2 WHEELER JA: The grounds of appeal in this case boil down to a complaint of manifest excess in relation to the totality of the sentence imposed. There are also in the grounds, allegations that the particular terms imposed in relation to the Supreme Court and District Court indictments were manifestly excessive in relation to the individual counts. However, the sentences imposed in relation to those counts were all made partially cumulative with a net effective sentence very much less than would result from the aggregation of the individual terms.

3 I should add in relation to the complaints concerning the individual counts that the submission in relation to this aspect of the grounds of appeal really consists of no more than a reference to a number of cases, in each of which the concern of the court seems primarily to have been the aggregate sentence imposed in respect of a number of diverse counts, and the facts of each of which seem to me to be very different from the present. Having considered those cases it seems to me that there is no force in the submission that the individual terms are excessive.

4 Having regard to the large number of offences, the question really comes to one of totality. The total effective sentence imposed on the appellant was one of 8 years' imprisonment with an order for eligibility for parole. That equates, prior to the transitional provisions, to one of 12 years' imprisonment. It is a severe sentence. In order to determine whether it is too severe it is necessary to have regard to the circumstances of the relevant offences and to the personal circumstances of the appellant.

5 The Supreme Court indictment contained two counts of aggravated armed robbery. Each robbery was committed on the same unfortunate pharmacist and they were a week apart. In the first count the complainant, who was 60 years of age at the time of the offences, was the owner and operator of a pharmacy. At about 6.30 am on a Sunday in 2004, he arrived to open up for business. While he was bringing in some stock from his van he noticed the appellant standing near the entrance of the shop wearing sunglasses and a cap. The appellant addressed the pharmacist by name and said, "I know you". At that point, the complainant recognised the appellant as someone he had seen at his pharmacy on prior occasions when dealing with a regular customer, Ms Cross. Ms Cross, it appears, was at that time in a relationship with the appellant and attended on a regular basis to obtain her prescribed methadone.

6 The appellant pushed the pharmacist into the dispensary, telling the pharmacist not to stop him. He took hold of a 200-mil bottle of liquid methadone and told the pharmacist he needed more. The pharmacist gave him a one-litre bottle also. The appellant walked out of the pharmacy, saying, "Sorry," as he did so. Throughout the incident the appellant had been armed with a small knife. The pharmacist did not notice that at the time, but, after the appellant had left, he noticed that he was suffering from a small stab wound to the left side of his torso, apparently caused at the time the appellant pushed past him to the dispensary.

7 Just prior to 7 am, exactly a week later, the pharmacist again arrived at his shop to open up. On this occasion, in the light of the previous week's experience, he had arranged for one of his employees to come to work at the same time. The pharmacist unlocked the premises and he and his employee walked in. The employee started making up the till's float for the day. Whilst both of them were occupied at the rear of the shop the appellant walked in the front door. He was wearing a dark-coloured jacket with the hood pulled over his head and dark sunglasses. He was carrying a brown kitchen knife with a 15 to 20-centimetre blade, holding it in his right hand. He asked the pharmacist in an aggressive voice, "Where's the fucking 'done?" The pharmacist turned and started to walk towards the dispensary but the appellant came up behind him and pushed him to the floor, standing over him with the knife in his hand. The pharmacist told his employee that there was a 200-mil bottle of methadone in the sink. She gave that to the appellant, who yelled, "More. I know you've got more." She gave him a one-litre bottle from under the dispensary counter and a further two smaller bottles. He saw some of the till float money in her hand and told her to hand that over too and he also grabbed a small bag containing some change.

8 In relation to these matters, he did not admit his involvement, refused to answer any questions in relation to them and pleaded guilty on the morning of the trial, having apparently decided to do so some few days previously. For those offences his Honour sentenced him to 4 years in respect of the first count and 5 years in respect of the second, structured so as to be partially concurrent with each other.

9 The District Court indictment contained two counts of stealing a motor vehicle and driving recklessly and one of assaulting a public officer. In relation to counts 1 and 2, police positioned an unmarked car in Alma Street, Fremantle, opposite the Fremantle Hospital, and observed the appellant driving what had been reported as a stolen motor vehicle. Having observed him for a little time, the police proceeded slowly to intercept the vehicle because there were numerous pedestrians entering and leaving the hospital who would have been in danger had the appellant chosen to accelerate. As will appear from other matters, police were aware that the appellant had on previous occasions shown a propensity to drive in an extreme way in order to avoid capture.

10 On this occasion, they attempted to block the vehicle's exit into Alma Street from a car park. He accelerated and crashed into the rear passenger side of the police vehicle. A police officer alighted and displayed his identification, telling the appellant not to move. The officer attempted to run around the rear door of the appellant's vehicle in an attempt to get to the driver's side. The appellant, however, heavily accelerated in reverse and the officer was forced to move quickly aside so as not to be run over. The appellant accelerated heavily toward the police vehicle again and manoeuvred around it. The officer managed to run alongside the appellant's vehicle and open the passenger side door. An unrestrained two-year-old girl was in the rear. The appellant struck out more than once at the officer, who was reaching towards him, and accelerated as he did so. The officer was forced to let go. Again, when apprehended later, he declined to be interviewed in relation to that matter.

11 In relation to count 3, police were again conducting surveillance, this time at a pharmacy in Inglewood, having received information that the appellant would be attending there driving a stolen vehicle. The appellant drove around to the rear of a supermarket where a marked police van drove up behind him, activating its emergency lights and siren. A plainclothes police officer in an unmarked police vehicle drove up to the front of the appellant's car but had to swerve hard to avoid a collision as the appellant drove directly at him. The appellant drove at speed out of the car park and turned left into the road.

12 A pursuit ensued during which the appellant threw a Coca Cola can out of the window and drove along a built-up residential street with a speed limit of 50 kilometres an hour at 100 kilometres an hour. Turning into another road he reached a top speed of 120 kilometres an hour, weaving in and out of traffic and then driving along the incorrect side of the road, which caused several oncoming cars to brake hard. He drove along Walcott Street, Mount Lawley at 120 kilometres an hour, again weaving in and out of traffic. The speed limit is, of course, 60 kilometres an hour. He then contravened a red traffic control light at a speed of approximately 120 kilometres an hour, despite the fact that there were pedestrians crossing on the green walk signal. Because of his dangerous driving the pursuit was aborted. Again he declined to answer any questions in relation to those matters.

13 In relation to count 1 he was sentenced to 3 years' imprisonment; in relation to count 2, 18 months' imprisonment; and in relation to count 3 he received 4 years' imprisonment. These terms, too, were made partially concurrent with each other and with those relating to the Supreme Court indictment. The total effective sentence was 8 years' imprisonment in relation to both indictments.

14 Finally, there was a s 32 notice in relation to a variety of summary offences, which were five of stealing, four of driving while legally disentitled, three of criminal damage, three of reckless driving, three of failing to stop when called on, three of failing to stop after a traffic accident, two of failing to report a traffic accident, two of stealing a motor vehicle, one of breach of bail, one of possession of cannabis, one of possession of a smoking utensil and one of giving false details. There was also a breach of a community based order.

15 Although not as serious as the conduct the subject of count 3 on the District Court indictment, the s 32 notice offences included some very bad examples of traffic offending, including contravening red traffic lights, driving at speed towards oncoming traffic, driving onto a footpath, and deliberately driving into other vehicles so as to create an opening which would enable the appellant to escape police. The penalties imposed in relation to these offences ranged from no penalty, through small fines and licence disqualifications, to short periods of imprisonment. All of the periods of imprisonment were concurrent with those already imposed, meaning that there was no effect upon the totality of the 8-year term.

16 So far as the appellant's personal circumstances were concerned, he was a relatively young man, having been born in 1980. His record included offences of dishonesty, a significant number of driving offences, and offences broadly directed to obstructing the course of justice, including the giving of a false name, escaping legal custody, and assault to prevent arrest. He had had a dysfunctional childhood. When he was 14, his father died in a house fire. He was "off the rails", it appears, from a relatively early age. He was, however, working from time to time as a ceiling fixer. It appears that he is still on good terms with an uncle who is able to offer him work in that line. Addiction to alcohol at about 13 years of age, and the later use of cannabis, seem to have given way over the years to an addiction to heroin, morphine and then methadone.

17 He has been previously given a variety of intensive supervision orders, most of which he breached. His Honour observed that none of the sentencing options appear to have had any effect, no doubt because of what his Honour described as the appellant's "raging drug addiction". His Honour had reports before him which canvassed those matters in more detail. However, by the time he came to be sentenced, the appellant had weaned himself off methadone and was drug-free. Although his plea was very late, and so far as the Supreme Court indictment was concerned would appear to have recognised the inevitable (given that the pharmacist had recognised him) his Honour accepted that the pleas of guilty did represent a significant shift in the appellant's outlook.

18 It is not, I think, useful to canvass yet again the well understood sentencing principles which would apply in a case of this kind. Nor is it useful to canvass yet again the principles which govern the review by an appellate court of the discretion of a sentencing Judge. It is plain from his Honour's sentencing remarks that he appreciated the seriousness of the offences of armed robbery, in relation to which general and personal deterrence are considerations of considerable importance. Likewise, he recognised the need to protect the community from driving of the kind deliberately engaged in by the appellant, and the importance of general and personal deterrence in that context also. He recognised that weight must be given to a plea of guilty, and the plea evaluated to determine the extent to which it reflects real remorse and willingness to facilitate the course of justice. His careful appreciation of totality considerations is apparent from the way in which he structured the sentence and the total or partial concurrency of the various terms imposed. No error of principle has been demonstrated. Further, it seems to me that the aggregate sentence cannot be regarded as manifestly excessive. It is severe, and it may be that a somewhat more lenient total would not have been in error. However, I am not persuaded that it is disproportionate to the totality of the appellant's offending, nor that it is so crushing as to destroy any incentive to reform. I would dismiss the appeal.

Forbes v The State of Western Australia [2006] WASCA 164

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Judgment (50 paragraphs)

Forbes v The State of Western Australia [2006] WASCA 164 (4 August 2006)

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Cases Cited (9)