Jurisdiction : SUPREME COURT OF WESTERN AUSTRALIA

Criminal law - Appeal against sentence - Armed robberies and other offences - Whether totality principle infringed - Whether sentence manifestly inadequate - Turns on own facts

Drury v The State of Western Australia [2010] WASCA 220

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

Miles v The Queen (1997) 17 WAR 518

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

1 McLURE P: This is a State appeal against sentence. The respondent was convicted on his fast-track plea of guilty of six counts of armed robbery, one count of attempted armed robbery, two counts of robbery, two counts of stealing a motor vehicle and one count of criminal damage.

2 On 4 October 2010, the respondent was sentenced by Hall J to a total effective sentence of 6 years' imprisonment. He was made eligible for parole. The State contends that the individual sentences for the armed robberies the subject of counts 1, 3, 5, 9 and 11 are manifestly inadequate and that the total sentence infringes the first limb of the totality principle.

3 Relevant details relating to the counts are as follows:

4 The facts found by the sentencing judge are as follows. At approximately 12.30 am on 6 April 2010, the respondent went to a convenience store in Kardinya. He was seen by a staff member to be in possession of a large shifting spanner that was visible in his pocket. The respondent entered the store and approached the staff member. With one arm concealed under his jacket, the respondent said, 'Get the money out, don't mess with me, I'm armed'. The staff member placed approximately $300 into a bag and handed it to the respondent who ran from the area (count 1).

5 At about 7.00 pm on 10 April 2010, the respondent went to a service station in Mount Pleasant. He approached the service desk and said to a staff member, 'Get a plastic bag and put the money in the bag, I'm a drug addict, if you don't I will beat you up'. The staff member removed approximately $377 from the till, placed it into a plastic bag and gave it to the respondent. The respondent said not to lock the door or he would beat the staff member up (count 2).

6 At about 8.22 pm on 14 April 2010, the respondent entered a restaurant in South Perth. He approached the counter and produced a hammer that was concealed in his clothing. He threatened a staff member and demanded money from the till. While doing so, the respondent struck the display bench with the hammer several times. The staff member removed $380 from the till, placed it into a plastic bag and gave it to the respondent. The respondent demanded more money from the shop safe. The staff member advised him that he did not have access to the safe. The respondent left the store (count 3).

7 At about 5.40 pm on 15 April 2010, the respondent went to a liquor store in Bentley. He approached the store and removed a six pack of UDL cans from the fridge and approached the service counter. A staff member scanned the items and placed them into a bag. The respondent produced a chisel from his clothing and pointed it at the staff member. He said, 'Happy Easter, give me all your money quick'. The staff member placed approximately $400 into a plastic bag and gave it to the respondent. The respondent took the money and drinks and left the store (count 4).

8 At about 9.00 pm on 18 April 2010, the respondent went to a café in Salter Point. He entered the café holding both a screwdriver and a claw hammer. He approached a staff member and said, 'Hurry up, give me the money'. While the staff member was attempting to open the till the respondent produced a plastic bag and instructed him to put the money in the bag. The staff member was momentarily unable to open the till so the respondent struck a glass display cabinet aggressively with the hammer, causing it to shatter. The staff member placed approximately $1,500 into the bag and the respondent left the store (counts 5 and 6).

9 Between 12.45 pm and 6.50 pm on 19 April 2010, the complainant left her Holden Commodore in a car park in Melville. The respondent forced entry to the car, started it and drove from the area. The car was not recovered (count 7). The respondent used the car in the process of committing two armed robberies in Bentley (counts 8 and 9).

10 At about 6.40pm on 19 April 2010, the respondent went to a pizza store in Bentley. He produced a screwdriver and held it out towards the staff member and said, 'This is a stick up, open the till, get the money out and put it in a plastic bag'. The staff member refused to do so and held up a baseball bat towards the respondent. The respondent retreated from the counter area and walked out of the store without obtaining any money (count 8).

11 At about 6.42 pm on 19 April 2010, the respondent entered a supermarket in Bentley. He approached the service counter, brandished a screwdriver and pointed it towards a staff member. The respondent demanded money from the staff member while moving the screwdriver in a stabbing motion in his direction. The staff member opened the till drawer allowing the respondent to remove the till tray containing approximately $1,500 (count 9).

12 At about 6.30 am on 20 April 2010, the respondent went to a newsagent in Cloverdale. He entered the store, selected a drink from the fridge shelf and approached a staff member behind the counter. The respondent said, 'Give me all your money, put it in a bag' and while doing so pointed a screwdriver at the staff member having taken it from his jacket pocket. The respondent further instructed the staff member to place five packets of cigarettes into the bag. The staff member placed approximately $200 and five packets of cigarettes into the bag and handed it to the respondent (count 10).

13 At about 6.48 pm on 20 April 2010, the respondent went to a delicatessen in Cloverdale. He approached the counter and brandished a screwdriver towards a staff member and said, 'Give me money, give me money'. The staff member advised the respondent that there were cameras present, resulting in the respondent holding one arm over his face in an attempt to conceal his identity. The respondent reached over the counter and grabbed the till and ran from the store. The till contained approximately $1,500 (count 11).

14 Between 2.30 pm and 10.30 pm on 20 April 2010, another complainant left her motor vehicle at a restaurant in Tuart Hill. The respondent forced entry into the car and drove it from the area (count 12). While driving the car, the respondent was involved in a pursuit with police. Further offences associated with his driving were dealt with in the Stirling Magistrates Court.

15 The respondent was aged 32 at the time he committed the offences. He commenced the crime spree the subject of this appeal approximately 15 days after having been released from prison for a prior offence of armed robbery for which he was sentenced to a term of imprisonment of 3 years and 4 months. The respondent had served the full term without having been released on parole.

16 The respondent has a very lengthy record of prior convictions. He has been sentenced to imprisonment as an adult for many offences including burglary, assault, stealing a motor vehicle, criminal damage and escaping legal custody. He has in excess of 23 pages of convictions as a juvenile.

17 The respondent had a significantly disadvantaged childhood. He had a violent mother and alcoholic father, little supervision or guidance and no positive role models. He has a long history of polysubstance abuse which commenced when he was aged 11.

18 The pre-sentence and psychological reports confirm that the respondent is at a high risk of reoffending, including in a violent manner, and has treatment needs in the areas of substance abuse, aggression and cognitive skills. The respondent refused to undertake relevant treatment programmes when serving the sentence he completed shortly before the current crime spree.

19 Manifest inadequacy depends on establishing an implied error from the type or length of sentence imposed. In this case, the State challenges the length of the sentences imposed for five of the six counts of armed robbery. The sentences customarily imposed for an offence is a relevant consideration when assessing whether a sentence is manifestly inadequate or manifestly excessive.

20 A sentence in the range of 4 to 6 years' imprisonment before any reduction for mitigating factors is common for a single offence of armed robbery: Drury v The State of Western Australia [2010] WASCA 220 [22]; Miles v The Queen (1997) 17 WAR 518, 521. This range provides a yardstick against which to assess whether the sentence under consideration is, having regard to all relevant sentencing variables, broadly consistent with sentences customarily imposed.

21 The sentences under challenge are very lenient. Four of the five sentences are 50% of the low end of the customary range when the only significant mitigating factor was the respondent's fast-track plea of guilty. Further, the respondent's prior record and the high risk of him reoffending require that significant weight be given to the sentencing objectives of personal deterrence and protection of the community. In those circumstances, a starting point at the low end of the customary range is contraindicated.

22 The only arguable basis for such low sentences is that they have been reduced for reasons of totality. The real question to be resolved in this case is whether the total effective sentence offends the totality principle: Giglia v The State of Western Australia [2010] WASCA 9 [40]. Where an offender has been sentenced for a number of offences, the severity or inadequacy of an individual sentence needs to be assessed in the light of all the sentences imposed and their contribution to the total effective sentence.

23 The first limb of the totality principle requires that the total effective sentence bear a proper relationship to the overall criminality involved in all the offences, viewed in their entirety and having regard to all the circumstances of the case including those referable to the offender personally: Roffey v The State of Western Australia [2007] WASCA 246 [24] - [25]. The total criminality of the respondent's offending is high. He has a very bad record and is at a high risk of reoffending. There is nothing in the material to suggest that he has the insight necessary even to view the option of attempting to rehabilitate as a desirable alternative. All the sentences imposed on the respondent are at the low, to very low, end of the sentencing range. I am satisfied that an aggregate sentence of 6 years is less than what is fairly necessary to achieve all of the recognised sentencing objectives, including punishment, deterrence and protection of the public. Rather than increase the very lenient sentences imposed for the nominated offences of armed robbery, I would impose a total sentence of 8 years' imprisonment by ordering that the sentences on counts 1, 4, 9 and 11 be served cumulatively.

24 For these reasons, I would set aside the orders made by the sentencing judge for cumulation and concurrence and in lieu thereof order that the sentences on counts 1, 4, 9 and 11 be served cumulatively with the balance of the sentences to be served concurrently, resulting in a total effective sentence of 8 years' imprisonment. The respondent will be eligible for parole after serving 6 years.