Citation : THE STATE OF WESTERN AUSTRALIA -v- DREW [2011] WASCSR 79

Criminal law - State appeal against sentence - Multiple counts of armed robbery- Breach of a community based order for burglary and stealing - Total effective sentence of 3 years 6 months' imprisonment - Youthful offender - Significant mitigating factors - Whether individual sentences for armed robbery manifestly inadequate - Whether total effective sentence infringed the totality principle

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

Fredericks v The State of Western Australia [2011] WASCA 270

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

Mejtska v The State of Western Australia [2009] WASCA 80

Miles v The Queen (1997) 17 WAR 518

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

Sein-Thet v The Queen [1999] WASCA 186

The State of Western Australia v Drew [2011] WASCSR 79

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

2 BUSS JA: On 1 July 2011, the respondent was convicted, on his pleas of guilty in the Supreme Court before Jenkins J, of six counts in an indictment, being five counts of armed robbery (counts 1 - 5) and one count of aggravated armed robbery (count 6). The respondent was also convicted of breaching a community based order that had been imposed by the Magistrates Court at Midland on 6 January 2011 for convictions on one charge of burglary and one charge of stealing. As a result of his conviction for breach of the community based order, the respondent was resentenced by her Honour for the offences of burglary and stealing.

3 On 1 July 2011, the sentencing judge imposed individual sentences, as follows:

Count 6: aggravated armed robbery: 2 years 6 months' imprisonment;

4 The circumstance of aggravation in relation to count 6 was that the respondent was in company with another person.

5 Her Honour ordered that the sentence of 12 months' imprisonment for the breach/burglary be served cumulatively upon the sentence of 2 years 6 months' imprisonment for the aggravated armed robbery. The other sentences were ordered to be served concurrently with each other and concurrently with the other sentences. The total effective sentence was therefore 3 years 6 months' imprisonment. The total effective sentence was backdated to commence on 15 March 2011, being the date on which the respondent was taken into custody for these offences. A parole eligibility order was made.

6 The State appeals to this court against sentence.

The facts and circumstances of the offending

7 As to count 1, on 30 June 2010, at about 1.25 am, the respondent went to the Beaufort Street 24 Hour Chemist in Mount Lawley. He attempted to conceal his identity by wearing a T-shirt over his face. The respondent approached the rear service counter. He produced a knife, which he held up at the staff of the pharmacy. The respondent demanded drugs. The pharmacist complied with the demand. He gave the respondent two bottles of dexamphetamine. The respondent then ran from the premises.

8 As to count 2, on 2 October 2010, at about 5.25 pm, the respondent entered the Friendlies Chemist in Morley. He attempted to conceal his identity by wearing a hood over his head. The respondent approached the service counter. He produced a knife and held it up towards a female pharmacy assistant. The respondent demanded drugs. The pharmacy assistant handed him two bottles of dexamphetamine. The respondent demanded more drugs. He was told that there were no more drugs and that he should look in the drug safe himself. The respondent did so, and stole a packet of OxyContin before leaving the premises.

9 As to count 3, on 24 October 2010, at about 7.02 pm, the respondent returned to the Friendlies Chemist in Morley. He attempted to conceal his identity by wearing a hood over his head and a T-shirt over his face. The respondent approached the service counter. He produced a knife and held it up towards the pharmacist. The respondent demanded drugs. He forced the pharmacist to enter the rear office where the drug safe was located. The pharmacist opened the safe and handed the respondent three bottles of dexamphetamine and three packets of OxyContin. The respondent then left the premises.

10 As to count 4, on 16 November 2010, at about 7.53 pm, the respondent once again returned to the Friendlies Chemist in Morley. He attempted to conceal his identity by wearing a T-shirt over his face. Upon entering the pharmacy the respondent rushed behind the service counter, where he produced a knife and demanded prescription drugs from the drug safe. The respondent held the knife up towards the pharmacist. The pharmacist opened the drug safe and handed the respondent 15 bottles of dexamphetamine. The respondent then left the premises.

11 As to count 5, on 2 January 2011, at about 8.15 pm, the respondent entered the Night and Day Pharmacy in Bayswater. He attempted to conceal his identity by wearing a T-shirt over his face. The respondent made his way to the service counter and produced a knife. He held the knife up towards the pharmacist and demanded dexamphetamine. The pharmacist opened the drug safe and handed the respondent 33 bottles of dexamphetamine. The respondent then left the premises.

12 As to count 6, on 9 February 2011, at about 8.55 pm, the respondent entered the Guardian Yokine Pharmacy in Yokine. He was accompanied by a co-offender, Joshua Dawson. Both of them attempted to conceal their identities by wearing clothing on their faces and sunglasses. Each was armed with a knife. They went to the service counter and approached the female pharmacist and her assistant. The respondent and his co-offender held their knives up towards the pharmacist and her assistant. They demanded that the cash register and the drug safe be opened. The pharmacist opened the cash register and the respondent stole $50 cash. She then opened the drug safe and handed the respondent three boxes of OxyContin, a box of Ritalin and a number of morphine-based patches. The respondent and the co-offender left the premises as the police arrived. The co-offender was apprehended by the police, but the respondent escaped with the stolen property. It was not recovered.

13 As to the breach/burglary and the breach/stealing, on 15 November 2010, at about 9.00 pm, the respondent went to the North Street Pharmacy in Midland. He forced the security roller-shutter open and he smashed the window it protected with a brick. He then entered the premises and rummaged through various cupboards and refrigerators behind the service counter. All of the pharmaceutical contents of the cupboards and refrigerators were damaged beyond repair. The respondent then stole a Novo Rapid Flex pen. The replacement cost of the pharmaceutical contents and the pen was $2,993. The cost of repairing the roller-shutter and replacing the glass was $497. On 6 January 2011, the respondent appeared in the Magistrates Court and was placed on a community based order for a period of 12 months, with a supervision and programme requirement, and ordered to perform 100 hours of community service work. The respondent's conviction on count 6 breached the community based order.

14 The respondent was born on 3 May 1991. He was aged 19 years when he committed the offences and was 20 at the time of sentencing.

15 The respondent was born in Western Australia and raised by his parents in Perth. He was the eldest of three children, and an only child until his sister was born 13 years after him. The respondent did not experience any trauma or abuse during his childhood. When he was 18 his parents required him to leave home because of his drug abuse and antisocial behaviour. After that he lived on the streets. The respondent is single. He has not had any significant intimate relationships.

16 The respondent attended school until some time during Year 10. He did not derive any pleasure from the educational experience, although he told the author of the pre-sentence report that he was 'good' at mathematics and sport. The respondent explained that he did not enjoy school because he did not like being told what to do. He did not attend regularly during Year 10. He preferred to spend time with his antisocial peers smoking cannabis.

17 The respondent has a very substantial drug addiction. His drug use began when he was 13 years old. Initially, he consumed half a gram of cannabis a day. Gradually, he commenced using a variety of non-prescribed prescription drugs and illicit drugs. This culminated in the frequent use of methylamphetamine, ecstasy and morphine.

He has a very substantial drug habit which appears to have taken over his life and left him with little incentive to do anything but satisfy his habit. In fact, he commented that perhaps a prison term would help him to overcome his addiction.

19 The respondent has a prior criminal record. However, the offences were relatively minor. The respondent has not previously been sentenced to imprisonment. He has never served a term of juvenile detention.

20 Before he was sentenced, the respondent was assessed by Ms Jane Sampson, a clinical and forensic psychologist. She prepared a report dated 29 May 2011, which was before the sentencing judge. Ms Sampson said that the respondent presented as an anxious, guarded and grave young man who was emotionally detached. He was open about his substance abuse and appeared to have insight into his mental health. The respondent realised that he had been self-medicating with drugs. He was polite and cooperative throughout his interview with Ms Sampson. The respondent complied with a lengthy psychometric assessment process. Ms Sampson concluded that he appeared to be suffering from longstanding anxiety and depression.

21 Ms Sampson summarised her views in relation to the respondent, as follows:

• [The respondent] described a dysfunctional background characterised by maternal mental health problems, parental drug use and a distant relationship with his father. He appears to have struggled with early undiagnosed mental health problems which have escalated with his increasing use of substances. He has had a very unstable lifestyle often living on the streets. He has been unable to establish stable employment despite some effort towards an apprenticeship.
• His current offending behaviour is driven by dependence on substance use to alleviate symptoms of significant undiagnosed long term mental health problems; acquisition of resources for further drug use; poor stress resilience, poor judgement and poor coping skills in the community; and disinhibition as a result of significant substance use to alleviate emotional distress.
• It is acknowledged that [the respondent] is likely to receive a custodial sanction. He requires comprehensive assessment and treatment for his severe mental health problems and Hakea Mental Health staff has [sic] been informed of this.

22 The sentencing judge published her sentencing remarks as written reasons. See The State of Western Australia v Drew [2011] WASCSR 79.

23 The respondent entered pleas of guilty at the earliest reasonable opportunity.

24 After the respondent was arrested on 15 March 2011, he was interviewed by the police. He made full admissions in respect of all of the offences.

25 The respondent wrote a letter to her Honour in which he said he was very sorry for his offending and he was endeavouring to deal with his mental health issues. He also wrote letters of apology to the victims of his crimes. Her Honour accepted that these letters indicated that the respondent was indeed sorry for his offending [26].

26 The sentencing judge found that, 'to some extent', the respondent's 'mental health issues' reduced his moral culpability for the offending [32].

27 Her Honour noted that the respondent had a longstanding history of multi-substance abuse and that this abuse was related to longstanding depression and anxiety [23]. His substance abuse 'greatly contributed' to the commission of the offences in question [23]. He offended for the purpose of obtaining drugs to feed his addiction. Money was not a motivation [14].

28 Although the respondent did not have any prior convictions for offences similar to those in question, the sentencing judge was of the view that his prior convictions precluded his receiving any credit for good character [27].

29 Her Honour noted that the respondent's response to the community based order was 'very poor' [16]. He committed count 6 within about five weeks after he was placed on that order, and he reported only once before his arrest on 15 March 2011.

30 During the commission of count 6, either the respondent or his co-offender held a knife to the throat of one of the victims. The co-offender was sentenced on the basis that he did not carry out that act. The respondent did not admit that he had performed that act. He was sentenced on the same basis as his co-offender [34].

31 The sentencing judge referred to a victim impact statement from the complainant in respect of counts 2, 3 and 4. Her Honour said:

It tells me of the extended effect your offending has had on the proprietor and staff of that pharmacy. There was an immediate effect on the staff involved but all staff members were affected when you continued to target that pharmacy. Ultimately business dropped off because customers became concerned that they may become victims also if they were shopping there when you committed another offence. So it is clear that whilst you may think it is just the people you hold up who are affected, the effect of your offending is much greater than that [20].

32 Her Honour acknowledged that the respondent's offending was mitigated by his pleas of guilty at the first reasonable opportunity; the remorse that he had shown for his offending; his youth; his cooperation with the police; and his mental health issues [31].

33 However, the sentencing judge also emphasised the importance of general deterrence as a sentencing factor [30]. She added that, in her view, specific deterrence was also a relevant consideration [33]. It was necessary for the respondent to understand that he would receive significant penalties if he were to commit offences of this nature again [33].

34 After informing the respondent of the sentencing outcome, her Honour told him:

You must appreciate that this is a substantial benefit that you are being given because of your youth and because of your personal circumstances. I sincerely hope that this sentence is sufficient to ensure that it is not only a just punishment but that it means that you do not come back before the court in [the] future [42].

35 The State relies on two grounds of appeal. Ground 1 alleges that the sentencing judge erred in law in imposing sentences for counts 1 - 6 that were manifestly inadequate. Ground 2 alleges that her Honour erred in law by imposing a total effective sentence that infringed the first limb of the totality principle. On 2 September 2011, Mazza J granted leave to appeal on each of these grounds.

36 Counsel for the State submitted, at the hearing of the appeal, that the 'real question' in the appeal was whether the total effective sentence of 3 years 6 months' imprisonment infringed the totality principle (appeal ts 3). This proposition was endorsed by the counsel for the respondent in his submissions (appeal ts 8).

Manifest inadequacy, the first limb of the totality principle and the relationship between them

37 A ground of appeal which asserts that a sentence is manifestly inadequate asserts the existence of an inferred error. It is necessary, in determining whether a sentence is manifestly inadequate, to examine it from the perspective of the maximum sentence prescribed by law for the relevant offence; the standards of sentencing 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.

38 A complaint that a sentencing judge has infringed the totality principle also involves an allegation of inferred error. The first limb of the totality principle requires that the total effective sentence imposed on an offender who has committed multiple offences must bear a proper relationship to the overall criminality involved in all of the offences (including those, if any, in respect of which the offender is still serving a term of imprisonment), viewed in their entirety, having regard to all relevant circumstances including those referable to the offender personally (and including, for example, the desirability of accommodating any wish to rehabilitate).

39 The severity or leniency of an individual sentence is relevant in evaluating whether the total effective sentence infringes the first limb of the totality principle. See Giglia v The State of Western Australia [2010] WASCA 9, where Owen JA (McLure P & Pullin JA agreeing) said:

[G]enerally speaking where there is a challenge on totality grounds, the severity of a sentence imposed on an individual count will usually fall to be assessed in light of the sentences imposed in respect of the other counts and its contribution to the total effective sentence. A heavy individual sentence, for example, may be softened by an order that it be served concurrently with sentences imposed in relation to the other counts. On the other hand, a relatively light sentence may, as a practical matter, have increased severity if it is ordered to be served cumulatively. The real question is whether the total effective sentence is excessive [40].

40 The maximum available penalty for armed robbery, contrary to s 392 of the Criminal Code (WA), is imprisonment for life.

41 The range of sentences commonly imposed for single offences of armed robbery is 4 to 6 years' imprisonment. This range, which is expressed in terms of the transitional provisions in force under the Sentencing Legislation Amendment and Repeal Act 2003 (WA), does not take into account matters of mitigation. See Miles v The Queen (1997) 17 WAR 518, 521 (Malcolm CJ, Pidgeon J agreeing); The State of Western Australia v Wells [2005] WASCA 23 [4] - [5] (Wheeler JA, Steytler P & Roberts-Smith JA agreeing); Drury v The State of Western Australia [2010] WASCA 220 [22] (Mazza J, McLure P agreeing); Nannup v The State of Western Australia [2011] WASCA 257 [72] (Buss JA, McLure P & Mazza J agreeing). As Malcolm CJ noted in Miles, significant weight is ordinarily given to the requirements of personal and general deterrence in cases of armed robbery (521). See also Wells [5].

42 I have examined and had regard to a number of previous cases with some features comparable to the respondent's offending and his personal circumstances. They include Miles; Sein-Thet v The Queen [1999] WASCA 186; Wells; Mejtska v The State of Western Australia [2009] WASCA 80; Nannup; and Fredericks v The State of Western Australia [2011] WASCA 270. It is unnecessary to reproduce the relevant facts and circumstances, or the sentencing outcomes.

43 In the present case, the individual sentences and the total effective sentence imposed by the sentencing judge were, without doubt, lenient. The sentencing disposition was merciful. However, I am not persuaded that the outcome was beyond the range of sentences open to her Honour on a proper exercise of the sentencing discretion.

44 The offences committed by the respondent, whether viewed individually or collectively, were very serious. The targeting of pharmacies, the repeated offending against one of them (counts 2, 3 and 4), being armed with a knife, the attempts to disguise himself, and the gestures with the knife, are of particular concern.

45 However, there were substantial mitigating factors: notably, the respondent's pleas of guilty at the first reasonable opportunity, his remorse, his youth, his cooperation with the police, and his mental health issues.

46 Also, it is of some significance that his prior criminal offences were relatively minor, he has not previously been sentenced to imprisonment, and he has never served a term of juvenile detention.

47 Further, it is of some significance that he appears to have some insight into his offending, and the necessity for him to overcome his drug addiction and address the mental health and other issues which have resulted in his dysfunctional and unstable lifestyle.

48 As the sentencing judge warned the respondent, he was the recipient of a substantial benefit in the sentencing outcome. If the respondent were to reoffend in a similar manner after his release from custody, he may expect condign punishment.

49 In my opinion, when all of the facts and circumstances of the present case are evaluated and weighed:

(a) the individual sentences were not unreasonable or plainly unjust; and

(b) the total effective sentence did not fail to bear a proper relationship to the overall criminality involved in all of the offences, viewed in their entirety, having regard to all relevant circumstances including those referable to the respondent personally.

50 In my opinion, neither of the grounds of appeal has been made out. The appeal should be dismissed.