Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA

Jurisdiction : SUPREME COURT OF WESTERN AUSTRALIA

Criminal law - Appeals against sentence - Aggregate sentence of 7 years 6 months' imprisonment - Total effective sentence of 4 years 9 months' immediate imprisonment, after late pleas of guilty, for one count of aggravated home burglary, one count of aggravated armed robbery and two counts of stealing a motor vehicle - Total effective sentence of 2 years 9 months' immediate imprisonment, after pleas of guilty, for one count of doing an act as a result of which bodily harm was caused to another person and one count of stealing a motor vehicle and wilfully driving the vehicle recklessly - Whether the discount for the appellant's very late pleas of guilty was manifestly inadequate - Whether the aggregate sentence of 7 years 6 months or the total effective sentence of 4 years 9 months infringed the first limb of the totality principle

Criminal Appeals Act 2004 (WA), s 31(4)

Criminal Code (WA), s 304(1), s 371A, s 378, s 392, s 401(1)

Sentencing Act 1995 (WA), s 9AA

Anderson v The State of Western Australia [2005] WASCA 228

Ashworth v The State of Western Australia [2006] WASCA 36

Drake v The State of Western Australia [2006] WASCA 209

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

Fullgrabe v The State of Western Australia [2013] WASCA 130

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

King v The State of Western Australia [2013] WASCA 131

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

Narrier v The State of Western Australia [2011] WASCA 193

Nguyen v The State of Western Australia [2007] WASCA 114

Nicolaides v The State of Western Australia [2012] WASCA 199

Prempeh v The State of Western Australia [2013] WASCA 150

The State of Western Australia v Bropho [2013] WASCA 44

Thomas v The State of Western Australia [2012] WASCA 182

Thompson v The State of Western Australia [2013] WASCA 1

Wragg v The State of Western Australia [2013] WASCA 198

Wroth v The State of Western Australia [2013] WASCA 155

1 BUSS JA: The appellant has applied for leave to appeal against separate sentencing decisions of Simmonds J and Martino CJDC. He requires an extension of time to appeal against Simmonds J's decision.

2 On 8 February 2013, Simmonds J sentenced the appellant in the Supreme Court to a total effective sentence of 4 years 9 months' immediate imprisonment.

3 On 12 March 2013, Martino CJDC sentenced the appellant in the District Court to a total effective sentence of 2 years 9 months' immediate imprisonment. His Honour ordered that this sentence be served cumulatively upon the total effective sentence imposed by Simmonds J. The aggregate term was therefore 7 years 6 months.

4 Each sentencing judge made a parole eligibility order.

The facts and circumstances of the Supreme Court offences

5 The facts and circumstances of the Supreme Court offences are as follows.

6 The appellant was charged on indictment with four offences. They comprised:

(a) one count of aggravated home burglary, contrary to s 401(1) of the Criminal Code (WA) (the Code) (count 1);

(b) one count of aggravated armed robbery, contrary to s 392 of the Code (count 2); and

(c) two counts of stealing a motor vehicle, contrary to s 371A read with s 378 of the Code (counts 3 and 4).

7 The appellant entered very late pleas of guilty, five days before the commencement of his trial. He claimed to have no recollection of the alleged offending. However, he eventually changed his plea to guilty on the basis of the evidence against him in the State brief.

8 Simmonds J imposed individual sentences of immediate imprisonment as follows:

9 His Honour ordered that the sentences for counts 1 and 2 be served concurrently, and that the sentences for counts 3 and 4 be served cumulatively upon each other and cumulatively upon the sentence for count 2. Hence, the total effective sentence of 4 years 9 months' immediate imprisonment. His Honour backdated the sentence to 23 March 2012.

10 On 8 January 2012, at about 2.06 am, the victims, a young man and a young woman, were asleep at their residence. At about this time, the male victim awoke when he heard a side gate attached to his home being opened and his dog barking. He got out of bed and observed a person walk past the bedroom window and into an alfresco area. The male victim struck the window with his hand and shouted at the person, who returned to the front of the house. The male victim then walked to a glass panel and noticed a man standing about 6 m from the front door. This was the person the male victim had seen walking along the side of his home. The man stared at the male victim and the male victim's motor vehicle, which was parked in the driveway. The female victim, who had awoken and got out of bed, put on the outside light and saw the appellant and his co-offender walking towards the front door. The male victim ran to other parts of his home and armed himself with a knife and a golf club. The female victim attempted to activate the security alarm, but was unsuccessful because of her emotional distress at the unfolding events. At the urging of the male victim, the female victim locked herself in their ensuite toilet. She telephoned the police. The appellant and his co-accused kicked in the front door. The male victim ran towards the front door with the knife and the golf club. As he entered the passage next to the front door, the male victim saw the appellant and his co-offender standing inside the house. The co-offender was armed with a knife. He pointed it at the male victim and held the blade about 50 cm from the victim's chest. The male victim also saw that the appellant was armed with a screwdriver and a knife. The appellant told his co-offender, 'Just get the keys bro, just keep him there'. The appellant then went into the bedroom and asked the male victim, 'Where's the keys bro'? The male victim said the keys were at the other side of the bed. The co-offender said, 'Don't move or I'll stab you'. The appellant rummaged in the bedroom and stole the female victim's handbag, the male victim's wallet and iPhone and the keys to the male victim's motor vehicle together with other keys. The appellant and the co-offender then left the victims' home and walked towards the male victim's motor vehicle.

11 The appellant and the co-offender dragged the male victim's off-road motorbike from the victims' garage. They placed the motorbike in the back of the male victim's motor vehicle. The appellant and his co-offender drove from the scene in the vehicle.

12 On the morning of 8 January 2012, the stolen motor vehicle was recovered in another suburb of Perth. During the afternoon of 8 January 2012, police observed the appellant riding the stolen motorbike. Police officers pursued the motorbike for a short distance before losing sight of it. The stolen motorbike was not recovered. The front door of the stolen motor vehicle was damaged.

The Supreme Court offences: Simmonds J's sentencing remarks

13 Simmonds J recited the facts and circumstances of the Supreme Court offences in his sentencing remarks.

14 His Honour noted that the appellant had pleaded guilty five days before the commencement of his trial. This was a second trial. The first trial had been aborted because the appellant had failed to give proper notice of an alibi defence he proposed to rely on.

15 Victim impact statements indicated that the victims had suffered significant anger, distress and trauma as a result of the offending. The young woman had experienced a pervasive sense of a loss of security and general anxiety.

16 The appellant was born on 1 April 1990. He was aged 21 at the time of the offending. The appellant had a dysfunctional upbringing. He left school at the end of Year 9 and, ultimately, undertook a business course at the Narrogin TAFE.

17 Simmonds J noted the appellant's employment history had been limited to some casual work, but he had 'significant potential' as a footballer [54]. The appellant was in a relationship with a woman. They had two daughters and the partner was supportive of him [56].

18 The appellant has an extensive and serious prior criminal record. The record comprises 11 pages. His previous convictions include aggravated armed robbery, aggravated robbery, aggravated burglary (27 offences), reckless driving, stealing a motor vehicle and driving recklessly (three offences), stealing a motor vehicle and driving dangerously, stealing a motor vehicle (16 offences), stealing (multiple offences), driving a motor vehicle without an authority to drive (multiple offences), common assault (multiple offences), wilfully and unlawfully destroying or damaging property, being armed or pretending to be armed in a way that may cause fear, breach of protective bail conditions, breach of bail and a number of other traffic offences.

19 The appellant was held in detention on several occasions as a juvenile and he has previously been imprisoned as an adult. A previous parole order was cancelled, and he failed on several occasions to comply with juvenile conditional release or community orders.

20 The information before his Honour included a report dated 31 December 2012 from Ms Mary-Anne Martin, a forensic and clinical psychologist, and a pre-sentence report.

21 Ms Martin assessed the appellant to be at a high risk of similar future offending. She noted the appellant has significant personal issues in relation to the abuse of alcohol and other substances. He began drinking alcohol at age 11 and started using methylamphetamine when he was 12. The appellant does not appreciate the impact of his offending on his own life and the general community. He does not take responsibility for his offending and blames it on his alcohol use and the influence of peers.

22 The author of the pre-sentence report, contrary to Ms Martin's view, said the appellant accepts responsibility for his offending. However, the author also said he externalises blame on family members and endeavours to minimise his culpability by asserting he offends while intoxicated. The appellant lacks maturity and motivation to change.

23 Ms Martin mentioned the appellant was diagnosed with depression while he was in juvenile detention and had been prescribed anti-depressant medication. However, he stopped taking it. Ms Martin was of the view that any depression was not related to the appellant's offending, other than in an indirect way through the appellant feeling sorry for himself and 'taking the matter out on other people'.

24 His Honour gave the appellant credit for 'some understanding of the effect on your victims and some acceptance of responsibility and remorse' [51].

25 Simmonds J accepted that the appellant's recollection of the facts and circumstances of his offending was 'hazy at best' [27]. This apparent absence of recollection was attributable to self-induced intoxication. His Honour found 'it is clear that [the appellant was] aware of the effect of ingesting substances that intoxicated [him] on [his] potential to get into trouble and on [his] memory, [his] ability to recall what was happening around [him]' [28].

26 His Honour allowed a discount of 4% on the individual sentences of imprisonment for the very late pleas of guilty. He explained:

It seems to me ... in view of the effect on the victims, but particularly so far as the victims were concerned, it was indeed of importance to them that they did not have to undergo a reliving of these experiences through a trial; but on not one but two occasions they were having to get themselves ready for a trial.

Further, the arrangements had substantially been made for both trials, particularly for the second, before the plea of guilty was made. I have already indicated that the basis for the late plea that your counsel put heavily before me, namely your hazy recollection, is not one that I would weigh to any significant extent in determining how to arrive at the appropriate discount in relation to benefit saved and the like by reference to the opportunity to plead guilty.

In all the circumstances then I consider that only a relatively small discount is appropriate. That discount is one that I believe should be 4% [44] - [46].

The Supreme Court offences: the proposed grounds of appeal

27 The appellant relies on two proposed grounds in his appeal against the sentencing decision of Simmonds J.

28 Ground 1 alleges his Honour's sentencing discretion miscarried when he determined to allow a discount of only 4% for the appellant's pleas of guilty pursuant to s 9AA of the Sentencing Act 1995 (WA).

29 Ground 2 alleges the total effective sentence imposed by his Honour infringed the first limb of the totality principle.

The Supreme Court offences: the merits of ground 1

30 Section 9AA of the Sentencing Act applies where a person has pleaded guilty to a charge for an offence and the person is to be sentenced for that offence.

31 Any discount under s 9AA for a plea of guilty is to the 'head sentence', as defined in s 9AA(1). The head sentence, as defined, must be discounted for the plea before any other discount is allowed for any other mitigating factor.

32 Any discount under s 9AA for a plea of guilty must not exceed 25%. Further, a discount of 25% must not be allowed unless the offender pleaded guilty, or indicated that he or she would plead guilty, at the first reasonable opportunity.

33 The purpose of allowing a discount under s 9AA is 'to recognise the benefits to the State, and to any victim of or witness to the offence, resulting from the plea': s 9AA(2).

34 Section 9AA does not prevent a sentencing judge from reducing the 'head sentence', as defined, for any offence because of any mitigating factor other than a plea of guilty: s 9AA(6).

35 In my opinion, when all the circumstances relating to the appellant's belated pleas of guilty are evaluated, it is apparent that the discount of 4% allowed by Simmonds J under s 9AA of the Sentencing Act was within the range of a sound exercise of the discretion conferred on his Honour. It is not reasonably arguable that the amount of the discount was unreasonable or plainly unjust. That is, it is not reasonably arguable that the amount of the discount was manifestly inadequate. In any event, it is not reasonably arguable that different sentences should have been imposed. See s 31(4) of the Criminal Appeals Act 2004 (WA).

The Supreme Court offences: the merits of ground 2

37 The maximum penalty for aggravated home burglary under s 401(1) of the Code is 20 years' imprisonment. The primary sentencing considerations are personal and general deterrence. Aggravated burglaries can be and are committed in a wide range of circumstances and the sentence to be imposed for a particular offence must be commensurate with the seriousness of the offending after taking into account the maximum penalty, the circumstances of the offence (including the vulnerability of any victims), any aggravating factors and any mitigating factors. As to the range of sentences imposed for burglary and aggravated burglary, see Ashworth v The State of Western Australia [2006] WASCA 36, Drake v The State of Western Australia [2006] WASCA 209 and Nguyen v The State of Western Australia [2007] WASCA 114. See also Nannup v The State of Western Australia [2011] WASCA 257, Fullgrabe v The State of Western Australia [2013] WASCA 130, Prempeh v The State of Western Australia [2013] WASCA 150, Wroth v The State of Western Australia [2013] WASCA 155 and Wragg v The State of Western Australia [2013] WASCA 198.

38 The maximum penalty for aggravated armed robbery under s 392 of the Code is life imprisonment. The primary sentencing considerations are personal and general deterrence. As to the range of sentences imposed for armed robbery and aggravated armed robbery, see Nannup, Nicolaides v The State of Western Australia [2012] WASCA 199, The State of Western Australia v Bropho [2013] WASCA 44 and Forkin v The State of Western Australia [2013] WASCA 51.

39 The maximum penalty for stealing a motor vehicle under s 371A read with s 378 of the Code is 7 years' imprisonment. As to the range of sentences imposed for this offence, see Nannup, JKL v The State of Western Australia [2012] WASCA 215, Thompson v The State of Western Australia [2013] WASCA 1 and King v The State of Western Australia [2013] WASCA 131.

40 In the present case, the appellant's offending was very serious.

41 Counts 1 and 2 were committed in company; the appellant and his co-offender were armed; the offences were committed on residential premises in the early hours of the morning; the appellant and his co-offender knew, before entering the premises, that at least the male victim was at home; the victims were directly or indirectly detained; and the appellant and his co-offender were persistent in the pursuit of their criminal objectives.

42 As to count 3, the male victim's motor vehicle was used to enable the appellant and his co-offender to escape from the scene of counts 1 and 2. Although the vehicle was recovered, it was damaged.

43 As to count 4, the motorbike was valued at about $8,000 and never recovered. Also, it was used by the appellant to escape pursuit by police.

44 There was little mitigation apart from the appellant's youth and his very late pleas of guilty. His Honour found the appellant had some understanding of the impact of his offending on the victims and there was some acceptance of responsibility and remorse.

45 Ordinarily, an offender's youth is a significant mitigating factor. However, the appellant's youth must be weighed against the seriousness of the offences he has committed and his other personal circumstances and antecedents.

46 The fact the appellant has a prior criminal record and previous sentences have not achieved the purposes for which they were imposed are not, of course, aggravating factors. However, the appellant's extensive and serious prior criminal record (which includes multiple convictions for aggravated burglary and multiple convictions for stealing a motor vehicle), together with the facts and circumstances of his current offending, form a proper basis for deciding that he could not be afforded any greater leniency in the sentencing disposition for the offences in question. Personal and general deterrence were important sentencing considerations.

47 In my opinion, it is not reasonably arguable that the total effective sentence of 4 years 9 months' immediate imprisonment infringed the first limb of the totality principle. The total effective sentence was, no doubt, a just and appropriate measure of the appellant's overall criminality, after having regard to the maximum penalties, the circumstances of the offending, the vulnerability of the victims, the standards of sentencing customarily observed, all aggravating factors and all mitigating factors.

The facts and circumstances of the District Court offences

49 The facts and circumstances of the District Court offences are as follows.

50 The appellant was charged on indictment with two offences. They comprised:

(a) one count of doing an act as a result of which bodily harm was caused to another person, contrary to s 304(1) of the Code (count 1); and

(b) one count of stealing a motor vehicle, the property of the Commissioner of Police, and wilfully driving the vehicle in a manner that constituted the offence of reckless driving, contrary to s 371A read with s 378(2)(a) of the Code (count 2).

52 Martino CJDC imposed a sentence of 2 years 9 months' immediate imprisonment for each of counts 1 and 2. His Honour ordered that the sentences be served concurrently with each other, but cumulatively upon the total effective sentence of 4 years 9 months' immediate imprisonment imposed by Simmonds J. Hence, the aggregate term of 7 years 6 months.

53 On 23 January 2012, at about 10.51 pm, the appellant was driving a stolen motor vehicle. He was noticed by police. Police officers followed him in their vehicle. The appellant avoided apprehension by driving in the following manner.

54 The appellant crossed to the incorrect side of the road and turned off the lights of his vehicle. He accelerated to a speed in excess of 100 km an hour. The applicable speed limit was 50 km an hour. He continued for some distance on the incorrect side of the road and without lights. At one stage he accelerated to a speed in excess of 120 km an hour in a 50 km an hour zone. Eventually, the appellant turned on the lights of his vehicle. He drove on the correct side of a highway at a speed in excess of 140 km an hour. The applicable speed limit was 60 km an hour. He turned into a side street and accelerated to a speed in excess of 140 km an hour in a 50 km an hour zone. The police officers lost sight of the appellant's vehicle. Those facts constituted count 1.

55 On 27 January 2012, at about 1.30 am, the appellant was a passenger in another motor vehicle. Police observed the vehicle travelling in excess of the speed limit. The vehicle in which the appellant was a passenger stopped. The officer who was driving the police vehicle (the victim) stopped his vehicle next to the vehicle in which the appellant was a passenger.

56 The victim alighted from his vehicle for the purpose of speaking with the driver of the other vehicle. Another police officer also alighted from the police vehicle. While the victim was standing next to the driver's side of the other vehicle, the appellant alighted from that vehicle and sat in the driver's seat of the police vehicle. The victim ran to the driver's side of the police vehicle with a view to removing the appellant. However, the appellant put the vehicle into reverse gear and accelerated. The open door struck the victim. He was dragged backwards by the vehicle and fell to the ground. The victim struck his head on the road surface and became unconscious. The appellant fled the scene in the stolen police vehicle. During the incident, either while the vehicle was in reverse or while it was travelling forward when the appellant fled the scene, the vehicle ran over the victim's legs. The appellant made no attempt to stop or assist the victim. Those facts constituted count 2.

57 The victim suffered serious injuries including concussion, ligament damage to his ankle, cartilage damage to his hip, muscle injury to his back, and numerous bruises and lacerations to his face and other parts of his body. A victim impact statement reveals the incident has significantly affected the victim, both physically and mentally. The rehabilitation process has been lengthy. He has not fully recovered from his injuries and he appears to have some residual disabilities. All of these matters have adversely affected the victim's career as a police officer, his personal relationships and his social and leisure activities.

The District Court offences: Martino CJDC's sentencing remarks

58 After referring in his sentencing remarks to the facts and circumstances of the District Court offences, Martino CJDC noted the appellant's pleas of guilty. However, there was a very late plea on count 2. His Honour allowed discounts under s 9AA of the Sentencing Act of 15% in relation to count 1 and 5% in relation to count 2.

59 His Honour recorded that the appellant had not been charged with or convicted of intentionally injuring the police officer. His Honour accepted that the appellant was sorry for the injuries he had caused to him.

60 Martino CJDC said the appellant was heavily intoxicated when he offended, but intoxication was not, of course, an excuse or a matter of mitigation.

61 His Honour referred to the appellant's youth and his extensive and serious prior criminal record. His Honour also referred to the sentences imposed by Simmonds J.

62 It is apparent, from the sentencing remarks, that Martino CJDC was conscious of the need to consider carefully the first limb of the totality principle, both in the context of the total effective sentence he imposed and also the aggregate term for the Supreme Court and the District Court offences. His Honour said:

I have decided that in this case the appropriate way to ensure a total sentence for all matters that accurately reflects all the things that I have referred to is to reduce the individual sentences that I am imposing today and make that reduction - with those reduced sentences - cumulative.

So the sentence I impose for each of these offences is a sentence of two years and nine months.

The sentence on count 1 is to be served cumulatively upon the sentence of four years and nine months that you are currently serving. The other sentence is to be served concurrently (ts 27).

The District Court offences: the proposed ground of appeal

63 The sole ground in the appeal against the sentencing decision of Martino CJDC alleges that the aggregate sentence imposed by his Honour infringed the first limb of the totality principle.

The District Court offences: the merits of the ground of appeal

64 The maximum penalty for doing an act as a result of which bodily harm is caused to any person under s 304(1) of the Code is 7 years' imprisonment. As to the range of sentences imposed for this offence, see Narrier v The State of Western Australia [2011] WASCA 193.

65 The maximum penalty for stealing a motor vehicle, and wilfully driving the vehicle in a manner that constitutes the offence of reckless driving, under s 371A read with s 378(2)(a) of the Code, is 8 years' imprisonment. As to the range of sentences imposed for this offence, see Anderson v The State of Western Australia [2005] WASCA 228 and Thomas v The State of Western Australia [2012] WASCA 182.

66 In my opinion, the aggregate sentence of 7 years 6 months' imprisonment bears a proper relationship to the overall offending involved in the Supreme Court and the District Court offences, viewed together, and having regard to all relevant circumstances and sentencing factors. Appropriate punishment and personal and general deterrence were of particular importance. The objective circumstances of the offending as a whole were very serious. The District Court offences were separate and distinct from the Supreme Court offences. It was necessary for there to be some accumulation of the District Court sentencing disposition upon the Supreme Court sentencing disposition. The aggregate term of 7 years 6 months was of a severity that was appropriate in all the circumstances of the case. It is not reasonably arguable that the aggregate sentence imposed by Martino CJDC infringed the first limb of the totality principle.

68 None of the proposed grounds of appeal against the sentencing decisions of Simmonds J and Martino CJDC has a reasonable prospect of success. An extension of time to appeal against Simmonds J's decision should be refused. Leave to appeal against Martino CJDC's decision should be refused. The appeals must be dismissed.