Jurisdiction : SUPREME COURT OF WESTERN AUSTRALIA

Citation : THE STATE OF WESTERN AUSTRALIA v TURNBULL [2012] WASCSR 63

Criminal law - Application for leave to appeal against sentence - Aggravated armed robbery - Stealing - Aggravated burglary - Criminal damage by fire - Whether first limb of totality principle breached - Whether parity principle breached - Turns on own facts

Lowe v The Queen [1984] HCA 46; (1984) 154 CLR 606

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

The State of Western Australia v Turnbull [2012] WASCSR 63

1 McLURE P: This is an application for leave to appeal against sentence. The appellant also requires an extension of time. He brings this appeal in person.

2 On 2 February 2012 the appellant and his co-offenders, Mark Robinson and Aaron Vince, were convicted on their pleas of guilty of one count of aggravated armed robbery on Indictment 126 of 2011 (126/2011).

3 On 4 April 2012 the appellant and Vince were convicted on their pleas of guilty of offences on Indictment 9 of 2012 (9/2012) being one count of aggravated burglary (count 3), one count of aggravated armed robbery (count 4), two counts of stealing (counts 5 and 6) and one count of criminal damage by fire (count 7). The appellant was also convicted on his plea of guilty of two counts of stealing (counts 1 and 2 on 9/2012).

4 The appellant and Vince were both sentenced by McKechnie J on 4 April 2012: The State of Western Australia v Turnbull [2012] WASCSR 63. The appellant was sentenced to a total effective sentence of 8 years' imprisonment and made eligible for parole. The individual sentences for the eight offences he committed are as follows:

• aggravated burglary (count 3 on 9/2012) - 4 years;

• aggravated armed robbery (count 4 on 9/2012) - 5 years;

• criminal damage by fire (count 7 on 9/2012) - 2 years.

5 Vince was sentenced to a total effective sentence of 7 years' imprisonment and made eligible for parole. The individual sentences for the six offences he committed are as follows:

• aggravated burglary (count 3 on 9/2012) - 4 years;

• aggravated armed robbery (count 4 on 9/2012) - 5 years;

• criminal damage by fire (count 7 on 9/2012) - 2 years.

6 Robinson, the other co-offender in the aggravated armed robbery on 126/2011, was sentenced on 2 February 2012 by McKechnie J to 3 years' imprisonment and made eligible for parole.

7 The appellant claims that his total effective sentence of 8 years infringes the first limb of the totality principle and the parity principle.

8 The facts of the aggravated armed robbery on 126/2011 are as follows. In the afternoon of 2 May 2011 Robinson drove the appellant and Vince to a post office in Safety Bay. The vehicle's registration plates were removed. The appellant and Vince disguised their faces with clothing and armed themselves with a tomahawk and fishing knife respectively. Robinson parked the vehicle next to the front door of the post office. The appellant and Vince entered the post office. Vince went to the front counter, kicked open the staff access door and walked to the rear staff area where he brandished the knife in the direction of the manager, demanding cash from the safe. The manager complied by handing Vince cash and other items. Vince then approached the manager's wife who was also working in the post office. While brandishing the knife, he told her to empty the cash draw. She did so. While Vince was threatening the manager and his wife, the appellant was acting as security and standing at the front of the store. There were two elderly customers already inside the post office. The appellant told them to stay inside the premises, lifting his tomahawk to emphasise the point. A third elderly customer entered the post office whilst the robbery was in progress. Vince and the appellant then returned to the vehicle where Robinson had remained during the robbery.

9 In relation to counts 1 and 2 on 9/2012, on 8 and 9 April 2011 the appellant and others stole two caravans from a caravan yard.

10 Counts 3 to 7 on 9/2012 took place on 1 May 2011. In relation to counts 3 and 4, the appellant and Vince attended at a residence with the intention of committing a burglary and an armed robbery. Both had armed themselves with claw hammers and covered their faces to obscure their identity. They forcibly gained entry to the premises by kicking open the front door. Once inside, they located the 28-year-old complainant who was asleep in the main bedroom. Vince woke him and threatened him with the hammer, demanding cash and property. The appellant was standing in the doorway of the bedroom armed with the hammer. Vince took the complainant's mobile phone and directed him to the dining room. The complainant, out of fear for his safety, handed Vince cash from his wallet, his ATM card and associated PIN. The appellant was observing from close proximity. Vince also took the keys to the complainant's four wheel drive which was then stolen by him and the appellant (count 5).

11 In relation to count 6, the appellant and Vince went to a shopping centre in the complainant's vehicle. Vince used the complainant's ATM card and PIN to withdraw $200 from an ATM. The appellant and Vince then drove the complainant's vehicle to an unknown address where they used the money to purchase drugs. Thereafter the appellant and Vince drove the complainant's vehicle to a location where Vince set the vehicle alight. The vehicle was destroyed (count 7).

12 The appellant was aged 27 when sentenced. He had pleaded guilty to the offences at the earliest opportunity and the sentencing judge found that his expressions of remorse were genuine. He had constantly been in trouble with the law as an adult, due in large part to his amphetamine use. The appellant was assessed by a psychiatrist as having a mixed anti-social and borderline personality disorder and amphetamine and cannabis dependence. His risk of future violence was assessed as being high without intervention.

13 Vince was aged 25 when sentenced. He pleaded guilty at the earliest opportunity and was found to be genuinely remorseful. Vince also had a prior record although not as extensive as that of the appellant. He had a history of learning difficulties, poor behavioural control and low self-confidence. His life was dominated by his addiction to drugs, particularly cannabis and methylamphetamine.

14 Robinson was aged 32 at sentencing. He had pleaded guilty at the earliest opportunity. He had been a persistent offender, especially driving offences. He also had problems with drug use but had made major attempts to rehabilitate. A psychiatric assessment identified factors which pointed to a positive prognosis in relation to his rehabilitation.

15 The first limb of the totality principle is that the total effective sentence must bear 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].

16 It is clear that the total sentence of 8 years does not offend the totality principle given the extent and seriousness of the appellant's offending, his record of prior offending and the fact that he is assessed as being at a high risk of reoffending until he addresses his serious substance abuse problems.

17 The parity principle is explained by Gibbs CJ in Lowe v The Queen [1984] HCA 46; (1984) 154 CLR 606:

It is obviously desirable that persons who have been parties to the commission of the same offence should, if other things are equal, receive the same sentence, but other things are not always equal, and such matters as the age, background, previous criminal history and general character of the offender, and the part which he or she played in the commission of the offence, have to be taken into account (609).

18 The different sentences imposed on the co-offenders for the post office armed robbery appropriately reflect the differences in culpability and antecedents of the co-offenders. There is no arguable parity issue as between the appellant and Robinson.

19 As between the appellant and Vince, the appellant is two years older, had a significantly longer criminal record and, unlike Vince, was assessed as being at a high risk of reoffending. In all the circumstances, it was clearly open to the sentencing judge to impose the same sentences on the appellant and Vince for counts 3 to 7 on 9/2012. Any differences in culpability in their participation in those offences is at the margins and in any event is entirely neutralised by the differences in their antecedents. Moreover, the appellant committed two additional offences for which he was sentenced to 1 year's imprisonment on each count. For these reasons, the parity ground has no reasonable prospect of succeeding.

20 Both grounds of appeal have no reasonable prospect of success. Accordingly an extension of time is refused and the appeal must be dismissed.