdiction : SUPREME COURT OF WESTERN AUSTRALIA

Criminal law - Leave to appeal against sentence - Armed robbery and driving offences - Relevance of ill health due to drug and alcohol abuse - Whether sentence manifestly excessive - Whether first limb of totality principle infringed

Chan v The Queen (1989) 38 A Crim R 337

Giglia v The State of Western Australia [2010] WASCA 9

Gulyas v The State of Western Australia [2007] WASCA 263; (2007) 178 A Crim R 539

Robinson v The State of Western Australia [2007] WASCA 45

Samuels v The State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473

The State of Western Australia v Wells [2005] WASCA 23

Wilson v The State of Western Australia [2010] WASCA 82

2 MAZZA J: This is an application for leave to appeal against sentence. On 4 June 2010, the appellant appeared before Murray J and was convicted on his plea of guilty of one count of armed robbery in INS 64 of 2010 and three offences in a notice under s 32 of the Sentencing Act 1995 (WA), of giving a false name to police, driving while disqualified and driving with a blood alcohol content in excess of 0.08%.

3 The appellant was at the time he committed the armed robbery serving a 9 month term of imprisonment suspended for 18 months which had been imposed by the Mandurah Magistrates Court on 24 March 2009 for an offence of driving while disqualified. The appellant, through his counsel, admitted that the armed robbery offence and the three offences in the s 32 notice all breached the suspended imprisonment order. As a result, Murray J was required to deal with the breach: s 78(1)(c) and s 80 of the Sentencing Act.

4 On 18 June 2010, his Honour sentenced the appellant on all matters including the breach of the suspended imprisonment order as follows:

6 months' imprisonment cumulative; disqualified from holding a driver's licence 2 years cumulative

$900 fine and disqualified from holding a driver's licence 2 years cumulative

5 The total overall sentence imposed upon the appellant was 4 years 6 months' imprisonment, fines totalling $1,000, and a driver's licence disqualification of four years. This appeal only concerns the terms of imprisonment.

6 There are two grounds of appeal. The first alleges that the sentence imposed for the offence of armed robbery was manifestly excessive. The second ground alleges that the total effective sentence infringed the first limb of the totality principle. Leave to appeal is required on each of these grounds: s 27(1) of the Criminal Appeals Act 2004 (WA). This court must not grant leave to appeal on a ground unless it is satisfied that the ground has a reasonable prospect of succeeding: s 27(2) of the Criminal Appeals Act. To have a reasonable prospect of succeeding a ground must have a rational and logical prospect of succeeding, or a real prospect of success: Samuels v The State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473 [56]. The relevant principles which apply to this appeal are set out in Wilson v The State of Western Australia [2010] WASCA 82 [2].

7 I will deal first with the facts of the charge of armed robbery, then the offences in the s 32 notice, and finally the offence for which the appellant was placed on a suspended imprisonment order.

8 At approximately 6.35 pm on 28 February 2010, the appellant went to a pharmacy in Mandurah where he loitered outside for a while watching the flow of customers coming in and out. When the store was empty of customers, the appellant pulled a baseball cap and 'hoodie' type jumper over his face and walked in. At the time, the store was staffed by three female assistants aged 20, 25 and 26. He produced a large axe from underneath his hoodie and threatened the three female assistants. He walked into the dispensary area brandishing the axe and demanded that staff supply him with morphine. In response, he was given the contents of the opiate safe. The appellant demanded more morphine and walked to the rear of the dispensary, where the staff opened a second safe. One of the assistants removed a large quantity of opiate medication from the safe and placed it in a shopping bag that the appellant had brought with him.

9 The appellant asked staff to hand over their car keys so that he could get away from the store before the police caught him. They refused to hand over their keys and the appellant left on foot with approximately $1,800 worth of various opiate-based medications. The appellant fled across a car park to a nearby waste bin and vacant land where he sorted through the stolen medications and disposed of the axe.

10 On 1 April 2010, detectives executed a search warrant on the appellant's home, where they located the clothing worn during the robbery. The appellant made admissions to the police that he had committed the robbery and showed them the vacant block where he had disposed of the axe. He also pointed out to the police the hoodie that he had worn during the robbery and admitted that he was the person shown on the pharmacy CCTV footage committing the offence. He explained to police that he had committed the robbery because he had used up all of his medication and was desperate for more.

11 At 10.15 am on 8 November 2009, the appellant was driving a motor vehicle in Cooloongup. He was stopped by police and when requested to supply his name and address he gave a false name. The police also ascertained that his driver's licence had been cancelled. The appellant was taken to the Rockingham Police Station where he underwent a breath test. That test revealed that at the time of driving he had a blood alcohol content of 0.0888%.

12 On 5 January 2009, the appellant was driving a motor vehicle in Greenfields. He was spoken to by police and it was ascertained that he was driving the vehicle while disqualified.

13 The appellant was, at the time he committed the armed robbery, 37 years of age. The presentence reports and other materials provided to his Honour revealed that the appellant has had a long history of alcohol and drug abuse. He is a chronic alcoholic. Despite being given opportunities to address his alcohol and drug use, the appellant has been unable to do so with any degree of success.

14 Primarily as a result of his addictions, the appellant suffers from a number of serious health problems, including hepatitis C, cirrhosis secondary to alcoholic liver disease, an enlarged spleen, oesophageal varices, ankle oedema, and chronic tooth and back pain. He has been prescribed a range of medications including the opiate-based oxycontin.

15 His Honour had before him a report from Dr D Oldham of the Fremantle Hospital and Health Service dated 14 June 2010, which said that the appellant's liver disease was chronic rather than terminal and that the medication the appellant is required to take for this condition can be given to him in the prison system. The appellant's counsel told his Honour that the appellant would continue to be prescribed oxycontin in custody.

16 The appellant has a significant criminal history which is mostly consistent with his alcohol and drug addictions. He has numerous traffic convictions. His conviction for driving under suspension before Murray J was his seventh such conviction. In 1999, he was disqualified for life from holding or obtaining a driver's licence as a result of his third conviction for driving under the influence of alcohol. He has numerous other convictions including assaulting a public officer, unlawful wounding, burglary, fraud, stealing, receiving, unlawful possession and possession of prohibited drugs. The author of the presentence reports was of the opinion that the appellant's ability to refrain from re-offending was poor.

17 His Honour described the circumstances of the armed robbery offence as 'bad'. He described the offences in the s 32 notice as 'serious' because they represent an unwillingness, on the part of the appellant, to be bound by the requirements of the law relating to the necessity to have a driver's licence and to refrain from driving after having consumed alcohol. His Honour described the appellant's criminal history as 'very bad'.

18 His Honour expressly referred to the appellant's health difficulties, which he noted were largely brought upon by the appellant's own behaviour. Nevertheless, he accepted that the appellant's medical condition would make punishment more difficult for him and provide him with more hardship than would ordinarily be the case.

19 His Honour expressly acknowledged the appellant's early pleas of guilty and the first limb of the totality principle. He said that the term of imprisonment of 3 years 6 months for the armed robbery offence was '[reduced to] the degree that I can possible manage' and he reduced the term of imprisonment that the appellant was required to serve as a result of the breach of the suspended imprisonment order from 9 months to 6 months' imprisonment.

20 The appellant submitted that the criminality involved in the commission of the armed robbery was 'toward the lower end of the scale'. It was submitted that the circumstances of the appellant's ill health was so exceptional that his Honour should have imposed a suspended term of imprisonment. The exceptional circumstances relied on by the appellant were that:

(a) imprisonment would be a greater burden on the appellant because of his ill health;

(b) there was a serious risk that imprisonment would gravely and adversely affect his health; and

21 A complaint of manifest excess is a complaint of implied error on the part of the sentencer. To determine whether a sentence is manifestly excessive it is necessary to examine it from the perspective of the maximum sentence prescribed by law for the offence, the standards of sentence customarily observed with respect to that offence, the place which the criminal conduct occupies on the scale of seriousness of offences of the kind in question and the personal circumstances of the offender: Chan v The Queen (1989) 38 A Crim R 337, 342.

22 Armed robbery is a serious offence which carries a maximum penalty of life imprisonment. The cases make it clear that generally it attracts an immediate term of imprisonment and that a non-custodial disposition is as a matter of fact exceptional: Robinson v The State of Western Australia [2007] WASCA 45 [21]. The range of sentences commonly imposed for a single offence of armed robbery would be from 4 - 6 years. However, this range does not take into account matters of mitigation: The State of Western Australia v Wells [2005] WASCA 23 [4] - [5].

23 Ultimately, each case must be decided on its own facts and while immediate imprisonment is the usual disposition, a sentencer must be satisfied that no other disposition is appropriate.

24 It cannot be said that this offence was towards the lower end of the scale. The circumstances of this offence were particularly serious. The appellant was at the time serving a suspended imprisonment order. The offence was not committed at the spur of the moment. He waited outside the pharmacy until only the staff were inside. He had armed himself with a large axe and used it to cause terror to the pharmacy assistants. He was persistent in his demands for drugs. In any robbery where a weapon is used, there is always the potential for serious unintended consequences. Pharmacies provide a valuable public service and are vulnerable targets. They are open at night and on weekends. They store addictive medications which make them attractive to would-be offenders. There is a need to provide protection and general deterrence.

25 Leaving aside the appellant's health, there was nothing in the appellant's antecedents which were mitigatory. The appellant was, when he committed this offence, a mature man aged 37 years. He had a long and serious criminal history. His prospects for rehabilitation were not good. His Honour expressly regarded the appellant's health problems as mitigating. This was, as his Honour recognised, a merciful conclusion given that the appellant's ill health stemmed from his alcoholism and illicit drug use. Nevertheless, he recognised that the appellant's ill health would make immediate imprisonment a greater burden upon him which mitigated punishment.

26 There was no evidence before his Honour capable of establishing that imprisonment would, as the appellant asserted, have a gravely adverse effect on his health. Moreover, there was no evidence to support the assertion that the appellant's ill health could not effectively be treated in prison.

27 Illness is a mitigating factor where it will result in imprisonment being more onerous for the offender than in the ordinary case, but generally offenders cannot expect to escape punishment because of the condition of their health: Gulyas v The State of Western Australia [2007] WASCA 263; (2007) 178 A Crim R 539 [36].

28 Having regard to all of the circumstances including the appellant's ill health, a term of immediate imprisonment was the only appropriate disposition in this case. A term of suspended imprisonment was not properly open to his Honour. The length of the term was within the range of sentences customarily imposed in this state. I see no merit in ground 1.

29 The totality principle is well known. It has two limbs. This appeal is only concerned with the first limb. The first limb requires a sentencer, called upon to sentence an offender for a number of offences, to ensure that the aggregation of the appropriate sentences for each offence is a just and appropriate measure of the total criminality involved: Giglia v The State of Western Australia [2010] WASCA 9 [43].

30 The appellant submitted that the cumulation of two separate terms of 6 months' imprisonment, to be served on top of the sentence imposed for the armed robbery, resulted in a total term that offended the first limb of the totality principle.

31 The appellant has a poor record of prior convictions for driving whilst disqualified. At the time that he committed the offences on 8 November 2009 and 5 January 2009, he was under a lifetime disqualification. It is clear that the appellant, as his Honour noted, is prepared to drive in disregard of the law. The offences were therefore serious. His Honour, in his sentencing remarks, referred to the need to accommodate the totality principle and did so by reducing the term of imprisonment imposed for the armed robbery and by requiring the appellant to serve only 6 months of the 9 month term of imprisonment which had been suspended by the Mandurah Magistrates Court. In my opinion, in light of the serious nature of the appellant's overall offending, the total effective term of 4 years 6 months' imprisonment does not offend the first limb of the totality principle. There is no arguable basis for the complaint in ground 2.

32 In my opinion, neither ground of appeal has a reasonable prospect of success. Leave should not be granted with respect to either ground. The appeal must be dismissed.

Leave to appeal is refused.
The appeal is dismissed.

Chan v The Queen

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DRURY -v- THE STATE OF WESTERN AUSTRALIA [2010] WASCA 220 (10 November 2010)

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