Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA

Criminal law - Appeal against sentence - Threat unlawfully to kill - Sentence of 2 years' immediate imprisonment - Whether sentence manifestly excessive

Application for an extension of time to appeal dismissed

Etheridge v The Queen [2004] WASCA 152

McLaughlin v The State of Western Australia [2012] WASCA 204

Miller v The State of Western Australia [2009] WASCA 79

Penny v The Queen [2002] WASCA 235; (2002) 26 WAR 475

R v Starr [1999] WASCA 119

Royer v The State of Western Australia [2009] WASCA 139; (2009) 197 A Crim R 319

The State of Western Australia v Anderson [2004] WASCA 157

The State of Western Australia v Bennett [2009] WASCA 93; (2009) 194 A Crim R 137

The State of Western Australia v Cheeseman [2011] WASCA 15

The State of Western Australia v Turaga [2006] WASCA 199

Thompson v Murray [2004] WASCA 168

Wimbridge v The State of Western Australia [2009] WASCA 196

3 BUSS JA: The appellant has applied to this court for an extension of time to appeal, and leave to appeal, against sentence.

4 On 5 January 2012, he was convicted, on his pleas of guilty in the District Court before Goetze DCJ, on two counts in an indictment.

5 Count 1 alleged that on 28 August 2011, at Silver Sands, the appellant was armed with a dangerous weapon, namely a knife, in circumstances likely to cause fear to other persons, contrary to s 68 of the Criminal Code (WA) (the Code). Count 2 alleged that, on the same date and at the same place, the appellant made a threat unlawfully to kill Nathan Meade, contrary to s 338B(a) of the Code.

6 On 5 January 2012, his Honour sentenced the appellant on counts 1 and 2 and, also, for an offence of driving a motor vehicle while he had no authority to drive in that his licence was disqualified or suspended and for an offence of stealing.

7 The sentencing judge imposed individual terms of immediate imprisonment, as follows:

8 His Honour ordered that the sentence for the offence of no authority to drive be served cumulatively on the sentence for count 2, and that the other sentences be served concurrently with each other and concurrently with the sentence for count 2. The total effective sentence was therefore 2 years 3 months' immediate imprisonment. A parole eligibility order was made.

The application for an extension of time to appeal

9 The last date for appealing against sentence was 26 January 2012. The appellant did not file his appeal notice until 21 June 2012. The applicable principles governing the exercise of this court's discretion to

extend time are set out in Wimbridge v The State of Western Australia [2009] WASCA 196. I will consider the merits of the proposed ground of appeal before deciding whether an extension of time should be granted.

The facts and circumstances of the offending

10 On 28 May 2011, the appellant drove a motor vehicle while he had no authority to drive. At the time he had been disqualified for life, on two occasions, from holding or obtaining a driver's licence.

11 On 28 August 2011, the appellant and a co-offender (his partner) went to an IGA store in Silver Sands. They selected grocery and household items, which they concealed in the pockets of their clothes. At the checkout they presented only one item for payment. They were taken to an area at the back of the store and asked to remove the other items from their pockets. The appellant produced a container of sour cream. He then ran to a roller door which was fitted to the external wall. The manager of the store attempted to detain him, but the appellant opened the roller door and ran away. The manager then closed the roller door.

12 A few minutes later, the appellant returned to assist his co-offender in escaping from the store. He opened the roller door. The appellant held a 30 cm hunting knife in his right hand. He approached several employees of the store including the store manager's wife and two teenage sons. When he was about a metre from them, the appellant waved the knife in a menacing manner and said, 'You cunts I'll kill you'. The group retreated because they believed that the appellant intended to carry out his threat. The appellant and his co-offender then ran from the store.

13 Shortly afterwards, the police located the appellant. He was arrested. The value of the stolen goods was $14.95.

14 The proposed ground of appeal, read with the appellant's written submissions, alleges that the sentence for count 2 (being the threat to kill) was manifestly excessive.

The merits of the proposed ground of appeal

15 The appellant was born on 18 April 1979. He was aged 32 at the time of the offending.

16 The appellant ceased his schooling at age 13. He has worked intermittently as a labourer. Between 2001 and 2004 he was a plasterer. When sentenced, he was unemployed and in receipt of a sickness benefit.

17 When the offending occurred the appellant was in a relationship with his co-offender. It appears that the relationship disintegrated shortly before the appellant was sentenced.

18 The appellant has used cannabis and heroin since the age of 13. He has been a daily user of amphetamines since he was 15. His offending on counts 1 and 2 was driven by his addiction to illicit drugs.

19 The appellant suffers from asthma. He has some fused vertebrae and experiences back pain.

20 The appellant is not a person of good character. He has numerous prior convictions in Western Australia between 1997 and 2001 and during 2005. These convictions include burglary (multiple offences), stealing (multiple offences), stealing a motor vehicle, fraud, assaulting a public officer (numerous offences), escaping legal custody, assault to prevent arrest, breach of bail, minor drug possession charges and numerous traffic offences. He has previously served terms of imprisonment. The appellant also has prior convictions in Victoria and Queensland.

21 However, since 2007, his convictions have been confined to three traffic offences, apart from the offences the subject of this application for an extension of time to appeal.

22 Section 338B(a) of the Code provides, relevantly, that any person who makes a threat unlawfully to kill a person is guilty of a crime and is liable to imprisonment for 7 years.

23 As Malcolm CJ (Ipp & White JJ agreeing) noted in R v Starr [1999] WASCA 119 [14], the gravamen of the offence under s 338B(a) is the making of the threat. The provision does not require an intention actually to carry out the threat. If, however, such an intention is established, that is an aggravating factor which is of relevance to the sentence to be imposed.

24 A threat unlawfully to kill will be more serious if it is made in circumstances where the offender has a present ability to carry out the threat; for example, where the threat is made while the offender is armed with a knife or other weapon. See The State of Western Australia v Turaga [2006] WASCA 199 [19] (Wheeler JA).

25 A review of previous sentencing dispositions in relation to the offence of threatening unlawfully to kill reveals that there are significant variations in the facts and circumstances of each offending and offender. The sentence to be imposed in each case depends on the particular facts and circumstances of the offence, having regard to the maximum penalty and the personal circumstances of the offender. The cases I have reviewed include The State of Western Australia v Bennett [2009] WASCA 93; (2009) 194 A Crim R 137; Royer v The State of Western Australia [2009] WASCA 139; (2009) 197 A Crim R 319; Miller v The State of Western Australia [2009] WASCA 79; Turaga; Thompson v Murray [2004] WASCA 168; Etheridge v The Queen [2004] WASCA 152; The State of Western Australia v Anderson [2004] WASCA 157; Penny v The Queen [2002] WASCA 235; (2002) 26 WAR 475; The State of Western Australia v Cheeseman [2011] WASCA 15; and McLaughlin v The State of Western Australia [2012] WASCA 204. It is unnecessary to reproduce the facts and sentencing dispositions in those cases.

26 The limits of the guidance afforded by comparable cases are flexible rather than rigid. A sentencing range is merely one of the factors to be taken into account in deciding whether a sentence is manifestly excessive. The mere fact that a sentence is within the range of other sentences imposed for similar offences does not necessarily establish that there was an appropriate exercise of the sentencing discretion in the particular case. Similarly, the mere fact that a sentence is outside that range does not necessarily establish that the exercise of the sentencing discretion in the particular case miscarried. These propositions are well-established by the case law.

27 The appellant committed counts 1 and 2 and the offence of stealing because he had no money for food. He was under the influence of amphetamines, which he had used for three days.

28 The sentencing judge said that the appellant's motivation may not have been to harm the victims of counts 1 and 2, 'but [his] motivation was to get [his] partner out of that situation and to assist [him] [he] used this knife' (ts 33). The store manager, his wife and their sons would have been terrified.

29 His Honour accepted that the appellant's pleas of guilty indicated, 'at least in a limited sense', some remorse (ts 33).

30 The information before the sentencing judge included a pre-sentence report dated 8 November 2011. The report states:

(a) unless the appellant engages in 'appropriate therapeutic and programmatic interventions, such as individual psychological counselling and substance abuse counselling', his likelihood of ongoing illicit substance abuse is high;

(b) the appellant is 'currently unemployed due to ongoing health concerns relating to ... fused [vertebrae]' and he claimed that he 'may soon be placed on a disability pension as a result of his medical condition';

(c) the appellant has previously been subject to five community based dispositions, 'all of which reflect poor compliance';

(d) the appellant justified his actions 'as a result of ongoing stress factors, leading to relapse into illicit substance use and the current charges'; and

(e) the appellant indicated that he would be willing to address his relapse into illicit substance use 'via appropriate interventions'.

31 Before this court, the appellant emphasised, in his submissions, his psychological condition in respect of which he was not receiving treatment at the time of the offending; the recent death of his father; his illicit drug history; his current participation in a methadone programme; and the absence of any 'significant past history of violence', with no '[violence-related] charges in over 10 years'. He also referred to several cases which he contended were comparable.

32 The appellant submitted that the sentence imposed for the threat unlawfully to kill was manifestly excessive 'particularly in regards to the personal circumstances of the offender and sentencing standards'.

33 The appellant also asserted that there had been 'huge significant changes' in his personal circumstances 'in the prior month of January 2012' and these changes were not referred to in the pre-sentence report which was prepared as at 8 November 2011.

34 Although the appellant appeared in person before this court, he was represented by defence counsel on 5 January 2012 at the hearing before the sentencing judge. Defence counsel made detailed submissions to his Honour including in relation to the appellant's personal circumstances (ts 26 - 28). The appellant should have been in a position to instruct defence counsel about the alleged 'huge significant changes' in his personal circumstances.

35 I am satisfied that the proposed ground of appeal is without merit. The appellant's offending in relation to count 2 was serious. There was little by way of mitigation apart from his plea of guilty. The appellant has a history of illicit drug use and criminal behaviour. He has limited insight into his offending and limited victim empathy. The individual sentence of 2 years' immediate imprisonment for count 2 was not unreasonable or plainly unjust. This is the only conclusion reasonably open when the sentence is viewed from the perspective of the maximum penalty for the offence, the objective seriousness of the offending and the importance of personal and general deterrence, after taking into account the general standards of sentencing applicable to the offence and the appellant's personal circumstances and antecedents including his plea of guilty.

36 I add, for completeness, that in my opinion the total effective sentence of 2 years 3 months' immediate imprisonment bears a proper relationship to the overall criminality involved in all of the offences, viewed together, and having regard to all relevant circumstances and sentencing factors.

37 The individual sentence for count 2 and the total effective sentence were of a severity that was appropriate in all the circumstances. It is not reasonably arguable that error should be inferred from the outcome of the sentencing process.

38 The proposed ground of appeal does not have a reasonable prospect of success. I would therefore dismiss the application for an extension of time to appeal.