B (a child) v The Queen (1995) 82 A Crim R 234

Pukallus v The Queen, unreported; CCA Sct of WA; Library No 960058

The Queen v Szathamary, unreported; CCA SCt of WA; Library No 7672

These were two applications for leave to appeal against sentence. On 24 March 1998 the applicants were convicted on their pleas of guilty to three counts in an indictment which alleged that:

(1) On 11 January 1998 at Daglish the applicants (referred to as Mr Owen and Ms Thomson respectively) stole from Helen Joanna Churchward with actual violence two bags and contents the property of Helen Joanna Churchward.

(2) On the same date at Wembley Mr Owen and Ms Thomson attempted to steal from the person of Bernadette Maria Vandyk a bag and contents the property of Bernadette Maria Vandyk.

(3) On the same date at Wembley Mr Owen and Ms Thomson attempted to steal from Colina Frances Kerr with threats of actual violence a bag and contents the property of Colina Frances Kerr.

The offence the subject of count (1) was an offence of robbery contrary to s391 of the Criminal Code in respect of which the maximum penalty is imprisonment for 14 years under s393 of the Code. The offence the subject of count (2) on the indictment was an offence of attempted stealing contrary to s378(5)(a) of the Criminal Code. By s554(b) the maximum penalty for the attempt was one half of the maximum of 14 years for the completed offence under s378(5)(a), namely imprisonment for seven years.

The third offence was that of attempted armed robbery at the time of which the applicants were armed with an offensive weapon, namely a blood-filled syringe, in respect of which the maximum penalty was imprisonment for 14 years as a result of the combined effect of ss393 and 554(a) of the Code.

On 20 May 1998 the learned sentencing Judge sentenced each of the applicants to a term of imprisonment of one year in respect of each count all terms to be served cumulatively and ordered that each of the applicants be eligible for parole. At the conclusion of the argument on 3 August 1998 the Court was unanimously of the opinion that in each case leave to appeal should be granted, the appeal allowed and the sentences varied by suspending the total term of imprisonment for three years in each case for a period of 18 months commencing from 20 May 1998. Orders were made that each of the applicants be discharged from custody. It was then indicated that the reasons for making those orders would be published later. These are those reasons.

The grounds of appeal in each case were similar. In essence it was contended on behalf of each of the applicants, first, that the learned sentencing Judge, having adjourned sentencing for a period of almost two months and remanded the applicants on bail pending further reports from the Court Diversion Service, must have contemplated that there was a strong likelihood that he would impose a non-custodial sentence and that the conduct of the applicants and the reports received justified such a sentence. Secondly, that the learned Judge wrongly regarded himself as bound by the decision by the Court of Criminal appeal in Taylor v The Queen, unreported; CCA SCt of WA; Library No 980152; 6 April 1998 to impose immediate sentences of imprisonment in each case. Thirdly, that the applicants should have been sentenced to an intensive supervision order or any sentence of imprisonment should have been suspended. Fourthly, it was contended that, in any event each of the sentences imposed was manifestly excessive.

The facts as stated to the learned sentencing Judge in the District Court on 24 March 1998 indicated that the three offences were committed on Sunday 11 January 1998 within the space of some 15 minutes. As to count (1), at about 6.00pm the applicants were in the Daglish area and, while driving around in a motor vehicle owned by Ms Thomson's mother, they formed the intention of stealing a handbag to obtain cash. Ms Thomson was driving. She parked the car in the vicinity of the Daglish train station. Mr Owen got out and went up to the train station. He observed the complainant, a 48 year old woman who had just got off the train and was carrying four bags. As she walked along Railway Parade near Hamersley Road, Mr Owen grabbed two of the four bags. After a short struggle the complainant released the bags and Mr Owen ran off toward the underpass of the train station. He was then confronted by three people in the carpark where he dropped the bags and ran off through the underpass to the waiting car which was then driven off. The complainant was left with a sore shoulder and finger but these required no medical attention and her property was recovered.

As to count (2), at about 6.10pm on the same day the complainant, a woman aged 72 years, was walking along Pangbourne Street towards Grantham Street in Wembley. The applicants drove past her and formed the intention of stealing her bag. Ms Thomson parked the vehicle just around the corner and waited as the getaway driver. Mr Owen got out of the vehicle and walked past the complainant onto the other side of the road. He then crossed the road and turned to follow the complainant. As Mr Owen got closer to her she looked over her shoulder and observed him behind her. He reached out and attempted to grab her bag. She screamed. Mr Owen then said, "Don't worry, I'm just testing your reactions". He then walked away, got into the vehicle driven by Ms Thomson and they drove off. The complainant was frightened by the incident but did not sustain any injury.

As to count (3), at about 6.15pm on the same day the complainant, a woman aged 52 years, was walking along Marlow Street towards Cambridge Street in Wembley. The applicants still had the intention of stealing a handbag for cash. They saw the complainant walking alone and stopped the vehicle just around the corner on Salvado Road. Mr Owen, then armed with a blood-filled syringe, approached the complainant and said, "I've got to take your bag". The complainant said, "No, you're not having it". Mr Owen then said, "I've got a syringe here and it's HIV and it's a matter of life and death".

The syringe did in fact contain blood which belonged to the offender Thomson. Both offenders subsequently admitted to police that they had Hepatitis C. The complainant said that she looked down at Mr Owen's hands and noticed he had something in them. She said:

"... I saw something silver tipped, like the end of a biro, and the part in his hand was dark. I think it was black. I could not make out what it was."

She then said, "No, you're not having it", and swung her bag at him, striking him on the hands. She then stepped past Mr Owen and ran up to Cambridge Street yelling "No, you're not bloody having it". Mr Owen was seen to run off towards Salvado Road where he was observed by a witness to get into the vehicle driven by Ms Thomson and they drove off. A witness took the registration number of the vehicle and gave the number to the complainant. No injuries were suffered by the complainant.

On the following day, 12 January 1998, the applicants were each interviewed by police regarding the offence the subject of count (3). Later on that day they were further interviewed in relation to the first two offences. Each of the interviews were video-recorded interviews during which the applicants admitted the commission of the offences. Both pleaded guilty under the fast-track system. Mr Owen said that the offences were committed to obtain money to enable him to pay drug dealers who were feeding the applicants' addiction to heroin. These persons had threatened him and he was frightened and desperate.

The offences demonstrate a high degree of criminal ineptitude involving no attempt at disguise and the use of a vehicle which could be and in fact was readily traced. In the first case, although the offence was completed, the property was abandoned immediately afterwards. In the second case, the intended offence was not completed and the attempt abandoned immediately. The final attempted offence of armed robbery took place outside the Wembley Police Station. The pre-sentence report in respect of Mr Owen concluded:

"It is clear that the attempts were inept and discovery was inevitable ..."

Mr Owen's explanation for the commission of the offences in the video-recorded interviews was, in relation to the third offence:

"I tried to take a lady's bag from her and she wouldn't give it. I grabbed her bag and pulled at it.

Did you say anything?---Please give it to me. It's a matter of life or death."

He described how she held it very tightly and started "belting" him with it. He said, "I felt like I was doing the lowest act on earth". He stopped and ran away. He was asked:

"What was the money for?---To pay people back that we owe.

Was Fiona going to get any of the money?---She owes him money as well. As you saw we live together in that room and the rest of the house - even though I told him she wasn't, she used half the drug and she was going to get half the punishment until the money was paid back."

"I owe the drug dealer a lot of money. I had lost everything, I had lost all my money. I intended to take the cash and I got so desperate. I got a call - big trouble if I don't come up with some money."

He was threatened and there was a thinly veiled threat to his sisters.

At the time of the commission of the offences Mr Owen was addicted to heroin and had been for some time, particularly in the two months prior to the commission of the offences. Only two days before the commission of the offences he had sought medical treatment for his problem and had seen Dr Cranley. There was a substantial body of character evidence which was to the effect that these offences were totally alien and out of character. The applicant was anxious to apologise to the victims and asked the police whether he could do so when he was released on bail. He was told that he could not do so as it was a condition of bail that he not contact any of the victims.

Upon his release on bail he was referred to the Court Diversion Service and sought treatment. He undertook a treatment programme at Palmerston which incorporated urine analysis three times weekly. By 24 March 1998 while total abstinence had not been achieved, there was considerable progress and clearly room for optimism, which was confirmed in a pre-sentence report. By 24 March 1998 the applicant Owen was in employment which had every prospect of being permanent. It was clear that Mr Owen had substantial family and other support in his efforts to rid himself of the addiction and cease offending.

Counsel for Mr Owen submitted to the learned sentencing Judge that sentencing should be adjourned to enable the treatment programme to progress and allow the process of rehabilitation to be tested. His Honour's attention was drawn to the decision of this Court in Miles v The Queen, unreported; CCA SCt of WA; Library No 970258; 21 May 1997 in which it was stated that the range of sentences commonly imposed in relation to a single completed offence of armed robbery, depending upon the circumstances, was now six to nine years rather than the previous five to seven years: see at 6-7 per Malcolm CJ and at 3 per White J. It was also said in that case that the use of a blood-filled syringe in the course of an armed robbery should normally attract a sentence of at least one year's imprisonment above that which would otherwise have been imposed for the armed robbery in question: see at 4-5 per White J (with whom Malcolm CJ and Pidgeon J agreed). The offence the subject of count (3) in this case, namely attempted armed robbery involving, as it did, the use of a blood-filled syringe, clearly made the offence the subject of count (3) the most serious of the three offences.

Counsel for Mr Owen also put before the learned sentencing Judge some 20 examples of armed robbery offences dealt with in the Supreme Court between 1994 and 1998 in which persons who had committed the offence of armed robbery had not been imprisoned. We note that these were all exceptional cases, as more than 90% of armed robbery offences attract a sentence of imprisonment.

Similar submissions were made by counsel for Ms Thomson. At the time of committing these offences Ms Thomson was 21 years of age and single. She was in a relationship with Mr Owen. She had a very supportive family and no prior record of offending. In her case also the offences were regarded as entirely out of character. She had become addicted to heroin some time after the return of her family to Western Australia after a period living in Canberra until 1994. Her addiction became known to her parents in 1997 when she was referred to Palmerston for counselling and was referred to Dr Cranley for treatment. She was put on the methadone programme but was concerned that methadone was more addictive than heroin. She took herself off the methadone programme believing that she could beat her addiction without it. This did not turn out to be the case. By the end of 1997 she and Mr Owen were both seriously addicted. Like Mr Owen, she did not intend that anyone should be hurt. It was accepted that the two of them were equally culpable in respect of the offences. On 14 January 1998 Ms Thomson wrote a letter of apology to each of the three victims. The letters were forwarded to the Victim Support Service of the Ministry of Justice but they could not be delivered until after the convictions had been recorded. By the time of her first appearance in the District Court Ms Thomson had been admitted to Cambridge Private Hospital for detoxification.

Counsel for the Crown submitted that the offences were serious and that considerations of general deterrence loomed large in the context of the prevalence of cases involving "bag snatchers". However, counsel concluded her submissions by saying:

"Having said all of that, sir, I must concede that these offenders are first offenders and that it is unfortunate that they should come before the Court for the first time on such serious charges. If your Honour ultimately took the view that there was something to be gained by remanding the matter for a period so that they could test out their performance on Court Diversion Service, if your Honour thought that having read all of the reports there was something positive to be gained in that, then the Crown would not oppose that course of action. Putting that to one side, if that is not to be the case, then the Crown's submission at this stage would be that the only option open to the Court is that of imprisonment."

In the result, having heard the submissions of counsel regarding the deferment of sentencing, the learned sentencing Judge said:

"All right. I am prepared to remand these matters through - both of these offenders through to 20 May on bail subject to the condition that they comply in all respects with the directions of the CDS (Court Diversion Service) ... Now, at that point I might turn to Ms Anderton because memory tells me that there was a particular wording that the CDS liked. Is Ms Anderton here? Perhaps if you just come forward please. Please sit down, Ms Anderton. You are fully aware of what I am trying to do here. I am trying to remand these people through to 20 May on what is probably the last beyond last chance. We would, of course, require an up-to-date CDS report shortly prior to 20 May ..."

In the result the applicants were remanded on bail until 20 May 1998 or to such earlier date as shall be directed by the Court in the event of an adverse report from the Court Diversion Service. The applicants were required to comply in all respects with the directions of the Court Diversion Service. The reference to the "last beyond last chance" seems clearly to have referred to the applicants' last chance to avoid an immediate sentence of imprisonment.

The order made by the learned sentencing Judge on 24 March 1998 adjourning the sentencing of the applicants until 20 May 1998 and granting them bail in the meantime was significant. The jurisdiction to make such an order is conferred by s13(1) of the Bail Act 1982 when read with cl 2 of Part A of the First Schedule, which provides that there is jurisdiction to grant bail pending the appearance of a defendant in court after any adjournment of proceedings for an offence, not being a committal. In this particular case, where bail was granted after conviction, s13(1) of the Act required the jurisdiction to grant bail to be exercised in accordance with the provisions of Part C of Schedule 1. Clause 4 of Part C of that Schedule relevantly provides that:

"In deciding whether or not to grant bail to a defendant who is in custody waiting to be sentenced or otherwise dealt with for an offence of which he has been convicted or awaiting the disposal of appeal proceedings, the judicial officer shall, subject to clauses 5 and 6 consider whether -

(a) in the case of a defendant waiting to be sentenced, there is a strong likelihood that he will impose a non-custodial sentence; or

(b) in either case, there are exceptional reasons why the defendant should not be kept in custody,

and shall only grant bail to him if he is satisfied that -

(c) in the case of a defendant waiting to be sentenced, at least one of those reasons exists and, in the case of an appellant the reason mentioned in paragraph (b) exists; and

(d) he may properly do so having regard to the provisions of clauses 1 and 3 or, in the case of a child, clauses 2 and 3."

In our opinion, the learned Judge must have been satisfied on 24 March 1998 that there was a strong likelihood that he would impose a non-custodial sentence. It was not suggested that there were any other exceptional reasons why the applicant should not be kept in custody. In our view, the remarks made by the learned Judge were such that he must have concluded that, in the event that in the period between 24 March and 20 May 1998 there was evidence that the applicants had made sufficient progress in dealing with their addictions so as to reduce the risk of offending to the point where disposition otherwise than by immediate imprisonment would be justified, there was a strong likelihood that he would impose a non-custodial sentence. No other reason for taking that course was canvassed before his Honour.

It is also apparent that the learned Judge must also have been satisfied that he could properly grant bail, having regard to the provisions of cll 1 and 3 of Part C. Under cl 1 the jurisdiction was required to be exercised having regard to the following questions as well as any others which he considered relevant. The questions in cl 1 which were relevant to the present case were those set out in paras (a) and (c), namely:

"(a) whether, if the defendant is not kept in custody, he may -

(i) fail to appear in court in accordance with his bail undertaking;

(iii) endanger the safety, welfare or property of any person; or

(iv) interfere with witnesses or otherwise obstruct the course of justice, whether in relation to himself or any other person;"

"(c) whether the prosecutor has put forward grounds for opposing the grant of bail."

So far as this last matter was concerned, as we have already mentioned it was conceded by counsel for the Crown on 24 March 1998 that if the learned Judge ultimately took the view that there was something to be gained by a remand for a period to "test out their performance on Court Diversion Service ... the Crown would not oppose that course of action".

In these circumstances, it must be inferred that the learned Judge considered that, if the subsequent reports relating to the period between 24 March and 20 May 1998 were positive in terms of combating the addiction and the risk of re-offending so that there were good prospects of rehabilitation, a non-custodial disposition was a real likelihood. This did not mean, of course, that the learned Judge had bound himself to such a disposition. If, however, the reports were positive, there would need to be some powerful reason not to follow that course.

When sentencing the applicants on 20 May 1998 the learned Judge recounted the facts and found that the two offenders were equally culpable. His Honour then reviewed the personal circumstances relating to the applicants.

In addition to the matters to which reference has already been made, his Honour noted that Mr Owen was born on 5 August 1975 and was found to come from a totally supportive family. Having completed his Tertiary Entrance Examination in 1993 he had been employed in various capacities in catering and as a shop assistant. He had two prior convictions in July and November 1997 for stealing by way of shoplifting to obtain money to buy drugs for which he had been fined in the Court of Petty Sessions. The first of these offences was the subject of a spent conviction order.

When he first appeared before a Magistrate in respect of these offences on 30 January 1998 bail was allowed subject to a condition that he comply with the lawful directions of the Court Diversion Service. It appears from reports by the Service that the applicant had been using heroin for some four years with periods of abstinence but had relapsed into heroin use in 1997. While he was co-operating with the Court Diversion Service urinalysis showed that up until 24 March 1998 he was still using opiates.

In the case of Ms Thomson, she was born on 19 August 1976 and was described by the learned Judge as:

"... a young woman of totally supportive and law-abiding background ... who has been affected by heroin addiction."

In a Court Diversion Service report dated 12 February 1998 it was made clear that while still at school she had some involvement with amphetamines, ecstasy and LSD by way of limited use, she commenced using heroin at the age of 17 years and established significant use by the age of 18. As at 20 March 1998 she was still using opiates, although struggling with her addiction, but there was little cause for optimism.

What happened between 24 March and 20 May 1998 in the case of Mr Owen was that urinalysis on 30 March and 15 April 1998 provided evidence of opiates and benzodiazepines. On the Easter weekend he used a large quantity of heroin by way of a joint suicide attempt with Ms Thomson. This indicated, among other things, his sense of guilt and remorse for what he had done and the uphill nature of his struggle to cease the use of the drug, notwithstanding the support of his family. A second attempt at suicide by heroin overdose was made on 15 April 1998 at which point Mr Owen was admitted to Sir Charles Gairdner Hospital. He then started on methadone treatment under Dr Cranley. In a report of the Court Diversion Service dated 29 April 1998 it was said that:

"While his efforts have not been without incident he continues to exhibit a measurable motivation to achieve a non-drug using [life] style."

"Mr Owen has continued to achieve the demonstrable progress reported in the CDS report of 29 April 1998. He was discharged from Sir Charles Gairdner Hospital on 30 April 1998, returning immediately to reside with his parents. Mr Owen resumed his employment from 8 May 1998 and has effectively achieved a level of social stability.

From a treatment perspective, Mr Owen has followed through on the treatment options available to him. He remains engaged in the Methadone Treatment Programme, receiving a relatively low dosage of 40 mls per day: Mr Owen expresses a preference to try to stabilise on as low a dosage as possible.

Urinalysis results support his claims of having stabilised. Urinalysis had been reported on, up until 27 April 1998. A further eight urine samples had been provided by Mr Owen up until (and including) 15 May 1998. Legitimately prescribed methadone and benzodiazepines (in four of the samples, medical certificate received by CDS) only were detected, with no illicit substances.

Mr Owen continues to attend counselling at Palmerston Centre. It has been confirmed that in addition to this, Mr Owen has commenced counselling with a Clinical Psychologist, Mr Simon Lenton. In discussion between Mr Lenton and the writer, it is reported that Mr Owen is receptive to appropriate treatment.

Whilst recently an inpatient at Sir Charles Gairdner Hospital, consideration was being given for Mr Owen to access out-patient psychiatric treatment upon discharge from hospital. It is believed that in view of the various supports available and being utilised by Mr Owen, it was not deemed necessary for Mr Owen to attend for psychiatric counselling treatment.

The crises and consequent hospitalisation of Mr Owen on 16 April 1998 appear significant in measuring Mr Owen's progress: mentally, psychologically and socially. It is apparent that Mr Owen has always had complete familial and social supports, with ready access to specialist treatment services. It has been the observation of CDS that over the past five weeks Mr Owen has adopted a more mature and realistic concept of self-responsibility. In effect, he has been able to be more active in the treatment process, rather than a passive recipient.

Mr Owen remains mindful of the seriousness of the current offences and the possible sentencing consequences. Notwithstanding that, he has on a number of occasions remarked that being charged with such serious matters has appropriately forced him to address dysfunctional aspects of his lifestyle, including drug use.

Although Mr Owen's current treatment and progress gives cause for optimism, it is likely that Mr Owen would need to pursue such treatment for a relatively long term. If the court is considering a community-based supervision order (as canvassed in the Pre-sentence Report previously submitted by Community Based Services), Mr Owen's continued treatment could be monitored under a Special Condition attached to such an order."

"Justin Owen has been well since his admission to Sir Charles Gairdner Hospital 16/4/98. While there he had intensive psychiatric help over the two weeks he was an inpatient. While in hospital he was commenced on methadone, now 40mg/day, and has been progressing well.

He has continued his job at Midland Junction, and is happy at work.

There is every sign that Justin has now got himself onto a straight path, and hopefully his drug days are behind him. I am hopeful for the future."

A clinical psychologist, Mr Simon Lenton, said in a report dated 18 May 1998:

"To date I have seen Mr Owen for three weekly sessions of one hour. He impresses as an intelligent young man who is committed to making fundamental changes in his life to address his drug related problems and get his life back on track. ...

Whilst it is not possible to make definitive statements about prognosis I can find no reason why Mr Owen should not do well in counselling given that he continues to apply himself to the task as he has done to date. In this regard, his efforts seem motivated by a genuine desire to change rather than simply improving his presentation to the court."

So far as Ms Thomson was concerned, by a report dated 29 April 1998 the Court was informed that during the Easter weekend Ms Thomson attempted a joint suicide with Mr Owen which failed, following which she was admitted to St John of God Hospital. The report indicates that, although she made a recovery from the direct heroin overdose, she may have sustained some neurological damage. The report dated 18 May 1998 stated that:

"This period of hospitalisation enabled treatment for anxiety and injury leading up to and including a heroin overdose on the night of 15-16 April 1998. It further served as a period of respite for Ms Thomson when she was able to participate in the Methadone Treatment Programme (commenced 14 April 1998) without supplementing methadone use with illicit opiates.

It is pleasing to report that Ms Thomson has followed through on the treatment plan previously proposed. She has continued regular attendance at Palmerston Centre for counselling and appears to appropriately utilise the support offered by that agency ... Ms Thomson continues to receive daily methadone treatment, prescribed and managed by her General Practitioner. She reports having achieved a level of pharmaceutical stability which has enabled her to focus more appropriately on other social and psychological interventions and treatment.

An observable aspect of Ms Thomson's presentation is her greater application toward achieving improved vocational and employment pursuits. It is understood that Ms Thomson has recently obtained casual employment as a waitress. In addition, she has been participating in yoga and pottery classes and recently commenced an Adult Education course with Technical and Further Education (TAFE).

Supervised urine tests have been required as part of a CDS monitoring regime. Having effectively achieved abstinence from illicit drug use when recently hospitalised (Ms Thomson organised for urine tests to be conducted when an in-patient), Ms Thomson resumed out-patient urine tests from 29 April 1998. There have been a total of eight urine samples provided between 29 April 1998 to 15 May 1998 (inclusive). The final sample has not yet been analysed. The previous seven samples had methadone only detected as would be expected.

Ms Thomson's demonstrable progress over the past five weeks is clearly a marked improvement on the preceding period reported on by CDS. It is reasonable to attribute much of this progress to Ms Thomson's use of familial support and treatment offered through medical and counselling services.

There are obvious parallels between the improved efforts of Ms Thomson and those of her partner and Co-defendant, Justin Owen. Those parallels were also apparent prior to their separate hospitalisations on 16 April 1998. There does appear to be indications of divergence in Ms Thomson's seeking of other employment and vocational pursuits. This may be indicative of some identifiable individuality which Ms Thomson can pursue in addressing her own social and psychological needs.

A Pre-sentence Report previously submitted by Community Based Services canvasses the community based supervision options. It is respectfully suggested that should the Court consider it appropriate to impose a community based supervision Order, Ms Thomson has progressed immeasurably since she last appeared in Court on 24 March 1998."

In the case of Ms Thomson the learned Judge commented in her case that:

"Again, there is the prospect that the traumatic experience of the Easter weekend might have brought about some involvement or incentive in Ms Thomson's motivation to continue to attempt a drug-free lifestyle."

His Honour then went on to consider the disposition of the applicants and said:

"At the last hearing counsel representing the Crown handed me the decision of Miles v The Queen, which dealt with the use of a blood-filled syringe as a weapon, but since that appearance in Court the Court of Criminal Appeal has handed down its decision in the matter of Taylor which was handed down on 6 April subsequent to the last appearance of these offenders in this Court.

Yesterday I instructed the Clerk of Arraigns to inform counsel of that decision just in case they were not aware of it and I had the benefit this morning of counsel's comments upon that decision. I am conscious of the fact that on the previous occasion counsel handed up to me a set of 20 examples of armed robbery offences disposed of in the Supreme Court by non-custodial sentences and leading that list was the matter of Queen v Lochowicz and Soutar where intensive supervision orders were made.

This sentencing today has caused me considerable concern and it is appropriate to deal with the position of an intermediate court such as this. Whereas I acknowledge the fact of the examples handed to me by counsel relating to offences dealt with in the Supreme Court, in the place where I and other Judges of this Court sit we are bound to take note of and must accept and follow the decisions of the Court of Criminal Appeal as they emerge as they are meant to give us some guidance and some assistance in this dreadful business of sentencing our fellow citizens. The decision of Grant Taylor handed down on 6 April 98, whilst not technically a guideline decision, is a decision approaching that category. What is made perfectly clear by his Honour the Chief Justice in that matter is that it is only in exceptional circumstances that there may be a rare case in which a disposition other than by way of the imposition of a substantial term of imprisonment would be appropriate for this type of offending [our italics].

Again in Grant Taylor when talking of offences of armed robbery the Chief Justice said this at p15:

'A disturbingly high proportion of these offences are being committed by young offenders to obtain drugs or money to buy drugs. Many of the offenders are drug addicts. The fact that the addiction plays a role in the commission of these offences makes it tempting to suggest that the criminal culpability of the offender is less than that of the drug free offender and the solution is treatment for the addiction. This idea clearly has limitations. While in many cases the breaking of the drug habit may lead to a cessation of offending, treatment in the community is not the answer in a majority of cases. This is because there are no secure treatment institutions. The only alternative for the protection of the community is imprisonment. The community is entitled to expect that protection. Furthermore, there is a need to demonstrate that those who choose to go down the path of drug abuse must accept responsibility for the consequences of that choice, as tragic as the consequences might be for themselves and their families. Until the community finds solutions to the problems of drug abuse and adopts strategies and programmes to significantly reduce or eliminate it, including the provision of secure treatment facilities, save in the most exceptional cases, the courts have no alternative but to impose significant terms of imprisonment.'

Of course, whilst there are similarities in the matter of Taylor and the matter of Thomson and Owen there are also differences and I will deal with those in a moment. I have said that I regard the authority of Taylor as superseding previous authorities and of the Court of Criminal Appeal speaking with a clear voice enunciating the seriousness of this type of offending [our italics] and the fact that the seriousness is so great that matters personal to the offender are diminished in significance. There are also the issues of general deterrence and the need for adequate punishment.

It is clear that as with respect to the offender Taylor and likewise with these offenders they have no prior criminal history. They cooperated with the authorities. There are examples of sincere efforts to remain drug free. There has been, in both cases, acceptances (sic) of guilt and remorse; in both cases, apologies to the persons of the complainants. As with these offenders, Taylor pleaded guilty on the fast-track system. He was supported by a totally supportive family as well as extensive references.

In his judgment, Ipp J refers to the word 'extraordinary', the Chief Justice having referred to the words 'exceptional' factors of (sic or) circumstances pertaining to a particular case which may require a sentence outside that which is generally regarded as the 'range.' As there were no extraordinary or exceptional circumstances that I can find proven or established to me here that would take these cases of Thomson and Owen outside of what I would see and understand to be a general sentencing requirement, they do not become cases where I can, on the authorities and what is before me, extend a non-custodial disposition.

Yes, there are differences between the offences committed by these offenders and the Grant Taylor situation. In the first place, Taylor's offences were completed acts of armed robbery and the syringe was used on more than one occasion. These offences were conducted over a number of days on a number of pharmacies. The offences by these offenders were all committed on the one day and the blood-filled syringe was used on only one occasion. The offences themselves are, to a significant extent, lesser in seriousness than to those of Taylor.

I return again to the fact of the use of the blood-filled syringe. These offenders were prepared to cooperate with each other in the extraction of blood from Ms Thomson and the handling of the syringe by Mr Owen as a threat to a middle-aged woman walking on a Wembley street on a summer evening after they had attempted two unsuccessful bag snatches prior to then.

This is conduct that is, in my view and appreciation, so serious that even taking into account all of the matters raised in mitigation and the efforts of these offenders to improve their situation I can do nothing else other than a term of imprisonment and again I cannot, in all of the circumstances, see any cause or justification for the suspension of that term.

It is ultimately the seriousness of the offending that compels me to the ultimate sentencing option notwithstanding all other factors favourable to the offenders. Again, with benchmark reference back to Taylor and assessing the relative seriousness of these offences and allowing significant discount for the fast-track plea, I come to the conclusion that the disposition of these offences must attract a term of 3 years' imprisonment which is achieved by the imposition of a term of 1 year's imprisonment on each count, all terms to be served cumulatively and the offenders of course to be eligible for parole."

In our opinion, it is quite plain that the decision of this Court in Taylor v The Queen, unreported; CCA SCt of WA; Library No 980152; 6 April 1998 was not an authority which in any way bound the learned sentencing Judge in this case to impose a sentence of imprisonment. In that case Taylor had pleaded guilty to four counts of completed armed robbery with threats of actual violence while armed with an offensive weapon, namely, a blood-filled syringe. The offences were committed on 5, 8 and 10 June 1997 and the first three of them were committed at a pharmacy. Two of the offences were committed on 8 June 1997. Late in the evening of that day the offender was apprehended by police and participated in a video record of interview during which he admitted all three offences. He was then charged and subsequently released on bail early in the morning of 9 June 1997. The fourth offence was committed at the Challenge Bank, Karrinyup where Taylor obtained $1,000 by committing an armed robbery.

In our opinion, by his references to "offences of this type" the learned sentencing Judge was in error in equating the offences committed by Mr Owen and Ms Thomson with the completed offences of armed robbery the subject of the decision in Taylor. The maximum penalty for armed robbery is life imprisonment. The maximum penalty for robbery is 14 years. The maximum penalty for attempted armed robbery is 14 years. The robbery the subject of count (1) was significantly less serious than an offence of armed robbery. The attempted robbery the subject of count (2) was considerably less serious than a completed offence of armed robbery. The attempted robbery the subject of count (3) was a serious offence, but also significantly less serious than a completed offence of armed robbery. In Taylor it was indicated that the range of sentences now commonly imposed in relation to a single offence of armed robbery, depending upon the circumstances, is imprisonment for six to nine years: Miles v The Queen, unreported; CCA SCt of WA; Library No 970258; 21 May 1997 at 6-7 per Malcolm CJ; and at 3 per White J. It was also accepted that the use of a blood-filled syringe in the course of an armed robbery should normally attract a sentence of at least one year's imprisonment above that which would otherwise have been imposed for the robbery in question: Miles v The Queen at 4-5 per White J (with whom Malcolm CJ and Pidgeon J agreed). See also Cork v The Queen, unreported; CCA SCt of WA; Library No 970664; 2 December 1997 at 6 per Ipp J (with whom Pidgeon and Wallwork J agreed). An effective sentence of eight years was imposed by this Court in Walsh v The Queen, unreported; CCA SCt of WA; Library No 960471; 26 August 1996. That case concerned a 19 year old youth who had committed eight armed robberies and one attempted armed robbery, pretending to be armed with a handgun.

It is also relevant that at the time of sentencing in Taylor, counsel for Mr Taylor conceded that imprisonment was inevitable. The concession was rightly made. As Malcolm CJ said in Taylor:

"A sentence below the range commonly imposed may well be justified by specific mitigating factors such as an early plea of guilty, the youth of the offender or other mitigating circumstances. In exceptional circumstances there may be a rare case in which a disposition other than by way of the imposition of a substantial term of imprisonment would be appropriate. Counsel for the applicant referred to The Queen v Lochowicz and Soutar, unreported; Supreme Court of WA; Ind No 154 of 1997; 3 November 1997 in which intensive supervision orders were made. That was a case involving two young first offenders who committed one act of armed robbery with a blood-filled syringe, in which it was expressly conceded by counsel for the Crown that a non-custodial disposition would be appropriate. In that case the prospects of rehabilitation of both offenders were extremely strong."

"Virtually always the sentencing Judge will attempt to determine the appropriate range of sentences applicable to the offence. That range itself is not to be regarded as creating a set of strict confining limits, outside which a sentencing Judge may never go. It is vitally important to preserve the discretionary power of an individual Judge to impose a sentence which, because of the extraordinary factors pertaining to a particular case, may require a sentence outside that which is generally regarded as the range. An example of such a sentence is The Queen v Lochowicz and Soutar, unreported; Supreme Court of WA; Ind No 154 of 1997; 3 November 1997 in which, at first instance, intensive supervision orders were made in a case involving two young first offenders who had committed one act of armed robbery with a blood-filled syringe. This case was exceptional in that counsel for the Crown expressly conceded that a non-custodial disposition would be appropriate. That is not this case.

A particular sentencing range may itself alter, depending on the nature of the offence and all the circumstances that are relevant thereto. Generally speaking the fewer the mitigatory and aggravating circumstances, the narrower the range, and the more such circumstances the greater the range. The range for a sentence for a single offence committed alone by a mature adult, without there being any aggravating or mitigating factor, is more limited and easier to assess than the range where multiple and serious offences have been committed in concert by a relatively youthful offender, who has other sentences for other offences to serve, and where a host of compelling aggravating and mitigatory factors are present. Depending, of course, on the nature of the offences, the appropriate range in the latter instance may be wide indeed and permissible judicial difference of opinion as to the appropriate sentencing disposition may be as much as two years or more. It is also to be observed that an appellate court will uphold sentences which may be regarded as relatively light (e.g. The Queen v Liddington, unreported; CCA SCt of WA; Library No 970614; 14 November 1997) or relatively severe (e.g. Shooter v R, unreported; CCA SCt of WA; Library No 970628; 21 November 1997), as long as they are within an appropriate sentencing discretion."

In Taylor, Pidgeon J agreed with both the Chief Justice and Ipp J.

Apart from the attempted armed robbery the subject of count (3) the other two offences of robbery and attempted robbery the subject of counts (2) and (3), while serious offences, were far less serious than any of the four offences dealt with by this Court in Taylor. Of the three, the offence of attempted armed robbery was the most serious, particularly having regard to the use of the blood-filled syringe and the reference by Mr Owen to HIV. It is highly relevant, however, notwithstanding the trauma suffered by the victim, that her resistance was such that Mr Owen desisted in the attempt. There is no doubt that the prevalence of the offence of bag snatching from women is a matter of concern. It has been suggested that the increase in such offences has a relationship to amendments to pawnbroking legislation which has made it more difficult for drug addicts to dispose of stolen property such as television sets, video recorders, computers and the like, as well as the so-called "three strikes" legislation. Deterrence has a role to play but it would be easy to over-estimate it. As the Chief Justice noted in Taylor at 14, it is as well to be reminded of the limitations of deterrence stated by Burt CJ in R v Peterson [1984] WAR 329 at 332 as follows:

"It seems to be assumed, although I have considerable reservations about the assumption, that when an offence becomes prevalent the public demand retribution and they see increased punishment as being the sure way of reducing the number of such offences and even of persuading persons not to commit them at all. If that be the case then I would say, and say with great respect, that the expectation exceeds the capacity of the criminal law as an instrument controlling human behaviour. That is not to say that the idea of deterrence is to be abandoned. It is and it remains an important, and some may say the most important, idea reflected in punishment, particularly for offences such as robbery. But it is to say that criminal behaviour is very much the product of factors, and many factors, both personal and social, which are beyond the reach of any court and which have operated and will continue to operate to produce anti-social behaviour. The need for punishment must be accepted, but it must be accepted with a full appreciation of its limitations."

These views are as correct today as they were in 1984. It follows from what we have already said that it is clear that the learned sentencing Judge was in error when he regarded himself as bound by the decision in Taylor to impose a sentence of immediate imprisonment, notwithstanding his earlier assessment on 24 March 1998 that there was a strong likelihood of a non-custodial disposition on 20 May 1998, in the absence of any adverse report by the Court Diversion Service. The reports which his Honour in fact received were indeed positive and pointed strongly towards the rehabilitation of the applicants from the drug addiction which had brought about their offending. The experience of the applicants in the context of the joint suicide attempt at Easter 1998 was cathartic. The effect of the view taken by his Honour about Taylor was to cause him to fall into error by effectively excluding matters of mitigation in relation to each offender from his consideration of the question whether in each case the only appropriate punishment was a term of imprisonment to be immediately served.

In a case of robbery, which involves stealing with violence but not armed, there is clearly more room for the imposition of a non-custodial sentence than in the case of armed robbery. According to the 1996 report of the Crime Research Centre, the offence of robbery attracted imprisonment in 83 per cent of cases compared to 92 per cent in respect of armed robbery. Given the circumstances of the offence the subject of count (1) we consider that a sentence of imprisonment for one year was not appellable as being too severe. The offence the subject of count (2) was in our opinion an inept and minor example of attempted robbery, although it no doubt involved a frightening experience for the victim. Whether, standing alone, it would have justified a sentence of imprisonment for one year is a matter about which opinions may well differ. So far as the offence of attempted armed robbery is concerned, it may well have justified the imposition of a sentence of imprisonment for substantially more than one year. It follows that, on the assumption that imprisonment was justified, in fixing a total term of imprisonment for three years the learned sentencing Judge could not be said to have been in error. The error was in concluding that he was bound by Taylor to impose a sentence of imprisonment to be immediately served.

The exceptional feature of this case as it comes before this Court is that having determined that there was a strong likelihood of a non-custodial disposition provided there were no adverse reports, or to put it more strongly, provided that there were positive reports pointing to the applicants overcoming the drug addiction which led to the commission of the offences, the learned Judge took the view that the decision in Taylor prevented him from making such a disposition. This was a case in which it may well have been open to a sentencing Judge to impose an intensive supervision order with appropriate conditions requiring the applicants to submit to an appropriate drug treatment regime. It was also a case in which at least one of the offences, namely the armed robbery, may well have justified a custodial sentence which could have been suspended in conjunction with intensive supervision orders in respect of the other two offences. It is not possible to suspend a sentence and impose conditions regarding drug treatment at the same time in respect of one offence.

As it is, the applicants were in custody for some 75 days from 24 March to 3 August 1998, which is the equivalent of serving a sentence of some 110 days. This has been a considerable interruption to the drug treatment regime to which they had submitted themselves in the period from 24 March to 20 May 1998. Although there is nothing in the materials before us to suggest that the applicants are at any undue risk of re-offending, it is important that the applicants have a real incentive to continue with their drug treatment and rehabilitation programmes on a voluntary basis. Given the medical supervision available to them and the support of their families, it seems to us that they each need an appropriate incentive to avoid relapse into the drug culture with the risk of re-offending. In our view, in the light of the events which have happened, this would be best served by suspending the sentences of imprisonment for a period of 18 months. The applicants should clearly understand that should they re-offend during that period, they would then be liable to serve the sentences as so suspended, subject to due allowance being made for the fact that they have already served the equivalent of 110 days. The suspension of the offences is justified on the basis that one of the main purposes of suspending a sentence is to facilitate the rehabilitation of the offender while marking the seriousness of the offence: The Queen v GP (1997) 18 WAR 196 ; and The Queen v Liddington, unreported; CCA SCt of WA; Library No 970614; 14 November 1997.