Jurisdiction : SUPREME COURT OF WESTERN AUSTRALIA

Criminal law - Appeal against sentence - Appellant convicted on his pleas of guilty of armed robbery, stealing, aggravated robbery, attempted aggravated robbery, aggravated burglary, stealing a motor vehicle and aggravated armed robbery - Total effective sentence of 6 years 10 months' imprisonment ­ Appellant aged 18 at the time of the offending - Very serious risk of reoffending - Totality principle - Whether the sentencing judge erred by failing adequately to discount the sentences to recognise the appellant's cooperation with police

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

Criminal Code (WA), s 371A, s 378, s 392(c), s 392(d), s 401(2)(a), s 552

Fisher v The State of Western Australia [2015] WASCA 114

Gowan v The State of Western Australia [2016] WASCA 98

Lawson v The State of Western Australia [2015] WASCA 178

Miller v The State of Western Australia [2013] WASCA 84

Pilling v The State of Western Australia [2014] WASCA 146

Robertson v The State of Western Australia [2009] WASCA 83

Turnbull v The State of Western Australia [2013] WASCA 5

Williams v The State of Western Australia [2015] WASCA 110

Wragg v The State of Western Australia [2013] WASCA 198; (2013) 234 A Crim R 380

1 BUSS P: The appellant appeals against sentence.

2 He was convicted, on his pleas of guilty before Mitchell J, of seven counts in an indictment.

3 Count 1 alleged armed robbery contrary to s 392(c) of the Criminal Code (WA) (the Code). Count 2 alleged stealing contrary to s 378 of the Code. Count 3 alleged aggravated robbery contrary to s 392(d) of the Code. Count 4 alleged attempted aggravated robbery contrary to s 392(d) read with s 552 of the Code. Count 5 alleged aggravated burglary contrary to s 401(2)(a) of the Code. Count 6 alleged stealing a motor vehicle contrary to s 371A read with s 378 of the Code. Count 7 alleged aggravated armed robbery contrary to s 392(c) of the Code.

4 Counts 1, 2, 3 and 4 occurred on 15 March 2015. Counts 5 and 6 occurred on 16 March 2015. Count 7 occurred on 1 September 2015.

5 The sentencing judge imposed individual sentences of immediate imprisonment as follows:

6 His Honour ordered that the sentence for count 7 commence 1 year and 7 months after the commencement of the sentence for count 1. His Honour ordered that the sentences for counts 2, 3, 4, 5 and 6 be served concurrently with each other and concurrently with the sentence for count 1. The total effective sentence was therefore 6 years 10 months' imprisonment. The total effective sentence was backdated to 9 September 2015. A parole eligibility order was made.

The facts and circumstances of the offending

8 As to count 1 (armed robbery), on 15 March 2015, the victim parked his Audi sedan at the Karrinyup shopping centre. He remained in the driver's seat of the vehicle. At about 8.25 pm the appellant approached the driver's side of the vehicle and said to the victim, 'What are you doing here?'. The appellant produced a 30 cm long knife and told the victim, 'Don't do anything or I'm going to stab you'. The appellant got into the rear of the vehicle, behind the victim, and said, 'What do you have on you?'. The victim handed a mobile telephone and $50 cash to the appellant. Next, the appellant instructed the victim to drive to an automatic teller machine and withdraw $1,000 cash. The victim drove onto Karrinyup Road. The appellant demanded that the victim tell him the personal identification number for the victim's bankcard and said, 'If you lie I will stab you'. The victim could feel the knife against his left side below his ribs. The victim followed the appellant's directions and arrived at a cul-de-sac in Karrinyup. The appellant told the victim to get out of the vehicle. The victim did so. The appellant also got out of the vehicle. He patted the victim's pockets and took his car keys and house keys. The appellant instructed the victim to walk to nearby bushes. The appellant fled in the vehicle which contained various items of the victim's property.

9 As to count 2 (stealing), at about 10.00 pm on 15 March 2015, the appellant and some of his associates arrived at a Caltex service station in the stolen Audi sedan. The appellant sat in the front passenger's seat. The vehicle was parked at a petrol pump. One of the appellant's associates pumped fuel to the value of $76.46 into the vehicle. The appellant and his associates left without making any attempt to pay for the fuel.

10 As to count 3 (aggravated robbery) and count 4 (attempted aggravated robbery), at about 10.45 pm on 15 March 2015, the appellant was a passenger in the stolen Audi sedan with some of his associates. One of the associates drove the vehicle into a laneway near a Liquorland store in Thornlie. The two victims were at a Bank of Queensland automatic teller machine attempting to withdraw cash. The vehicle was driven into a car bay behind the victims. The appellant and his associates decided to 'mob these guys'. The appellant alighted from the vehicle and approached the victims. He said words to the effect, 'Do you want to pull some money out or get mobbed?'. The appellant took a wallet from one victim which contained $50 cash. The other victim attempted to prevent the appellant from taking the wallet. The appellant then struck the second victim to the face with a clenched fist. A violent confrontation ensued. The victims managed to escape on foot.

11 As to count 5 (aggravated burglary) and count 6 (stealing a motor vehicle), between midnight and 2.30 am on 16 March 2015, the appellant went to a house in Banksia Grove. The victim's Holden sedan was parked in the driveway. The victim was in the house asleep. The appellant entered the house through the front door and removed the victim's handbag which contained her wallet, vehicle keys and the keys to a vault at her workplace. The appellant also stole the victim's vehicle. It was recovered a few days later.

12 On 23 March 2015, the appellant was arrested. He participated in a video-recorded interview with police and made some admissions in relation to some of the offences.

13 On 22 May 2015, the appellant was released on bail. He was on bail when he committed the offence the subject of count 7.

14 As to count 7 (aggravated armed robbery), the victim was a taxi driver. He was aged 31, of slim build and about 177 cm tall. The appellant was aged 18, of solid build and about 187 cm tall. At 12.30 am on 1 September 2015, the appellant arranged for the victim to collect him from Bassendean. At the time the appellant was with two of his associates. The appellant entered the taxi alone and asked to be taken to Midland. The victim requested the appellant to pay some money as a deposit. The appellant said he did not have any money but he would obtain money when he arrived at the destination. The victim said he could not take the appellant to Midland but would drive him, without charge, to a train station. The appellant asked the victim to drive him around the corner. The victim agreed and did so. As the victim drove around the corner, the appellant produced a 30 cm long knife and held it at the victim's throat. He threatened to kill the victim if he did not hand over his money, his mobile telephone and the passcode for the telephone. The victim complied with those demands. His wallet contained $450 cash. The appellant's associates approached the taxi and opened the rear door. They told the appellant to take the telephone and the cash and get out of the taxi.

16 Ground 1 alleges, in effect, that the total effective sentence of 6 years 10 months' imprisonment infringed the first limb of the totality principle.

17 At the hearing of the appeal counsel for the appellant confirmed that no other express or implied error was alleged in ground 1 (appeal ts 6).

18 Ground 2 alleges, in effect, that his Honour erred in the exercise of his discretion by failing adequately to discount the sentences to recognise the appellant's cooperation.

19 On 3 June 2016, McLure P and Newnes JA granted leave to appeal on ground 2 and referred the application for leave to appeal on ground 1 to the hearing of the appeal.

20 It is convenient to consider ground 2 before examining ground 1.

21 The prosecutor stated, in reading aloud the material facts at the sentencing hearing and in her written submissions, that the appellant was 'partly cooperative with police' in that, in a video-recorded interview with police on 23 March 2015, he made partial admissions in relation to count 1 (armed robbery), full admissions in relation to count 2 (stealing the fuel) and full admissions in relation to counts 3 and 4 (aggravated robbery and attempted aggravated robbery) (ts 5 - 6). The appellant did not make any admissions to the police in respect of counts 5, 6 or 7 (aggravated burglary, stealing a motor vehicle and aggravated armed robbery).

22 Defence counsel, in his submissions at the sentencing hearing, noted that the appellant had 'provided some cooperation with the police', as stated in the prosecutor's written submissions (ts 11). Defence counsel asserted that the appellant 'further cooperated with the police ... when they were conducting a search of his premises on 23 March [2015] by directing them to the blue hooded [jacket] which was relevant to count 1' (ts 11).

23 In my opinion, it is apparent, on an analysis of the appellant's video record of interview, that the appellant made no admissions of any substance concerning count 1 and he made the admissions concerning counts 3 and 4 only after his original denial of any involvement was shown by the police to be a lie.

24 As to count 1, the appellant told the police that he had 'no involvement' in the armed robbery (VROI 5). He falsely implicated another man, 'Reggie Haywood', in the commission of the offence by implying that Haywood had obtained the stolen Audi sedan in circumstances unknown to the appellant (VROI 6 - 9). The prosecutor's statement before his Honour that the appellant had made 'partial admissions' in relation to count 1 was erroneous. However, the error was not repeated by his Honour.

25 At the hearing of the appeal counsel for the appellant accepted that the prosecutor's statement was erroneous and agreed with the proposition that it was 'hard to see' that any cooperation by the appellant in relation to count 1 called for a sentencing discount (appeal ts 13).

26 As to count 2, the appellant did make unequivocal admissions to the police as to his involvement in the offence of stealing petrol to the value of $76.46 (VROI 25 - 26). However, count 2 was by far the least serious offence of which the appellant was convicted. He was sentenced to only 1 month's imprisonment on that count.

27 As to counts 3 and 4, the appellant's admissions were made grudgingly. Initially, he told the police that he was present when the aggravated robbery and attempted aggravated robbery were committed, but he was not involved in the offending (VROI 27 - 29). The police challenged the appellant's version of events (VROI 30 - 31). They informed him that there was CCTV footage which revealed that he was one of the offenders (VROI 31 - 32). It was only upon being confronted with the existence of that evidence that the appellant changed his account and admitted his involvement (VROI 32 - 35).

28 The sentencing judge said in his sentencing remarks that 'I do take account of the cooperation with police to which your counsel has referred and will deal with that as a mitigating factor' [35].

29 When his Honour imposed sentence, he adopted the 'two-tier' or staged approach to sentencing in relation to count 1 (armed robbery) and count 7 (aggravated armed robbery), but adopted the 'instinctive synthesis' approach to sentencing in relation to counts 2, 3, 4, 5 and 6.

30 The sentencing judge said in relation to counts 1 and 7:

In relation to the first armed robbery offence, I will start with a notional head sentence of 7 years' imprisonment. I will reduce that sentence by 20 months, or approximately 24%, to take account of the benefits to the community of your plea. I will reduce the sentence by a further 7 months to take account of your youth. That results in a sentence of 4 years 9 months' imprisonment.

In relation to the second armed robbery offence, I will start with a notional head sentence of 8 years' imprisonment. I will reduce that sentence by 24 months, or 25%, to take account of the benefits to the community of your plea. I will reduce the sentence by a further 7 months to take account of your youth. That results in a sentence of 5 years 5 months' imprisonment.

I will take account of the time you have spent on remand from 23 March 2015 to 22 May 2015 by reducing the sentence imposed for count 7 by 2 months, to 5 years and 3 months. Your time in custody since 9 September 2015 will be accounted for by backdating the sentence to begin on that date.

I will order that the sentence on count 7 be served partly concurrently with the sentence on count 1. You must serve 1 year 7 months of the sentence for count 1 before the partly concurrent term for count 7 is to begin [46] - [49].

31 It is apparent from that passage that his Honour reduced the 'notional head sentence' for each of counts 1 and 7 to recognise the appellant's plea of guilty and his youth. His Honour did not reduce the sentence he would otherwise have imposed for each of counts 1 and 7 on account of any other mitigating factor.

32 The sentencing judge did not start with a 'notional head sentence' for any of counts 2, 3, 4, 5 or 6. His Honour had stated, earlier in his sentencing remarks, that he could see 'only two significant mitigating factors in this case', namely the pleas of guilty and the appellant's youth [31] - [32]. As I have mentioned, his Honour also said that he took into account, as a mitigating factor, 'the cooperation with police to which [defence counsel] has referred' [35].

33 After imposing the individual sentences for each of the offences pleaded in the indictment and after determining that the total effective sentence should be 6 years 10 months' imprisonment, with eligibility for parole, his Honour recorded:

In imposing each of these sentences I have reduced the head sentence I would otherwise have imposed before allowing for mitigating factors by 25% of that head sentence, to take account of the matters referred to in s 9AA of the Sentencing Act 1995 (WA) [55].

34 I am satisfied that the appellant's admissions were not made as a consequence of genuine remorse or contrition. They did not involve the provision of useful information to the police. If the appellant had provided useful information that would have been a mitigatory factor notwithstanding the absence of remorse and contrition. The admissions were made in confined parts of the video-recorded interview during which the appellant repeatedly, but unsuccessfully, endeavoured to mislead the police as to the truth about the serious offences in which he was involved as a principal offender.

35 In my opinion, the sentencing judge was not bound, in the circumstances, to reduce the sentence he would otherwise have imposed for count 1 to recognise the appellant's so-called 'cooperation' with police. The appellant made no admissions of any significance concerning count 1. His cooperation with the police when they searched his premises was insignificant. His insubstantial admissions and cooperation were not of any material weight for sentencing purposes. In any event, a different individual sentence for count 1 should not have been imposed. See s 31(4)(a) of the Criminal Appeals Act 2004 (WA).

36 In my opinion, it is plain from his sentencing remarks that his Honour took into account the appellant's admissions relating to count 2 and his grudging admissions relating to counts 3 and 4 in deciding upon the individual sentences for those counts. His Honour did not state the discount he applied but his Honour was not bound to do so. In any event, a different sentence should not have been imposed for any of counts 2, 3 or 4.

38 The nature and content of the first limb of the totality principle and other relevant sentencing principles are set out in Williams v The State of Western Australia [2015] WASCA 110 [47] - [50] (Buss JA, Martin CJ & Mazza JA agreeing). It is unnecessary to repeat them.

(b) each of counts 3 and 5 is 20 years' imprisonment;

(d) each of counts 2 and 6 is 7 years' imprisonment.

40 I have had regard to numerous sentencing dispositions for offences of the kind committed by the appellant including:

(a) in the case of armed robbery and attempted armed robbery, Robertson v The State of Western Australia [2009] WASCA 83; Turnbull v The State of Western Australia [2013] WASCA 5; Pilling v The State of Western Australia [2014] WASCA 146; Fisher v The State of Western Australia [2015] WASCA 114; Lawson v The State of Western Australia [2015] WASCA 178; and the decisions referred to in those cases; and

(b) in the case of aggravated burglary, Turnbull; Miller v The State of Western Australia [2013] WASCA 84; Wragg v The State of Western Australia [2013] WASCA 198; (2013) 234 A Crim R 380; Gowan v The State of Western Australia [2016] WASCA 98; and the decisions referred to in those cases.

41 It is unnecessary to reproduce the facts and circumstances or the sentences imposed in the previous cases. There are some comparable features between some of those cases, on the one hand, and the present case, on the other, but there are also distinguishing features.

42 The appellant's overall offending was, no doubt, extremely serious. In particular:

(b) The appellant armed himself with a 30 cm long knife to assist in the commission of counts 1 and 7.

(c) In committing count 1, the appellant held the knife against the ribs of the victim for a lengthy period. In committing count 7, he held the knife at the throat of the victim.

(d) The offender threatened to kill the victim the subject of count 7 if he did not hand over his wallet and mobile telephone.

(e) The actual or threatened violence associated with the commission of counts 1 and 7 was significant. The victims must have feared for their lives. They would have suffered emotional trauma.

(f) The victim of count 7 was a taxi driver. People who work as taxi drivers are vulnerable to attacks of this kind.

(g) The appellant was on bail when he committed count 7.

(h) The offending the subject of count 5 must have been deeply unsettling for the victim, who was asleep when the appellant burgled her home at night.

43 As the sentencing judge observed, the only mitigating factors of any significance were the appellant's pleas of guilty and his youth.

44 The appellant was aged 18 at the time of the offending and was 19 when sentenced.

45 The appellant was not a person of prior good character and he was at a very serious risk of re-offending. His Honour commented:

While these are your first convictions as an adult, you have an extensive juvenile record, and have received a number of sanctions, including detention, without apparent effect. Your pre-sentence reports do not indicate any real appreciation of the effect which your conduct must have had on your victims, or a willingness or real capacity to deal with the issues which have led to your offending. Your current offences indicate a serious escalation in the level of violence involved in your offending. I regard you as presenting a very serious risk of re-offending [33].

46 The fact that the appellant was not a person of prior good character and the fact that previous attempts to facilitate his rehabilitation had failed did not, of course, aggravate the seriousness of the current offending.

47 The appellant did not evince any remorse or contrition.

48 The egregious character of the appellant's offending, and the very serious risk that he will reoffend, reduced the extent to which he could be given credit in the sentencing process for his youth.

49 The principal sentencing factors were personal and general deterrence, and the protection of the community.

50 I am satisfied that it was necessary, in order properly to mark the appellant's overall criminality in committing numerous offences, to accumulate partially some of the individual sentences.

51 I am of the opinion, after taking into account the maximum penalties for each of the offences; the facts and circumstances of the offending viewed as a whole; the total effective sentences imposed in prior cases with at least some features comparable to the appellant's offending; the place which the appellant's overall criminal conduct occupies on the scale of seriousness of offences of this kind; the personal circumstances of the appellant; and all other sentencing factors (including the pleas of guilty

and the other mitigating factors), that the total effective sentence of 6 years 10 months' imprisonment was within the range open to the sentencing judge on a proper exercise of his discretion.

52 The total effective sentence bears a proper relationship to the overall criminality involved in the appellant's offending, viewed in its entirety, and after having regard to all relevant facts and circumstances and all relevant sentencing factors. Error should not be inferred from the sentencing outcome.

54 Ground 1 does not have a reasonable prospect of success. Leave to appeal on that ground should be refused.

55 Neither ground 1 nor ground 2 has been made out.